June 4, 2006

The Fed’s ARM Conspiracy

One of the most vocal proponents of the Chicken Little philosophy of real estate is John R. Talbott, who in 2003 wrote the best selling book The Coming Crash in the Housing Market. His new book Sell Now! The End of the Housing Bubble was published this year and has occasioned a lot of press and a certain amount of hysteria.

Talbott states in his introduction that, at the time he wrote his first book, home values nationally, adjusted for inflation had increased almost 61 percent from 1981 to 2003 and he admits that prices have increased an additional 35 percent since his book went to press.

So those who listened to him last time and followed his advice are probably not terribly thrilled with his visionary skills. Was he wrong the first time, or just a little early? Who knows, still he has some interesting approaches to the issue of the housing bubble - ideas that fly straight in the face of the "soft landing" theories being promoted by those with a dog in the fight like the Federal Reserve, and the National Association of Realtors.

He admits that he has allowed his anger and bitterness to enter his writing style. "I decided," he says, "that these emotions were a very real part of the story… By including these emotions in the narrative, I try to bring the reader closer to the underlying truths in this tale."

And what are the underlying truths? Talbott puts forth a number of candidates, a few of which we will try to explain here and enough data, graphs, and charts to fill a full semester of Econ 101 lectures. Some of his ideas, such as the tax shield he believes is responsible for some of the appreciation starting in 1980, are best read about in their entirety (which are weasel words for "we don’t really understand it either.")

Some of his thoughts, however, are intriguing. First of all, he maintains that the bubble is more of an anomaly than has been commonly believed. While the Conventional Wisdom holds that housing prices always go up, with few historic downward adjustments, Talbot maintains that house prices remained remarkably flat for the 100 years preceding, 1996 if those prices are adjusted for inflation. The only dramatic change was a substantial depression in prices from the end of WWI to the end of WWII.

Housing prices began to rise in the late 1960’s and then took off around 1980, but Talbot maintains that until recently most of this increase was inflation driven. During the period 1980-85 house prices did not even keep up with inflation, rising about 21 percent while the inflation rate was about 30 percent. From 1985-1990 inflation and house price appreciation ran neck-in-neck. In the next five year period ending in 1995 inflation ran slightly behind house price increases, about 18 percent against 20 percent. But in the 1995 to 2000 period house prices rose at a rate nearly double that of inflation and between 2000 and 2005, with inflation fairly well dampened down by federal monetary policy, house prices went nuts, appreciating at around 50 percent nationally as compared to a modest 12-13 percent in overall price increases.

So, if he is correct, then the tremendous price increases of the last ten years amount to not only more of a housing bubble than previously thought, but more of a fragile bubble; one without an awful lot of logic behind it or technicals to support it.

Talbott offers a number of reasons for the increase in home prices.

    * People see great value in their homes or they would not agree to pay the high prices;
    * Prices can only increase in the face of adequate financing;
    * Construction of new homes is restrained by strict zoning limits and/or the availability of land for such construction;
    * Real estate fits very nicely into the "traditional Ponzi-like model of pyramiding profits until the game runs out".

His second point, that prices can only increase in the face of adequate financing, leads to one of his more interesting theories and one that may exemplify the anger and bitterness he confesses to early on; that there was a conspiracy involving the nation’s banks to largely shift interest rate risk from lenders, who traditionally assumed that risk, to homeowners. He states that former Federal Reserve Chairman Alan Greenspan quite deliberately misled the American public about the safety and wisdom of adjustable rate mortgages in pursuit of this goal and that aggressive banks fueled house price increases by progressively lowering lending standards. Further, he faults Congress and government regulators for failing to provide oversight of the banking system and especially of Freddie Mac and Fannie Mae.

His rationale behind this claim will probably strike a chord with many people in today’s political climate. He maintains that, while the Fed chairman is appointed by the President, his actual allegiance is to the 12 regional Federal Reserve Banks which are controlled by the nation’s large commercial banks, and, with interest rates at historic lows, banks were taking on risk with each 30-year fixed rate loan they wrote. By convincing people to take variable rate loans the risk of rising rates shifted to the homeowner. The FDIC, likewise, primarily regulates banks not to benefit consumers but to protect the bank insurance fund into which the banks pay. And Congress, he maintains, is reluctant to insist on greater oversight of the housing industry, banks, and Freddie and Fannie because these are the big contributors that fund their election campaigns.

