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IN COMMUNITY AND ECONOMIC DEVELOPMENT
VOLUME 18
NUMBER 3
2008
FEATURES
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COVER STORY
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Earlier this year, the National Community Reinvestment Coalition proposed the establishment of a national Homeownership Emergency Loan Program or HELP Now. This program would authorize the U.S. Treasury to purchase loans in bulk and at steep discounts (equal to their current market values) from securitized pools and apply those discounts to problem loans in order to achieve signicant modications that would ultimately create long-term borrower affordability. The advantage of this program is that loans could be modied, repackaged and resold immediately. In addition to an improved loan modication or re nancing program, four categories of post-foreclosure activity are needed:
ful way is essential. The longer this crisis lingers, the more households will be impacted and the greater the damage will be to housing markets, the nancial system and the economy. To date there has been limited legislative response to address the magnitude and depth of the current foreclosure crisis. The most promising legislation enacted thus far has been an expansion of Federal Housing Administration (FHA) to enable the renancing of up to 400,000 additional loans that likely are heading to foreclosure between 2009 and 2011. While this is a start, it represents a very small portion of existing problem loans. Moreover, for a variety of legislative and administrative reasons, the program is not likely to go into effect fully until early 2009. By that time, more than an additional million households will have gone into foreclosure. And, the recently enacted $700 billion nancial system rescue package remains imprecise about how foreclosures will be addressed.
Improve data on the ownership and availability of foreclosed properties. The rst challenge is to determine the
full extent of the damage likely to occur should there be no additional and meaningful support for borrowers. The housing industry is in need of more robust data specically forecasts on the types, as well as locations, of loans likely to fail over the next 12 to 36 months. This information would be useful for cities to better plan and prepare for the continuing foreclosure crisis.
Develop and implement post-foreclosure damage mitigation and rehabilitation strategies. Nonprots and local
governments also need enhanced initiatives to enable them to coordinate the identication of vacant and abandoned properties. This allows for early intervention and preventive efforts to limit vandalism and crime. Programs are also needed to facilitate the transfer of ownership of foreclosed properties into a housing trust or similar vehicle for renovation and return to affordable housing usage. This intervention is needed in many communities, especially where foreclosures are concentrated. Increasing need for affordable rental housing will also be a challenge for these communities as homeowners losing their properties contribute to a growing rental demand.
also be purged from the housing market through more comprehensive anti-predatory lending legislation. The Federal Reserve Board has issued new Home Owner Equity and Protection Act (HOEPA) regulations pertaining to a broad range of abusive lending practices in the mortgage industry. The rules address almost every aspect of high-cost lending, from underwriting and appraisal practices to product marketing and more. These revisions take an important step forward in providing enhanced consumer protection in the high-cost mortgage market. But there remain a number of ways in which consumers are vulnerable to abusive mortgage lending practices, such as yield-spread premiums. That practice, as well as many others, should be addressed by a strong national anti-predatory lending law that can complement the revised HOEPA regulations.
ment of the Treasury recently released a report that recog nized the need to restructure the nancial regulatory system. The report focuses heavily on the advances in nancial engineering, technological evolution, conicts of interest, overlapping or confusing regulatory oversight or authority, and growth of new international competitor nancial systems. These are all important issues, but the current nancial distress may be due to more fundamental issues, such as poorly regulated markets that allowed reckless lending behavior to permeate the system. Although much of the current nancial crisis results from regional economic downturns and speculative purchases of homes in response to rapidly rising prices, widespread deceptive lending practices fueled, or at least supported, the markets meltdown. Stated otherwise, the basic welfare of the borrowing public was not the paramount focus of regulatory oversight. Failure to acknowledge this issue in the context of nancial system modernization amounts to a reshufing of the chairs on the deck of the ship. And it leaves the ship of nancial regulation vulnerable to further catastrophic events in the future. As Harvard University law professor Elizabeth Warren has artfully stated, consumers had better protection buying a toaster or microwave oven than they had when purchasing the family home.
Inefficient land use patterns artificially drive up the costs of housing and create problems where problems need not exist.
