Predatory pandemonium. (Cover Report: Secondary Market).
AFTER YEARS OF WORKING ON PREDATORY LENDING issues, Donald Lampe, compliance attorney with Womble Carlyle Sandridge & Ricke PLLC, Greensboro, North Carolina, likes to tell a joke that perfectly sums up the industry's frustration with the Georgia Fair Lending Act (GAFLA): Most people in Georgia thought S&P was a cafeteria before GAFLA came along.
Tell that joke to the parents at your kids' next soccer game and you'll most likely get puzzled stares. That is, of course, unless you live in Georgia, where nearly everyone now knows that S&P is Standard & Poor's, the New York-based rating agency that earlier this year refused to rate virtually any mortgage-backed security (MBS) that included a loan originated in Georgia.
With New York--based Moody's Investors Service and Fitch Ratings echoing that decision, some secondary market players fled, some have stayed and many have altered either their product offerings or their terms.
A year from now, you may be able to tell that GAFLA joke in a lot more towns. While Georgia legislators continued to argue over the issue in February, consumer advocates fighting a guerilla war on predatory lenders planned to launch similar legislative missiles in cities, towns and states across the country. Their goal? To create assignee liability that makes secondary market investors financially responsible for predatory lending violations committed by the originators of loans backing their securities.
"It's tough on investors, because they want to ensure that they're not taking on added exposure versus what they're paying for," says Susan Barnes, S&P director. "Issuers don't want to be exposed to credit and legal risks that they can't foresee. Originators and investors can create processes and procedures to ensure that nothing is originated that violates the Act, but it only takes one loan to get through and then, in the case of the existing [GAFLA law], for punitive damages to be imposed on any assignee with no limitation."
Moody's Managing Director Pramila Gupta agrees. "The compliance with Georgia loans is very difficult, because they've got these provisions of net tangible benefit to the borrower, and part of the calculation to APR [annual percentage rate] is points paid to the broker from [any] source," she says. "Given that these loans change hands, it's hard for anyone to capture all the points and fees paid to the broker--to make it foolproof. Then, there's the unlimited liability assignment, which can bring the trust into the lawsuit."
Gupta estimates that Georgia typically produces about 5 percent of the loans backing securities in the MBS market.
At press time, the Georgia legislature was acting on ways to revamp its existing law, including removal of assignee liability. Even if the law is altered, the controversy it has generated is unlikely to end.
"Georgia's law is the toughest fair-lending law in the country. It's the most complex piece of legislation I've seen in all my  years in regulation, and I've seen quite a bit of legislation. There's a lot of gray in here," says David Sorrell, Georgia acting commissioner of banking.
Why are the consumer advocates asking everyone from city council members to state legislators to regulate lenders instead of seeking national legislation?
"From a lobbying point of view, it's easier to get access to state and local officials than it is to get access to national officials," says Kurt Pfotenhauer, Mortgage Bankers Association of America (MBA) senior vice president, government affairs.
The consumer advocacy groups don't see the rating agencies' actions as problematic, nor do they plan to give up on assignee liability. "Some kind of assignee liability has to be maintained, or the protections become meaningless. The ability for lenders to sell the loans on the secondary market becomes a way to avoid liability. What if the original lender goes out of business? Then there's no one if there's no assignee liability," argues Chris Saffert, deputy director of the Financial Justice Center, Brooklyn, New York, led by the Association of Community Organizations for Reform Now (ACORN), which lobbies for low-income consumers.
The rating agencies overreacted when they refused to rate the mortgage-backed securities with Georgia loans, Saffert maintains. "They're definitely influenced by the [mortgage banking] industry. That's who they do business with every day. It was an overreaction to say they wouldn't rate any loan, not just the high-cost loans," he says. Further, the mortgage banking industry tried to use the rating agencies' opinion to get rid of other, unrelated provisions that they didn't like in GAFLA, Saffert says.
