Category: Credit Policy & Regulation

  • Student loans – the other debt crisis

    Posted by

    Alan White
    Screen Shot 2018-01-26 at 11.21.36 AM

    Brookings Institute 2018

    In a low unemployment economy, an entire generation is struggling, and millions are failing, to repay student loan debt. As many as 40% of ALL borrowers recently graduating are likely to default over the life of their student loans, according to a recent Brookings Institute analysis. Total outstanding student loan debt is approaching 1.5 trillion dollars, exceeding credit card debt, exceeding auto loan debt. Two other key points from the Brookings analysis: 1) for-profit schools remain the primary driver of high student loan defaults, and 2) black college graduates default at five times the rate of white college graduates, due to persistent unemployment, higher use of for-profit colleges and lower parental income and assets.

    The rising delinquency (11% currently) and lifetime default rates are all the more disturbing given that federal student loan rules, in theory, permit all borrowers to repay based on a percentage of their income. Most student loans are funded by the U.S. Treasury, but administered by private contractors: student loan servicers. Study after study has found that student loan borrowers are systematically assigned to inappropriate payment plans,  yet the U.S. Education Department continues renewing contracts with these failing servicers. The weird public-private partnership Congress has created and tinkered with since the 1965 Higher Education Act is broken.

    Unmanageable student loan debt will saddle a generation of students with burdens that will slow or halt them on the path to prosperity. Student loan collectors have supercreditor powers, to garnish wages and seize tax refunds without going to court, to charge collection fees up to 40%, to deny graduates access to transcripts and job licenses, and to keep pursuing debts, zombie-like, even after borrowers go through bankruptcy and discharge other debts. Recent graduates cannot get mortgages to buy homes, even if they are not in default, because their student loan payments are taking such a bite out of their monthly incomes. State legislatures have piled on educational requirements for a variety of entry-level jobs (nurse's aides, child care workers, teachers, etc.) while cutting state funding for public colleges and increasing tuition: unfunded job mandates. Finally, the combination of high debt and the harsh consequences of default are widening the racial wealth and income gaps.

    Current reform proposals would make a bad situation worse. For example, it is difficult to see how increasing the percentage of income required for income-based repayment plans will help student borrowers, nor how extending the repayment period before loan retirement would reduce defaults. What is needed instead is to 1) deal with the for-profit school problem, 2) restore the state-level commitment to funding public colleges, 3) fix the broken federal student loan servicer contracting, 4) rethink the collection and bankruptcy regime for student loans and 5) repeal the student loan tax, i.e. the above-cost interest rates college graduates pay to the Treasury. Among other things. More on these themes in later posts.

  • Call for Commercial Law Topics (and Jargon!)

    Posted by

    Melissa Jacoby

    For the spring semester, I am offering advanced commercial law and contracts seminar for UNC students, and have gathered resources to inspire students on paper topic selection as well as to guide what we otherwise will cover. But given the breadth of what might fit under the umbrella of the seminar's title, the students and I would greatly benefit from learning what Credit Slips readers see as the pressing issues in need of more examination in the Uniform Commercial Code, the payments world, and beyond. Some students have particular competencies and interests in intellectual-property and/or transnational issues, so specific suggestions in those realms would be terrific. Comments are welcome below or you can write us at bankruptcyprof <at> gmail <dot> com. 

    We also are going to do a wiki of commercial law jargon/terminology. So please also toss some terms our way through the same channels as above (or Twitter might be especially useful here: @melissabjacoby).

    Thank you in advance for the help!

  • Dana Gas and an Existential Crisis for Islamic Finance

    Posted by

    Jason Kilborn

    IslamicartThe very foundations of the Islamic finance world were shaken a few weeks ago when Dana Gas declared that $700 million of its Islamic bonds (sukuk) were invalid and obtained a preliminary injunction against creditor enforcement from a court in the UAE emirate of Sharjah. Like Marblegate on steriods, Dana made this announcement as a prelude to an exchange offer, proposing that creditors accept new, compliant bonds with a return less than half that offered by the earlier issuance.

    Dana shockingly claimed that evolving standards of Islamic finance had rendered its earlier bonds unlawful under current interpretation of the Islamic prohibition on interest and the techniques Dana had used to issue bonds carrying an interest-like investment return. I had expected to read that Dana had used an aggressive structure like tawarruq (sometimes called commodity murabahah) that pushed the boundaries of what the Islamic finance world generally countenanced, but no. The structure Dana had used was totally mainstream, a partnership structure called mudarabah. Dana asserted that the mudarabah structure had been superseded by other structures, such as a leasing arrangement called ijarah, though in Islamic law as in other legal families, there are often multiple permissible ways of achieving a goal, not just one. And when an issuer prepares an Islamic finance structure like this, it invariably gets a sign-off from a shariah-compliance board of respected Islamic law experts (sometimes several such boards). For Dana Gas to suggest that its earlier board was wrong to the tune of $700 million, or worse yet that Islamic law had somehow changed in a few years through an abrupt alteration of opinion by the world of respected Islamic scholars is … troubling.

