The Federal Housing Administration, hit by increasing mortgage-related losses, is in danger of seeing its reserves fall below the level demanded by Congress, according to government officials, in a development that could raise concerns about whether the agency needs a taxpayer bailout.

In the past two years, the number of loans insured by the FHA has soared and its market share reached 23% in the second quarter, up from 2.7% in 2006, according to Inside Mortgage Finance. FHA-backed loans outstanding totaled $429 billion in fiscal 2008, a number projected to hit $627 billion this year.

Rising defaults have eaten through the FHA’s cushion. Some 7.8% of FHA loans at the end of the second quarter were 90 days late or more, or in foreclosure, according to the Mortgage Bankers Association, a figure roughly equal to the national average for all loans. That is up from 5.4% a year ago.

TWI wrote in January about concerns regarding the FHA and its dwindling insurance portfolio. As we noted then, Washington housing consultant Howard Glaser pointed out that with its larger share of the housing market, the FHA was becoming a $2 trillion company without a risk control officer. If that doesn’t make you nervous, it should.

But the bigger issue for the FHA — and for some other government agencies — is the legacy left by the previous two administrations. Beginning, in fact, with former Vice President Al Gore’s Reinventing Government initiative but expanding with a vengeance and an anti-government fervor during the Bush years, the idea of downsizing government reigned supreme. The FHA, like its parent agency, the Department of Housing and Urban Development, was shunted aside, stripped of many of its powers and personnel, left to languish and demoralized. Now a smaller and weakened FHA is supposed to turn on a dime and save the mortgage market. Little wonder the agency is running into problems.

Here’s how Sheila Crowley, president of the National Low Income Housing Coalition, summed things up in January for TWI:

“When you’ve been operating under a belief system that government is the problem and is not helpful, which has been the direction under the Bush Administration, people get demoralized and that makes it harder to get anything done,” she said. “HUD and the FHA have lost a lot of people and they’ve been neglected over the past eight years. There just aren’t enough people left to do everything the government is asking them to do. It’s a pretty hefty assignment to turn them around.”

The FHA has never had to ask for government help since it began in 1934. That may change, if loan defaults keep growing and the insurance fund shrinks even more. If there’s yet another taxpayer bailout, the government won’t need to look far to find someone to blame.

Critics say that the program works against the banks’ best interests, as the homeowners who most need the program are the riskiest bets.

“If the borrower is really in trouble, [the lenders] probably don’t want to do the modification, because they think there’s a good chance the borrower will redefault, and they will do a lot of work and they won’t collect money,” said Paul Willen, an economist with the Boston Federal Reserve who has studied bank foreclosures and modifications.

“The problem with this is in some deep sense, you can’t penalize the banks for acting in self-interest. It’s a for-profit business.”

But via Calculated Risk, Diana Olick at CNBC gives Bank of America’s view — that it’s holding off on foreclosures in order to modify loans.

Foreclosure sales have been abnormally low since we learned of the pending implementation of the administration’s Making Home Affordable program. From that point, we delayed the initiation of foreclosure proceedings and sales for customers that may eligible for a loan modification under MHA. As a result of this policy, our foreclosure sales in recent months have been as little as half the normal pace we experienced before.

So … which is it? Banks are either refusing to modify loans because they’ll end up losing money on borrowers who will only re-default, or they’re holding off on foreclosing in order to help borrowers who might qualify for a modification. But they can’t be doing both at the same time.

So why are loan modifications really stalled? It looks like the only correct answer might be that we clearly don’t know. The CNN report, however, does include a tidbit that give a little more insight into the problem:

Multiple administration officials insist to CNN that there is adequate oversight of the program and that the Treasury Department has enlisted Freddie Mac to monitor the banks.

A Freddie Mac official, who would speak only on the condition of anonymity because it is acting “at the direction of Treasury,” told CNN that its investigators visit banks, but only after giving the banks’ management notice that they’re coming.

The agency reviews loan documents, but only those that lenders provide. There are no surprise visits, no tape recordings of bank calls to assure quality assurance, and no way to respond to individual homeowner complaints.

So let me amend my earlier statement. We don’t really know why loan modifications aren’t working — and we’re not really trying o figure out why, either.

Image by: Matt Mahurin

Despite the recent good news that U.S. home prices rose 2.9 percent in the second quarter of 2009, it’s too early to call a turnaround for the battered housing sector. Although this modest increase in the S&P/Case-Shiller national home index is the first uptick since 2006, the number of homes worth less than their mortgages has ballooned. This undertow of debt threatens homeowner stability now, and has ramifications for a long-term economic recovery.

Two new studies reveal that the rate of “underwater” mortgages — that is, where the mortgage debt outweighs the current value of the house — is higher than previously believed, and point to further increases in the coming months.

Illustration by: Matt Mahurin

According to real estate data firm Zillow, 23 percent of all single-family homes are saddled with mortgages worth more than the present value. Moody’s Economy.com offers a similar number; according to that company’s research, 24 percent of all homes have underwater mortgages, up from 15 percent a year ago. Additionally, another 8 percent of homeowners, while not technically underwater, have mortgage amounts that cancel out their equity.

This adds up to some 16 million homes, according to Celia Chen, senior director at Moody’s Economy.com. “Home prices have increased in the last month or two but I think it’s too early to call an end to the downturn,” she said.

