Mortgage Banking & Consumer Credit Alert
September 2008
Author:
Laurence E. Platt
+1.202.778.9034
larry.platt@klgates.com
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Must HOPE for Homeowners Mean Losses for
Lien Holders?
Thirty days and counting! By law, the new HOPE for Homeowners Program (the
“HOPE Program”) should be ready to go on October 1, 2008. Pursuant to the HOPE
for Homeowners Act of 2008 (the “Act”), Congress has authorized the Secretary of
the Department of Housing and Urban Development acting by and through the Federal
Housing Administration (“HUD” or “FHA”) to insure eligible 30-year, fixed-rate residential
mortgage loans with aggregate original principal balances of $300 billion. The purpose
is to refinance existing loans made before January 1, 2008 to distressed, owner-occupant
borrowers in order to avoid foreclosure and support long-term sustainable homeownership.
The goal is to convince existing lien holders that they are better off accepting a short payoff
rather than foreclosing on the home. Despite its laudatory goals, many industry questions
remain regarding the feasibility and viability of the Act.
The purpose of this Alert is to highlight many of the questions that industry participants
are asking about the HOPE Program, as follows:
• Will existing lien holders accept short payoffs?
• Is the HOPE Program really voluntary?
• Will subordinate lien holders cooperate?
• Will loan holders sue servicers that accept short payoffs?
• Will borrowers “game the system” to obtain a write-down?
• Is the October 1st effective date realistic?
• Will FHA reallocate the risk of loss to refinancing lenders and their investors?
The answers to these questions likely will determine the ultimate success of the HOPE
Program. Simply put, the questions break down to whether FHA can implement the HOPE
Program on an expedited timetable; if so, whether the industry will participate; and, if so,
will FHA punish them for doing so? We address these questions below.
Will Senior Lien Holders Agree to Write Down Their Loans to Qualify for
a HOPE Refinancing?
FHA-insured loans under the HOPE Program cannot exceed a two-part statutory formula.
The first part is based on the applicant’s reasonable ability to make his or her mortgage
payment based on underwriting standards to be promulgated--your basic “reasonable ability
to repay” requirement predicated on documented and verified income of the borrower. The
second part is that the original principal amount cannot exceed 90% of the then-current
appraised value of the improved real property to which the newly insured mortgage relates.
If an existing mortgagee elects to participate in the HOPE Program, it must accept the
proceeds from the insured refinancing and waive all prepayment and default related fees
in full satisfaction of the outstanding debt. In addition, an up-front mortgage insurance
Mortgage Banking & Consumer Credit Alert
premium in the amount of 3% is due and payable to
FHA, which the existing lien holder must fund out
of further write-downs of the refinanced debt. Any
subsequent appreciation that might be realized on the
sale or refinancing of the mortgaged property is split
between the mortgagor and the FHA on a five-year
declining scale, so the FHA gets the potential upside
and the existing lien holders have to walk away with
immediate losses. Why would a lien holder accept
such a proposition?
Unless it feels coerced to cooperate, a lien holder in all
likelihood would agree to participate only if it believes
that accepting the refinance proceeds would maximize
its return (or minimize its losses). Lien holders
routinely engage in the cold calculus of comparing the
costs of foreclosure and disposition of the related REO
to less drastic loss mitigation alternatives. Servicers
evaluate a hierarchy or “waterfall” of options from the
least costly to the most costly and from temporary to
permanent. And, after implementing a particular loss
mitigation strategy, there always is the risk that the
mortgagor of a modified mortgage will default again.
In a time of materially declining property values,
economic uncertainty and tight credit, many holders
may choose to take the reduced cash today to eliminate
the risk of even less cash tomorrow.
Contrast this approach, however, with the recently
announced loan modification plans of the Federal
Deposit Insurance Corporation (“FDIC”) as conservator
for IndyMac Federal Bank, FSB (“IndyMac Federal”).
Its proposed modification program involves a range of
options including reductions in interest rates, extensions
of loan terms and temporary forbearance of principal.
The FDIC reserves any upside potential for itself either
as note holder or for its clients as loan servicer. By
keeping the loan on the books, the FDIC retains the
potential to be repaid any deferred principal as a result
of any future appreciation in the property value. The
FDIC made clear that any offer to modify a loan will
be conditioned on a determination that the modification
“will achieve an improved value for IndyMac Federal
or for investors in securitized or whole loans” and that
any “modification offers will be provided consistent
with agreements governing servicing for loans serviced
by IndyMac Federal for others.” IndyMac Federal
borrowers are not guaranteed a modification by FDIC
under its announced program.
