Regulators Have Created a Mortgage Minefield. By Frank Keating
Contradictory rules are putting bankers in a bind and threatening the housing recovery.
The Wall Street Journal, June 27, 2013, on page A19
Bankers will soon step into a mortgage minefield—a no-win landscape in which every move will be fraught with peril, and in which the ultimate casualties will be the nascent housing recovery and the American home buyer.
This minefield—a set of incompatible, contradictory regulations—is a creation of the federal government. The first regulation came from the Department of Housing and Urban Development in March, and it said that mortgage lenders can be liable for violations of the 1968 Fair Housing Act if their lending decisions have a so-called "disparate impact" on minorities. No evidence of discriminatory intent or action is required, merely statistical variance in a bank's lending outcomes.
Bankers support equal housing opportunity, but this represents a radical shift in how the government enforces fair housing law. The text of the law prohibits discrimination "because of" race, religion, sex and other protected classes, which means that the lender must have intended to discriminate. This is how we understood the law during the first Bush administration, when I enforced fair housing laws as general counsel and acting deputy secretary atHUD.
The Supreme Court recently agreed to hear the Mount Holly v. Mt. Holly Gardens Citizens in Action case to review whether disparate impact creates liability under the Fair Housing Act. But in the meantime, lenders are facing lawsuits and prosecutions even if they have done nothing wrong.
That's bad enough, but on Jan. 10, the Consumer Financial Protection Bureau's "ability to repay" rule will take effect. This Dodd-Frank mandated rule exposes lenders to risk of litigation if borrowers default on a mortgage—unless the loan falls into a legal "safe harbor" under the CFPB's qualified-mortgage, or QM, guidelines. For example, a loan in which the borrower's total monthly debt payments exceed 43% of his income would presumably fall outside the QM safe harbor.
Even when lenders can prove they have done their best to serve consumers outside the safe harbor, the expected costs of defenses—and delays in resolving defaults—will be passed on to all consumers. This will make lending, even to many creditworthy borrowers, too costly.
Many banks have said that they plan to loan only within the QM guidelines, and Fannie Mae and Freddie Mac —the taxpayer-backed companies that undergird the secondary mortgage market—will buy only qualified mortgages. Thus, the QM will be the primary mortgage product available to home buyers.
The QM requirements will result in an immediate tightening of credit, with banks substituting a one-size-fits-all federal mandate for their own good judgment and sound underwriting. Many creditworthy borrowers who are on the cusp of meeting the requirements—and who may qualify before Jan. 10—will be cut off from the dream of home ownership.
Many of these aspirational home buyers—those who have solid financial futures but who don't fit the QM box—are members of minorities. Moreover, the poverty gap that exists along many racial lines virtually guarantees that tightened mortgage standards will mean that members of some races will be denied credit at a higher rate than others—and voila, disparate impact.
Bankers will be damned if they do and damned if they don't. If they follow the QM guidelines and thus tighten credit, they will run afoul of the novel disparate-impact interpretation of housing laws. If they loosen lending standards to ensure that lending outcomes are identical for every protected group, then they expose themselves to risk of litigation if some of those loans end up in default.
The end result will be confusion and uncertainty. Some banks will stop making mortgage loans altogether, which will further cut access to credit, reduce competition and drive up costs for all home buyers.
Raj Date, the former deputy director of the Consumer Financial Protection Bureau who wrote a large portion of the qualified-mortgage guidelines, now runs a startup venture and mortgage lender that he says will offer loans outside the QM guidelines. As he recently told this newspaper: "It is just way too hard for good, responsible people to get good mortgages today."
We agree. To get people into "good mortgages," the government needs to clear the minefield it created.
Mr. Keating, a former governor of Oklahoma and HUD general counsel, is president and CEO of the American Bankers Association.