That not-terribly-optimistic assessment might turn out to be an understatement. Investment bank Deutsche Bank released a report earlier this month saying that 48 percent — nearly half — of all home mortgages in the country will be upside-down by early 2011. According to Deutsche Bank managing director and global head of securitization research Karen Weaver, the historical rate of mortgage defaults has been about 7 percent. “However, that experience is of limited relevance because it’s from a period of much more moderate home price declines and stricter lending standards,” she cautioned in an emailed response to questions. In today’s economy, it’s more realistic to expect up to 20 percent of borrowers to default.

“This is a slow-motion second shoe to drop on the economy,” said Christopher B. Leinberger, a visiting fellow at the Brookings Institution. ” My concern is that it could be the catalyst for a W, or double-dip, recession. Sure, there are some green shoots but there are also these economic depressants that have to be dealt with.”

New research out of Northwestern University shows that even some homeowners who can afford to make their mortgage payments choose instead to default when their homes plummet in value relative to their mortgages. The study, which surveyed homeowners across the country last December and again in March, found that 26 percent of all defaults are what researchers termed “strategic.” Essentially, this means the homeowner actually has the money to pay his or her mortgage and deliberately decides not to. In parts of the country where home prices have lost a significant percentage of their value, these borrowers decide it’s worth the hit on their credit score to walk away from homes that might never again be worth what they paid for them.

According to Northwestern professor Paola Sapienza, one of the authors of the study, even homeowners who said in a survey that they have a moral objection to walking away from a debt change their mind if the ratio of their negative equity balloons. According to her research, when homeowners’ negative equity hits 50 percent — a not uncommon number in certain communities — 17 percent of homeowners will default, even if they can afford their mortgage payments. Since lenders very rarely sue homeowners for defaulting, the consequences for defaulting are generally limited to a battered credit score for a period of years. The danger is that, since each foreclosure drags down the values of surrounding homes, the number of borrowers handing the keys over to their lender could snowball as homeowners watch their neighbors default.

Worse, negative equity creates a ripple effect that extends beyond the affected homeowners. Even among those not trying to sell their homes or in imminent danger of foreclosure, the lack of a financial cushion in the form of home equity puts a damper on consumer spending. “A lot of people were feeling good about their wealth position,” says Economy.com’s Chen. Now that there is no equity, it’s having a negative impact on consumer spending.” Lower consumer spending leads to decreased retail sales, manufacturing slowdowns and, ultimately, job losses or reduced income. This, in turn, can prompt a new round of mortgage defaults, starting the cycle all over again.

This hurts lenders as well as homeowners. Despite the injection of government capital into banks, financial institutions — especially smaller regional or community banks —aren’t out of the woods yet. The TARP Congressional Oversight Panel said in its August report that banks are likely to need billions more in government support. Even with this aggressive intervention, some banks will still fail. Small and medium-sized community banks, especially those centered in areas that have been hard-hit by the real estate downturn, are the most likely victims. “It’s obviously a negative for banks,” said Economy.com’s Celia Chen. “I expect there will be more banks that go under.” Future bank failures will tax the already-strained FDIC. The agency’s most recent quarterly report revealed that its reserve, which it uses to pay depositors when banks fail, is down to $10.4 billion. Last year, the FDIC’s reserve was $45.2 billion.

Even when the economy strengthens and employment increases, negative equity makes it prohibitive, if not impossible, for homeowners to sell their homes. This will hamper an eventual jobs recovery if workers can’t move to where employers need them to be. “It has cause a significant issue in the relocation industry. People are reluctant to move,” said Joe Benevides, chair of Worldwide ERC, a workforce mobility association. “Employers are finding that their first choice candidate is not able to take relocation for financial reasons.” The time frame for relocating an employee, which includes the time needed to sell the worker’s current home, purchase a new one and complete a move had jumped. The process, which used to take between 120 and 180 days, now stretches from 180 days to as much as a year.

There’s no single solution to the problem of burgeoning negative equity, but industry analysts and policy experts say both short- and long-term fixes are necessary. Mortgage loan modifications are still discussed, although existing programs have barely put a dent in the foreclosure crisis. Some critics say this is because modifications so far have targeted interest rates rather than principal balances. Modifications that target principals are a double-edged sword, though; Casey Mulligan, a professor at the University of Chicago’s Booth School of Business, points out that homeowners may be incentivized to stop making payments on their mortgages if they think the threat of foreclosure will force the lender to cut them a deal. Mulligan suggests a simple solution would be to modify all underwater mortgages, although he concedes that this solution probably wouldn’t pass muster with already-beleaguered lenders.

Christopher Leinberger of the Brookings Institution believes some relief could come from public-transit investment. Since many of the most-troubled properties lie in far-flung exurbs of major urban centers, expanded public transit that makes it cheaper and more convenient for people to get to work in the distant city will increase property values. Leinberger says smart urban planning done around these transit hubs will also have a positive effect; in regions where tracts of single-family homes have been replaced by a mix of high-density residential units (such as apartment buildings) and retail space, property values go up and local tax rolls are bolstered by the presence of commercial property.

A major antidote will be the passage of time; many borrowers experiencing low to moderate negative equity will see investment in their homes pay off eventually. Unfortunately, there’s no way to create a fast-acting fix that mimics this effect. “For the most part, we have to let it happen. We needed a correction,” said Deutsche Bank’s Karen Weaver. “And, as we let the crisis play out, shore up the rest of the economy with low rates and government stimulus.”

iStockphoto

Even as the Obama administration presses the lending industry to get more mortgage loans modified, the practice of forcing borrowers to sign away their legal rights in order to get their loans reworked is a tactic that some servicers just won’t give up on.

