The Bubble According to Todd
Todd Zywicki has a long blog post criticizing the CFPB's Qualified Mortgage (QM) rule and using it as a jumping-off point for a call to transform the CFPB's leadership from a single Director to a commission. Zywicki's primary criticism of the QM rule is that it fails to address what he believes was the root cause of the mortgage default crisis: strategic borrower behavior, which he believes needs to be addressed through down payment requirements and real liability for mortgage deficiency judgments, so that there is borrower skin-in-the-game. As Zywicki sees it, the housing bubble and its collapse as the result of ruthlessly strategic borrowers playing lenders. In other words, the bubble was a safety-and-soundness problem, not a consumer protection problem. The lenders were just helpless dopes, fooled by coldly rational borrowers.
The blame the borrowers move we see here is the same one Zywicki pulled during the bankrutpcy reform debates leading up to BAPCPA, and again it is made without an empirical basis.
Let me be clear, I have no doubt that there are some borrowers who acted with cold-blooded calculation about their "put option" with non-recourse mortgages. But there just isn't any evidence that quantifies the extent of such behavior. The studies using credit reporting data that label defaults on mortgages when other debts are current as "strategic default" clearly overstate the phenomenon because a consumer could have enough cash to pay all bills excluding the mortgage payment because mortgage payments are much larger than other payments and partial payments are generally not accepted on mortgages. Moreover, consumers will frequently try to pay as many bills as possible, rather than the most important bills. Thus, not making the mortgage payment may enable payment on several other bills. And if the consumer needs the car to get to work and the credit card to gas the car, then it makes a lot of sense to pay the car and credit card bills before the mortgage as otherwise the consumer won't have an income stream and will default on the mortgage after defaulting on the other bills. None of this has anything to do with the "put option" for non-recourse mortgages. (Indeed, how many consumers understand the "put option"?)
So I have no problem accepting the strategic borrower phenomenon, but there just isn't an evidentiary basis for Zywicki to describe this as the primary mortgage default issue. Just to illustrate another, consider all of the "liar loans" made during the bubble--loans on which there was no income verification. Sometimes borrowers deliberately overstated their income; sometimes brokers inflated the numbers given to them by borrowers in order to get the loans funded. Of course, lenders were very aware of both phenomena (see the Senate's investigative record of WaMu, e.g.), but no one was going to stop while the music was still playing.
Other borrowers took out loans assuming that they'd be able to refinance or sell once teaser rates expired. That assumption, of course, didn't hold true once housing prices fell. Again, lenders understood quite well that underwriting at teaser rates rather than fully indexed rates exposed borrowers to property value decline risk, but they were happy to fund the loans as long as the credit risk could be shifted to MBS investors. The QM ability to repay rule creates real consequences for engaging in this sort of cavalier lending behavior. If the lender did not verify the borrower's ability to repay, then all the lender will have is an unsecured claim against the borrower for the balance of the loan, not a lien on the house. Presumably that will create a strong incentive for lenders not to tolerate liar loans.
QM is meant to protect borrowers from getting into loans that they cannot repay. That is has a safety-and-soundness spillover effect is a good thing, but QM isn't really about safety-and-soundness, so its failure to protect banks from every form of consumer cunning isn't a shortcoming. Blasting the CFPB for failing to adopt down-payment requirements ignores that the CFPB had no authorization to do so for the QM rulemaking. Congress directed the CFPB to make a rule about ability to repay, not about strategic default incentives. To criticize an agency for not acting ultra vires is rather strange, especially for a self-professed conservative like Zywicki. (Perhaps he'd have preferred the CFPB to address no-downpayment mortgages separately, using the UDAAP power...) And imagine if the CFPB had included down payment requirements for QM. It would then get whipsawed on the argument that it was unduly restricting access to credit.
[Zywicki has a number of other criticisms of the QM rulemaking, all of which are worthy of some discussion, but this is already a reasonably long post, so I'm going to stick with his lead argument about strategic default.]
But enough on QM. Does the QM rule suggest a commission structure is right, as Zywicki claims? Even assuming, arguendo, that Zywicki is correct in his criticisms of the QM rulemaking, both in terms of its substance and its evidentiary basis, it isn't clear how this supports the argument that the CFPB should have a commission structure rather than a single Director. All a 5-member commission needs to pass a rulemaking are 3 votes. Even if the rulemaking is done on the basis of shaky evidence, there still can be three votes. To be sure, the minority commissioners can write vociferous dissents and try to signal to the DC Circuit that there are problems, like in Business Roundtable v. SEC, but that's no guarantee that the rulemaking will be overturned. In short, a commission structure doesn't tell us about the evidentiary quality of rulemakings. Surely Zywicki knows this. So why the push for a commission structure?
Well, a commission structure would make the CFPB much less likely to actually engage in any sort of regulation of consumer finance, good or bad. Consumer finance politics don't neatly track Dem/GOP lines. With a 5-member commission, there would either be 3 GOP/2 Dems or 3 Dems/2 GOP. If the former (3 GOP/2 Dems), you would likely see 3-2 or 4-1 votes against most additional regulation, while with the latter (3 Dem/2 GOP), you'd likely also see 3-2 votes against most additional regulation (2 GOP commissioners joined by one industry-sympathetic conservative Dem). And in such a world, there likely wouldn't even a lot of proposed new regulation put up for votes. Ultimately, a commission structure squeezes out progressive voices even if that is what the President wants. Instead, a commission structure with the brokered 3/2 party split ensures a conservative to moderate majority will prevail, regardless of what happens at the ballot box. Zywicki knows this, of course (indeed, his model is the FTC, which since 1980 has hardly been the paragon of regulatory effectiveness), and that's the game he's driving for.