So, if we accept Talbott’s theory that the hosuing bubble is much larger than most "experts" believe and that all good things must eventually come to an end, what will happen when the situation begins to unravel and where will it all end. Talbott not only paints a pretty detailed picture of the process but actually projects where prices will end up in five to seven years in dozens of metropolitan areas. It is sobering stuff and we will try to briefly summarize his findings in a second article.

Mortgage News Daily





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The Hidden Dangers Of Broker Agreements

As a mortgage broker I come across wholesale broker agreements daily. Of course, all of them are drafted by the lenders attorneys and intended to fully protect them under almost every conceivable circumstance. Who can blame them? They have every right to watch out for their own interests. The problem is that over 90% of mortgage brokers don’t even read those contracts and sign them without understanding the possible consequences, which could potentially destroy their business and drive them in to bankruptcy.

For example almost all broker contracts have an Indemnification clause, which states that broker shall indemnify and hold harmless the lender from any loss or damage incurred by the lender as a result of the broker agreement or any related transactions while the agreement is in place. So what does this mean? Let’s say you lock a rate for your borrower and because of underwriting delays the lender fails to fund the loan within the lock period. If the borrower suffers a loss because the rates have gone up since you locked the rate or penalized by the seller for not closing on time, the borrower would potentially have a claim for damages against the lender. Guess who has to pick up the legal fees if a lawsuit is filed.

Another example is when the lender wants the broker to buy back a loan because of an early payment default. This is a ridiculous term to begin with, since the broker never sold the loan to the lender in the first place. But some contracts have this clause and they enforce it whenever they can.

More often than not, when you ask lenders to modify their contracts they will say it cannot be changed and that everyone has signed the same contract (see the last paragraph of the attached addendum). Reading and negotiating contracts are extremely time consuming and complicated tasks for most of us but if you choose to take the easy route by signing every contract that crosses your desk, chances are you will eventually end up paying a hefty price for it. The easiest way to deal with multiple contracts is to have your own addendum drafted and ask all the lenders to sign it. To give you an idea of what an addendum could look like and what modifications it should contain, I have drafted one and attached it below. Please note that I am not a licensed attorney and this is not legal advice. In fact, the best advice is to seek legal assistance prior to signing any agreement.



Contract Addendum

 
 

This standard contract addendum is an integral part of the broker agreement entered in to by _________________________ (broker) and __________________________________ (lender). Notwithstanding the terms in the Broker Agreement drafted by the lender, the provisions of this addendum are hereby expressly made a part of the Broker Agreement between broker and lender.

Notwithstanding anything to the contrary the terms and provisions of this addendum supersede, govern and control all provisions in the Broker Agreement that may conflict therewith. A facsimile copy of the Broker Agreement or this addendum and any signatures hereon shall be considered for all purposes as originals. This contract and/or addendum may be executed in several counterparts, each of which shall be construed as an original, but all of which shall constitute one instrument.

The parties hereby amend the broker agreement dated ___________________2006, as follows:


  1. Any reference to attorney’s fees to be paid by broker is deleted.

  2. Any reference to broker waiving its statuary/legal rights is deleted.

  3. Any reference to broker indemnifying or holding harmless the lender is deleted.

  4. Broker does not agree to defend the lender for any reason.

  5. Each party shall be responsible for its own defense against all claims, liabilities, and losses and expenses, including reasonable costs, collection expenses and attorney’s fees, which may arise because of the negligence, misconduct or the fault of its agents or employees in the performance of its obligations under this agreement.
  6. It is hereby acknowledged by both parties that broker does not investigate, validate, authenticate or underwrite the loan application/credit packages and their supporting documents provided to broker by prospective borrowers or other third parties. Therefore, broker will not be held liable or accountable for any loss incurred by the lender after the final approval and settlement of the loans submitted to lender by broker. However, broker will in good faith cooperate with lender in detecting/preventing fraudulent activities and/or avoiding the submission of forged documents, while handling and processing the loan applications.

  7. Any reference to broker re-purchasing loans from the lender is deleted.
  8. Any limitations placed on broker soliciting borrowers after the funding of loans by the lender shall not exceed 120 days.

  9. Lender shall hold in confidence and not disclose to any third party without broker’s written consent, all information relating to broker received by lender and/or lenders representatives in connection with this agreement and/or the transactions contemplated herein.
  10. As a material inducement for enticing broker to execute the Broker Agreement, lender hereby expressly states it is offering broker the best contractual terms and conditions the lender has ever offered to any other broker and no other broker has ever obtained less restrictive/onerous or more lenient/preferential terms and conditions  compared to those offered to broker.


 


____________________________________

Broker
 
 
 
 
 
 
____________________________________
 

Lender’s Authorized Officer


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