Waivers requiring borrowers to give up any legal claims related to their mortgages, even in cases where borrowers may be victims of predatory lending, are showing up sporadically in loan modification agreements under the Obama administration’s Making Home Affordable plan, consumer attorneys say. They were stunned to find the legal waivers still being used, despite more than a year of efforts – including calls from lawmakers – to get rid of them.

Illustration by: Matt Mahurin

“It was shocking to see that people are still being asked to waive their legal rights,” said Bruce Dorpalen, national director of housing counseling for ACORN Housing Corp. “I mean, this should be abolished. It’s incredible that it’s still in there.”

The Obama modification plan, launched five months ago as the centerpiece of the administration’s anti-foreclosure efforts, includes financial incentives for servicers to participate, with the government paying $1,000 for each loan they modify, and $1,000 per year for up to three years. The goal is to rework loans with more favorable terms and lower interest rates, and to keep delinquent borrowers or those at risk of default in their homes.

The Treasury Department’s published guidelines for the $75 billion taxpayer-funded program specifically prohibit the waivers. Mortgage giants Fannie Mae and Freddie Mac removed the waivers from their standard loan modification agreements earlier this year. But Diane Thompson, an attorney with the National Consumer Law Center, said she has seen legal waivers resurface in loan modification agreements by Aurora Loan Services, Ocwen Financial Corp., and other firms. She also is getting complaints about waivers in Bank of America agreements.

“The waivers continue to be an issue,” Thompson said.

Complaints about the waivers come just as the Obama administration tries to ramp up loan modifications under its plan, which has gotten off to a slow start. More than 200,000 trial loan modifications have begun under the program’s Home Affordable Modification Program initiative, the Treasury Department said, well short of the initial goal of 3 to 4 million agreements. On Tuesday, top officials from the Treasury Department and the U.S. Department of Housing and Urban Development met with 25 servicers to put pressure on them to complete more loan modifications – something Thompson described as a “come to Jesus” meeting. The administration will begin publicly reporting loan modification progress by individual servicers next month, HUD said in a news release. The government also will develop a “second look” program with Freddie Mac to make sure borrowers aren’t wrongly turned away.

But the re-emergence of the waivers shows how dramatic gestures or public shaming might not be enough. They’re an example of how problems exist deep in the the fine print of loan agreements — something media attention to a high-level meeting of servicers in Washington doesn’t address. The waivers prompt concerns about how carefully the program was put together, and how well Treasury is supervising it. And they raise questions about how effective it can really be, if there are no real consequences or penalties for doing loan modifications improperly, or for not doing enough of them.

Frustration over the program has been growing. Sen. Christopher Dodd (D-Conn) chairman of the Senate Banking Committee, sent a letter to Treasury Secretary Timothy Geithner last week, asking for an investigation into violations in loan modifications, including the waivers. Thompson testified before Dodd’s committee on July 16, providing copies of the waivers found in loan agreements.

Adam Levitin, a Georgetown University law professor and credit expert, said the inclusion of waivers by servicers being paid by the government to complete proper loan modifications is especially galling. It’s not clear how widespread the use of the waivers is. It’s also unknown many servicers are charging the government for loan modifications that include waivers, and how many are simply doing them independently of the government’s program. But it’s also obvious that the waivers aren’t rare exceptions, he said, and that the administration should be looking into them.

“Is Treasury paying money for this?” Levitin said. “If so, it’s like paying a government contractor for performing substandard work. Why are servicers getting millions of dollars for doing loan modifications if they’re not going to do them the right way? We’re relying on the servicers to do the right thing and time after time, they don’t do it. These companies just say one thing in front of Congress and then go and do something else. Treasury should be demanding its money back and handing out some penalties for this.”

The fact that the administrations’ main foreclosure program allows for a slip-up like the waivers also is troubling, he said. Getting loan modifications done “does not seem to be the top priority of this administration,” Levitin said.

Legal waivers in loan modifications have a long history. Until last summer, they were regularly included in loan modification contracts, often buried in a long list of requirements. Borrowers often had no idea they were signing their rights away. The waivers could mean that borrowers would have to give up all legal claims related to their mortgage, not just to the loan modification, even in cases where borrowers signed up for predatory loans they didn’t understand.

In a dramatic confrontation last July, Rep. Barney Frank (D-Mass.), chairman of the House Financial Services Committee, told representatives of Bank of America to get rid of waivers in their agreements. His pronouncement came after Bank of America representatives denied they were using the waivers – and Julia Gordon, senior policy counsel at the Center for Responsible Lending, produced one from her briefcase.

Then, in January, Fannie Mae and Freddie Mac also removed the waivers from their standard streamlined loan modification agreements, following a TWI story about the practice.

Advocates hailed the end of the waivers as a win for borrowers, who would no longer be forced to give up their rights to pursue legal action regarding their mortgages, in order to get a loan modification. As a result, they find the resurfacing of the waivers particularly troubling.

“At this point, it’s this constant whack-a-mole exercise,” Gordon said. “By this time, I would think the issue would have been aired sufficiently that servicers would be aware of this.”

Gordon added that the waivers illustrate that “there’s a lot of sloppiness out there” with regard to the administration’s loan program, which she finds disappointing.

For the program to work, there must be consequences for servicers that include the legal waivers or any other irregularities in their loan modifications, she said. “There shouldn’t be any gray areas here,” she said.

