postings by Katie Porter

Is the Person I've Been Dating Right for Me?

posted by Katie Porter

No, blog administrator Lawless, this is not spam. Credit scores are related to dating, as Ana Swanson reports in the Washington Post that credit scores are "eerily good at predicting" success in forming a committed relationship. The higher an individual's credit score, the more likely it is that they form a committed relationship and stay in it. That part could mirror a number of other things. For example, people who are young and not seeking serious relationships, also then to have lower credit scores from less credit experience.

Shutterstock_2503894But after a few dates, when you are wondering whether to get a more serious, that is when it's time to demand a visit to annualcreditreport.com. And you should do this on a date together. The difference in credit scores between two dating partners matters--not just the score itself. A closer match in credit scores at the time one started dating is highly predictive of whether the couple stays together. The next time someone asks you "what do you think of her?" you can respond, "well, I barely know them. I'd definitely need to know a credit score to give an opinion."

You might think this research is some forlorn economics PhD's dissertation gone awry, but it from no less than the august Federal Reserve Board. Clearly with the financial crisis over, the researchers there are . . . ahem, stretching themselves. Jane Dokko, Geng Li, and Jessica Hayes are serious researchers, however, and the paper is strong. It contributes to the growing body of research showing the degree to which data collection and analysis have encroached even into the most private parts of our lives.

Tired of Dealing with Students' Exams?

posted by Katie Porter

Shutterstock_194826680As exam grading season looms, some professors lament. I actually enjoy reading exams, as at least a few students usually write something fairly comical. For those academic readers, the American Board of Certification is seeking additions to its faculty committee. The main task is to design and grade the certification exams.

It's a great way to perform a public service and get ideas for your classes. Consumer and business topics are both possibilities, and the entire process turns out to be quite fun. I served for several years and felt like, particularly as a younger academic, it was a great way to discuss exam strategies with more experienced colleagues. Academics do not need to be certified by the ABC to participate. If you are interested, please contact Laura Bartell of Wayne State University Law School, who is Dean of Faculty.

 

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 Empiricist Strikes Back

posted by Katie Porter

The Washington Post had a story yesterday about the Department of Education's look at how student loan servicers deal with the Servicemembers Civil Relief Act and its protection to members of the Armed Forces. Senator Elizabeth Warren is drawing on her years of empirical research to question the methodology and the resulting conclusions of the study. (In a warning strike for the Empiricist, Senator Warren and some colleagues asked just why it was taking a large government agency well over a year to conduct a study--a credible claim from someone who conducted several large empirical studies, largely with the help of a few research assistants.)Shutterstock_184208507

As a professor, Warren conducted several large empirical studies, each gathering hundreds of variables on a sample of  more than 1,000 families in bankruptcy. She is miffed that the Department of Education only conducted a detailed review of 55 cases (out of a universe of 20,000). A prior DOJ investigation concluded that 60,000 servicemembers paid too much interest on their student loans, resulting in a $97 million settlement with Sallie Mae and its former subsidiary Navient. Yet, the Department of Education apparently uses a very different legal standard for determining compliance with Servicemembers Civil Relief Act than the Department of Justice. Not surprisingly, with a tiny sample and a narrow analysis, the Department of Education concluded all was well and good.

But as Senator Warren well understands as an empirical researcher, what you find depends on where your look--and if you have your eyes open! Her staff report details other concerns in a report , which reads more like something you'd find on SSRN or in a social science journal than the typical sound-bites of Washington press releases.  Senator Warren had to defend her research methodology and findings, and she always rose to the occasion. Having an Empiricist in Congress means you can expect someone reading your report, not accepting the conclusions. Senator Warren is bringing her research acumen to the government's work--where like in the scholarly world, there are not-so-good studies and good studies. Our servicemembers deserve a hard look at whether their legal rights are being protected, while they are protecting our rights.

 

 

Law of Debtors and Creditors Users (and would-be users)

posted by Katie Porter

As Jason Kilborn has graciously described, Credit Slips is the blogging base of the authors of the Law of Debtors and Creditors, 7th edition, (Aspen/Wolters Kluwer 2015). We have revised the Teacher's Manual this summer and encourage all adopters or potential adopters to download the new version, available at the book's Companion Website. If we you need the professor password, email your Aspen rep or one of us.  Law Debtor Creditors update

The unfun change was discovering a few typos (blush!) in the textbook itself. We created an errata. Distributing that to your students on the first day of class will help everyone.

The fun work was updating the Teacher's Manual to reflect our own experiences in the classroom and your feedback. We hope that we've given improved guidance for certain problems and we updated the discussion to reflect several changes in law.

(One of the younger cohort thought updating jurisdiction was fun; the other decidedly did not, but is extremely thankful to have a Teacher's Manual that will let her survive teaching in a world after Wellness and Arkinson/Executive Benefits/whatever-we-are-calling-that-case.)

The Teacher's Manual update is a wholesale replacement of the prior version, so you can rely solely on it, rather than the prior version, in the future. The  technologically adept co-author (aka the non-jurisdiction person) notes that you can download the TM to an iPad for in class use or annotate the PDF with bubbles and notes in your teaching preparation using Adobe Pro.

Please continue to send us your thoughts and ideas. have a great 2015-2016 year in teaching!

"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!!! 

Continue reading ""Quicken" the Development of the Law" »

Bankruptcy Lawyers Have Right to Work

posted by Katie Porter

 In the debate in Wisconsin over the  Right to Work bill, the legislators opposed to the bill questioned why no businesses were testifying in support of the law, if it was--as stated--going to drive business growth.

The Wisconsin Assembly got an answer when James Murray testified about the Right to Work bill. Mr. Murray explained that if passed, Right to Work would definitely increase his business: helping people file personal bankruptcy. Bankruptcy could become big business in Wisconsin, he said, noting that with a Right to Work law, Wisconsin could climb higher than 12th place on the per capita filing rate. 

Enjoy 7 minutes of brilliant satire and bankruptcy humor, courtesy of You Tube. Hat tip to Professor Michelle Arnopol Cecil for sharing this with me.

 

Are we poor?

posted by Katie Porter

If you have kids who talk as much as mine (gee, wonder where they picked up loquacity as a trait), conversations can go nearly anywhere. My boys, ages 9 and 6, are quite interested in money lately, a phenomenon driven in part by the tooth fairy and their discovery of gift cards at a recent birthday party. Here is a recent excerpt:

"Mom, is the reason that I can't have the Lego Batman DC set because we are poor? Jpeg-194x300

"We are not poor."

"Well, if are rich, then why can't I have it?"

"I didn't say we were rich. We aren't rich."

"Mom . . . . [big sigh of frustration] . . . Are we rich or are we poor?"

I recently read the Opposite of Spoiled by Ron Leiber, a NY Times money reporter. He provides straightforward advice on how to handle these questions and more. Even if one takes a slightly different tact with their kids, I completely agree with his main point:  parents should not avoid these conversations because they are uncomfortable or inconvenient or difficult. Kids talk about this stuff and draw conclusions. Creating a conversation is a way to share your values and learn about your children.

