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Mortgage Banking LawMichigan State University College of LawSummer 2008Professior Eliot SpoonHis background: was securities lawyer.Residential housing finance. Residential mortgage loans.Where does all the money come from to make all these loans? How did the subprimemortgage crisis develop and how to we solve it?Single biggest transaction a consumer makes in their lifetime.In the economy, the amount of mortgages by dollar amount that are made every year hasbeen over $1 trillion.What is Residential Mortgage Banking? (Single Family Mortgages)1-4 family. Anything beyond this is "multi-family."THE PRIMARY MARKET!
Consumer
goes to
Mortgage Broker
(ABC Mortgages), usually a private corporation withvery little capital. In Michigan, you only need a whopping $25,000. Barriers to entry areVERY low.
Mortgage Broker
goes to
Mortgage Banker / Lender
with the Consumer'sinformation, asking what kind of deal they can get. The Banker gives the money to theConsumer. Consumer pays Mortgage Broker a fee.Consumer wants a $100k, 30 year fixedrate mortgage. Consumer puts $10k down.Lets assume that the Mortgage Banker is NOT a
depository institution
. A depositoryinstitution is one that people can go into and deposit money. They don't accept deposits.This is the case in half of the mortgage loans. Where do they get their money? Themortgage lender BORROWS the money from another BANK! Regular commerical banklending to a mortgage bank is called:
Warehouse Lending
. The commercial bank is calledthe Warehouse Bank in this transaction. How much money will the warehouse bank lend thelender? They never lend them 100%. Something less than 100%. This amount that is lessthan 100% is:
the Haircut
. The mortgage banker always gets a haircut. So warehouselender will provide $85k of the 90k the consumer wants. What they get depends on whatkind of loan it is. When the mortgage banker receives the warehouse loan from thewarehouse bank, the warehouse bank does not lend to them on an unsecured basis. Thesecurity is the SAME MORTGAGE LOAN. The loan to the consumer is pledged to thewarehouse bank.The warehouse lender says this is great, but I am not in the business of collecting thismoney for 30 years. The mortgage banker then has to deal with the
Secondary MortgageMarket.
THE SECONDARY MARKETA series of financial related institutions that deal with the mortgage banker. Essentiallybuying the mortgage loans from the mortgage banks.The mortgage bank takes the loan and sells it to any one of a number of 
SecondaryMarket Participants.
Who are they?
Fannie Mae, Freddie Mac, and [Ginnie Mae]
, orprivate companies. Buying it
at par
means they pay 100% of the loan price for the loan.One of these secondary market participants and sends $85k to the warehouse banker, and1
 
$5k to the mortgage banker, effectively buying the entire loan.Mortgage banker makes money from fees, gain on sales, and by servicing the loan.Servicing the loan is that they collect the money from the Consumer. The whole secondarymarket is invisible to the consumer. In most loans, you make a payment called an EscrowPayment, 1/12th of real estate taxes that you own on the property and 1/12th of theinsurance premiums to the Mortgage Banker. Holds this money until taxes and insuranceare due. For doing all this, the Mortgage Banker has to make sure the Consumer pays. If they don't pay, the Mortgage Banker is responsible for suing the Consumer for nonpayment.Typical remedy is
foreclosure
to take title to the house for resale, to pay off the loan. Themortgage bank doesn't own the loan anymore! They are just servicing!
Servicing
is theprocess that the mortgage banker is responsible for collecting and distributing payments.They get a fee called a
Service Fee
, calculated on an annual basis. It's a percentage of theprinciple amount of the loan. Generally computed in
Basis Points
. 1/100th of a percent.0.01%. 100 basis points = 1%. The typical servicing fee is 25 basis point. 1/4 of 1% for theentire loan. $100k loan, is $250 a year. So that makes it more profitable to have as manyloans as possible.The Consumer is making the payments to the mortgage banker.Where do the Secondary Market Players get the money? They take these loans that theyhold, massage and twist them and turn them, and bundle them. They then sell them on the
Capital Market
. Pensions, hedge funds, anyone that has to invest large sums of money arethe ULTIMATE PROVIDERS of the funds. Mortgage rates that the consumer gets are for themost part what the investors in the capital markets are willing to buy, and what interestrates are attracted to them. Interest rates flow backwards. The amount of outstandingmortgage loans is over $11 trillion. There is no other part of the economy that there is thislevel. So if something goes haywire in the system, on the very macro level, how it caneffect everything else. THERE IS SO MUCH FRIGGING MONEY INVOLVED.----
Conventional loan
is NOT a government loan.