Thompson, of the National Consumer Law Center, said it’s possible that some servicers simply are using outdated forms that still require the waivers. Nonetheless, she said, it’s not in the servicers’ interests to get rid of the waivers in a timely manner – and some clearly aren’t doing so, she said.

Some advocates were particularly surprised to find that Ocwen had used the waivers, considering the servicer has been leading the industry in doing loan modifications. But Paul Koches, general counsel for Ocwen, said his company was just as surprised, and called their inclusion a mistake.

The waivers had been “fairly standard practice” in loan agreements for years, he said. But in late 2008, after meeting with representatives of the National Community Reinvestment Coalition and hearing concerns about the waivers, Ocwen agreed to remove them from all loan modification agreements.

The company assumed all the waivers were gone, until Thompson’s testimony showed otherwise. Ocwen then realized one of its old forms still included the waiver. Ocwen is working to fix the form. Only a handful of borrowers were affected, and they’ll be assured the waivers won’t be enforced, Koches said.

Including legal waivers “is no longer our policy and we will be so notifying the homeowners to whom we mistakenly sent the old version,” he said.

Bank of America stopped using the waivers in September of last year, said spokesperson Jumana Bauwens. She did not know why or how waivers might be showing up in Bank of America loan modifications, and said the bank had not been aware of complaints about them. Bank officials will look into the matter, she said.

Aurora Loan Services could not provide a representative to comment.

Dorpalen, of Acorn, said his staff saw waivers showing up in loan modification agreements in May. Counselors told servicers to take them out before allowing their clients to sign contracts, he said. Since then, the waivers haven’t appeared in loan modifications that his group sees, he said.

Some kinks in launching a new program are to be expected, and the Treasury Department doesn’t have past experience with loan modifications, Levitin noted. But it’s hard to remain patient with the slow pace of the administration’s efforts to slow down foreclosures, he said. At this rate, by the time Treasury gets all the program’s difficulties ironed out, it will be slated to expire.

“I lost patience a year ago,” Levitin said. “At this point, it’s just sad.”

Gordon, of the Center for Responsible Lending, said the waiver mess shows once again how Congress’ failure to approve mortgage cramdown legislation is adversely affecting foreclosure prevention. Allowing bankruptcy judges to modify mortgage loans was the “backstop,” if voluntary loan modification wasn’t enough.

Lenders that opposed cramdown argued that the loan modification program was a better choice, Gordon noted. But so far, loan modifications aren’t keeping pace with foreclosures, and some borrowers already in trouble are unknowingly signing their legal rights away.

The idea has picked up steam in recent months. But the Obama administration proposal offers new details of exactly how it might work, including tackling one of the most vexing consumer problems: figuring out exactly what’s in all that paperwork at real estate closings.

The agency would have broad authority to overhaul a tangled mess of federal regulations, such as the various laws that compel lenders to give mortgage borrowers a massive stack of paperwork at closing that includes several calculations of the true cost of the loan itself.

Another idea: Making it standard practice to offer consumers a 30-year, fixed rate loan — the normal, plain vanilla mortgage. If the borrower wanted a more exotic product, such as an adjustable rate loan, they would have to opt out, signing a waiver saying they were deliberately choosing a non-standard loan.

Based on the leaked draft of the administration’s proposal obtained by The Post, all this must sound great to consumer activists, who have been pushing for more consumer protections for years. But not so fast.

While the idea sounds great on paper, the agency’s effectiveness will be determined by how much power it truly gets. Lobbyists and special interest groups will likely work hard to limit the scope of its authority. And its structure will be crucial, as well — for example, will it have the ability to approve or prohibit products before they hit the market, or will the agency have more limited recall authority, once products are on the market and run into trouble?

How much funding will the agency get? How strong will its political support be? Who will be appointed to the agency — and what interests will they represent?

These are all legitimate questions. Yes, it’s encouraging to consumer advocates to finally see a proposal like this get administration backing. But it’s only beginning. There’s still a long and difficult road ahead before such an agency becomes a reality. And even then, whether such an agency makes a difference to consumers or not will depend in great measure on just how much power Congress and the administration grant it so that it can truly protect consumers.

But his enthusiasm isn’t universal.

Illustration by: Matt Mahurin

Amid the buzz the program has generated over the possibility of jumpstarting the sluggish housing market, some worry that “monetizing” a tax credit – which means providing homebuyers with short-term loans secured by their expected tax refunds, so they can gain quick access to the money – isn’t quite as simple as it sounds.

It could make borrowers vulnerable to the same predatory abuses that plague the Earned Income Tax Credit program, an anti-poverty government effort. That program remains a regular target of tax preparation companies, which partner with banks to aggressively market short-term, high-rate Refund Anticipation Loans secured by the refund. Recipients – the working poor – often fork over as much as one-third of their refunds in charges and fees, in order to get their money a week or two earlier. The loan is repaid when the actual refund arrives.

It’s possible that unscrupulous lenders could launch homebuyer tax-credit programs of their own, profiting from the publicity over HUD’s initiative. It’s not clear if the Federal Housing Administration, which has seen its share of the mortgage market explode from less than three percent to more than 30 percent in the past few years, will have the resources to police the program adequately. And with government the largest source of mortgage money in a tight credit environment, “people are going to try to take advantage of it” through fraud, said Ann Fulmer, of vice president of business relations for Interthinx, a provider to lenders of fraud prevention services.