Continue reading "Are we poor? " »

Servicing Matters

posted by Katie Porter

I am so pleased to offer the following post by Carolina Reid, a premier housing researcher at UC Berkeley, about her excellent study of how mortgage servicers matter in creating home-saving opportunities. Welcome Carolina to Credit Slips.

By now we’re all familiar with a plethora of Wall Street financial acronyms, from ABSs to CDOs and CDSs. But what about MSRs (mortgage servicing rights)?  Until a year ago, I had never heard of MSRs, so I was surprised to find out that the rights to collect my mortgage payment are traded on Wall Street, much in the same way mortgage backed securities are traded. And, as a borrower, I have very little control over who purchases the servicing rights to my mortgage, despite the fact that it is usually the servicer who decides whether to offer a loan modification or start the foreclosure process if I become delinquent. Borrowers can’t “shop around” for the best servicer – you get who you get (but maybe you should get upset).

Continue reading "Servicing Matters" »

Scarcity of Money? Or Time?

posted by Katie Porter

How is it that I never find the time to blog? My answer would be that I simply do not have the time. But of course I have the same hours in a day as my co-bloggers. I could argue that I have more demands on my time, but I know very well that we are all busy. Scarcity, a book by Sendhil Mullainathan and Eldar Shafir, has many lessons for busy people, including those of us who are busy thinking about the difficulties faced by people who have a scarcity of income or disposable income after debt. 

The book looks at scarcity in varied contexts such as time, money, food, friendship. It argues that there is a common logic to situations of scarcity: a mindset that captures our attention and changes how we think. At an optimal level, scarcity can create positive focus. But the same capture of the mind can preoccupy us and make us vulnerable to poor thinking and impulse control. ScarcityThe authors find, for example, that being poor reduces a person's cognitive capacity more than going one full night without sleep.

The implications for those in financial scarcity are powerful, particularly in terms of policy intervention. The authors focus on the need for "slack" in program design; for example, job training programs with modular classes that can be taken out of order so if a person misses a class, they can more easily make up the class rather than falling behind on linear content and having to drop out.

My thinking went to chapter 13 and the debate about a "cushion" in chapter 13 plans. While some judges and trustees permit this (or even insist on it), others see it as an indication of weakness. If you deserve a discharge, you need to learn within limits. The scarcity of a confirmed chapter 13 plan, with its 100% draw on all disposable income, creates a mindset that can itself be harmful. People with some financial slack may, in fact, be better able to build the financial habits and position themselves for the rehabilitation that is bankruptcy's goal. Building financial savings into chapter 13 as a necessary expense would reduce the cognitive burden of bankruptcy and insulate people from the harms of financial scarcity after bankruptcy. The result, according to the research of Mullainathan and Shafir, would be debtors emerging from bankruptcy with better self-control, more focus, and stronger decisionmaking.

What do bankruptcy mortgage servicing and ebola have in common?

posted by Katie Porter

A long long time ago in this same galaxy, I wrote what may be Credit Slips' most popular post: What do bankruptcy mortgage servicing and phone sex in common? Today, I bring you a new comparison: bankruptcy mortgage servicing and ebola. At the outset, let me be very clear that ebola is a tragic health care crisis. I do not mean to minimize those deaths and illnesses with a comparison to mortgage servicing--although to be sure, poor mortgage servicing has tragic financial consequences.

Here is the basic analogy. Ebola has a high kill rate. Similarly, screwed up mortgage servicing can be the death knell for homeownership. Ebola is currently epidemic in West Africa, just as the foreclosure crisis made mortgage servicing a top-line policy problem. And despite the publicity, both ebola and foreclosure--as epidemiological matters--are rare. This is one of the reasons that investment and research on both problems has lagged behind more common occurrences such as, respectively, malaria and mobile banking. We have known about the risks of ebola for years, yet the global community is still struggling to find fixes. Again, in parallel, it has been twelve years since Hank Hildebrand wrote "The Sad State of Mortgage Service Providers," and six years after Tara Twomey's and my research on mortgage servicing errors in bankruptcy hit the front pages of newspapers. While improved, bankruptcy mortgage servicing is still a threat to a healthy bankruptcy system.

Screen Shot 2014-09-24 at 10.27.33 AMMy favorite recent case in point:  In re Williams, in which a couple filed a second bankruptcy solely to save their home--the exact reason for their first bankruptcy. (At least you can only get ebola once!) The Williams alleged that Ocwen had not properly serviced their mortgage during their first bankruptcy. Ocwen pursued a foreclosure after the debtors had completed their chapter 13 plan and refused to accept debtors' payments. Its proof of claim alleged 28 missed payments and an arrearage of $43,388.82.  U.S. Bankruptcy Judge Brendan Shannon (Bankr. Del.) ultimately found the debtors owed only $16,164.24 (12 payments) and ordered Ocwen to pay the costs and fees of the debtors' second bankruptcy filing and litigation with Ocwen. In describing the situation, Judge Shannon, said that the bankruptcy servicing created an "ensuing mess [that] is "dispiritingly predictable." The system was bogged down with a second case, the debtors threatened and stressed by a second foreclosure, and Ocwen spent its resources on a second round of litigation (instead of helping homeowners get loan modifications.)

Continue reading "What do bankruptcy mortgage servicing and ebola have in common? " »

Being Unbanked, Part 1

posted by Katie Porter

Note from Katie Porter: This guest post is from Jennifer Song, senior staff attorney at the California Monitor Program. Jennifer pitched in and attended this workshop, and I hope Credit Slips readers will enjoy hearing about her experiences in a short series of posts. 

Last week, I, Jennifer Song, had the opportunity to join FinX/LA 2014:  Connecting to the Consumer Financial Experience.  Hosted by the Center for Financial Services Innovation as part of their three-day conference on consumer financial services,  FinX was an “in-the-field activity” that promised to give participants a “deeper understanding of the complexity of consumers’ financial lives in accessing financial services.” 

Upon arriving at the conference, we were placed into groups of four and given worksheets. The tasks to complete included cashing a personal check, cashing a pay check, purchasing a general purpose reloadable card and reloading the card, purchasing a money order, inquiring about auto title loans, etc.  We were given a little over two hours to complete these tasks in lower income areas throughout Los Angeles. With only a quick slideshow of interesting facts and a pep talk, we set off on our journey. 

While I will share my experience and how it shaped my thinking on low-income banking, I want to start by identifying factors that may have prevented me from fully experiencing and understanding the challenges facing the under banked and unbanked. PhotoFirst, we were traveled in groups of four; most people using these services do not travel in packs or with an entourage, and are not able to consult each other about transactions.  Second, while we were told to “dress down” in order to “blend in” while performing these transactions, I do not believe we were fooling anyone at the shops we visited.  Third, and perhaps the most glaring contrast, was that we were chauffeured around Los Angeles in a town car to perform these transactions. While I assume there is access to public transportation in or around these financial centers, Los Angeles is notorious for being difficult to navigate via the public transportation system (did you even know it has a subway?) Many of the financial centers were clustered together but major banking institutions were noticeably absent in these areas. 