Government Loan:
two principle types.
FHA insured loan
. It's a loan that you pay an insurance premium to the government,and the government insures the lender that they will get their money even if youdefault. Lets lenders lend to people they otherwise would be skittish of lending to.
VA Guaranteed Loan:
guaranteed to a veteran and his family. Similar to FHA, but adifferent guarantee. Makes it easy for them to get loans.
Conforming Loan:
essentially a loan that conforms to the requirements of Fannie Mae andFreddie Mac. If they will buy it, it is deemed to be a conforming loan. Whether or not it is aconforming loan has a LARGE impact on how the capital market will react. In general, aconforming loan is one that is no greater than $417k. Conforms to the underwritingrequirements. The credit of the underlying consumer has to be good enough. This is calledcredit underlay. Also a property underlay. Have to meet all three to be conforming.
Jumbo Loan:
a loan that is greater than $417k. Historically, with good credit, Jumbo Loanshave been 1/4% higher than conforming loans. More recently, they have been 1% higherthan conforming loans.
Subprime Loan:
A loan made to an individual with credit difficulties. For some purposesdefined in relationship to a person's credit score. Significantly higher interest rates.----2
 
5/14/08
TABLE FUNDING
-
WHOLESALERS
Another typical scenario is that the first person the consumer comes in contract with is notthe Mortgage Broker, but is a
Mortgage Banker#1
. When the loan is made and theconsumer signs the primary documents:
1.Mortgage Note
- they promise to repay the money loaned to them
2. Mortgage Document
- creates the lien in favor of the mortgage banker on the propertyIn this scenario, the note and mortgage are payable to Mortgage Banker #1. This isdifferent than using a Broker because the Broker's name is never on anything. There aredifferent responsibilities and liabilities depending on WHOSE name is on these documents.Who acts or operates as a Mortgage Broker or Mortgage Banker.If Mortgage Banker #1 closes the mortgage in their name, and immediately assigns it toMortgage Banker #2, #1 gets the money to make the loan from #2. #2 gets the moneyfrom the Warehouse Bank. This process is called
Table Funding.
Mortgage Banker #1 isfully funded at the table at the time of the closing.CountryWide's description of their business describes this as their "Wholesale Division."They Table Fund mortgage bankers. Mortgage Bank #2 is the
Wholesaler
.
DEPOSITORY INSTITUTIONS
Another typical scenario: When we're dealing with a depository institution. They havespecial charters. You can be a state chartered bank, credit/loan, credit union... or you canbe a federally chartered one.
Consumer
is dealing with
ABC Bank.
What changes? The source of money that the lenderuses to make loans.Sources for ABC Bank:Capital - very specific requirements for reserve.Deposits - deposits that the bank receives from customers. (a key source thatmortgage banks don't have)In 1982, mortgage rates were extremely high because they had to give high deposit ratesout. Banks thought that Adjustable Rates would be good for mortgages too, so they couldtrack deposit rates.Another idea was that they should sell mortgages to the secondary market. They got theincome immediately, but if they didn't match their income with their expenses this is called
Interest Rate Risk
. If the rates moved in the wrong direction, the banks that kept theloans had this risk. e.g. they have a 7% mortgage but have to pay out 12% on depositaccounts. Also, they have
Credit Risk
, if the customer didn't pay the mortgage. A largepart of the depository institutions were burned in the 80's by holding onto these loans. Sothe Depository Banks thought they should act like the Mortgage Banks and sell these thingsoff.The
Federal Home Loan Banks
,provide there is liquidity for the banks to make the loans.They operate as a form of a Warehouse Bank for the depository institutions. The amount of money here stands at $1 trillion.
SECONDARY MARKETS
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