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  • How to think about banks

    Posted by

    Alan White

    Banking is not an industry; banking is not the real economy. The big banks especially are economic and political behemoths that remain unpopular and poorly understood in the popular imagination. Opinion polls show voters favor breaking them up, and some shareholders do too. While Wall Streeters may bemoan the fact that banks are no longer hot growth stocks, I suspect most voters who chose either candidate would not be saddened to see banks become public utilities. The Republican agenda to roll back Dodd-Frank, if this means unshackling the megabanks from speculating with public and taxpayer funds, will be the first betrayal by the incoming administration of its voter base.

    Banks are now basically franchisees of the government's, i.e. the taxpayers', full faith and credit, as recently and eloquently explained by Professors Saule Omarova and Robert Hockett  Banks create and allocate capital because the government recognizes bank loans as money and puts taxpayers' full faith and credit behind bank IOUs. The conventional story that banks convert privately-accumulated savings into loans to borrowers is a myth. Because banks are public-private partnerships to create and allocate capital, the public can and should play a central role in insuring that the financial system serves the needs of the real economy, not just the financial economy.

    So here is the first test for our new federal leaders. Are you tools of Wall Street, doing its bidding by undoing financial reform, or will you turn banks into the public utilities they ought to be?  

  • Porter’s Modern Consumer Law

    Posted by

    Bob Lawless

    Porter Consumer LawCredit Slips blogger Katie Porter has produced a new textbook in consumer law that anyone teaching the subject should consider adopting. Indeed, law professors not teaching consumer law should to take a look at it and consider whether they should add the class to their teaching portfolio. A 2013 poll on Brian Leiter's Law School Reports named consumer law as the number one "area of law which deserves more attention in the legal academy." Next academic year I will be picking up a new course, and the emergence of Porter's new text made the decision easy for me as to which course it will be.

    In the preface, Porter makes explicit her three-pronged approach to the topic of consumer law:

    1. The book situates consumer law within the business-law curriculum. "Consumer law is big business," she notes. Understanding the legal issues requires understanding the "deal," the information flow, and the market in which the transaction occurs. Porter expressly recognizes, "the world of consumer practice offers opportunities for lawyers to represent consumers (as government lawyers, policy advocates, and plaintiffs’ attorneys) and to represent businesses (as in-house counsel, defense attorneys, and
      lobbyists)."
    2. The book provides a strong theoretical frame by situating consumer law at the intersection of tort and contract. The book does not present consumer law as a hodgepodge of cases and statutes loosely organized around the term "consumer." Rather it recognizes that a lot of what travels under the law of "consumer law" responds to the gaps that traditional contract and torts doctrines have when it comes to the issues that consumer transactions create.
    3. The book explores where the social-science literature has learning for consumer law. Porter looks to see what psychology, sociology, marketing, and economics can add to our understanding of the legal issues. By doing so, the book explores the difference between law on the ground and law in the books. 

    The book uses a problem-based method of instruction that will be familiar to users of Porter's co-authored bankruptcy textbook or my co-authored secured transactions textbook. The problems range from straight-forward statute readers to teach doctrine to tough client counseling problems that focus on real-world lawyering skills.

    More information, including a table of contents and a sample chapter, can be found at Aspen Publishers.

  • Further Debate About Debt Collection Reform and Credit Availability

    Posted by

    Jason Kilborn

    The Center for Responsible Lending has produced a nice, new empirical paper reflecting on and refuting the notion that certain debt collection reforms restrict the flow of consumer credit. The analysis is careful and impressive, and the natural laboratory experiment they found is fun and intriguing. In a nutshell, North Carolina in 2009 and Maryland in 2012 imposed new restrictions on debt buyers suing consumer debtors on purchased accounts (both states now require actual documentation of the debts and their ownership to support such suits). On cue, in the period leading to these reforms, the credit lobby predicted gloom and doom in terms of restricted access to credit, especially to sub-prime borrowers, if such liberal nanny-laws were adopted. Several years later, the CRL decided to look back and test this. Comparing the change in the number and dollar volume of new credit lines in North Carolina and Maryland in the two years before and after each of the reforms (coincidentally, periods of general economic contraction and recovery, respectively), and comparing these differences with comparable data for selected peer states and the nation as a whole, did the reforms seem to have a noticeable effect of reduced access to credit in these states?  The simple answer, of course, is no (i.e., less contraction in North Carolina than elsewhere during a recession, and more expansion in Maryland than elsewhere during recovery). The more nuanced answer means the debate will rage on.

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  • Credit Slips Unofficial Contest: Win Everything (all the glory that is)

    Posted by

    Katie Porter

    Shutterstock_309261569Credit Slips has great readers, and I'd love to encourage more of our readership to comment. So I've created this contest, of which I will be the sole judge, except that I'll probably actually let John Pottow decide to keep it quirky.

    Here's the challenge. What is an important legal protection for consumers that nobody has ever heard of? I don't mean literally that nobody has heard of but rather a consumer legal right that is poorly understood or underutilized. Even your fellow savants (aka nerds) who read Credit Slips will be blown away to learn of this law. Federal or state laws are fair game, and while the law does not have to be strictly a borrower protection, it should have some connection to household financial security or credit.

