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Over on Housing Wire, Paul Jackson is crowing that chain-of-title issues in mortgage securitization are overblown because an Alabama state trial court rejected such arguments in a case ironically captioned U.S. Bank v. Congress.
But let’s actually consider whether the opinion matters, what the court actually did and did not say, and whether it was right.
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For all the ink spilled about the bailout bill over the past week or so, there has been strikingly little media coverage paid to the actual terms of the bailout bill. A tremendous amount of attention has been paid to the politics of the bill, but it just doesn’t make a lot of sense to talk about the politics of the bill without looking at the substance of the bill. Legislation can be technical and it can be hard for reporters to know the significance of legislative provisions, but I’ve just read too many articles that regurgitate the blandishments about the revised (and rerevised) bill imposing oversight, limits on executive pay, help for homeowners, and now the FDIC deposit cap drivel. Any consideration of the substantive provisions shows that there’s a lot of verbiage and very, very little in substance. Once one realizes this, the politics of the bill are even more bizarre and more fascinating.
The bill has been bloated up to 451 pages in the Senate version. The additional 341 pages in the Senate version have nothing to do with the bailout per se, but instead are an energy bill and a tax bill. In short, the Senate version is the same as the failed House version, but with the addition of (1) the irrelevant FDIC provision, and (2) other unrelated legislation. And the House version was just a 110-page expansion of the Paulson’s original two-and-a-half page proposal that had lots of extra window-dressing, but little in the way of new substantive provisions that are actually mandatory, enforceable, and monitorable. This means that the Senate version of the bailout bill has the same flaws as the original Paulson bill. (Gotta hand it to Hank–he’s concise.)
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Katie Porter makes an incredibly important point in her recent post about how securitization structures may be impeding mortgage modifications because the ultimate holders of risk on the mortgages are not the ones involved in the modification decision. Mortgage servicers, who typically hold a small interest (if any) in the
loans are the ones making the modification decisions. When servicers
do hold positions in the mortgage-backed securities, they are first
lost positions, so the servicers likely takes a loss regardless of a
modification or foreclosure, meaning that their interests are not
aligned with the other MBS holders.
Let me take Katie’s post a step further and suggest that the relevant voices on the lending side of the mortgage market have not been heard. The ultimate risk on mortgages is held by mortgage-backed securities holders, private mortgage insurers, and pool-level bond insurers. These parties have been entirely absent from the conversation on modification and bankruptcy reform.