Rethinking the nancial system should begin with the goal of enhancing the economic well-being of the American public. This means helping people, families, communities and the nation build wealth, enhance economic mobility, and ensure the nations economic competitiveness in an increasingly competitive global economy. Regulation of the nancial system should include a measure of how well the system promotes the economic interests of the American publicnot just measure the protability of nancial institutions. This goal should be self-evident, but it is not. We now have millions of problem loans and hundreds of troubled nancial institutions that prove that it is possible for nancial institutions to make extraordinary sums of money (in the short-term) while acting in a manner that is in contravention of the nancial needs of their customers. Financial system modernization cannot afford to ignore this point in the future. As a starting point for an enhanced consumer focus for nancial regulation, nancial regulatory agencies should study more in depth which households are left out of the system, why, and what can be done to bring them into the nancial mainstream of the 21st century. Not everyone has the same potential to participate in the nancial system. But with nearly 10 million unbanked households, it seems more could be done to achieve a more inclusive nancial system. In fact, a recent report by the Center for Financial Services Innovation estimates that there are 40 million under-banked households (those not accessing the full and appropriate range of banking services) in the U.S. Bringing them into the nancial mainstream would enable them to leverage their resources and better engage the housing markets in a more supported and nancially sophisticated manner. Finally, regulation of the nancial system should encourage product innovation, particularly among mortgage products, in a manner that might expand safe and sound homeownership.
Encourage more efcient, lower-cost and environmentally sensitive land-use planning, building codes, construction practices and related practices.
Prior to the foreclosure crisis, the U.S. was suffering from rapidly growing problems that reached from coast to coast. When the current inventory of unsold homes is off the market, those problems will return. Inefcient land-use
patterns articially drive up the costs of housing and create problems where problems need not exist. The silver lining of the recent energy price shock was the wake-up call that our current land-use practices are counterproductive to the public interest. Although energy prices recently have fallen dramatically, as a direct result of fears of a global recession, energy prices will return to unaffordable levels when global economic markets rebound. As a result, federal policies should tie HOME, Community Development Block Grants (CDBG), and other housing subsidiesalong with highway, mass transit and other infrastructure fundsto the way in which communities plan and build in an efcient manner. This would help reduce the need for public subsidies to buy down the rents on unnecessarily over-priced housing. Addressing fundamental weaknesses in land-use regulations with the goal of providing opportunities to produce more housing, encouraging greater reliance on innovative building technologies, determining the benets and costs of alternative green technologies, updating building codes, and streamlining permitting-and-approval processes is the key to leveraging market forces more effectively to meet the housing challenges of the future.
What are the relationships between housing policy and energy, transportation, education and other national programmatic priorities?
ulation? And, based on that response, what are the relationships between housing policy and energy, transportation, education and other national programmatic priorities? Sufce it to say that having a focused discussion on the goals of housing policy would enhance our discussion of ways in which the nancial system can play the most expansive and robust role in its support. Beyond these general macro issues, housing policy should address each segment of the population and their unique shelter challenges. In a recent lecture, Henry Cisneros, former Secretary of the U.S. Department of Housing and Urban Development, suggested that housing can be viewed as a continuum of steps. The lowest step is homelessness, moving next to supportive housing and ultimately a move up to longterm homeownership. Perhaps most powerful about this approach is that by conceiving of housing as a continuum, it encourages policymakers to think of households as moving up a chain of housing successes. This housing
increasing homeownership held by multiple and successive administrations, and an occasionally expressed desire to promote mixed-income housing, there are few, if any, meaningful national objectives against which federal housing programs might be measured. In fact, rather than a policy, we have a range of programs that date back to the Great Depressionmany of which are in need of serious overhaul. The demographic face and age of the population has changed dramatically over the last half century and continues to evolve rapidly. Both of these issues present a host of challenges and opportunities for the nations housing infrastructure. Moreover, energy and other environmental concerns are now major inputs into housing policy considerations issues that were all but completely ignored a half-century ago. These issues raise broad questions such as: What is the role of housing policy in promoting vibrant communities and the economic interests and social well-being of the pop-
staircase can also be used as a tool to examine the federal subsidies provided at each level to determine where the allocation of public resources might be more effectively and appropriately redirected to create upward mobility on the housing continuum.