In other words, while the HOPE Program bases a
borrower’s eligibility for an insured refinancing on
the borrower’s ability to repay and the property’s
current fair market value, those factors are only part
of the algebraic equation. A loan holder must compare
those two data elements with a prediction of what
will maximize the net present value of the existing
mortgage. If the holder can reduce the size of its loss
through a temporary modification or foreclosure, it
instead is likely to pursue those alternatives, unless
thwarted by governmental action.
Is the HOPE Program Really Voluntary?
Under the title “Voluntary Program,” Section 257(e)
(4)(c) of the Act makes clear that its provisions
“may not be construed to require any holder of any
exi s ting mortgage to participate in the program
under this section generally, or with respect to any
particular loan.” Section 257(u) repeats and expands
on this provision, saying that “This Section shall not
be construed to require that any approved financial
institution or mortgagee participate in any activity
authorized under this section, including any activity
related to the refinancing of an eligible mortgage.” The
plain meaning of these sections is that an existing lien
holder may agree on a voluntary basis to extinguish the
existing indebtedness in exchange for the proceeds from
a new FHA refinancing loan, but it is not compelled
to do so.
It is hard to square this statutory provision with the
words and actions of certain Congresspersons after the
enactment of the Act. On August 5th, House Financial
Services Committee members Maxine Waters, Mel
Watt, Brad Miller and the Committee’s chairman,
Barney Frank, wrote letters to several major servicers,
strongly urging them to hold off on foreclosures for
potentially qualified homeowners for the next several
months while a new FHA rescue program gets under
way. The letters asked the recipients to provide
answers to three questions by August 31st:
• Will you be using the next few months to review
loan documents, contact borrowers and forbear
foreclosure for those that may qualify?
• Do you anticipate making the principal reductions
necessary to qualify for refinancing at-risk
borrowers into the HOPE Program?
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Mortgage Banking & Consumer Credit Alert
• Do your servicing practices provide that a previous
loan modification would not disqualify a borrower
from the principal modifications required by the
HOPE Program?
The letter noted that the Chairman would schedule a
follow-up hearing in September to gauge compliance
with this request. Whether the word “voluntary” will
be construed to mean “mandatory” is something to
watch. At the same time, as the recently announced
FDIC loan modification program evidences, there
are a range of options between foreclosure and
participation in the HOPE Program. A loan holder
or servicer does not need to accept a short payoff
both to protect its interests and to provide reasonable
alternatives to foreclosure to the borrower. If a servicer
is asked at a congressional hearing why it did not
impose a moratorium on foreclosures pending the
implementation of the HOPE Program, it can answer
that voluntary participation is not required to achieve
the underlying goals of the HOPE Program; time will
tell whether that answer will satisfy Congress, despite
the plain meaning of the enacted statute.
Will Second Lien Holders Cooperate?
By all accounts, servicers of first lien loans cannot
finalize comprehensive loss mitigation without the
support of subordinate lien holders. A first lien holder
may agree to a substantial loan modification in order to
avoid foreclosure and keep a borrower in the house. If
a subordinate lien holder declines to participate because
it feels that it is giving up too much, the home retention
strategy will not succeed. Section 257(e)(4)(A) of
the Act seeks to address this problem by delegating
authority to the Secretary of the Treasury, subject to
certain limitations, to take such action “as may be
necessary or appropriate to facilitate coordination
and agreement” between first and subordinate lien
holders that would be refinanced with a new FHA loan.
The highlighted phrase is not defined in the Act, and
one has to ask what the verb “facilitate” means in this
context. The term is not synonymous with “require,”
and there would be serious constitutional issues if one
were to read the term this broadly.
So then what does it mean to “facilitate”? Is a
second lien holder acting irrationally if it elects to
withhold consent to a loan modification that it believes
does not maximize value? Perhaps the Secretary’s
involvement would influence subordinate lien holders
to deliberate more quickly and refine the development
and implementation of a uniform methodology to
inform their judgments. Regardless of the lien priority,
however, the lien holder must believe that the proceeds
to be realized from a FHA refinancing are the best it
will do.
Will Lien Holders Sue Servicers who
Participate in the HOPE Program?
It is anticipated that huge write-downs will be required
of loan holders that accept FHA insured loan proceeds
to pay off a borrower’s existing mortgage indebtedness.
