November 30, 2006

A Mortgage Broker’s State of Affairs

By Mish

The following post is an email from Michael J. Dorff, a mortgage broker with Trans World Financial about the state of affairs in Orange County California. Monday evening I will have an update from Mike Morgan to share.

    Mish,

    Here is a synopsis of the mortgage side of things here in Orange County and for that matter California in general.

    What people don’t see, the NAR in particular, is the upcoming train wreck. I am talking about all the sub prime loans for refinances as well as purchases that were taken out 2 to 3 yrs ago and are now all coming due to reset. My guess is that 99% of all sub prime loans are all done on a 2 or 3 yr fixed interest only type program. People thought that it made no sense to take a 30 year fixed loan those homes when the short term rates were a lot lower, but they were all wrong.

    The time bomb is about ready to go off. All of the subprime loans taken out 2 to 3 years ago have margins of at least 5% or higher and usually based on the London LIBOR program. Those loans are starting to reset now at fully indexed rates somewhere in the high 9% to 10% range. When those loans were initiated 2 to 3 years ago, they all had start rates of high 5% to low 6%. As of now, the LIBOR alone stands at 5.388 for the 6 month and 5.336 for the 1 year. Take those LIBOR indexes and add the margins to see what is going to happen.

    Here is a case in point. One of my clients who took out an interest only subprime loan from another lender just received her reset notice. Her current margin is 5.25% and her index for the 6 month LIBOR index is 5.388%. This means her new interest rate will shoot up to 10.638%. Her note states that her first adjustment cannot go higher than 9.2%. So she will be at 9.2% for the next 6 months. With an initial loan balance at $251,000 at 6.2% interest only, she had a monthly payment of $1,296.83. In December her new payment will be $1,924.33 for the following 6 months before it adjusts again. This is a $627.50 jump in monthly payment. She simply can not afford this payment.

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November 26, 2006

Pierce v. NovaStar Mortgage

Pierce v. NovaStar Mortgage: Washington Federal Court Certifies RESPA/TILA Class Action Over Defense Objection That YSP (Yield Spread Premium) Need Not Be Disclosed In Writing

Lawsuit Alleging Violations of Federal Real Estate Settlement Procedures Act (RESPA) and Truth in Lending Act (TILA) Based on Failure to Provide Written Disclosure of YSPs (Yield Spread Premiums) Allowed to Proceed as Class Action


Plaintiffs filed a class action against NovaStar Mortgage alleging violations of Washington’s Consumer Protection Act (CPA) based on the lender’s failure to disclose in writing the payment of yield spread premiums (YSPs) in violation of the federal Real Estate Settlement Procedures Act (RESPA) and Truth in Lending Act (TILA), and Washington’s Consumer Loan Act (CLA). Pierce v. NovaStar Mortgage, Inc., ___ F.Supp.2d ___ (W.D. Wash. October 31, 2006) [Slip Opn., at 1-2]. The district court denied plaintiffs’ first motion to certify a class, agreeing with defense counsel that plaintiffs had not demonstrated numerosity or typicality under Rule 23(a) and had failed to establish the predominance and superiority elements of Rule 23(b). Id., at 2. Defense attorneys opposed class certification largely on the ground that YSPs were not required to be disclosed in writing; the federal court agreed, holding that "verbal disclosures and independent knowledge of the YSP were relevant" in evaluating whether NovaStar violated RESPA, TILA or CLA, id. However, in connection with a renewed motion to certify the lawsuit as a class action, the court rejected that defense argument and granted plaintiffs’ motion.

In considering the renewed motion for class certification, the district court stated that class certification turned on "whether verbal disclosures are legally relevant" to the CPA claims. Slip Opn., at 3. Plaintiffs argued that verbal disclosures were irrelevant because the lender was required to disclose YSPs in writing under the CLA, and because violations of the CLA are per se violations of the CPA. Id., at 2. Defense attorneys argued that the CLA does not require written disclosure of YSPs. Id., at 4. While the federal court found that plaintiffs had not cited any provision of the CLA requiring lenders to disclose YSPs, it determined that this was irrelevant, explaining at page 5:

    Whether NovaStar’s conduct actually violated the CLA is an issue not yet before the Court. At this stage of the proceedings, the plaintiffs have sufficiently alleged a violation of the CLA and demonstrated that the presence of verbal disclosures is arguably irrelevant to determining whether NovaStar violated the CLA.