And it's not just ACORN pushing for assignee liability extending out to secondary market players. "We still believe that some form of assignee liability is necessary at the state level--in particular, for our members, that there needs to be some form of assignee liability in regard to foreclosure proceedings," says DeCosta Mason, national coordinator for consumer issues for AARP (formerly known as the American Association of Retired Persons). "If a borrower gets a bad loan and they end up in foreclosure as a result of that bad loan, they should be able to raise that bad loan as a defense to that proceeding. What the rating agencies have indicated does suggest that there has to be some limitation on the liability, but it does not suggest that there should be no assignee liability."
A model bill drafted by AARP, the National Consumer Law Center and the Self-Help Credit Union of South Carolina also calls for assignee liability, warns attorney Robert Lotstein, managing partner of Lotstein Buckman LLC, a Washington, D.C., law firm specializing in compliance. "We've explained our position to AARP, but they don't seem to think there's any middle ground," says Neill Fendly, a broker with Camelot Mortgage Inc., Phoenix, and legislative chair of the National Association of Mortgage Brokers (NAMB), McLean, Virginia.
"AARP is well-intended, but they've had the consumer advocates giving them information for so long that they're convinced that America has been raped and pillaged by mortgage banking. We obviously disagree. They think every senior citizen getting a mortgage should have to be counseled [before getting a loan]. A lot of these policies would work well in France," says Fendly. "We've got a long fight in front of us . . . two to three years," he predicts. "AARP has offices in 26 states pushing their proposal."
Georgia is just part of a larger trend in predatory lending laws, says Womble Carlyle Sandridge & Ricke's Lampe, whose specialty is multistate predatory lending law compliance.
"Georgia was the first state that created a benchmark," Lampe says. "New York state and New York City have laws with express assignee liability, and in New Jersey and South Carolina, debates are raging over the extent of assignee liability that belongs in state high-cost laws." According to ACORN, in March New York City Mayor Michael R. Bloomberg asked the Manhattan Supreme Court to rule on the constitutionality of the high-cost ordinance. He was able to persuade the court to delay implementation until the end of March.
The assignee issue will continue to come up because there's a disconnect between the industry and consumer lobbyists, Lampe predicts. "The [consumer] advocates think the rating agencies are Wall Street and not to be trusted. You don't have a lot of depth perception among the advocates," he explains.
What the consumer advocates don't see, Lampe adds, is how unprecedented it is for all three rating agencies to more or less simultaneously agree that a particular state law makes it impossible to rate pools of assets.
"I've never seen it before, and I've been doing securitization work since there has been securitization work," he says.
Who's still standing?
GAFLA hasn't chased everyone out of Georgia. Fannie Mae and Freddie Mac (whose securities aren't rated by the agencies) continue to buy loans and issue securities, as has the Georgia Housing and Finance Authority. Even some subprime lenders have stuck it out. Seattle-based Washington Mutual Inc. subsidiary Long Beach Mortgage, Orange, California, is still doing subprime wholesale in Georgia. And Washington Mutual continues to lend through its branch offices in the state, says Kevin Horn, first vice president of public relations for Washington Mutual Home Loans and Insurance Group, Seattle. "We didn't have to change [our lending criteria], because our guidelines fall within the score of what [GAFLA is] suggesting. We didn't have to alter our ways of doing business to be in compliance," Horn explains.
But plenty of lenders either fled or changed their guidelines substantially. Loretta Salzano, a partner in Franzen and Salzano PC, a Norcross, Georgia, law firm specializing in lending and financial institution work, watched 22 customers leave the state after GAFLA went into effect.
"We feared that lenders would leave the state or limit the availability of credit in Georgia, and the consumer advocates laughed. We've now seen several large national lenders, even before the S&P announcement, either leave Georgia completely or reduce the types of loans they'll make here," Salzano says.
Countrywide Home Loans Inc., Calabasas, California, and its sister company, Full Spectrum Lending Inc., decided to stop doing subprime loans below the $322,700 conforming-loan limit in Georgia.
"That decision is a reflection of what's happening in the secondary market," says Mary Jane Seebach, Countrywide's deputy general counsel. "We don't have an outlet for the loans. The law has a tremendous dampening effect on our ability to operate in the secondary market. The reality of this is that on all Georgia production--not just the high-cost and covered loans--there is assignee liability for any violation of the Fair Lending Act, which also extends to servicing."