Continue reading "Being Unbanked, Part 1" »

Robbing Peter

posted by Katie Porter

How exactly do people make ends meet? While there are a few formal studies of "payment hierachies" courtesy of the big data organizations, there is little ethnographic work. A new contribution in this regard is "Robbing Peter to Pay Paul":  Economic and Cultural Explanations for How Lower-Income Families Manage Debt by Laura M. Tach and Sara Sternberg Greene. The authors interviewed 194 lower-income households, finding that debts generally receive less attention than regular monthly expenses where credit cannot substitute for meeting the need (e.g., paying rent). The best findings of the paper describe how households choose among debt coping strategies, which Tach and Greene categorize to include debt juggling such as rotating which debt to skip paying, rejecting responsibility/ignoring debt, using an EITC refund to make a large payment, and others. Tach and Greene sketch out an "Injustice Narrative" based on respondents' own understandings of why certain debts should be ignored or rejected. In their sample, these debts were frequently subprime credit cards or debts ballooned up with fees. By contrast, the authors present an "Economic Mobility Narrative," where debtors prioritized and paid consistently if they believed repayment was required to achieve a goal, like improving a credit score enough to qualify for a home loan. The overall perspective of the paper is that cost-effective approaches to debt repayment (highest interest rate first), or logical approaches (last in, first out), are less prominent than cultural narrative strategies that allow debtors to explain their payment--or lack thereof--using cultural sociological norms about mobility and justice.

The paper is a nice addition to the generalized reporting that focuses on middle class people--those with mortgages and credit cards. As Nick Timiraos recently reported in the WSJ, mortgages are once again the king of the bill heap. The article has some nice graphics that illustrate regional differences in payment hierarchies that appear to correlate with property values.

p.s. There was a rumor that I would never blog again. I started it. But it just didn't catch on, despite my dissemination efforts.  I'm back . . .

Voice--The Credit Card, Not the TV Show

posted by Katie Porter

For years, "product innovation" in financial services made consumer advocates squirm. This was the cover term for the 2/28 teaser ARM, automatic and costly overdraft protection, and direct deposit "payday" style loans. It was a great term because it's hard to be anti-innovation, especially in a world where every day a new app or technology proves useful. A new credit card, called "Voice" from Huntington Bank, is innovating in the credit card space. While the pros and cons of rewards are debatable (Ronald Mann's Charging Ahead has a dated but good discussion of rewards), the marketing and design of the Voice card are intriguing. What do I see?

1) The personification of the bank. It "listens." Consumers can "tell the card" things.

2) Big touted benefit of a one-day late fee. That's a nice consumer perk but perhaps telling about how many late fees are really the result of simple mistake rather than financial hardship. And that's a fact that perhaps should play into what a "reasonable" v. "abusive" late fee is.

3) That consumers presumably will be drawn to this idea of switching up rewards. If people forget to pay on time, are they really going to log on at the start of every quarter to change up and maximize rewards. The card allows consumers to "Earn a point per dollar on all purchases with Voice and pick a triple rewards category. So, you get the flexibility to earn 3x points in the category where you spend most. Go from triple gas points in fall to triple utility points for winter. It’s your choice." Huntington presumably will track whether consumers actually make such choices, and it would a field day for a behavioral economist to study how consumers use such a product.

4) No annual fee, so hey, maybe chasing rewards on cards with high annual fees would do well here. Typically we see high rewards paired with high annual fee (think airline cards). Query how good the rewards perks can be if the bank doesn't have annual fee revenue. Maybe the answer is that Huntington is marketing this card to its retail customers, and it knows enough about their habits to have optimized this product--both in terms of attracting them and being profitable. There's been a lot of talk about personalized medicine, but personalized finance is a reality too.

Living down the Lattes

posted by Katie Porter

Credit Slips is a virtual community so very few of you know that I go to Starbucks at least once a day, although a small detail in the pic here was a hint in that direction. It's not a cheap habit, as personal finance writers have observed here and here. But does it drive people to financial ruin, or even indicate a failure of sound financial habits?

I've never thought so. The decades of research on consumer bankruptcy show that the big 3--job problems, medical problems, and family changes--are underlying structural problems. My thoughts on the "latte problem" are now enshrined in print in Helaine Olen's new book, Pound Foolish. It's tone is largely that of an expose, which makes for fun reading, although academics may find some of the research a bit light. But part of the problem that the book reveals is the lack of innovative solutions to improve financial advice. Certainly the CFPB has undertaken this as a major part of its mission. I'd love to hear readers' suggestions for innovative (not more junior high financial education, please) ways to get people to be more critical "consumers" of financial advice and to take the time and effort to make strides toward their financial goals. In the meantime, I'll enjoy my latte and procrastinate on rebalancing my retirement portfolio!

The Frontiers of Mortgage Servicing, Part I

posted by Katie Porter

For the last 18 months, I've served as the California Monitor for the National Mortgage Settlement at the request of California Attorney General Kamala D. Harris. Disclaimer: This post does not necessarily represent the views of the CA AG or CA DOJ. It's just me, Professor Porter writing. And what I wanted to write about is the first in a series of thoughts that I have about where mortgage servicing policy needs to go in the future. 

My first topic where think mortgage servicing needs more conversation and reform is the role of the FHFA and Fannie/Freddie in having fostered/enabled/encouraged some of the unsavory practices in mortgage servicing through their servicing guidelines. Dustin Zachs' piece, Robo-Litigation, offers several detailed examples of how Fannie and Freddie were entangled with the law firms engaged in robo-signing and other illegal practices. He gives a detailed account of David Stern, named Fannie Mae's lawyer of the year in 1998 and 1999. But in 2002, the Florida Bar disciplined him for misleading affidavits in those prior years. Fannie and Freddie did not stop referring cases to him until October 2010. And then there was the litigation--brought by Stern against F/F to collect fees for his practices--not brought by F/F to recoup fees paid for work that Stern's firm may have done in violation of the rules of professional responsibility, state law, or the servicing guidelines.

Continue reading "The Frontiers of Mortgage Servicing, Part I " »

Student Lending

posted by Katie Porter

As Prof. Nathalie Martin noted, the ABI has an upcoming conference on student loans. For those more interested in policy than straight up bankruptcy law, the St. Louis Federal Reserve will host a one day conference on the state of student loans in America on November 18. The conference, “Generation Debt: The Promise, Perils and Future of Student Loans,” comes on the heels of a report issued by the Consumer Financial Protection Bureau outlining the similarities between the student loan crisis and the recent financial meltdown. The Fed's involvement as a leading research institution--on student lending is great news.

Policy makers, academics and students (young adults) need frank and honest discussions about education finance. But young people’s economic vulnerability in this country is about much more than student loans; this generation faces critical junctures as they secure jobs (or not), marry and form families (or not) and pursue and pay for higher education (or not). The Fed's conference will hopefully offer a more multi-dimensional view into young adults and their financially fragile status than many of the high-profile articles that focus singularly on the role of student loan debt.