Beyond all that, some decry the idea of helping people buy homes who can’t come up with downpayment money on their own, calling it the kind of thinking that led to the mortgage crisis in the first place. Congress approved the credit as part of the stimulus package approved in February.

Interest in the downpayment program is so intense that earlier this week, when HUD mistakenly posted a mortgagee letter with guidance for the program on its website, then took the letter down, reports spread in the blogosphere that the program had been killed. A HUD spokesman confirmed the speculation was false and that the program was going ahead as planned.

And so is the controversy.

At Minyanville, a financial information Website, real estate consultant Andrew Jeffery declared that “subprime lending has come roaring back,” noting that a few states already have started similar tax credit programs. Financial recklessness, he said, isn’t coming from Wall Street this time around, but from the government itself. As Jeffery put it, federal and state governments are “in a rush to prop up home prices and delay the ultimate day of reckoning” by insisting on “coercing taxpayers to over-leverage themselves” and take on debt they can’t afford.

Peter Morici, an economist and business professor at the University of Maryland, was equally blunt. “If you can’t save for a downpayment, should you be buying a house? It’s like we’re saying, ‘People who can’t save a cent and who can’t let go of their credit cards should get downpayment assistance.’”

Morici also called the program a “total payoff to builders,” who lobbied heavily for the tax credit.

But others aren’t so quick to criticize. They point out that the government is just trying to balance helping out a housing market desperate for buyers with avoiding the kind of risky lending that created the crisis. Fulmer, of Interthinx, noted that the FHA is working hard to “walk a tightrope” – making sure that moderate income buyers still have a shot at buying homes, given steep new downpayment requirements, while backing responsible and sound lending.

“There are competing goals,” said Brian Chappelle, a former FHA official and founding partner of Potomac Partners, a Washington mortgage industry consulting firm. “They want to stimulate housing and economic activity and they also want the borrower to “have skin in the game.”‘

The downpayment idea has attracted widespread interest, with the Wall Street Journal calling it a possible “game changer” for the moribund housing market. In the end, said Chappelle, “our economic problems trump risk concerns.”

In his speech to the National Association of Realtors, HUD’s Donovan said that “we all want to enable FHA consumers to access the tax credit funds when they close on their home loans so that the cash can be used as a downpayment.” He said the FHA will allow “trusted FHA-approved lenders,” as well as HUD-approved nonprofits, and state and local government entities, to monetize the credit through short-term bridge loans.

HUD spokesman Brian Sullivan said he couldn’t comment further, except to say that the FHA is continuing to work out final details.

The program is expected to mirror efforts already in place in a handful of states, including Missouri, Delaware, New Jersey, Washington, and Pennsylvania. Under those programs, the states offer bridge loans that allow buyers to borrow against their tax credit for down payment and closing costs, then repay it when their tax refunds arrive. If the borrower doesn’t pay, the unpaid loan becomes a lien on the property, at a slightly higher interest rate, which means the borrower faces higher monthly payments over the next decade.

The FHA has run into trouble in the past with down payment programs. Congress last year banned a seller-funded down payment assistance program that led to high default rates on FHA loans. As TWI reported recently, supporters of the banned program, including builders, Realtors, mortgage brokers, and some in Congress, are trying to revive it.

Under the seller funded program, the FHA allowed homeowners to get down payment help from nonprofits or charities funded in part by sellers. But sellers often raised the sales price of a home to cover the cost of the down payment “gift.” The charity or nonprofit that supplied the down payment money was reimbursed by the seller for it, along with service costs and fees, once the deal closed. Borrowers paid for it all, whether they realized it or not. The Internal Revenue Service called the whole thing a scam and revoked the charitable status of seller-funded providers.

Aaron Krowne, founder of the Mortgage Lender Implode-o-Meter, a website that tracks the mortgage industry and is leading a campaign in the blogosphere to block any reinstatement of the seller-funded down payment assistance program, said he doesn’t have the same concerns about the homebuyer tax credit idea.

“It differs significantly from SFDPA (seller funded down payment assistance) in that the seller has no specific inducement to inflate the price, nor is there any third party who earns a fee for laundering a “contribution” from the seller,” he said. “So, in my opinion, it is a bad macroeconomic inducement and is bad policy — but it isn’t criminal and dishonest with likely knock-on effects like SFDPA.”

In addition, the FHA is likely to keep a close watch on the entities it approves to make the short-term loans, and will limit the costs and fees that can be charged, noted Robin Medecke, a researcher at the Mortgage Lender Implode-o-Meter.

Her worries about the program, she said are different.

“Where I would be concerned is the possibility of Fannie and Freddie adopting similar guidelines with limited or no power to dictate or enforce similar restrictions,” she said. “That’s the real as-yet-unopened can of worms, in my opinion, and if it’s further extended to the secondary market, thereby opening up the tax credit advance to private investors, the potential for abuse increases exponentially.”

HUD’s goal in developing the program was to encourage lenders issuing the mortgages to also make the short-term loans to the borrowers, noted Chappelle, the former FHA official. But Chappelle spoke with several small and regional lenders last week, who said they aren’t interested in doing so. Only government agencies and approved nonprofits can issue a lien on the property if the loan goes unpaid, he said.

“While the lender can make the loan, I hear that most won’t do it because it must be unsecured,” Chappelle said. “It can’t be attached to the property. No question some of the tax credit could be abused by entities that will step-in and make these loans.”