Many servicing agreements impose explicit standards
by which the servicer may exercise its delegation
of authority to modify delinquent loans, such as a
requirement to act in the best interests of the holders or
not to act in a manner that is materially adverse to the
interests of the holders. In a securitization with various
classes of investors, there have been issues regarding
the reconciliation of potentially conflicting interests
among investors of different classes. Congress sought
to assuage the concerns of servicers that fear that
participation in the HOPE Program might set them up
for contract and tort claims by disgruntled investors
claiming that they were net worse off with the proceeds
of a FHA insured loan.
The Act adds a new Section 129A to the Truth In
Lending Act called “Fiduciary Duty of Servicers of
Pooled Residential Mortgages.” The title is misleading
because the provisions of the new section do not
seek to impose a fiduciary or any other duty on loan
servicers. Rather, the new provisions seek to provide
a federal statutory rule of construction of a clause in
an “investment contract” between two private parties-the loan servicer and an investor. Although the term is
not defined, we assume that an “investment contract”
is intended to mean a loan servicing agreement.
Specifically, if an investment contract imposes a duty
on the servicer “to maximize the net present value of
the pooled mortgage” to an investor, the phrase is to
be interpreted to mean that the duty is owed “to all
investors and parties having a direct or indirect interest
in such investment, not to any individual party or
group of parties.” Note, again, the provision assumes
that a duty exists in the applicable contract; it does not
impose any such duty.
In addition, the new section seeks to interpret private
contractual provisions obligating the servicer “to act
in the best interests of such investors and parties.”
It provides that a servicer shall be deemed to have
September 2008 | 3
Mortgage Banking & Consumer Credit Alert
acted in the best interests of the investors if it agrees
to or implements a modification or workout plan that
meets certain enumerated criteria. It references a
modification or refinancing under the HOPE Program as
an illustrative example of a plan that would be eligible
for this interpretation. A servicer would qualify for
this federal statutory rule of construction of a private
contract if: (i) the modified mortgage is in default or
default is reasonably foreseeable; (ii) the mortgagor
is occupying the property securing the mortgage; and
(iii) the anticipated recovery under the plan “exceeds,
on a net present value basis, the anticipated recovery
on the principal outstanding obligation of the mortgage
through foreclosure.”
In both cases, the federal interpretation applies only if
the investment contract in question does not establish
a different standard. In other words, a servicer does
not qualify for the benefit of the federal statutory rule
of construction if the applicable servicing agreement
imposes its own standards and foreclosure would be
a less costly loss mitigation alternative for the loan
holder. Unlike earlier draft versions of this statutory
provision, this new section does not insulate servicers
against law suits by investors; it merely provides a
federal interpretation of the private contract clauses
that might be in dispute if an investor were to bring
such a suit. Thus, notwithstanding the pressure on
servicers to participate in the HOPE Program, servicers
should take little comfort from this new provision if
they fail either to follow the express provision of their
servicing agreement or to analyze the relative merits of
an FHA insured refinancing versus foreclosure.
Will Current Borrowers Default in Order to
Obtain a Principal Write-Down?
Nobody wants to make monthly mortgage payments on
a loan that is greater than the current market value of the
home. Unless one is prepared to file for bankruptcy or
abandon the property, what strategies does a borrower
have to avoid throwing good money after bad? Well,
if a borrower defaults on his or her loan and applies
for a new FHA refinance, the maximum loan amount is
90% of the current market value of the loan regardless
of the outstanding indebtedness on the existing loan.
And the existing note holder has to pay the borrower’s
mortgage up-front insurance premium to FHA through
further write downs of the outstanding mortgage debt.
What a country! Indeed, servicers already are reporting
a scary increase in calls from current prime borrowers
who are demanding material principal write downs
in lieu of abandoning the property. Does the HOPE
Program encourage that behavior?
Congress is sensitive to criticism on this point, as it
tried to address the concern directly in two ways. First,
one who has been convicted under federal or state
law for fraud in the prior ten-year period is ineligible
for a new FHA loan; this eliminates about 10 people.
Second, Section 257(e)(1)(A) of the Act requires the
loan applicant to provide a certification that he or she
has not intentionally defaulted on the mortgage to be
refinanced; if the certification proves to be willfully
false, the applicant could be hit with a felony charge.
