Rep. Barney Frank, D-Mass., chairman of the House Financial Services Committee, said legislation may be needed to resolve these issues. That could mean directing investors and mortgage loan servicer firms to act, rather than waiting for them to come to some consensus.
While we wait, though, the foreclosure problem only intensifies. New data from RealtyTrac Inc. shows that foreclosures surged by 25 percent last month from year-ago levels. One in every 452 housing units in the nation was the subject of a foreclosure filing, such as a default notice, auction sale notice or bank repossession.
All of this is an unfortunate legacy of the trend in recent years of banks selling, rather than keeping in their own loan portfolios, most of the mortgages they originated. The buyers, including Fannie Mae, Freddie Mac and Wall Street firms, would then slice and repackage them into securities sold to investors worldwide.
This process, known as securitization, was designed to diversify risk, regardless of movement in home prices. It also added liquidity to the mortgage market, helping fuel the surge in lending this decade.
But the good times broke down once the weakness in mortgage underwriting standards became clear as homeowners began to default on their loans at alarming rates. That led to plunging prices for such securities, and caused a broad fallout in every corner of the financial world as liquidity dried up and investors shunned all risk.
Today, about 80 percent of the $1.8 trillion in outstanding troubled mortgage loans belong to investors, according to Deutsche Bank. The rest are considered "whole loans," held by banks or government-run mortgage giants Fannie Mae and Freddie Mac.
Most of those involved in the mortgage-backed securities market agree that loan modifications usually are less costly than disposing of foreclosed property. But they claim the fine print of their contracts and all the conflicting parties involved inhibit them from working with homeowners.
They took that message to Washington on Wednesday when representatives from the hedge fund industry, the securitization market and loan servicers testified before Congress about the legalities that require them to act in their investors' best interests.
"Mortgage servicers report to trustees, which have fiduciary duties to the investors in (mortgage-backed securities) pools," said Benjamin Allensworth, the senior legal counsel to the Managed Funds Association, told Frank's committee. "Similarly, institutional investors holding (mortgage-backed securities) also have fiduciary obligations to their clients."
Michael Gross, managing director of Bank of America's loan administration loss mitigation unit, added that some contracts prohibit changes to the underlying mortgages. But Thomas Deutsch, deputy executive director of the American Securitization Forum, said there are options, and his group is reviewing ways to get more modifications done.
What's clear is that contract law is preventing the companies from easily or quickly bending on this issue, and the government to date hasn't done anything to compel them to act differently.
"We can spend billions to bail out Wall Street, but this shows there is little interest in doing anything to really help American families," said John Taylor, president and CEO of the National Community Reinvestment Coalition.
One solution would have been to have the government buy up the toxic mortgage securities under the $700 billion bailout law, but Treasury Secretary Henry Paulson ruled that out as an option on Wednesday.
Another option that could break this logjam was floated Friday by the Federal Deposit Insurance Corp., which wants to use $24 billion in government funds to guarantee 2.2 million modified loans through the end of next year. Borrowers would get reduced interest rates or longer loan terms to make their payments more affordable.
The FDIC hopes government backing will make the lending industry more willing to modify loans because taxpayers will absorb half of the losses if the borrower defaults again. Also, loan servicing companies would be paid $1,000 for each loan they modify.
But before that can happen, FDIC Chairman Sheila Bair would need to convince Secretary Paulson to reverse his opposition to using money from the $700 billion bailout fund for this purpose. Or she'd have to convince Congress to order him to do so.
However that dispute plays out, the government needs to find a solution, and quick.
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Rachel Beck is the national business columnist for The Associated Press. Write to her at rbeck(at)ap.org