Guy Cecala, publisher of Inside Mortgage Finance, which covers the lending industry, agreed, saying an “obvious problem” is that predatory lenders will start marketing similar homebuyer tax refund anticipation programs, “piggy backing on the publicity surrounding the non-profit products authorized by HUD.”

While Donovan referred to “trusted” FHA-approved lenders that will be allowed to participate, Cecala also questioned that assurance. “It gets a little trickier when you bring FHA-approved mortgagees into the mix since that group includes brokers – and probably former subprime lenders,” Cecala said.

Business Week magazine reported last year that subprime lenders with histories of abuses were turning to FHA-backed loans.

The biggest question about the program is whether of the agency has the ability to monitor it for fraud, said Sonia Garrison, a senior researcher with the Center for Responsible Lending. The FHA was downsized over the past decade as it played a smaller role in the mortgage market.

“We’ve got to be able to get the FHA the resources it needs to police the program properly,” she said.

And to draw the fine line between helping the housing market, and keeping a lid on risky lending.

The proposal, still being drafted, is likely to give the Federal Reserve more authority to supervise financial firms deemed too big to fail. The Fed may inherit some SEC functions, with others going to other agencies, the people said. On the table: giving oversight of mutual funds to a bank regulator or a new agency to police consumer-finance products, two people said.

The 75-year-old SEC, chartered to oversee Wall Street and safeguard investors, has seen its reputation tarnished as some lawmakers blamed it for missing the incipient financial crisis and failing to detect Bernard Madoff’s $65 billion Ponzi scheme. Any move to rein in the agency is likely to provoke a battle in Congress, which would need to approve the changes, and draw the ire of union pension funds and other advocates for shareholders.

In addition to the SEC proposal, the Obama administration also is considering creating a regulatory commission with broad authority over consumer financial products such as mortgages and credit cards, according to The Washington Post.

That idea mirrors a proposal of top TARP watchdog Elizabeth Warren, who has long argued for the creation of a Financial Products Safety Commission. The purpose of such a commission would be to provide safeguards so consumers would understand exactly what they were getting into when they signed up for mortgages and credit cards.

As Bloomberg noted, financial regulatory overhaul is likely to spur a tough turf battle, as agencies like the SEC or the Office of Thrift Supervision lose some powers or mergeinto other agencies.  And as TWI has pointed out, Warren has become a lightning rod for right-wing critics, who see her as too biased on behalf of consumers.

The fact that the Obama administration is seriously considering her pet project provides a glimpse of which way those in power already are leaning. Score one for Warren, in the long financial regulatory turf war to come.

Here’s Hungry Hungry Hippos:

While the story that Flint, Michigan, is considering bulldozing entire neighborhoods, blocking them off, and withdrawing city services from them is a sad and stark indicator of what’s happening in cities where the combination of the declining auto industry and the mortgage crisis are causing large population shifts, I’m not sure why Mary Kane thinks federal dollars would help avert it, or even why she thinks averting it is a good idea.

What interest does the federal government have in the city limits of Flint, Michigan?  What interest do we, as a society, have in keeping the residents of Flint, Michigan, living in Flint, Michigan, when their reason for being there is gone?

None, as far as I can tell.

Actually, I’m not talking about averting anything, and I’m sorry to have given that impression. Flint and other cities facing blight and looking to shrink their cities as a result may be going down exactly the right road. And, frankly, they may have little choice. But here’s the hard part: Reclaiming properties, tearing down blighted neighborhoods, reusing land on a large scale, and planning  for reconfiguring a city will take the kind of money many of these hard-hit places don’t have. They’ll need land banks, which are public authorities that can do these sorts of things. And those land banks need major resources and money from the government to reach the kind of capacity that will allow them to handle all this responsibility.

Flint is a leader in the shrinking-city movement because it has the Genesee County Land Bank, which is a model for the rest of the country. But as we’ve written, other communities are only now beginning to plan for land banks, and it can be a lengthy and expensive process to get one up and going. It took almost two years in Cleveland, where the foreclosure and abandonment crisis has been particularly severe. Unless the government gets behind these efforts, it’s like fighting a million-acre forest fire with a pick and a shovel, as housing expert Alan Mallach told us.

Mallach thinks the crisis requires a federal land bank. That may be a long time in coming, if it ever comes at all. Like Flint, other communities may be ready to join the shrinking city movement. But being ready – and having the money to actually make it work – are still two different things.

Those results exceed expectations from analysts, and they sparked a stock market rally early today.

From CNNMoney:

Wells Fargo attributed the latest results to strong performance in its traditional banking and mortgage businesses.

“Our business momentum is strong, and we expect our operating margins to remain at the top of our peer group,” Wells Fargo CEO John Stumpf said in a statement.

The company also said its recent purchase of Wachovia was exceeding expectations. Wells Fargo announced it planned to acquire Wachovia, which was on the verge of collapse during the height of the credit crisis, last October.

Wells Fargo said that since its deal for Wachovia closed earlier this year, customers that had been concerned about Wachovia’s health have been returning. That helped to drive loan and deposit growth.

It’s too early to conclude happy days are here again. Maybe this is just the result of a refinancing frenzy that will eventually slow down. But whatever the reason for the upturn, and regardless of its staying power, simply having a bank predicting a profit constitutes news these days.

A ban on foreclosure sales and evictions from houses owned by mortgage giants Fannie Mae and Freddie Mac, which began as a high-profile effort just before the holidays to keep people in their homes as the government tried to come up with homeowner rescue plans, is over.

