Is McCain’s Mortgage Plan Even Legal?

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Asked if his mortgage plan would be “new money or part of the $700 billion” already appropriated by Congress for the Wall Street bailout, McCain said, “part of the $700 billion, new money, if necessary.”

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“Look,” he continued, “in one day they wiped out $1.2 trillion when it dropped 700 points. And I’m not throwing this money around lightly. But if the housing values continue to go down, there’s no floor. There’s no turnaround here. We all know what was the catalyst for this catastrophe. And that was Fannie and Freddie.”

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Folks who are much more savvy on the specifics of the Troubled Asset Relief Program (TARP) wonder whether the government’s $700 billion bailout/rescue program expressly prohibits what John McCain now says he wants to do — and that is to have the government buy distressed mortgages at face value from banks and renegotiate their terms with homeowners.

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They point me to Section 101e of the law, which requires the Secretary of the Treasury to “take such steps as may be necessary to prevent unjust enrichment of financial institutions participating in a program established under this section”

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Here’s the key part…

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… “including by preventing the sale of a troubled asset to the Secretary at a higher price than what the seller paid to purchase the asset.” Any loan that is not held by the originator, and the vast majority loans are not, would fall under this provision.”

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So — if the bank gave you a 100 dollar loan…. and sold it for 80 bucks last year, and it’s trading at 50 dollars now, the law prohibits the government from buying it at $100 — face value — because that would “unjustly enrich” the entity which purchased the mortgage from the bank.

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Under TARP, the government wouldn’t be able to buy it for more than $80… which isn’t face value.

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So if they buy it at face value, wouldn’t they violate the law?