Continue reading "Student Lending" »

Fannie/Freddie to Homeowners: Do Nothing and Help Will Arrive

posted by Katie Porter

Housing Wire is reporting that Federal Housing Finance Agency, the conservator of Fannie Mae and Freddie Mac, has launched a new loan modification program. The program is a major departure from HAMP and HARP (thankfully!). It puts mortgage servicers in charge of delivering relief, instead of requiring homeowners to run down, chase, and exhaust themselves contacting their mortgage company.

The basic details available so far are that the program will start this July 1 and end August 2015. It will be open to Fannie/Freddie homeowners who are 90 days or more delinquent on their mortgages. Homeowners will not have to submit proof of financial hardship or undergo extensive underwriting to be qualified for modifications.

This "Streamlined Modification Initiative" needs a better name, better branding, and at least so far, better publicity. But overall, I am very encouraged that FHFA is adopting this kind of program. It's what I call a "push program," requiring the servicers to deliver relief. We've seen at least two servicers roll out similar push programs as part of the National Mortgage Settlement. Bank of America sent letters to over 100,000 homeowners stating that if the borrower literally did nothing that their second mortgage would be forgiven and released, and the debt reported to credit bureaus paid in full. Guess what, 99% of homeowners who got this letter got the relief. Similarly, JPMorgan Chase rolled out a Settlement "refinance" program that was actually a simple, no-doc, interest rate reduction for the life of the loan. Their consumer response rate was multiples of other institutions that required full documentation for their Settlement refinance programs. Both programs are innovative and leverage the servicers' resources, while reducing the onus on everyday families.

Continue reading "Fannie/Freddie to Homeowners: Do Nothing and Help Will Arrive" »

Undocumented Debtors

posted by Katie Porter

Immigration issues continue to be a major political football, and the work of Jean Braucher, Bob Lawless, and Dov Cohen on race in bankruptcy garnered front-page NY Times attention this year. This makes the publication of Chrystin Ondersma's paper titled Undocumented Debtors particularly timely. The paper is the first-ever look (to my knowledge) at whether and how undocumented people file bankruptcy. The key finding is that while it seems legal--and indeed arguably explicitly contemplated by the bankruptcy system--that undocumented people may file, the rate of filings is very low--on the order of less than one percent of the rate of debtors in the general population. Ondersma also provides a good overview of the credit systems available to undocumented people, ranging from those offered by large national entities, such as ITIN mortgages, to informal mechanisms such as tandas.

Continue reading "Undocumented Debtors " »

The Meaning of Bankrupt

posted by Katie Porter

Every so often in the United States, I come across a discusion of the choice of the word "cramdown" (cram down, cram-down) to describe either stripping down liens or confirming a repayment plan without creditor consent. The basic thrust of these articles--the best of which is probably this treatment by William Safire--is that the word itself conveys a great deal about the cultural view of the legal action. In the context of cramdown, I think the word choice reflects the fact the U.S. legal regime generally protects the collection rights of secured creditors in bankruptcy.

At a recent World Bank event, a provocative discussion emerged on the choice of what to call people who file bankruptcy. The Working Group report notes an international trend in the law away from calling people "bankrupt" toward the term "debtor." Judge Wisit Wisitsora-at from Thailand offered a slightly different flavor on the problem--that whatever the word chosen, the literal translation, and cultural meaning, of of such a word can vary tremenedously. He reported that the current word in Thai for a person who files consumer bankrutpcy literally translated means "worse than a failure." Even a quick run of the word "bankrupt" through Google translate in several languages produces some words that are a far cry from the dominant U.S. perspective (at least among academics) of the Fragile Middle Class. Here's a sampling: beggar, penniless, upset, defeated, fallen down on the ground, and unsound.

The Mortgage Settlement's Big Day

posted by Katie Porter

Today, October 2, is the last day for the nation's five largest mortgage companies to implement the servicing reforms in the National Mortgage Settlement. As California Monitor, I issued my first report to highlight one of the most important changes--restricting dual tracking. Dual tracking is the name given to the race between foreclosure and loan modifications. Because banks control both processes, beyond some specified waiting periods by state law, many families lose the race to get a decision on whether they can save their home with a loan modification. Restrictions on dual tracking are key to avoiding preventable foreclosures and creating fundamental fairness in the foreclosure process.

The report gives some data on dual tracking to bring visibility to this issue. After the jump, I report some bad news and good news on how the Settlement implementation reforms are going. 

Continue reading "The Mortgage Settlement's Big Day " »

Tribal Bankruptcy

posted by Katie Porter

The Wall Street Journal reported last week about a challenge to a bankruptcy filing by the Santa Ysabel Resort and Casino. The casino, located on a reservation outside San Diego, filed a chapter 11 case, listing debts of about $40 million. The bankruptcy filing is being contested by the debtor's lender on the grounds that Native American tribes are sovereign nations and they are cannot use chapter 11. The twist in this case is that the lender raising that argument and trying to get the Resort and Casino tossed out of bankruptcy is itself a federally-recognized Native American tribe, the Yavapai-Apache Nation. It bought the Resort and Casinos' debt from JPMorgan Chase.

When I was in practice I worked on some related issues. For example, whether a tribe who was a creditor of a debtor waived its sovereign immunity by filing a proof claim. The Santa Ysabel case seems to raise much more fundamental issues about the availability of bankruptcy protection. If Santa Ysabel cannot file chapter 11, could it somehow file chapter 15? Would it need its own tribal bankruptcy system to do so? Does it matter whether the resort had incorporated under state law (it apparently is unincorporated)? Does it matter if the resort were not located on tribal land, even if it were wholly owned by a tribe?

Credit Card Data

posted by Katie Porter

The CFPB released a beta version of its complaint database on June 19th. Right now, one can only search credit card complaints, which the CFPB began taking on the first birthday of its creation, July 21, 2011. My takeaway is that this is major step forward for the disclosure of complaint data but that the "beta" in the website is well-deserved. You can see some neat graphics and and best of all you can download the raw data. One problem is that this is SO apparently cutting-edge and sophisticated that I couldn't figure out how to use many of the features after a half-hour of poking around (and while some may disagree, I think it's safe to say I have more technology and statistical skills than the vast majority of U.S. consumers). Below was my effort to use the "embed" graphic feature that is touted as allowing one to "publish this dataset on the internet at large."

https://data.consumerfinance.gov/dataset/Complaints-by-issue/c2vc-5i9b/widget_preview?width=760&height=646&customization_id=

And yes, I know the graphic does not appear and the hyperlink does not work. If you cut and paste it into a window (old school), it does appear.

Thank You to Bill Maurer and Stephen Rea

posted by Katie Porter

Last week, Credit Slips was fortunate to have the thoughtful insights of Bill Maurer and Stevie Rea on payments systems. Their posts reflect years of research in the United States and overseas on the social meaning of money, the potential and perils of mobile money, and the future of cash. We thank them for sharing their ideas with us.