The district court then turned to RESPA and TILA, because "the CLA also requires adherence to federal and state disclosure requirements." Slip Opn., at 5. The court brushed aside NovaStar’s contention that TILA does not require disclosure of YSPs, stating that "whether NovaStar truly violated TILA is not now before the Court" and that "plaintiffs have sufficiently alleged a TILA violation for purposes of the motion to certify." Id., at 6. Similarly, the federal court found it unnecessary to determine whether any RESPA requirement for written disclosure of YSPs may be satisfied by "verbal notice" to the borrower, explaining that a borrower’s knowledge of a YSP is "arguably irrelevant" to the allegation that failure to provide written disclosure is a per se violation of the CPA. Id.

Finally, NovaStar argued that "the CPA’s causation and injury elements require individualized inquiries" rendering the action unsuitable for class treatment. Slip Opn., at 7. The court disagreed, concluding that the "allegation of injury is sufficient to allow the case to proceed as a class action, and the necessity of determining the fact and extent of the plaintiffs’ injuries does not defeat class certification requirements." Id. The court also held that "proof of reliance" was not required at the class certification stage, so the "causation requirement" does not defeat the motion. Id., at 8.

In light of its reexamination of the necessity for an individualized determination of whether verbal disclosures of YSPs were made to borrowers, the district court concluded that numerosity and typicality were now satisfied, as were the requirements of Rule 23(b). Slip Opn., at 8-10. The court held, however, that "secondary market transactions must be excluded" from the class. Id., at 9.

NOTE: NovaStar also argued that the CLA did not apply to the loans in question. Slip Opn., at 4. The district court rejected this argument because (1) NovaStar failed to provide legal support for its claim, and (2) "[w]hether the CLA governs the plaintiffs’ loans is not an issue before the Court" in that "plaintiffs have sufficiently alleged a violation of the CLA." Id. We believe that the second point, standing alone, fails to support the district court’s ruling because if the loans of the proffered class representatives fall outside the scope of the CLA then plaintiffs would not be adequate class representatives of the putative class. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-626 (1997) (“[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.”).

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November 25, 2006

How the Fed Should Respond to Financial Crisis

William Poole*
President, Federal Reserve Bank of St. Louis

Panel Discussion


Cato Institute - 24th Annual Monetary Conference
Washington, D.C.
Nov. 16, 2006

*I appreciate comments provided by my colleagues at the Federal Reserve Bank of St. Louis, especially Robert H. Rasche, senior vice president and director of research, and William R. Emmons, senior economist.  I take full responsibility for errors.  The views expressed are mine and do not necessarily reflect official positions of the Federal Reserve System.


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Responding to Financial Crises: What Role for the Fed?


I am delighted to return to Cato, an organization with which I feel a natural affinity, especially through Bill Niskanen with whom I served as a member of the Council of Economic Advisers a quarter century ago. That sounds like a long time ago, and I guess it was. However, when it comes to the subject of this panel, I do not think much has changed. The key issue then, as today, is time inconsistency. It seems to make sense in the middle of a financial crisis for someone to bail out a failing firm or firms. However, the inconsistency is that, however sensible a bailout seems in the heat of crisis, bailouts rarely make sense as a standard element of policy. The reason is simple: Firms, expecting aid if they end up in trouble, hold too little capital and take too many risks. As every economist understands, a policy of bailing out failing firms will increase the number of financial crises and the number of bailouts. Along the way, the policy also encourages inefficient risk-management decisions by firms.

In writing the previous paragraph, I at first began by saying, “Everyone knows that a policy of bailouts will increase their number.” But here we are in Washington, and a cursory examination of federal policy proves that not everyone knows. Federal disaster relief policy is exhibit A, but every company, financial or otherwise, knows that if it gets into trouble it is at least worth a major effort to attempt to secure a bailout because there is always a significant probability of success. Given this state of affairs, in place for many decades despite economists’ pleadings, I think the most important issue is not reflected in the title of this panel—what to do in the event of financial crisis—but instead how to avoid financial crisis in the first place.

Before proceeding, I want to emphasize that the views I express here are mine and do not necessarily reflect official positions of the Federal Reserve System. I thank my colleagues at the Federal Reserve Bank of St. Louis for their comments, especially Robert H. Rasche, senior vice president and director of research and William R. Emmons, senior economist. However, I retain full responsibility for errors.