    I'd love to give you an example but I don't want to take the wind out of everyone's sails by revealing my entry.

    The prize is only glory and bragging rights (and maybe a mention in my new Consumer Law textbook) but at least it's not an all-expense paid trip to the next Presidential debate.

  • Prime, Subprime, Deep Subprime, Suprime-Like . . . and hold it, my fav “Aspiring Prime”

    Posted by

    Katie Porter

    What's in a name? A lot of heartache, potentially, as Johnny Cash explained in A Boy Named Sue.

    The consumer finance industry is awash in labels for lending. Despite the lack of data, and clear analysis, that left certain people (apparently nearly all of Wall Street) surprised about the housing crisis, the lending industry is still defining success for itself. Shutterstock_268949369Kevin Wack at American Banker examines the "slippery" definition of subprime, giving examples of Equifax recalibrating the "subprime" and "deep subprime" labels to different places on the credit score range. The result: instantly, the percentage of subprime auto loan originations falls from 36% to 28%.

    Labels themselves do not predict default risk (we hope the actual underwriting, including credit score, does that work). But labels do matter. Consistent use of terms such as "prime" and "subprime" help government and researchers study trends and make consistent, reliable determinations about markets. They make sure that various regulators are looking at similar loans, and they help the public evaluate their credit standing.

    Maybe this is a project for the Financial Stability Oversight Council, which devoted one-page to consumer protection in its 100-page 2015 report. In what I take as a sign that FSOC should tackle this issue, there is even a heading on "Data Gaps."

  • The Supreme Court, the Fair Housing Act and the Racism Debate

    Posted by

    Alan White

    The Supreme Court made a noteworthy contribution to the crescendo in our national conversation about race in its recent Texas v. ICP Fair Housing Act decision.

    The Court affirmed that the Fair Housing Act prohibits not only explicit racial discrimination, but also policies and practices that have the effect of excluding or harming racial minorities.

    In marked contrast to its Voting Rights Act and other decisions, the Supreme Court (5-vote majority) in this case did not declare that racism has nearly ended, nor that the time for corrective laws is coming to an end. Justice Kennedy, the perennial swing voter, grounded the continuing vitality of disparate impact analysis in the sad legacy of various policies, including redlining, steering, and restrictive covenants, a legacy that insures the persistence of geographic segregation of races in the United States, and perpetuates our vast opportunity and wealth gaps. In his opinion, he harkens back to the Kerner Commission's conclusion that the uprisings of the 1960s arose in no small measure from the ghettoization and racial apartheid of American cities. 

    As a matter of legal doctrine the issue was straightforward. The Fair Housing Act has been interpreted consistently for more than forty years by all lower federal courts to prohibit housing and housing finance practices that exclude or discriminate against racial minorities in their effects. For example, a town's zoning plan that completely prohibits multifamily housing construction violates the Fair Housing Act when the result is to perpetuate the virtual exclusion of black families from the town. In the housing finance sphere, a bank's refusal to make mortgage loans in certain zip codes, or below a certain dollar amount, will violate the FHA if it has an unjustified disparate impact on minority homebuyers. Congress has re-enacted and amended the FHA without ever disapproving the application of disparate impact analysis.

    Often, the difference between disparate impact and disparate treatment is a matter of proof, not of underlying facts. For example, in the exclusionary zoning cases, there is often evidence of racial animus at least among some members of the excluding suburb's governing bodies, but perhaps not enough to link a particular zoning vote to that racism. Some disparate impact cases are about racism by subterfuge. Others are about implicit bias, or even thoughtless discrimination. Disparate impact analysis, per Justice Kennedy, "permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment."

    One undoubted consequence of disparate impact analysis is that banks are under an affirmative obligation not to perpetuate the legacy of racism and the racial wealth divide with home lending practices and policies that have no business justification. No doubt, in the aftermath of the decision banks will protest that they must now enact racial quotas or make risky mortgage loans to unqualified borrowers. Housing lenders depend on an vast array of explicit and implicit state subsidies. The Fair Housing Act does not require making loans that won't be repaid. It does impose an affirmative public duty to make home loans in a way that closes rather than widens our nation's racial divide.

  • “Quicken” the Development of the Law

    Posted by

    Katie Porter

    Over the last few years, the US Department of Justice has reached settlements with nearly every major lender with regard to the lending procedures for FHA (Federal Housing Administration) loans. The legal basis for the settlements were alleged violations of the False Claims Act. The total recovery is about $3 billion dollars.Sue me

    In the wake of lengthy and expensive investigations and negotiations, lenders have basically . . . whined.  Jamie Dimon said the company was "thoroughly confused" by the FHA's investigations and said he was going to "figure out what to do." That task might be a whole lot easier due to Chase's competitor, Quicken Loans. On Friday, Quicken sued the Department of Justice and the Department of Housing and Urban Development, asking the court for a declaratory judgment and injunction that would halt the government's efforts to bring Quicken to settle its alleged FHA liability. I love this lawsuit!!! 

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