As anthropologists working in a field shaped by legal rules--and lack thereof, Bill and Stevie offered insights on the ways in which cultural beliefs, social networks, and other non-legal forces are likely to shape the regulation of payments system in the future. If you missed their posts, I highly recommend you treat yourself to them. In their final post, they offer a challenge to Credit Slips readers that I hope we'll take up:

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Welcome to Guestbloggers Bill Maurer and Stephen Rea

posted by Katie Porter

Credit Slips welcomes Bill Maurer as a guest blogger this week. Bill is NOT a lawyer! Isn't that great? (We all need an occasional break from lawyers, even those of us who are lawyers.)

But Bill is one of my colleagues at the UC Irvine School of Law, where he has a joint appointment. He is a cultural anthropologist whose work focuses on law, property, and money and finance. Of great interest to Slips readers will be Bill's expertise on payment systems, and particularly on mobile money. He is the Director of the Institute for Money, Technology, and Financial Inclusion, a Gates Foundation-funded center for academic and policy research.

Bill's recent paper, Regulation as Retrospective Ethnography: Mobile Money and the Arts of Cash, examines how we are integrating mobile money products into our understanding of money, which traditionally has meant cash. He also has published work on BitCoin, Islamic banking, offshore financial structures, and other payments issues.

Bill will be joined by Stephen Rea, a graduate student in anthropology at UC Irvine. Stephen also is affiliated with the Institute for Money, Technology, and Financial Inclusion and has co-authored a forthcoming paper with Bill and another scholar on mobile money agents in the developing world.

We look forward to their insights.

FireDogLake Book Salon on BROKE

posted by Katie Porter

On Sunday, March 25, from 5-7pm Eastern/2-4pm Pacific, I am live-blogging about Broke: How Debt Bankrupts the Middle Class at FireDogLake's Book Salon. My host is Edwin Walker, a retired bankruptcy practitioner with over twenty five years of experience. I am certain that he will prompt a lively discussion. I am looking forward to his questions and to engaging with the public on these issues. All Credit Slips readers are welcome to join in the conversation.

Of Babies and Bucks

posted by Katie Porter

The Credit Slips bloggers are engaged in a virtual enterprise, which means we sometimes don't see each other for a long time. One of my fellow bloggers recently asked "What's up?" and learned that I had a new baby three months ago. That experience, along with trying to stem the tide of "I want it! I need it!" that comes with having two preschoolers during the holidays, has left me thinking about how we teach children about money, debt, and consumerism.

There apparently is very little research on financial education for children ages 2-7. Chapter 3 in Consumer Knowledge and Financial Decisions (ed. Douglas Lamdin; Springer 2012), explores the relationship between cognitive development and children's understanding of personal finance. I found its identification of the key concepts of personal finance for young children helpful. They list:  numbers, time, income, markets and exchange, institutions, and choice. They also explore how some concepts emphasized in young children, for example being "nice" or "fair", are hard to square with the idea of a financial transaction as a matter of price and market conditions. For me personally, this explained a great deal of the reasons that the Monopoly board game has for generations resulted in children in families fighting with each other!

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Evaluating Mandatory Financial Education in Bankruptcy

posted by Katie Porter

In 2005, Congress amended bankruptcy law to require individual debtors with primarily consumer debts to complete an "instructional course on personal financial management" to be eligible to receive a discharge of their debts. Adding financial education as a bankruptcy requirement divided the bankruptcy community, even debtor advocates, judges, academics, and others who almost uniformly did not like the 2005 amendments. Part of the mixed sentiment about the financial education may be that it is hard to dislike something as innocuous-sounding as education (although Professor Lauren Willis makes a good case against it in this article). And there were certainly bigger fish to fry in opposing the 2005 laws. Still, many complained that this was one more example of creditors getting Congress to lard on duties for debtors, driving up the cost and work of obtaining bankruptcy relief and setting up debtors to have their cases dismissed if they tripped up by failing to complete the educational course.

Dr. Deborah Thorne and I have a new study that looks at how debtors themselves feel about the mandatory financial education course. It is a chapter in this book, Consumer Knowledge and Financial Decisions (ed. Douglas Lamdin, Springer, 2012) and available to read here. In the 2007 Consumer Bankruptcy Project, we asked debtors whether they believed that the information from the financial education class 1)would what they learned in the financial education class have helped them avoid bankruptcy originally, and 2) would help them avoid financial trouble in the future. While only 33% thought a financial instruction course similar to the one required of bankruptcy debtors could have helped them avoid filing, 72% thought it would help them avoid future financial trouble. As we report in detail in the chapter, some demographic groups were much more positive about the value of financial education than others.

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Teach Consumer Bankruptcy

posted by Katie Porter

It's the time of year when professors, including those who are adjunct professors or are interested in teaching as adjuncts, submit their proposed courses for the next academic year. Many of us teach a general 3 or 4 unit bankruptcy course that uses a textbook, and some of us teach specialized seminars on chapter 11. This year think about teaching a seminar on consumer bankruptcy. I've got just the class all ready to go--course pack, syllabus, writing assignments, even in-class exercises. All you need to do is put "Consumer Bankruptcy Seminar" on the form and return it to your Associate Dean.

When the chapter authors and I wrote Broke: How Debt Bankrupts the Middle Class, we wanted to create a reader that could support a seminar on consumer debt. I road-tested the book this fall in a seminar at UC Irvine Law School. The students loved it! (You can check out the course evaluations for yourself.) From my standpoint, it is the most fun, creative and easiest-to-prep class that I've taught. Full details are on this site, but the skinny is after the jump.

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Fixing the "Fixed" Forms

posted by Katie Porter

Two weeks ago, I blogged about the Forms Modernization Project's effort to create new forms specifically for consumer bankrupts. The chair of that Project, Judge Elizabeth Perris, offered a lengthy comment that shared some information on the goals and process. I recommend it to you.  She noted that law students were asked to review the forms.

This fall during my seminar on consumer bankruptcy, I had my students do this as a take-home assignment. We had just read a chapter in Broke by Angie Littwin on pro se bankruptcy filers, and the students' task was to assess whether the forms would make the system easier for debtors. The students' observations ranged from the minute to global. My favorites are below.

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Dividing the Mortgage Settlement Dollars

posted by Katie Porter

Details are still forthcoming about the settlement between the federal government and attorneys general and the five largest servicing banks but one interesting twist that is already emerging is how the dollars are being divvied up and distributed. The total number touted, $25 billion, includes both dollars paid in cold cash to the states,  dollars paid in cold cash to wronged consumers, and "credit" for reducing principal or refinancing. The estimates I've seen suggest only $5 billion is in either of the cash categories, with the relief to any particular consumer likely to be $1,500 to $2,000. That suggests that $20 billion could be available for rewriting loan terms to help consumers.