Of course, would a borrower unintentionally default
on a mortgage? The decision not to pay a debt at
some level involves a conscious choice; there may
be insufficient funds to pay needed living expenses,
such as for food or health care, but the decision to
divert funds to these purposes in lieu of the mortgage
is an intentional, albeit perhaps rational, choice. So
how does one decide what obligations may be paid
by a borrower instead of the mortgage without the
corresponding mortgage default being characterized as
“intentional”? Food and medicine is okay; credit cards
or car payments are not? Where does gasoline fit in?
You can understand the industry’s fear that the HOPE
Program will encourage current borrowers to default
in order to get a free write down of principal. There
still is a risk to the borrower, because there is no way
of knowing in advance whether the servicer or loan
holder will agree to the write down of the existing loan.
Presumably, the borrower could reinstate if the servicer
calls his or her bluff.
In any event, there is an ironic element to the HOPE
Program. Stated income loans, where the borrowers
do not have to support their representations regarding
income and assets with verified documentation, are
defaulting at a very high rate in large measure because
the borrowers materially misrepresented their income
and financial circumstances and could not afford the
loan. Regardless of whether such misrepresentations
occurred with or without the active involvement of
others, the borrowers’ veracity is in question. Yet the
Act permits these same borrowers to overcome the
veracity issue simply by signing a certification.
To be fair, Congress built another control into the
process. The HOPE Program only is available to
borrowers who, as of March 1, 2008, had a debt-toincome ratio for all mortgages of greater than 31%,
September 2008 | 4
Mortgage Banking & Consumer Credit Alert
which is intended to provide some solace that prime
borrowers will not pursue this option in droves. Yet,
this is a relatively low threshold. In any event, while
there are some controls to reduce the risk of phony
defaults, the risk remains.
Can the HOPE Program be Implemented by
October 1, 2008?
FHA has authority to insure eligible refinancing loans
from October 1, 2008 through September 30, 2011.
It, however, cannot act alone. While some of the
responsibility to implement the HOPE Program is
delegated to FHA/HUD, the Act establishes a new
board of directors (the “Board”) to implement the
HOPE Program, which is comprised of the Secretary of
HUD, the Secretary of the Treasury, the Chairperson of
the Board of Governors of the Federal Reserve System,
and the Chairperson of the Board of Directors of the
FDIC, or their designees. Assuming their calendars
can be synchronized by October 1, can they do all that
is required to make the program operational in such
a short time frame? The task is daunting. Indeed,
merely developing state specific, enforceable master
form shared appreciation documents could take longer
than a couple of months; the Act, for example, does not
preempt state laws, such as the laws of the states that
limit or prohibit shared appreciation mortgages and
opted out of the federal preemption provisions of the
federal Alternative Mortgage Transactions Parity Act.
The Board is mandated to establish requirements
and standards for the HOPE Program and prescribe
such regulations and provide such guidance as may
be necessary or appropriate. That general delegation
of rulemaking authority is supplemented in the Act
with much more specific directions. While some of
its authority is permissive and some is mandatory,
the Board must grapple with new standards for
key HOPE Program features such as underwriting,
shared appreciation, permitted subordinate liens
on the insured loans and coordination among lien
holders for the existing loans, documentation and
verification of income, underwriter representations
and warranties, adverse selection, limitations on fees,
and market interest rates. And HUD/FHA is directed
to develop requirements regarding a determination
of the borrower’s ability to repay and coordination
among existing lien holders. Recognizing that
formal rulemaking under HUD’s version of the
Administrative Procedure Act can be time-consuming,
the Act authorizes HUD to issue interim guidance and
mortgagee letters, which presumably do not require
advance rulemaking.
If they can’t do it alone, perhaps they can “kick start”
the program through the use of private contractors.
The Act authorizes HUD, under the direction of the
Board, to contract for the establishment of underwriting
criteria, automated underwriting systems, pricing
standards, and other factors related to the eligibility
of insured loans. It also authorizes HUD to contract
for independent quality reviews. The hiring of new
personnel also is authorized under the Act.
Those who are familiar with the “snail’s pace” at which
HUD has acted over the years recognize the difficulty
it will have moving this quickly, particularly with the
Office of Inspector General looking over its shoulder
to make sure that it does not create undue risk for the
FHA-insurance Fund.
Will FHA Leave Lenders and Loan
Purchasers Holding the Bag for Defaulted
Insured Refinancings Under the HOPE
Program?