Option One Mortgage Corporation, Irvine, California, also changed its wholesale purchase guidelines and stopped making loans subject to GAFLA in January, although it followed GAFLA's rules from the time the law went into effect in October 2002. Option One is doing only jumbos, nonowner-occupied and second-home loans (all of which are not covered by GAFLA), citing "secondary market considerations" as the reason for the changes.
Bob Bregitzer, a broker with Innovative Mortgage Solutions LLC, Norcross, Georgia, says what he's really lost is access to nodocumentation, stated income--type loans.
"Fannie and Freddie lenders haven't changed, but everybody else is a variable. I probably had a mix of 70 percent conforming and 30 percent B/C [before GAFLA], and the 30 percent has come down to zero [after GAFLA]," he estimates. "Lenders like GreenPoint [Mortgage, Novato, California], who would have accepted a 620 credit score for a 10 percent down stated-income [loan] are now at 68o and 10 percent down."
The brokers are the ones bearing the burden in Georgia, Bregitzer argues. "It's our yield spread that gets included [in the high-cost loan calculation]; a servicing-release premium isn't included," Bregitzer points out.
GSEs stay put
Fannie Mae and Freddie Mac continue to purchase loans in Georgia despite GAFLA. "It's our job to provide liquidity nationwide," says William Senhauser, head of operating initiatives for Fannie Mae. "We're trying to go about business as usual until the outcome of the current legislative uncertainty. We're treating compliance with GAFLA as we do all other state requirements. We're doing what we normally do. Files get sent to our national underwriting center in Dallas, and they crack them and look at them one at a time. We place a lot of faith in our lenders' processes. We aren't purchasing any loans that don't comply," he says. Fannie Mae is also looking at every loan that comes in, and it hasn't made any special offers to indemnify investors in its MBSs from GAFLA violations, Senhauser says.
In February, investors hadn't blinked at Fannie Mae's and Freddie Mac's continuation in the market, in part because the government-sponsored enterprises (GSEs) buy prime loans, according to Mike Williams, vice president of legislative affairs for The Bond Market Association, New York.
"I wouldn't say that they've [MBS investors have] shifted in response, primarily because of [the GSEs'] market positions and where they are relative to the loans that are covered [by the statute] in Georgia. I wouldn't say you could detect a noticeable effect on their securities because of this law. People are in a wait-and-see mode," he says.
S&P's Barnes says investors who buy the GSEs' MBSs perceive Fannie Mae and Freddie Mac securities as being backed by the full faith and credit of the government. "That's what people are looking toward. Investors think Fannie [or Freddie] will kick in the money and make them whole if anything happens," she says.
The GSEs are like the cream in the mortgage market Oreo[R] cookie. Sandwiched between investors and consumers, they're in a delicate position when it comes to predatory lending issues.
"They have gotten more involved in the alt-A market," explains Robert Levy, executive director of the Mortgage Bankers Association of New Jersey, Springfield, New Jersey, "so they're looking at loans with credit scores that they wouldn't have looked at years ago. At the same time, there's a lot of pressure on them to generate affordable housing. They're being very cautious about making statements about assignee liability, recognizing that consumer groups see assignee liability as a major component of their bills. It appears the GSEs are very cognizant of the views of both sides, and are reluctant to jump in completely on the assignee liability issue up until now," he says.
Opt me outta here!
Federally chartered thrifts in Georgia caught what looks like a break from GAFLA when the Office of Thrift Supervision (OTS) pointed out in a January opinion letter that Congress gave OTS, and not the states, "the task of determining the best practices for thrift institutions."
But while federally chartered institutions may be exempted, the loans those institutions make may not be, points out Stephen Verdier, lobbyist, director and legislative counsel for America's Community Bankers (ACB), Washington, D.C.
"There's no pre-emptive fairy dust that gets sprinkled on the loan and makes it safe for a secondary market buyer," Verdier says. And while his members typically don't make subprime, high-cost loans, they, too, have lost secondary market outlets in Georgia, Verdier adds.
In March, the U.S. Comptroller of the Currency (OCC) was collecting comments on whether or not to exempt banks from GAFLA. In the meantime, it issued guidance on how to lend to low-income customers in a nonpredatory fashion.
