“SEND THEM TO SCHOOL” – TREASURY'S NEW PROGRAM FOR THE MORBIDLY DEBT LADEN AMERICANS

In his remarks today at the CFED Asset Learning Conference, Assistant Secretary for Financial Institutions Michael Barr announced the Treasury Department’s newest attempt at rectifying the past mistakes of the financial consumer. In conjunction with the Financial Literacy and Education Commission, the Treasury has drafted a concept of core financial competencies for individuals. This ‘baseline’ of knowledge appears to be a way that the Treasury believes will bring financial consumers to a better understanding of what they are getting into.

While knowledge and education are a lofty goal, there has to be some understanding of the ability (or inability) of the financial consumer to be receptive to the program. The mistake of the past was that while a consumer was able to qualify for a loosely underwritten mortgage loan did not mean that such consumer should have been a homeowner. Pressure from the then current administration on down to the consumer’s desire to own a home, together with all the intermediaries (mortgage broker, appraiser, home builder, realtor, Wall Street banker/lawyer, etc.) drove the market into the wall with one huge “SPLAT.” Now, the Treasury believes that showing the consumer what he needs to know will somehow avoid this problem in the future.

One flaw with this concept is the fact that Wall Street, specifically the sub-prime mortgage market for which we have to thank as a significant contributor to the current financial hole we are in, will never want an educated consumer. It is the theory of “Caveat Emptor” or "Let the buyer beware" that fueled the current crisis and allowed those in the game to make vast amounts of money. Feeding these consumers easy credit allowed all involved to run this vast financial machine. Educating the consumer will not bring profits. To show the consumer what was being done would be like showing a person what it actually takes to turn a cow into a hamburger. And how many people really want to know what was in their McLoan or how it was made. Most of these lower income financial consumers (the sub-prime borrower) want something that is easy to swallow, tastes good and is cheap. Unfortunately, they are now experiencing the indigestion that comes from consuming so much “Fast Finance.”

Yet, Mr. Barr believes that Treasury, with the establishment of the Consumer Financial Protection Bureau, can become the home economics trainer of the debt overweight consumer. By putting the unbanked and underbanked consumer (again, the sub-prime borrower) on a “dollar watchers diet” and educating them on how to fiscally shape-up, Mr. Barr stated that this will empower American families and create a level playing field for all providers of consumer financial products and services. “We need to empower consumers to make good choices for themselves and their families. We need to recognize that inertia is a powerful part of human decision. Anything that we can do to create an automated aspect to savings decisions has a lasting impact. How choices are framed and ordered can also have big impacts, which requires us to be intentional about the architecture of choice; defaults are ubiquitous and powerful, so choose the default wisely, and people view gain and loss differently, so an assurance of safety can be an attractive draw to save. These are just a few of the lessons that behavioral economics has taught us about human behavior. These and other lessons should be considered wisely to access and asset building efforts.”

But like a gym membership, it only has an effect on those people that commit to the program for a consistent period of time. However, the financial consumers discussed by Mr. Barr were not the type to educate themselves before entering into significant financial arrangements. They just wanted their McLoan - supersized. Now, they are looking for the magic pill (HAMP) to get them “debt thin” again. But like the promises of so many of those diet pills, loan modifications or debt settlements appear to only work for a limited few. So, while this new education program may work to help a few of the morbidly financial obese that commit to the program, it probably will be like the treadmill in the corner of the basement and will not get most of these borrowers off the couch and stop them from eating “credit Cheetos”, once the shelves are restocked.

FHA “QUICKY” REFINANCE PROGRAM STARTS TODAY

September 7, the day after Labor Day this year, and the mortgage market returns from a weekend of hotdogs and back-yard football games to a new “let’s hope this works” program of the FHA.

Back in August, HUD secretary Shaun Donovan talked about the launch of a new "FHA Short Refinance" program. Initially unveiled to the public on August 3 while speaking at the National Association of Real Estate Brokers Conference in Fort Worth, Texas, the plan outlined would provide a new form of refinancing option to underwater homeowners. Eligibility for the new loan would require that the homeowner (i) be underwater but still current on the mortgage and (ii) have a credit score of 500 or better. In addition, once refinanced and insured by the FHA, the new refinanced first lien loan must have a loan-to-value ratio of no more than 97.75% and the borrower’s combined loan-to-value ratio be no more than 115%. Since the new FHA mortgage can only be used to refinance the unpaid principal balance on the first lien, any second lien has to be written down to meet the CLTV requirement.

The biggest hurdle to the program, however, appears to be the requirement that the existing first-lien holder (the securitization trust in most cases) must agree to write down at least 10% of the unpaid principal balance, and it must bring the borrower's combined loan-to-value ratio on that first mortgage to no more than 115%. Servicers will have to look at the “imminent default” provision of the Pooling and Servicing Agreements to allow them to “write down” this principal without fear of investor litigation.

Questions abound as to the practicality of this program. How a borrower that is current, as required by the program, could be deemed to be in imminent default? Since the CLTV requirement is 115%, isn’t it possible that there may be situations that the first lien holder would have to take the 10% write down while the second would not be impacted? What is the value to be used for the LTV and CLTV calculations? Would the new appraisal/value also have to capture any advances that were previously made by the servicer on the loan in order to keep the calculation in balance? How is this write-down deemed allowable in the securitization structure, since it is not technically a “write-down” of the balance of the current loan, but rather a substitution of a new loan with an LTV of 97.75% and probably different terms? Don’t the Pooling and Servicing Agreements limit subsititutions?

The Treasury Department has committed $14 billion in TARP funds for this program. Together with the FHA insurance, these new refinanced loans will have a government guarantee for up to 97.75% of the new home value. It appears at this point, however, that this “quicky” program only applied to non-GSE loans, probably based upon some circular nature if it had. So, not only can the first lien loan to be refinanced not be an FHA loan, it appears that the Treasury has not cleared the GSEs to write-down underwater loans.

According to HUD, it appears that the TARP funds are a way for the servicers of these non-GSE securitization products to support write-downs and write-offs of mortgages and to provide coverage for a share of potential losses on these new loans. Therefore, this program is really a way that the government means to incentivize the servicers to make these refinancings.

So, it looks like we have another “Quick Snap Hail Mary” pass from the quarterbacks in Washington. And while this one looks like it will end up thrown out of bounds, with no receivers in site, it appears that the only “short(s)” in this refinance program are the ones the investors are going to take it in . . .