Avoiding Financial Crisis


Deposit insurance and a broader, fuzzy, safety net for financial firms creates an incentive for firms to take too much risk and hold too little capital. That is a fact of life. I believe that we should continue to seek reforms to the deposit insurance system. I am particularly fond of proposals that would establish a formal policy of “haircutting” the insurance coverage to, say, 90 percent of insured liabilities and/or requiring that insured financial institutions issue explicitly uninsured long-term subordinated debt. Such reforms would administer a healthy dose of market discipline to financial firms. But until such reforms are put in place, I do not see any other option than maintaining substantial supervisory oversight of large, systemically important financial institutions. The supervisors need to have the authority to require adequate capital and maintenance of robust risk-management policies in financial firms.

I believe that supervisory oversight is in pretty good shape, with one glaring exception. Government-sponsored enterprises are not adequately capitalized and the supervisory powers of the Office of Federal Housing Enterprise Oversight (OHFEO) are inadequate. I’ll concentrate on the housing GSEs—Fannie Mae and Freddie Mac. This is a topic I’ve addressed several times in the past (Poole, 2003 and 2004) and I’ll not repeat those arguments in any detail here. Although the GSEs are not formally insured by the federal government, the market clearly believes that they are effectively backstopped. As I’ve emphasized before, the Federal Reserve does not have the legal authority to bail out a troubled GSE. The Fed can provide liquidity support through its discount window, but only indirectly through collateralized loans to banks that would then bear the credit risk of making loans to a troubled firm. Under emergency conditions, the Fed does have the authority to make loans directly to a GSE, but the loans must be fully collateralized. The Fed is obviously disinclined to use its emergency powers to lend to firms other than banks; despite numerous financial upsets over the years, the Fed has not used this authority since the 1930s.

Given the obvious moral hazard facing the GSEs, the first best solution would be to turn the GSEs into fully private firms subject to normal market disciplines and with no special connection to the federal government. Absent that step, what supervisory policy actions could reduce the threat they pose to financial stability? The two items of highest priority are, first, that the GSEs’ portfolios should be limited in both scope and scale to assets with a clear public purpose; and, second, capital at the GSEs should be higher—substantially higher. As I have argued before, the capital standards applied to the GSEs are simply inconsistent with the interest rate risks the firms have assumed. It does not make sense for public policy to permit GSEs to hold far less capital than required in large banks given that GSEs have substantially similar or even greater risks than large banks.

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November 20, 2006

White-Collar Mafia

 
U.S. Government studies report that up to 70% percent of home mortgage loans contain errors!

Accounting errors in home mortgage loans can ange from a few hundred dollars to tens of thousands of dollars!

These so-called “errors” are in many circumstances complex and fraudulent accounting schemes that banks and mortgage companies use
to “play with your money” to generate additional cash flow, income and profits!

Most banks and mortgage companies know that you won’t ask how they “calculated” the “payoff” or principal balance figure they quote you!

A well-known bank once charged a customer over $3000.00 per month for five months [over $15,000] of escrow payments when the annualtaxes were only $2,608.28 and monthly P & I payments were only around $790.00!

A well-known mortgage servicer owned by a major Wall Street investment bank refers to its customers as “smucks” in their policy manuals!

• Some banks and mortgage companies have foreclosed or are foreclosing on homes, notes and deeds of trusts they don’t even own or have a right to!

• Well-known banks and mortgage companies in Florida are lying and providing perjured testimony, false affidavits and frivolous pleadings in cases involving mortgage foreclosure to courts in Florida!

• You or your family members and friends may be unknowingly be contributing to these abuses by having investments in your own IRA’s, stocks,
mutual or pension funds that are holding mortgage backed securities that deal with subprime lending!

For the majority of Americans, their home is the largest single asset they will ever own. Home ownership is part of the American Dream. Yet today, many elderly, minority, disabled, disadvantaged and non-English speaking Americans are living the American Nightmare rather than the American Dream. Their dreams of home ownership and financial security are being stripped away by 21st Century loan sharks backed by a new white collar Mafia. Instead of using guns and knives to intimidate and to rob their victims, the new weapons of choice are phones, computers, computer programs the mail and unscrupulous lawyers. These extortionists, con-artists and predators inflict harsher pain, suffering and injury upon their victims than a local loan shark can.

Instead of breaking bones and knees, this new breed of crooks breaks dreams, lives, livelihoods and families. They illegally take away their victim’s homes, ruin their credit, destroy their families and damage their businesses. Often, the scars left by these criminals last years and even a lifetime that takes longer to heal than a broken bone.

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