priority, all combine to undermine progress on this essential national mandate. In response to this continued failure to enforce the law, the National Community Reinvestment Coalition has asked, in Congressional testimony in June of this year, for the establishment of a new cabinet-level agency focused on Civil Rights Enforcement. This agency would be responsible for measuring, monitoring and eliminating all forms of discrimination from our society once and for all. And given the importance of housing to accessing opportunities for social and economic advancement, housing-related laws would be among the new agencys highest priorities. Enforcing the law would immediately open the door for millions of households who are ready and prepared to access improved housing opportunities and for whom the only impediment is illegal discriminatory actions.
legacy of discrimination and its continuation. Failure to eliminate housing discrimination reinforces the economic distress of disenfranchised communities and contributes to continuing severe levels of segregation and its attendant problems of inferior housing options, limited access to quality education, restricted job opportunities, and articially constrained home price appreciation for communities of color. Unfortunately, fully 40 years after the passage of the Fair Housing Act, the laws protecting the rights and interests of minority families in the housing market remain poorly enforced. Today, a conservative estimate by the National Fair Housing Alliance suggests that roughly 3.7 million instances of discrimination occur annually. At the same time, the number of cases brought by federal agencies responsible for fair housing and equal credit oppor tunity enforcement is abysmally low. In fact, for more than a decade community leaders, civil rights proponents and consumer groups have warned about unfair, deceptive and abusive lending practices targeted in communities of color. Yet, those pleas for better lending supervision were not only ignored, but in some cases contradicted by regulatory policy that weakened the ability of states to protect their own citizens from predatory lending. The net result, according to the Center for Responsible Lending, is that the current foreclosure trend could result in more than 10 percent and 8 percent losses in homeownership for African American and Latino households respectively. United for a Fair Economy estimates this loss could translate into a total loss of wealth among minority households of between $164 billion and more than $200 billion. A lack of funding is a major part of the problem of poor regulation. But money is not the only issue. A lack of appropriate coordination among various agencies responsible for enforcing civil rights and equal opportunity, and insufcient political stature at the federal administrative level of government to make elimination of discrimination a national
Conclusion
The future of housing policy demands a systemic approach to the issues. Piecemeal strategies have run their course and will be insufcient to address our severe housing challenges. Success will require that the nancial system better serve the American public. Success will hinge on the extent to which land-use and development practices are better managed to create greater affordable housing opportunities with fewer federal housing resources. Success will require that housing subsidies be allocated in a fair and equitable manner to achieve greater benets by a broader range of households. Success will depend on special programs by local governments and nonprot organizations to address the unique problems created by high foreclosure activityparticularly in distressed communities. And, nally, success demands an end to biased and discriminatory real estate practices that deny minority households a broader range of housing and economic opportunities for reasons unrelated to their nancial ability. This is a tall order to ll, but if we are willing to address the problems we face at a more systemic level, perhaps we may nally see more substantial positive results that are achievable and essential.
For more information about the National Community Reinvestment Coalition visit www.ncrc.org.
OVER THE LAST SEVERAL YEARS, UPSETS IN THE HOME FINANCE MARKET HAVE EXPOSED EXTENSIVE MORTGAGE FRAUD. ALTHOUGH CONSUMERS HAVE BECOME INCREASINGLY AWARE OF THE PROBLEM, OPPORTUNISTS WILL ALWAYS TRY TO STAY A STEP AHEAD BY DEVELOPING NEW WAYS OF PERPETRATING MORTGAGE FRAUD. What is mortgage fraud? The Federal Bureau
of Investigation denes mortgage fraud as any material misstatement, misrepresentation or omission relied upon by an underwriter or lender to fund, purchase or insure a loan. Mortgage fraud schemes range in complexity from misrepresentations by a single borrower concerning income, assets or property occupancy to complex schemes orchestrated by loan ofcers, attorneys, appraisers, title agents, recruiters, straw buyers and others acting in collusion to defraud nancial institutions and private investors of millions of dollars.
case of renancing, cash equity. In this case, the borrower intends to repay the loan but has misrepresented information such as income or assets that otherwise would have caused the loan to be denied. In the past, fraud for housing was typically committed by a borrower acting alone. But in recent years it has increasingly involved industry insiders who conspire to qualify borrowers for loanssometimes without the borrowers knowledge. In fraud for prot, the perpetrators intent is to bilk the mortgage lender of as much money as possible. These fraudsters do not intend to repay the loan. Property values are typically inated to provide as much prot as possible. Industry insiders such as mortgage brokers, appraisers, title companies and loan ofcers collude in this type of fraud, which often involves multiple transactions and borrowers.