Spokesmen for Fannie Mae and Freddie Mac confirmed the ban ended March 31, in a response to an inquiry from TWI. The agencies made a major announcement in November to roll out the ban, garnering headlines and extensive news coverage. Freddie Mac CEO David Moffett issued a statement at the time, saying the ban “provides a new measure of certainty” to families facing foreclosures during the holidays.

Illustration by: Matt Mahurin

But its expiration didn’t seem to merit the same level of fanfare, with some housing advocates caught by surprise, scrambling for information today and Wednesday on listservs and in phone calls.

Danilo Pelletiere, research director for the National Low Income Housing Coalition, said the ban’s eventual expiration wasn’t unexpected – but it also wasn’t clear specifically when it was supposed to end. Some housing attorneys and advocates were confused because they were in the middle of cases that would be affected by the expiration. Fannie and Freddie have repeatedly extended the ban, which was originally expected to expire on Jan. 9.

Fannie Mae said in a brief statement from spokesman Brian Faith that “Fannie Mae’s suspension of foreclosure-related evictions concludes as of March 31, 2009. The company has in place special foreclosure sale requirements that take into account the Making Home Affordable program. A foreclosure sale may not occur on any Fannie Mae loan until the loan servicer verifies that the borrower is ineligible for a Home Affordable Modification and all other foreclosure prevention alternatives have been exhausted.”

Since the ban started, both Fannie and Freddie have developed rental programs to keep tenants from being evicted from foreclosed properties owned by the two agencies.

In addition, the Obama administration in March unveiled its plan to help troubled borrowers either refinance their homes or modify their mortgages.
Housing advocates aren’t exactly cheering about the ban being lifted. But they are hoping the new programs succeed, and plan to keep a close eye on their progress, Pelletiere said.

The lifting of the ban will be a testing ground for the administration’s approach to foreclosures. A bill to allow bankruptcy judges to modify mortgages has stalled in Congress. Money from the Troubled Assets Relief Program has gone to banks and bailout efforts. The ban, enacted as foreclosures soared and the holidays approached, was the government’s first dramatic step to help homeowners. The housing rescue plan was developed and announced only after the Treasury Department first unveiled its plan to buy toxic assets from banks.

“A perpetual moratorium is not a solution to how we do foreclosures in the future,” Pelletiere said. “It’s a holding pattern. We need to break that holding pattern to allow for something else positive to happen.”

Brad German, a spokesman for Freddie Mac, said he was “mystified” as to how anyone could be surprised by the ban’s expiration. The idea behind it was to give the government time to create homeowner rescue plans, and that’s been done, he said. Neither agency also expects a flood of homeowners out on the street because the ban is being lifted, he added.

“For all practical purposes, people will be in their homes for a while,” despite the ban’s expiration, German said. Fannie and Freddie will need time to approach tenants and homeowners and figure out whether they are qualified for help, he said.

Separate programs launched recently by Fannie and Freddie to allow tenants to stay in Real Estate Owned (REO) foreclosed properties owned by the agencies and lease them on a month by month basis at market rents, until they can be sold again, are not affected by the ban’s expiration, German said. Those programs will continue, with no expiration date scheduled. Fannie’s program covers renters of foreclosed properties, while both former owners and renters can qualify for Freddie’s program.

The REO rental programs aim to reach out to those no longer covered by the foreclosure ban and see if they can qualify, German said – which mitigates the effect of the ban being lifted. For example, under Freddie Mac’s program, a homeowner currently facing eviction could stay in his house as a renter until it is sold, if he meets the program’s guidelines.

But with little information to go on today, housing advocates found themselves in confusion and concern over whether the REO program was ending, and whether all renters would be subject to evictions again.

Even when the Fannie and Freddie ban was active, however, it sometimes failed to reach people before they got evicted, said Judith Liben, a senior housing attorney with the Massachusetts Law Reform Institute, a nonprofit legal services advocacy group. Only the District of Columbia and a few states have no-fault eviction laws requiring that a lease survives foreclosure, and that tenants can’t be automatically evicted. And the new REO policy by Fannie and Freddie, while laudable, takes time to reach the neighborhood level, Liben said.

Expanding no-fault eviction laws could be one answer to the problem of renters facing evictions, Liben said. Other states are moving to require more foreclosure notice for tenants.

The vulnerability of tenants to foreclosure evictions, along with falling property values of vacant and foreclosed homes, are prompting Liben and others to question the banking industry’s reluctance so far to move toward allowing people to stay in foreclosed houses and pay rent. Many are hoping the rest of the mortgage industry will follow Fannie and Freddie’s lead in establishing REO rental programs.

“Very few people have reached the stage where they are looking at renters as part of the solution,” Pelletiere said. “There’s almost a resistance to it. Bankers in particular still have this mindset that ‘I need to get those people out and sell the house right away.’ But rental housing really is part of the solution to this crisis.”

An oversupply of housing, combined with a weak economy that often requires people to move to find new jobs – and not tied down to a house they can’t sell – makes renting an especially worthwhile option, Pelletiere added. “Until the economy finds its footing, we don’t want to put pressure on people to settle down,” he said. “In the past we’ve had a very significant bias toward homeownership that has been to the detriment of rental housing. And that has to stop. Housing policy going forward really has to balance out a little more. In the long term, rental housing can be good for communities.”

Problems with bank-owned foreclosed properties that sell for way below market value, for example, could be addressed by keeping renters in the houses.