But, the effects of the settlement are likely going to vary by state. Iowa's Attorney General, Tom Miller, who led the 50-state investigation, has described a division of Iowa's money  that would look quite different from the above-described distribution. He says Iowa's slice of the total $25 billion is likely to be $40 million. Make sense to me; Iowa has a small  population. But of that estimated $40 million, Iowa will get $15.3 million in cold hard cash.  That is 38% of Iowa's relief coming in hard dollars to the state, whereas $5 billion of the $25 billion estimated for the nation suggests a 20% cash payout. Iowa is taking almost twice the percentage of its haul in cash as in "credit" for principal write-downs/refinancings. Then there is the issue of what the states are going to do with their cash. Attorney General Tom Miller suggests the money should go to the groups directly aiding homeowners in trouble. But other states have other ideas. Missouri's governor has proposed using at least a chunk of its money to support higher education. Read about it here, which also contains a list of the cash payment going to each state. And Ohio seems to be planning to use at least some of its cash to demolish blighted property. These variations in how much cash states get and what they'll do with it are just one reason that consumers may have to struggle to make sense of this settlement and benefit from it.

Bankruptcy Implications of AG Settlement

posted by Katie Porter

Even though I was up at 4am Pacific this morning, the AG and federal government mortgage settlement was nearly old news by then. But in case you haven't heard, here is your official Credit Slips announcement--there was a $26 billion settlement.While the details are still being released, I am already concerned about how the settlement will affect bankruptcy cases. Remember that bankruptcy was one of the first places we saw the misbehavior of mortgage servicers--way back in 2005 when Tara Twomey and I did our study.

As of December 1, new Bankruptcy Rules of Procedure 3001 and 3002 impose new requirements on servicers of loans owed by bankruptcy debtors. Are the terms of the settlement consistent with those new rules? If so, do they add any new procedural benefits to protect bankrupt homeowners against robo-signing and legal violations?

The Department of Justice participated in the settlement and the U.S. Trustee's Office apparently was at the negotiating table. Their press release,  however, is just boilerplate of the general DOJ release. The only mention of bankruptcy is that the settlement will impose "new requirements to undertake pre-filing reviews of certain documents filed in bankruptcy court." I'm not sure what to make of that. Presumably, filing claims under penalty of perjury already required a review of claims, and Rule 9011 required a significant review of motions for relief from stay to permit a foreclosure to continue. What does the settlement add? I hope the US Trustee will let us know soon, as I am sure debtors' attorneys will get calls today on the issue.

An additional observation is that it is important to remember who is not a party to the settlement--the chapter 13 trustees. Those folks are not bound by the settlement, meaning that they can still challenge servicing practices that comply with the settlement, but in the professional judgment of the trustee violate bankruptcy law. Of course, the trustees are supervised by the U.S. Trustee so perhaps there will be political pressure to make the settlement the final word on the obligations of servicers in bankruptcy, but this could be an issue.

Comments and thoughts on the implications of the settlement for bankruptcy cases are very welcome!

The Backdrop for BROKE: Consumer Debt Then and Now

posted by Katie Porter

In the introductory chapter of the book, Broke: How Debt Bankrupts the Middle ClassI present some data about consumer debt levels in the United States. As Bob Lawless and others have shown, levels of consumer debt are strongly correlated with bankruptcy filings. While conditions such as unemployment, rising health care costs, and skyrocketing college tuition--and recessions--all create pressures on consumers that lead to borrow, debt is the sine qua non of bankruptcy--the relief offered by the system is the reduction or elimination of debt--not the promise of a good paying job or a strong social safety net. Because bankruptcy is driven by debt, those filings help reveal whether the levels of consumer debt will create serious problems for the economy and American families.

In Broke, I present a figure, courtesy of the San Francisco Fed, that shows the dramatic growth in household debt in real dollars over the last few decades. Reproduced below, the figure shows that the sharp acceleration began in the mid 1980s. E-letter_figure_8 Figure1This is an important point to understanding why recovery is proving difficult from the recession. As I explain in the book, "The consumer debt overhang, however, began long before the financial crisis and the recession. Exhortations about subprime mortgages reflect only a relatively minor piece of a much broader recalibration in the balance sheets of middle-class families. . . . The boom in borrowing spans social classes, racial and ethnic groups, sexes and generations." Broke, pp 4-5. The gray bands on Figure show recessions; this recovery is more difficult, at least in part, because we have an unprecedented gap between income and debt. Is this gap disappearing as a consequence of consumer reluctance to borrower and tightened credit conditions?

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Consumer Friendly Forms for Bankruptcy

posted by Katie Porter

In many respects, bankruptcy is a one-size-fits-all legal process. Yes, there are ample differences in the law (and a world of difference in practice) between the bankruptcy of a large corporation and a typical consumer. But the Bankruptcy Code itself contains plenty of provisions of general applicability. A major example of the one-size-fits-all approach to bankruptcy is the official forms for filing a case. The basic petition and schedules are the same forms for Big Airline Co. and Mr. Joe Blow. The information on the forms is wildly different, with Big Airline Co. listing hundreds or even thousands of creditors, with many more digits in their debts, than Joe Blow. But the form for those debts--Schedule F--is the same form. That may all be changing soon.

The Bankruptcy Rules Committee began a Forms Modernization Project a few years ago, and one of its top agenda items has been creating new forms just for use in consumer bankruptcy cases. Although few people seem to be aware of the effort, a draft version of those new forms is available to the public and to my mind, well worth a look. To see the forms, go here, then click on September 2011, download the file, and look  at pp. 189-315 of the PDF (or tab 7.1 if you use the PDF index.) One thing that is obvious from the page numbers in the prior sentence is that the new forms are really long--way longer than the current forms as completed in the typical consumer case. The added length results in part from the development of extensive instructions for each form. Below is an example of a new form with some commentary on its notable new features.

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BROKE: A New Book on Consumer Debt and Bankruptcy

posted by Katie Porter

Just in time for New Year's resolutions on 1) reading more, 2) paring back your own debt, and 3) learning more about consumer bankruptcy to help you do your job (if you are a lawyer, judge, or academic, media, etc), the book, Broke: How Debt Bankrupts the Middle Class was released from Stanford University Press.

BrokeThe book makes extensive use of the 2007 Consumer Bankruptcy Project data, providing statistics, analysis, and commentary on consumer bankruptcy and debt topics. I edited the volume, and chapter contributors are many Credit Slips regulars or guest bloggers--Jacob Hacker, Bob Lawless, Kevin Leicht, Angela Littwin, Deborah Thorne, and Elizabeth Warren--along with other top scholars.

In the next few weeks, the chapter authors will blog here at Credit Slips about the research featured in the book, but to whet your appetite, I've included a table of contents for the book after the break. The book is accessible to lay readers but its scholarly focus provides plenty of data to educate and surprise even bankruptcy experts. Working on the book, I certainly learned a great deal about timely and important topics such as how pro se debtors (those without attorneys) fare in bankruptcy, where families go after they lose their homes to foreclosure, how bankruptcy affects couple's marriages, and the ways that bankrupt households differ in their financial straits from other households of concern such as those with low assets or late payments on debt. Of course I'm biased but I think the book provides the most comprehensive overview of the consumer bankruptcy system since the enactment of the 2005 bankruptcy amendments.

