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«Barriers to Federal Home Mortgage Modification Efforts During the Financial Crisis Patricia A. McCoy August 2010 MF10-6 Paper originally presented at ...»

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Such legislation would be less heavy-handed, moreover, than federal legislation forcing servicers to write down loans.114 The fact that servicers lobbied so hard – and so successfully – against such a provision in early 2009 is a strong indication that cram-down authority could significantly change the terms of loss mitigation discussions.115 108 Government Accountability Office (2010), at 8-11.

109 In a similar vein, Fannie and Freddie instruct mortgage servicers who handle their loans to refrain from foreclosing on homes until the borrowers had been considered “sufficiently” for a loan modification, repayment plan, or forbearance plan. Federal Housing Finance Agency (2010), at 6. FHA also mandates loss mitigation for the loans that it insures and courts have made this a precondition of going to foreclosure in many states. Thompson (2009), at 27.

110 Geanakoplos and Koniak (2009) would go further and appoint federal trustees to decide which troubled mortgages should be modified, left alone, or be put in foreclosure.

111 Goodman (2009).

112 Levitin (2009), at 571.

113 Kiff and Klyuev (2009), at 26.

114 Zingales (2008) would allow underwater borrowers to write down their principal balances by the same percentage home values dropped in their zip code, starting from the time they financed their homes.

115 Fears that cram-down authority would dampen future credit appear overstated. To the contrary, the evidence on point suggests that allowing bankruptcy judges to write down principal on a debtor’s principal residence will have little future adverse impact on the supply of mortgage credit. Levitin (2009), at 576, 578, 586-599.

32 Bibliography Adelino, Manuel, Kristopher Gerardi, and Paul S. Willen. “Why Don’t Lenders Renegotiate More Home Mortgages? Redefaults, Self-Cures, and Securitization.” Federal Reserve Bank of Boston Public Policy Discussion Papers No. 09-4. July 6, 2009.

Andrews, Edmund L. “U.S. Sets Big Incentives to Head Off Foreclosures.” New York Times.

March 5, 2009.

Barr, Michael S. and James A. Feldman. “Issue Brief: Overcoming Legal Barriers to the Bulk Sale of At-Rick Mortgages.” Center for American Progress. April 22, 2008. Available at www. americanprogress.org.

Bernanke, Ben S. “”Housing, Mortgage Markets, and Foreclosures.” Speech by Chairman Ben S. Bernanke At the Federal Reserve System Conference on Housing and Mortgage Markets, Washington, D.C. December 4, 2008. Available at www.federalreserve.gov.

Bernard, Tara Siegel. “Losing Homes In the Wait For a Rescue.” New York Times. May 14,

2009. B1.

Congressional Oversight Panel. “Foreclosure Crisis: Working Toward a Solution, March Oversight Report.” March 6, 2009. Available at www.cop.gov.

Cordell, Larry, Karen Dynan, Andreas Lehnert, Nellie Liang and Eileen Mauskopf. “The Incentives of Mortgage Servicers: Myths and Realities.” Finance and Economics Discussion Series, Divisions of Research & Statistics and Monetary Affairs, Federal Reserve Board. Working Paper 2008-46. 2008.

Corkery, Michael. “Mortgage ‘Cram-Downs” Loom as Foreclosures Mount.” Wall Street Journal. December 31, 2008.

Credit Suisse. “The Day After Tomorrow: Payment Shock and Loan Modifications.” April 5, 2007). Available at www.credit-suisse.com/researchandanalytics.

Department of Housing and Urban Development. “Secretary Donovan Announces New FHAMaking Home Affordable Loan Modification Guidelines.” October 8, 2009. Available at makinghomeaffordable.gov/pr_07302009.html.

Department of the Treasury. “Administration Updates Documentation Collection Process and Releases Guidance to Expedite Permanent Modifications.” January 28, 2010 [2010a].

Available at www.financialstability.gov.

Department of the Treasury. “Home Affordable Modification Program Guidelines.” March 4, 2009 [2009a]. Available at www.treas.gov/press/releases/reports/modification_program_guidelines.pdf.

–  –  –

Department of the Treasury. “Making Home Affordable Program: Servicer Performance Report Through February 2010.” March 12, 2010 [2010c]. Available at www.financialstability.gov.

Department of the Treasury. “Making Home Affordable Program: Servicer Performance Report Through December 2009.” January 15, 2010 [2010d]. Available at www.financialstability.gov.

Department of the Treasury. “Making Home Affordable Updated Detailed Program Description.” March 4, 2009 [2009b]. Available at www.treas.gov/press/releases/reports/housing_fact_sheet.pdf.

Department of the Treasury. “Making Home Affordable Program Enhancements to Offer More Help for Homeowners.” March 26, 2010 [2010e]. Available at www.treas.gov/press/releases/tg614.htm.

Eggert, Kurt. “Comment on Michael A. Stegman et al.’s ‘Preventive Servicing Is Good for Business and Affordable Homeownership Policy’: What Prevents Loan Modifications?” Housing Policy Debate 18:2 (2007): 279-297.

Federal Housing Finance Agency. “Foreclosure Prevention & Refinance Report: Third Quarter 2009.” Jan. 8, 2010. Available at www.fhfa.gov.

Fitch Ratings. “Changing Loss Mitigation Strategies for U.S. RMBS.” June 4, 2007.