Community groups last month urged Congress to crack down on the practice of Broker Price Opinions , which are cheaper substitutes for full appraisals and are used to determine a property’s value. BPOs often are performed by real estate agents with minimal training and cost as little as $50, compared to $300 and above for a traditional appraisal. They are increasingly employed by lenders for sales of bank-owned foreclosed properties, known as REOs, or Real Estate Owned properties, and for short sales, in which owners sell their homes for less than they are worth. The bank forgives the difference, and takes a loss.

Using a BPO is illegal in more than 20 states, but the practice has become widespread, said David Berenbaum, executive vice president of the National Community Reinvestment Coalition. The BPOs frequently result in lowball estimates of a property’s value, with lenders using them to unload REOs and short sale properties. Agents who perform BPOs have an inherent conflict of interest, because they are working for lenders who want to quickly dispose of properties. Speculators and other investors scoop them up at the fire sale prices, dragging down property values overall.

“Right now, it’s a race to the bottom,” Berenbaum said. “They’re having a terrible impact on property values.”

Whether or not they use BPOs, banks increasingly are selling off REOs at low prices, even in stronger housing markets. In Temecula, Calif., for example, Citigroup sold a foreclosed house for just $139,000, when comparable houses in the area were going for $240,000 to $260,000, the North County Times reported – meaning the bank left some $100,000 on the table.

In markets where the REOs don’t sell and lenders fail to maintain their properties, other problems persist, with neighborhoods facing a glut of abandoned homes and blight, as TWI has explained. RealtyTrac, an online foreclosure database, predicts a record 1.5 million REOs this year, meaning more trouble ahead.

Given all this, some housing advocates can’t understand why lenders aren’t allowing more former homeowners or current tenants to pay rent and live in foreclosed houses until they can be sold. The new REO rental programs of Fannie Mae and Freddie Mac marked a major step toward that goal. But there’s been no major private industry initiative to move beyond the model of getting owners and tenants out ASAP, Berenbaum noted, despite the obvious benefits of doing so.

“Frankly, if the mortgage industry would allow homeowners facing foreclosure to remain in the properties as tenants, it would stabilize their investments and stabilize the communities,” Berenbaum said.

But bloated REO inventories are proof of how overwhelmed servicers and lenders due to record numbers of foreclosures – and they’ve said repeatedly they don’t want to be in the property management business. They also contend they’re not always the ones responsible for the vacant homes problem. In a magazine published by the Housing Wire mortgage blog, Robert Klein, CEO of Safeguard Properties, a major servicer, put it this way:

“The fact is, as an industry, mortgage servicers spend in excess of $2 billion annually to take care of vacant properties so they don’t become nuisances to neighbors and communities. Unfortunately, servicers who are the ‘good guys’ get lumped in with property flippers and Internet investors whose irresponsible practices have been major contributors to urban blight.”

Despite that blight, lenders and servicers seem to be closing their eyes to the possibility of economic benefits from filling empty houses with renters, said Liben said.
“I think that the mortgage industry and the banking industry are very slow to catch on to why things are different in this particular crisis,” Liben said. “They aren’t even trying to be creative. It’s like “This is the way we’ve always done it. Get people out and sell the house and get new people in and that’s that.’” Or, “We don’t want to be landlords.’” That’s all they ever say. ”

Foreclosed and vacant houses often lose 50 percent of their market value by the time they are sold out of bank REO inventories, Liben said. Those kind of losses should be spurring the industry to at least undertake a cost benefit analysis to figure out whether it might be more financially advantageous to rent out the properties, she said.
“Maybe those properties wouldn’t have declined by 50 percent if they had people in them,” Liben said.

Creating policies to encourage lenders to rent their foreclosed properties remains an uphill battle, said Dean Baker, co-director of the Center for Economic and Policy Research. The mortgage industry just isn’t interested in getting involved in the rental market. And some of the nonprofit development groups that overreached in promoting homeownership during the boom, putting people in houses they couldn’t afford, aren’t taking the lead on initiating rental options, he said.

“They don’t want to own up to what they did,” Baker said. “They’ve pretty much put their heads in the sand.”

Pelletiere, of the National Low Income Housing Coalition, said the rental issue remains a “tense” one for some nonprofits, because of the bitter controversy over whether the Community Reinvestment Act, an anti-redlining law, played a role in the housing crisis. Conservatives have blamed the CRA and poor and minority borrowers for the foreclosure crisis, saying the government forced lenders to make risky mortgages to them to meet CRA requirements.

Nonprofits fought that campaign by pointing out that most subprime loans were made by independent mortgage brokers and firms not covered by the CRA. Nonetheless, the belief persists, and nonprofits are wary of ceding any ground on the issue by changing their focus to promoting renting, Pelletiere said.

For the lending industry, the issue is far less complicated, Liben charged. The savings and loan crisis should have prepared them to better manage their REOs, she said. “They have no excuses,” she said. “They should have seen this coming.”

In the absence of industry initiatives, economists and housing experts have been floating various rental ideas, including allowing a delinquent homeowner to give the property back to the bank, in return for having his credit wiped clean. Rent-to-own programs, in which a portion of rent goes toward a downpayment, also are being revived in some communities with too many foreclosed homes.

But none of those efforts will gain a foothold until the mindset that renters are a detriment to a neighborhood begins to change, Pelletiere said. Or until renting is seen as one of the answers to the problem of foreclosures and vacant homes. For those reasons, he and others will watch closely as Fannie and Freddie run their REO rental programs, and try to keep people in their homes as a ban on foreclosure sales and evictions finally ends.

.