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Buy Here Pay Here Dealerships

posted by Katie Porter

The LA Times did a three-part series this fall on what they call "Buy Here Pay Here" car dealerships. (Here is Part One, Part Two, and Part Three). The name, which was new to me, comes from a common requirement that customers return to the lot to make their loan payments. The high-interest-rate loans are usually for aging, high-mileage vehicles to people with ragged credit. The idea of the "pay here" is to provide ample opportunity for dealers to keep track of the car's--and customer's--whereabouts and to increase the likelihood of repayment by customers.

One year ago (almost to the day), Credit Slips discussed the repossession rates for auto title loans. Unlike buy here/pay here, auto title loans are not to purchase a car but require a person to pledge their car's ownership if a loan is not paid back. Adam Levitin came up with an estimated rate of 14-18% for repossession on auto title loans but emphasized how difficult it was to get such data. Surprisingly to me, the LA Times managed to get the buy here/pay here industry to not just share--but to gloat--about how this business model works. The key data: 1)  About 1 in 4 buyers default. 2) The dealerships make an average profit of 38% on each sale, more than double the profit margin of conventional retail car chains.

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Your Government Prefers Chapter 13

posted by Katie Porter

Today, I went looking for the court costs payable by chapter 13 debtors who wants to convert their cases to chapter 7. I admit that like many Americans my starting point was Google. I quickly landed here, at the Bankruptcy Basics page provided by the Administrative Office of the U.S. Courts, a division of the judiciary. The site says that it "provides basic information to debtors, creditors, court personnel, the media, and the general public on different aspects of federal bankruptcy laws. It also provides individuals who may be considering bankruptcy with a basic explanation of the different chapters under which a bankruptcy case may be filed." From this description,  you might expect a factual, value-neutral description of the fundamental choice facing all consumer debtors: whether to chose chapter 7 or chapter 13. But look what I found when I read up on Chapter 7 and Chapter 13 . . .

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Consumers, Cast Your Vote

posted by Katie Porter

The Consumer Financial Protection Bureau has launched the first project in its "Know Before You Owe" initiative with the release of proposed mortgage disclosures. While the CFPB did its homework in designing these forms, including getting feedback from a wide variety of sources, it is taking field-testing to a new level by asking American consumers to review two proposed forms. Consumers can then vote for the form that they think best conveys the key information needed to understand a home mortgage loan. The choices, named "Azalea" and "Camellia" for the fictional banks on the sample disclosures, are available here. (Simply click to view them as a PDF and then vote for your favorite.)

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How to Find Me

posted by Katie Porter

I've had a series of funny phone calls this week, in which the speaker expresses total shock that I answer the phone. While I am notorious for never answering my phone, the real cause of the callers' surprise is that the number where I answer is sometimes the third one they have called looking for me. Why? I just relocated to Irvine, California as I've joined the faculty of the UC Irvine School of Law, after a year-long visit at Harvard Law School and several years on the faculty at the University of Iowa College of Law. For those of you looking for detailed information, the bio link on the Credit Slips homepage will get you what you need.

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Good News on Mortgage Modifications

posted by Katie Porter

Isn't it about time for some good news on mortgage modifications? Here is some, in the form of a paper titled Who Receives a Mortgage Modification? Race and Income Differentials in Loan Workouts. The authors use data from the Home Mortgage Disclosure Act (HMDA) to assess borrower characteristics against the incidence of loan defaults and modifications on a group of more than 100,000 subprime loans.

The first two findings are depressing and not surprising: loan modifications are rare, and minority borrowers are more likely to be delinquent. The good news is that minorities are faring well in seeking modifications. As a descriptive matter, among those 60 or more days delinquent, 11 percent of blacks and 9 percent of Hispanics received a loan modification, compared to 5 percent of whites. In regression modeling that controlled for borrower, loan, and housing/labor market conditions, blacks were slightly more likely to get modifications, conditional on being delinquent, than other races. This effect persists even when researchers control for the fact (also good news in my mind) that borrowers who got a high-cost loan are more likely to get a loan modification. In further analysis, the authors find that blacks receive a similar interest rate reductions to borrowers of other races.

As with any empirical study, there are some limitations. The authors use data from only trustee (although several servicers) and examine loans originated in only three states--all Western and all non-judicial foreclosure. And, as the authors note, they cannot assess whether there are differences in loan modification denial rates. Put concretely, if blacks are applying at twice as high of a rate for loan modifications as whites, their analysis would not pick up this high rate of denial compared to applications. This paper ends with interesting thoughts on the racial disparities in loan origination, and why these patterns are not found in loan modifications. It asks whether there are lessons from HAMP or the loan modification process generally that could be useful in designing loan origination programs that reduce the longstanding racial disparity in that crucial financial transaction.

The Free House Myth

posted by Katie Porter

As challenges to whether a "bank" (usually actually a securitized trust) has the right to foreclose because it owns the note and mortgage become more common, rumors swirl about the ability to use such tactics to get a "free house." There are a few instances of consumer getting a free house, see here and here, for examples, but these are extreme situations not premised on ownership, but on a more fundamental flaw with the mortgage. In general, the idea that even a successful ownership challenge will create a free house to the borrower is an urban myth. I'll explain why below, but there is a policy point here. The myth of the free house drives policymakers to complain about the moral hazard risks of holding mortgage companies to the law and tries to set up homeowners who are paying their mortgages against those who are not. It serves the banks' political agenda to be able to point to the "free house" as an obviously unacceptable alternative of consumers winning legal challenges. It's key then to understand that the "free house" is largely a creature of consumers' and banks' over-active imaginations.

In sorting out why even a successful ownership challenge does not give homeowners a free house, it is helpful to parse some key concepts. The first one is standing, which is the right of a party to ask a court for the relief it seeks. This comes in different flavors, including constitutional standing, but in the foreclosure context, usually boils down to whether the moving party is the "real party in interest." In re Veal, the recent decision from the 9th Circuit BAP authored by Judge Bruce Markell, mentioned previously on Credit Slips , contains a discussion of standing in the foreclosure context. At least in part, the concern of the real party in interest doctrine is to make sure that the plaintiff is the right person to get legal relief in order to protect the defendant from a later action by the person truly entitled to relief. Note that standing is a concept that only applies in court; here that means in judicial foreclosures. In states that allow non-judicial foreclosure, the issue is slightly different. Does the party initiating the non-judicial foreclosure have the authority to do so under the state statute authorizing the sale? For example, cases such as In re Salazar discuss whether a recorded assignment of the mortgage is needed, as opposed to an unrecorded assignment, to initiate a foreclosure. Under either standing or statutory authority, a "win" by the homeowner leads to the same result. The foreclosure cannot proceed.

But this win is not the same as a free house. Just because a party lacked standing or statutory authority does not mean that there is not some party out there that does have the authority to foreclosure. Nor does a win on standing mean that there cannot be action taken to give the initial foreclosing party the authority that they need, which might occur by transferring possession of the note or by executing a series of assignments, to foreclose at a later date. Unless other problems exist, there is still a valid note that obligates the homeowner to pay money due and there is still a mortgage encumbering the house. The homeowner does not get a free house. Rather, the homeowner just doesn't lose her house today to foreclosure. These are pretty different outcomes!

