Monday, November 24, 2008

Why Aren't We...

Going after the lenders?

This discrimination is at the core of a number of lawsuits advocates have filed across the country over the last year. Several of the cases focus on a particularly devious practice: Without borrower knowledge, many mortgage brokers received a commission from the lender for persuading a borrower to accept a higher loan interest rate than what the bank was otherwise willing to offer. The lawsuits claim that such commissions were paid more often in loans to African-Americans and Latinos than in loans to whites, revealing, again, that lenders often charged borrowers of color more than their white counterparts. As these suits progress, and the groups suing gain access to lenders' and brokers' records—e-mails, internal memoranda, training materials, and other documents—we are likely to learn more about the practices of the lenders who are the defendants and about the industry in general.

Discriminating lenders were not the only problem with the housing market that courts should now address. Mortgage brokers rushed into poor communities with exotic subprime loans during the early part of this decade, because these communities were underserved by traditional banks. During the height of the market, nearly half of all subprime loans went through a broker, compared with only 28 percent of prime loans. Brokers also dominated loans made to borrowers of color: 64 percent of African-American borrowers used a broker, compared with only 38 percent of white borrowers.

The problem with this wasn't the mortgage brokers per se. It was that many prospective borrowers wrongly assumed that the brokers were working in the borrower's best interest. But in most states, mortgage brokers do not owe any duty to the borrower to find the best possible deal. Many brokers relied on borrowers' ignorance of the mortgage market to pursue higher commissions and other financial perks for themselves. In much of the country, there's no legal remedy for this. But a few states require that brokers avoid conflicts of interest and pursue the best deal for the borrower. These states include California, home to about one-quarter of the mortgages in the United States that are in some stage of foreclosure. The Department of Justice, the state attorney general, legal-services attorneys, volunteer lawyers, and law students should all be poring over California loan documents to smoke out the brokers who violated their legally mandated duties to their clients. If a significant number of loans in California alone could be altered, consistent with the borrowers' abilities to pay, either through litigation or its threat, the federal government wouldn't have to pay as much for a national bailout.

To date, none of the proposed homeowner-rescue plans acknowledges that a significant number of the homeowners who are in distress were the victims of predatory and illegal practices. Opponents of the plans currently on the table raise three serious objections: First, any massive loan rescue would be costly; second, borrowers in good standing might intentionally default on their mortgages to benefit from a bailout; and third, investors holding securities backed by subprime loans will balk at loan modifications that diminish their already depreciated investments and will sue to stop such efforts.

Going after the lawbreakers helps to address these concerns. It would not only lower the cost of the rescue plan by reducing the number of borrowers needing help, it would also direct assistance only to those people who were victims of illegal conduct and insulate the loan modifications from litigation by investors looking to preserve their investments. Investors won't challenge loan restructuring when the underlying loans were made on illegal terms. You don't lend your horse to Jesse James and then sue the stagecoach he robbed to get it back. Investors will have to redirect their fire from the borrowers to the brokers and lenders who did the fancy loan footwork—and perhaps the ratings agencies that blessed it.

There's been a lot of finger-pointing as to who is responsible for the subprime mortgage mess we're in. Democrats, specifically, deserve a very large helping of the blame, since it was their regulations that allowed and encouraged the sorts of lending practices that created this problem.

Borrowers, willing to believe in the Tooth Fairy, deserve another heaping helping of the blame. You can't believe that an interest-only loan is a good investment. I'm sorry, I don't believe that anyone is so ignorant as to not understand such loans on expensive homes are very risky. I think people took these types of loans knowing they would be kicked out in 3-5 years, but at least, they would get to live in a nice home until then.

But then there's the lenders, who were not merely compelled to offer loans to unqualified borrowers. They made the loans knowing they could shuffle them off to Fannie Mae and Freddie Mac and, eventually, the taxpayers. There was little or no risk in these situations, so why shouldn't the lenders make the most ridiculous loans possible? And just as the banks have used the bailout money to buy up other institutions, it's perfectly obvious that some businesses are not going to do the right thing now, just as they didn't do it before. Why aren't we pursuing criminal charges?