Fraud for criminal enterprise uses proceeds from a mortgage fraud scheme to fund criminal activities and to launder money. Prostitution, drug manufacturing, smuggling, terrorism, false document production and counterfeiting are among the crimes that have been underwritten by mortgage fraud. For example in the Atlanta area, straw borrowers were used to purchase residential homes in upscale neighborhoods for the purpose of growing indoor marijuana crops.
phones and mail drops to verify fraudulent employment and income information. Because compensation in the mortgage industry is commission- and fee-based, brokers and other industry participants are motivated to originate and close as many loans as possible to maximize personal income. Relaxed underwriting criteria and low-doc loans reduce the time from loan application to loan closing and enable brokers to generate greater loan volumes. In some instances, industry professionals were driven by personal gain to do whatever was necessary to qualify a borrower for a mortgage. Developers and builders with large inventories of lots and homes that were not selling conspired with individuals in the mortgage industry to move properties. Documents were altered and new documents were created. Borrower misrepresentations concerning employment, income, assets, liabilities, and occupancy were commonplace and often necessary to get a loan approved. Freddie Mac estimates that misrepresentation concerning borrower capacity (employment, income, assets and liabilities) account for more than 50 percent of common misrepresentations. In some instances, the borrower is unaware of these misrepresentations. Other common misrepresentations concerning collateral value, down payment, occupancy and property type make up an estimated 35 percent of common misrepresentations. The remaining misrepresentations involve credit score and identity.
dollars, will never be known. Mortgage fraud assumes many guises. For example, individuals have been lured by the prospect of big returns at the point of sale into nancing construction of homes in developments with slow sales. In a Louisiana scheme just prior to Hurricane Katrina, many individuals colluded to recruit investors to obtain a construction loan while misrepresenting that the properties would be owner-occupied.
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Financial Crimes Enforcement Network (FinCEN), The SAR Activity Review - By the Numbers, Issue 10 - May 2008.
schemes in Operation Malicious Mortgage. From March 1 to June 18, 2008, Operation Malicious Mortgage resulted in 144 mortgage fraud cases cited in every region of the country. At least 406 defendants were charged. The FBI estimates that the various schemes employed in these cases
Although SAR lings are commonly used to measure mortgage fraud and identify states with high rates of mortgage fraud, there are several reasons why SAR data may not be an accurate indicator. Depository institutions are required to le a SAR when fraud is detected or suspected, but ling is not proof that fraud actually occurred. Private mortgage lenders, which account for approximately half of all mortgage originations, are not required to le SARs. In addition, some SAR lings report individual mortgage fraud transactions while other SAR lings report multiple transactions originated, say, by the same employee. The SAR data reported by FinCEN does not take into consideration multiple transactions or the dollar amount of fraudulent mortgage transactions. Are foreclosures a better indicator of mortgage fraud? Like mortgage fraud, foreclosures have always had a presence in the mortgage industry. But mortgage fraud is only one of the reasons for foreclosures. A borrowers ability to meet mortgage obligations can change suddenly due to divorce, unemployment, loss of income due to poor health, medical expenses and a range of situations that have nothing to do with mortgage fraud. Nevertheless, borrowers do face foreclosure as result of mortgage fraud. Law enforcement ofcials report that the full cost
caused approximately $1 billion in losses. U.S. Attorneys Ofces throughout the Feds Sixth District announced indictments from Operation Malicious Mortgage in South Florida, Jacksonville, Fort Myers, Atlanta, Nashville, New Orleans and Jackson.
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