Add these to your list of worries
Even if revisions to GAFLA remove the assignee provision, there's still plenty in the law to make a mortgage banker reach for the TUMS[R].
"There's a lot of consternation about [what the law considers] 'covered home loans,"' says Acting Commissioner of Banking Sorrell. "No other state has this defined APR and point and fees [calculation for determining a covered loan], and that's causing a lot of anxiety in the industry."
The law's reach extends into servicing as well. "Some of the [predatory lending] laws, like the one in Georgia, will slow down the foreclosure process. In Georgia, a borrower can say he did not receive a tangible net benefit,' and can use that as a defense to foreclosure or collection action. This increases costs to lenders," points out Dale Sugimoto, vice president of compliance and internal audit for Option One.
The reasonable, tangible net benefit provision of GAFLA applies to loans refinanced within five years of origination. This anti-flipping provision says loans made within five years of the closing of the new loan must provide a "reasonable, tangible net benefit" to the borrower. But GAFLA doesn't define what that means-and that's not unusual, warns Lotstein of Lotstein Buckman. The idea of reasonable, tangible net benefit has shown up in early and recent predatory lending rules, he says.
"In lots of jurisdictions, it's undefined. In some jurisdictions the regulator is given guidance on what that means. The industry is constantly struggling for certainty, and all of these I-know-it-when-I-see-it type of initiatives are nothing more than invitations to litigation. They backfire on all concerns because the industry has to be conservative in what it does, and what that translates into is fewer products for consumers. I cringe when I see proposals that have these undefined tests," explains Lotstein.
"If an attorney is complaining about our ability to define reasonable, tangible net benefit" answers Sorrell, "I challenge them to show me anyone, anywhere who can do that- because of the cloudiness of the term and the uncertainty of the industry. We issued 100 pages of interpretation."
If the borrower's original loan has special terms, say down payment assistance, GAFLA mandates that the lender must know about those benefits. "Most of our clients haven't been troubled by that part [of GAFLA], but if it were my company, I would be nervous about that," adds attorney Salzano of Franzen and Salzano.
The law also requires lenders to compare the loan's APR with the Fannie Mae/Freddie Mac yield at exactly noon 10 days prior to origination. "If anything happens and closing is delayed, everything has to be redone," says Countrywide's Seebach.
The Bond Market's Williams shares another interesting legal scenario: "If you're an unprincipled borrower-seeing what New York state and Georgia did-what prohibits you from going into a bad situation knowingly and taking advantage of a windfall opportunity? The likelihood of someone doing that is small," he acknowledges, "but the thrust of legislation should be to protect borrowers, not to open doors to someone acting fraudulently."
If consumer advocates meet with continued success in their state-level lobbying campaigns, how might the secondary market environment change? Jason Roth, vice president of development for CompliancEase, Burlingame, California, is betting that prepurchase predatory lending audits--conducted with technology developed by his company--will become an industry standard.
Roth points to 30 new predatory lending bills introduced in the first two months of 2002, by jurisdictions ranging in size from individual cities to the U.S. Congress, as evidence that lenders need a single software program to check predatory lending compliance before the loan is funded. "That's a substantial paradigm shift in the workflow process," he says.
"Georgia was the first red flag that lenders need to adopt some automated solution or pull out of the state entirely. Some compliance officers now call themselves 'avoidance officers.' And it's not just small lenders, it's also big lenders, investors and GSEs," Roth says.
Roth adds that several of his client prospects are considering whether providing a third-party predatory lending audit might enhance the credit quality and improve their execution in the secondary market.
CompliancEase is also checking with insurance companies to see if there's a company willing to write a policy to provide coverage for a predatory lending claim filed against a lender that used the software to vet loans before they're funded.
Secondary market investors also may have to step up their due diligence in response to changes in predatory lending laws, says Lampe. "In the past, Wall Street has hoped they could purchase originated assets without having to do much [due] diligence on the origination side, and as these laws proliferate, that's become less and less easy to do. And if you have to do too much due diligence, the economic assumptions of securitization are doomed," he argues.