Fitch Ratings. “Delinquency Cure Rates Worsening for U.S. Prime RMBS.” August 24, 2009 [2009a].

Fitch Ratings. “U.S. RMBS Servicers’ Loss Mitigation and Modification Efforts Update.” October 20, 2009 [2009b].





Geanakoplos, John D. and Susan P. Koniak. “Matters of Principal.” New York Times. March 5, 2009.

Goodman, Peter S. “U.S. to Pressure Mortgage Firms For Loan Relief.” New York Times.

November 29, 2009. A1.

Government Accountability Office. “Troubled Asset Relief Program: Home Affordable Modification Program Continues to Face Implementation Challenges.” GAO-10-556T.

March 25, 2010. Available at www.gao.gov.

34 HAMP Update. “HAMP Update – New Program Offers Borrowers Foreclosure Alternatives.” Supplement Directive 09-09. November 30, 2009. Available at www.HMPadmin.com.

Hope Now. “Appendix—Mortgage Loss Mitigation Statistics: Industry Extrapolations (Monthly for Dec 2008 to Nov 2009).” 2009. Available at www.hopenow.com.

Hope Now. “Workout Plans (Repayment Plans + Modifications) and Foreclosure Sales, July 2007-November 2008.” 2008. Available at www.hopenow.com.

Hunt, John P. “What Do Subprime Securitization Contracts Actually Say About Loan Modification? Preliminary Results and Implications.” March 25, 2009. Available at www.ssrn.com.

Internal Revenue Service. Revenue Procedure 2007-72. December 26, 2007.

Internal Revenue Service. Revenue Procedure 2008-28. May 16, 2008.

Kiff, John and Vladimir Klyuev. “Foreclosure Mitigation Efforts in the United States:

Approaches and Challenges.” International Monetary Fund Staff Position Note SPN/09/02. February 18, 2009.

Levitin, Adam J. “Resolving the Foreclosure Crisis: Modification of Mortgages in Bankruptcy.” Wisconsin Law Review 2009: 565-655.

Mason, Joseph R. “Subprime Servicer Reporting Can Do More for Modification than Government Subsidies.” March 19, 2009. Available at www.ssrn.com.

Merle, Renae. “Face-Lift for Foreclosure Prevention.” Washington Post. May 26, 2009.

Mortgage Bankers Association. “Delinquencies, Foreclosure Starts Fall in Latest MBA National Delinquency Survey.” February 19, 2010. Available at www.mbaa.org/NewsandMedia/PressCenter/71891.htm.

Mullainathan, Sendhil, Antoinette Schoar and Piyush Tantia. “Behavioral Economics Insights Applied to Foreclosure Mitigation.” February 2010. Available at www.jchs.harvard.edu/moving_forward_symposium/.

Office of the Comptroller of the Currency (OCC) and Office of Thrift Supervision (OTS). “OCC and OTS Mortgage Metrics Report: Third Quarter 2009.” December 2009. Available at www.ots.treas.gov.

Office of the Special Inspector General for the Troubled Asset Relief Program. “Factors Affecting the Implementation of the Home Affordable Modification Program.” SIGTARP-10-005. March 25, 2010.

–  –  –

Paulson, Henry M., Jr. “Statement by Secretary Henry M. Paulson, Jr. on Announcement of New Private Sector Alliance – HOPE NOW.” Department of the Treasury Press Release HP-599. October 10, 2007 [2007b].

Piskorski, Tomasz, Amit Seru, and Vikrant Vig. ”Securitization and Distressed Loan Renegotiation: Evidence from the Subprime Mortgage Crisis.” September 2009.

Available at www.ssrn.com.

Quercia, Roberto G. and Lei Ding. “Loan Modifications and Redefault Risk: An Examination of Short-Term Impacts.” Cityscape 11:3 (2009): 171-194.

Randolph, Patrick A., Jr. “Mortgage Modification and Alteration of Priorities Between Junior and Senior Lienholders.” January 28, 2010. Available at dirt.umkc.edu/alterationofpriorities.htm.

Rappeport, Alan. “Prodded by Congress, Cox Finds Flexibility in FAS 140.” CFO Magazine.

July 27, 2007.

Standard & Poor’s. “The Shadow Inventory Of Troubled Mortgages Could Undo U.S. Housing Price Gains.” February 26, 2010. Available at www.standardandpoors.com.

Tanta. “Mortgage Servicing for UberNerds.” Calculated Risk. February 20, 2007. Available at www.calculatedriskblog.com.

Thompson, Diane E. “Why Servicers Foreclose When They Should Modify and Other Puzzles of Servicer Behavior: Servicer Compensation and its Consequences.” National Consumer Law Center Inc. October 2009. Available at www.nclc.org.

White, Alan M. “Deleveraging the American Homeowner: The Failure of 2008 Voluntary Mortgage Contract Modifications.” Connecticut Law Review 41 (May 2009): 1107-1132 [2009a].

White, Alan M. “Rewriting Contracts, Wholesale: Data on Voluntary Mortgage Modifications

From 2007 and 2008 Remittance Reports.” Fordham Urban Law Journal 36 (2009):

509-535 [2009b].

Zingales, Luigi. “Plan B.” Economists’ Voice. October 2008.

36 Figure 1. U.S. Unemployment Rate, 1999-2009

–  –  –

Source: Information provided by LPS Applied Analytics 40 Figure 5. Number and Distribution of Workouts in Non-Conforming Home Loans

–  –  –

41

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