Among the many reasons that FHA lost market
share over the last several years was a perception
that FHA looked for ways to reallocate the risk of
loss to lenders on insured loans in default. Loan
servicers and subsequent holders, however, did not
have to worry because the “incontestability” clause
contained in the National Housing Act requires FHA
to honor its mortgage insurance policy in the hands of
the loan holder that did not itself engage in fraud or
misrepresentation. This means that FHA may assert
indemnification claims against the originating lender
for violations of the FHA insurance program but FHA
still has to pay the insurance benefits to any innocent
subsequent holder. The Act creates several issues that
increase the risk to originating lenders and subsequent
holders that FHA will renege on the mortgage insurance
on loans refinanced under the HOPE Program.
From a lender’s perspective, the fact that a borrower
in default can qualify for a new insured refinancing
loan raises the risk of second-guessing by the FHA if
the loan subsequently defaults. Presumably, lenders
that closely follow the new underwriting requirements
to be developed by the Board will be insulated
against the risk of attack by the FHA. At the same
time, eligible mortgagors are likely to be subprime
borrowers who either have defaulted on their existing
September 2008 | 5
Mortgage Banking & Consumer Credit Alert
loans or are reasonably anticipated to default; one
would expect delinquencies on this portfolio at higher
rates than FHA’s existing portfolio. As noted above,
FHA is known for making indemnification claims
in order to reallocate the risk of loss on delinquent
loans. Thus, the big unknown is whether FHA will
rely on its enforcement authority to question the
underwriting judgments made by the lenders and seek
indemnification for losses if and when loans insured
under the HOPE Program default. It will be interesting
to see how “squishy” the new underwriting guidelines
are, because the risk of second-guessing is greater
when the standards are more ambiguous.
In addition to indemnification for losses, HUD has
a standard mechanism to monitor lenders with high
default rates. Keep in mind HUD’s Credit Watch
Termination Initiative, which authorizes HUD to
terminate the approved status of any registered branch
office based on that branch office’s unsatisfactory
origination performance. HUD examines the rate of
defaults and claims of each registered branch office in a
particular geographic area on a quarterly basis. It may
terminate a lender’s branch office origination authority
when the lender has a default/claim rate for loans
endorsed for insurance within the preceding 24 months
that exceeds 200 percent of the default/claim rate
within that geographic area and the national default/
claim rate. HUD has not indicated whether it will
segregate loans insured under the HOPE Program for
separate analysis. If these loans are not segregated and
the default rates are higher than for regular FHA loans,
approved lenders could unwittingly set themselves
up for termination merely by doing what Congress is
encouraging them to do.
From a purchaser’s perspective, loans that default
in the first month are not eligible under the Act for
insurance benefits regardless of whether the loan is
held by a subsequent purchaser. This means that any
flow purchaser of FHA-insured loans bears the risk
that the loan’s insurance will evaporate into thin air if
there is a first payment default, even if the purchaser
did nothing wrong. This statutory provision is not
that much different from the existing FHA rules,
which require a loan to be current when submitted
for insurance endorsement soon after closing. At the
same time, flow purchasers need to recognize the risk
that they will hold a higher risk loan that immediately
becomes ineligible for insurance due to a first payment
default.
The Board also has authority to establish standards
to protect itself against adverse selection, “including
requiring loans identified by the Secretary [HUD] as
higher risk loans to demonstrate payment performance
for a reasonable period of time prior to being insured
under the program.” Consider what this really means.
If an approved lender makes and funds a loan based on
its “Direct Endorsement” determination of the loan’s
eligibility for insurance, HUD would not be required
to endorse the loan for insurance until a number of
months pass during which the borrower must make
timely payments. What lender in its right mind would
extend credit for a loan as to which the loan’s eligibility
for FHA insurance is not definitively determined until
after funding based on post-closing circumstances
that the lender cannot control? Who would finance or
buy these loans under this condition? In other words,
lenders and purchasers who participate in good faith in
the HOPE Program do not want to be the “chumps” to
whom FHA reallocates the risk of loss. If the Board
were to exercise its authority under this statutory
provision in this way, one might consider changing
the name of the HOPE Program to “Not a Sliver of
HOPE for Homeowners Program.”
*
*
*
If you have any questions about this Alert, please
call or e-mail Larry Platt (202.778.9034/larry.platt@
klgates.com) or any other member of the Mortgage
Banking Consumer Credit practice group.
September 2008 | 6
Mortgage Banking & Consumer Credit Alert
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