All that diligence begs the question of what you'll do once you've found a loan that violates the law. If Fannie Mae's and Freddie Mac's postclosing quality control turns up a violation, they'd ask the lender to repurchase the loan--but would that absolve them of liability? And if you purchase loans from small operators, there may not be much water in the well of their repentance.
"If you do postclosing due diligence and you find 10 percent of your portfolio is affected, what loan broker, with no capitalization, can take back the loan?" Lampe asks.
Countrywide's Seebach also predicts that predatory lending laws could change the landscape somewhat in the secondary market if more laws like GAFLA get enacted in other jurisdictions. "The secondary market will deal with larger lenders who will be more likely to have quality control in those markets, and as the number of those markets multiplies, it becomes harder and harder to ensure the paper you're buying doesn't have some of those violations," she explains.
Others argue that GAFLA will cause very few problems outside the subprime market. "In terms of the larger base, the traditional [prime] secondary market function, it won't have an impact at all," predicts Jim Grashaw, chief executive officer of Strategic Management Consultants, Troy, Michigan.
But it may motivate some brokers to change their corporate structure. "Some versions of [proposed predatory lending legislation] will require more disclosures by brokers. There are brokers who are looking at the idea of becoming [mortgage] bankers to avoid the law. There will be an exodus to net branching," Grashaw predicts.
There's a historical backdrop that's important to view when you examine predatory lending, according to MBA Chief Economist Douglas Duncan. "There were two major sea changes in the mortgage market over the 1990s. One of them was the creation of mortgage products tailored to individual borrower needs and the proliferation of new structures of mortgage products. If you want a one-month adjustable LIBOR [London interbank offered rate] ARM [adjustable-rate mortgage] that's interest-only, you can get it today. You couldn't get it in 1990," he says.
The second big development was the extension of mortgage credit down the credit risk spectrum, the improvement of access to funds from the global capital market and an increase in risk-sharing entities. Some entity is picking up what, on the commercial side, would be the B-piece of the MBS--mortgage insurers, asset-backed investors, reinsurance companies.
"There is a whole list of players who were not in the market or not in the market in the same way 10 years ago. Their presence has allowed for mortgage credit availability down the risk spectrum. That's aided and abetted the move into homeownership for groups who were not credit-worthy enough to make it into the government-insured market," says Duncan.
Against that backdrop, look at the risk profile of the customers served by the companies pulling out of Georgia, Duncan says. A detailed analysis of the market would look at each lender's withdrawal from the market, at how competition was reduced and how prices therefore rose or how customers at the bottom of the credit spectrum were pushed out of the market. "But there's no good empirical evidence, no standard for assessing the evidence," Duncan says.
While there is information on the risk spectrum via data from the asset-backed market, there's no way to measure the movement of portfolio lenders and institutions that, instead of pulling out of a market, simply change their underwriting standards, Duncan adds.
There are two factors that can be measured. First, compliance with a law like GAFLA increases the cost of doing business, especially for multistate lenders, and it can create a hurdle to clear to get into a market. Second, when lenders shy away from a state or jurisdiction, their geographic diversity declines--so they lose a bit of the protection from regional economic declines that diversification brings, Duncan says.
In this corner, the states
To battle the consumer advocates, NAMB plans to spend $1 million in four states (North Carolina, South Carolina, West Virginia and Georgia) and $10 million nationally to lobby legislators on predatory lending. "Once we have our game plan together, we're going to take it national and go into every state introducing legislation," says NAMB's Fendly.
"MBA is actively working with its state organizations to monitor and respond on predatory lending issues," says Steve O'Connor, MBA's vice president for government affairs. "But they're really independent, and on state bills we defer to them."
In some states, mortgage bankers aren't waiting for federal lawmakers to come to the rescue; they're firing pre-emptive strikes against city council members. When the Detroit City Council proposed predatory lending legislation, the Michigan Mortgage Lenders Association (MMLA), Lansing, Michigan, joined with the Michigan Bankers Association, Lansing, Michigan, and other major financial trade associations, and successfully lobbied for state preemption. The Detroit City Council, not having heard about the passage of the state pre-emption, still passed its bill, reports MMLA legislative liaison Murray Brown.
"All the coalition trade associations hung together. They didn't break apart and try to make deals for themselves. As a result, we were successful in passing this legislation," Brown says.
In this corner, the feds
To overcome the patchwork of predatory lending laws coming out of a growing number of smaller jurisdictions and states, MBA and other financial trade associations in Washington will petition Congress to pass a federal law preempting all other predatory lending laws. Will they succeed?
"It's foolish to ever try to predict with any certainty what Congress will or will not do; however, the issues are becoming urgent enough that we have a reasonable chance of persuading Congress to take a serious look at and perhaps pass legislation in this session of the 108th Congress," says Pfotenhauer. Still, while MBA hopes for the best, it is arming itself for a multiyear, multimillion-dollar effort, according to Pfotenhauer.
The model bill favored by consumer advocates will probably include a cap on lender- and third-party fees, a ban on prepayment penalties and other provisions aimed at limiting lenders' income. "What's happened here is that the consumer advocates have gotten greedy and decided loans should be made for next to nothing," says Fendly.
"This bill is an outrageous attack on homeowners and on states' right to protect their homeowners. Were Congress putting serious protections in place, the issue of pre-emption would never arise. This bill would not benefit anyone but predatory lenders, and any talk of compromise with it is absurd," says ACORN National President Maude Hurd.
Lender groups, including MBA, will support the goals of The Responsible Lending Act, introduced by Reps. Bob Ney (R-Ohio) and Ken Lucas (D-Kentucky), says Pfotenhauer. The legislation would OK prepayment penalties of up to four years and offer a more acceptable definition of high-cost loans that doesn't include yield-spread premiums. It would pre-empt local law and remove assignee liability.
MBA won't be headed for Capitol Hill alone on this issue. The major banking trade associations are on board, as is The Bond Market Association, which traditionally does not support federal preemption due to its members' participation in municipal bond markets. The Consumer Bankers Association (CBA), National Home Equity Mortgage Association (NHEMA) and ACB have all issued statements supporting the Ney bill-ACB called it a "reasonably high priority" for lobbying, and CBA said it "significantly advances the fight against predatory lending."
Roy Green, AARP senior legislative representative for financial services, says that his group has just started taking a look at the Ney bill and is also looking at what federal regulators will do in response to GAFLA issues, as well as how the New York and New Jersey bills play out. AARP views the Ney bill as a starting point for discussion. 'There are areas of concern, such as federal preemption," says Green. "In terms of assignee liability, we have learned something from t he Georgia experience. Nobody has the perfect solution.'
Lining up on the other side of the legislative debate is a long list of opponents, including- according to ACORN's Web site-the Center for Community Change, the Center for Responsible Lending, the Consumer Federation of America, the United Auto Workers, the Leadership Conference on Civil Rights, the NAACP, the National Association of Consumer Advocates, the National Community Reinvestment Coalition, the National Consumer Law Center, the National Council of La Raza and U.S. Public Interest Research Group.
"It's going to be a long road," predicts The Bond Market's Williams.
"It's a good thing that it's going to be a long process. There's some misinformation on all sides relative to how the market operates and who's at fault and who should pay. Congress should take its time and figure out what the problems are and what needs to be done, and do a bill that addresses the problem as opposed to taking a shotgun approach," Williams conclude.
In the meantime, nonconforming borrowers in Georgia may be forced to pay the price of the delay.
RELATED ARTICLE: LOANS ADVERSELY AFFECTED BY GAFLA
* Federal Housing Administration (FHA)
* Department of Veterans Affairs (VA)
* Georgia Housing and Finance Authority (GHFA)
* Tax-advantages: car boat RV
* Some bridge loans
* Refis seasoned less than five years
SOURCE: GEORGIA BANKERS ASSOCIATION
Dona DeZube is a freelance writer based in Columbia, Maryland. She can be reached at firstname.lastname@example.org.
|Printer friendly Cite/link Email Feedback|
|Date:||Apr 1, 2003|
|Previous Article:||Calendar of Events.|
|Next Article:||The issue of risk containment. (Cover Report: Secondary Market).|