This doesn't mean that I think the standing/ownership issue is inconsequential. For homeowners, a successful challenge that results in the dismissal of a foreclosure can lead to a loan modification or the delay itself can give the homeowner the time to find another solution. For investors in mortgage-backed securities, the problems with paperwork likely increase their loss severities in foreclosure, both because of increased litigation costs and because of delay in correcting problems. (And there may be even more serious problems for investors relating to whether the transfers even succeeded in putting the homes in the trust.) But we shouldn't confuse these issues with the idea that what is at stake in sorting out this mess is giving a "free house" to some Americans, despite the lamentations of this LaSalle Bank lawyer after a judge ruled that LaSalle as trustee lacked standing to foreclose. A fruitful discussion of these issues needs to begin with a clear understanding of the consequences of the problem, as well as empirical evidence on how widespread these problems are. The free house is political handwringing, not legal reality.

New Duties for Debtors: Form Amendments in the wake of Lanning and Ransom

posted by Katie Porter

Lanning and Ransom are the Supreme Court's two recent decisions on the interpretations of the means test added to the Bankruptcy Code by BAPCPA. Courts are actively puzzling out how to apply these decisions, which generated as many questions as they answered (Lanning, in particular). I recently learned that the Bankruptcy Rules Committee is planning to propose a new version of the means test form, B22, to accommodate Lanning and Ransom. The revised form would have a line that required debtors to list changes in circumstances and provide details. I'm troubled by these potential revisions because I think it is an unduly aggressive interpretation of the two decisions to create an affirmative duty by debtors, and their counsel, to disclose changes in income or expenses, above and beyond what is already required by the Bankruptcy Code. 

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Keeping Up with the Joneses: Credit Score Edition

posted by Katie Porter

Do you have good credit? Compared to whom? While your credit price may depend largely on how your credit fares against objective criteria (above 680 to avoid being "subprime," for example), do you ever wonder how you are doing compared to everyone else? Maybe you think the national banks would give credit to a ham sandwich; what you want to know if whether you are  keeping up with the Jones in managing your financial behavior.

Experian provides a chance to test your credit against your neighbors with its National Score Index. (Hat tip to Harvard student Mazen Elfakhani for letting me know about this). Using this tool, you type in your zip code and out pops the "score index," the average credit score based on a representative sample of consumers, for the nation, region, state, and your area. You also get comparable figures on other credit statistics like debt, late payments, and credit inquiries.

The areas are pretty broadly defined, like "Boston area," so you can't really see how you compare to the Jones family on your street. But it's still kind of fun, especially for someone like me who seems to move all the time. This year, Cambridge, MA: 715 score; last year, El Cerrito, CA: 708; prior years, Iowa City: 721. How am I doing? That will have to wait for another blog post; I'm definitely not paying Experian for my credit score.Remember that what you are entitled to one time per year for free is your credit report, not your score. That site: www.annualcreditreport.com, and as the FTC explains, there are lot of imposter sites and efforts to get people to pay for their credit scores when they are only trying to access the free report.

Is Debit Fee Regulation Anti-Consumer?

posted by Katie Porter

As Adam noted in a post last week, the large banks now have some odd bedfellows in their fight against the regulation of debit swipe fees (this issue often goes by the short-hand "Durbin," for the author of the amendment in Dodd-Frank that requires the Fed to regulate debit fees). Adam suggests that the National Education Association might be motivated by the number of teacher credit unions in America, but how do we explain what a Wall Street Journal article characterizes as "entreaties" from the NAACP and the U.S. Hispanic Chamber of Commerce to delay implementation of the fees and do "further study of the rule to ensure that it doesn't hurt poor and minority consumers."

The regulation of interchange is a complex issue, and this post does not represent my complete thoughts on the issue. But I find the argument that fee regulation of debit is anti-consumer to be tough to swallow. First, let me note that the available data suggest that poor and minority consumers are currently penalized under the existing payments regime. Poor and minority consumers are more likely to pay cash, and yet they pay prices for goods and services that reflect the total cost to merchants of customers who pay with credit cards (most expensive), debit cards (middle), and cash (cheapest). This is a classic cross-subsidization problem. While industry contests the extent of the harm from the problem, I am convinced the problem does exist. A reduction in debit fees should help consumers at the bottom of the distribution because it reduces the degree of cross-subsidization. Second, merchants in low income areas are particularly unlikely to take debit cards or electronic payments generally and are more likely to be cash-only operations. Why? Because poor consumers make small purchases, and it is for these small purchases that the swipe fees have their most bite to the merchants' bottom line. I think there is at least a plausible argument that by reducing debit fees Durbin might make it affordable for additional merchants to process payments electronically. Because electronic payments generally require a bank account, this could have the effect of strengthening incentives for poor and minority customers to become banked. When the stores in their neighborhoods take debit cards, the shoppers might go get bank accounts and bank cards.

There are other arguments in favor of and against the proposed debit fee regulations, and there are approaches other than fee caps that could be used to improve debit markets. But other than the rumored demise of "free checking" that I discussed last week, I think groups looking out for consumers should be very cautious about chiming in against the proposed debit regulations. 

"Free" Checking

posted by Katie Porter

With banks under pressure from the CARD Act's regulation of fees and the pending implementation of price limits on interchange fees under the Durbin amendment to Dodd-Frank, the scary tales are periodically resurfacing about how government is about to cause the death of "free checking," this great perk that consumers have enjoyed at the bank's largesse in recent years. As Adam Levitin wrote here at Credit Slips several months ago, free checking is often far from free. Adam focuses on the kinds of behavior requirements to obtain a free account, like maintaining a certain balance and having direct deposit.

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Elizabeth Warren (TM)

posted by Katie Porter

I recently read Professor William Sage's essay, "Brand New Law! The Need to Market Health Care Reform," which discusses the idea of "legal brand equity" as analogous to commercial brand equity in "describing the functional, emotional, and expressive relationship between the law and its intended beneficiaries." Professor Sage argues that the branding of major American social legislation is critical to its success and offers ideas for healthcare (e.g. AmeriCare instead of ObamaCare). How is the Consumer Financial Protection Bureau ("Bureau") doing on creating a brand among Americans?  

 I think there is a strong branding effort underway at the Bureau. Consider the logo displayed on the website, which is a far cry from the typical government-as-usual circle shape with tiny lettering around it. In its place at the Bureau is a shield shape that resonates very much with Elizabeth Warren's analogy of the Bureau as providing a "cop on the beat" and with descriptions of Warren and like-minded regulators as "The New Sheriffs of Wall Street." The Bureau, whether consciously or not, also has been following marketing professionals' advice of making functional, emotional, and expressive statements about itself to develop a brand in the public, making statements like "What I hope to do is give -- literally -- millions of American families better tools to be able to tell what the financial products that they deal with cost, what the risks are associated with them, and to be able to compare one product to another."  These statements explain the Bureau and help people connect to the purpose and work of the Bureau. Warren herself is a master of these messages,  and therein may ultimately be the challenge. In some ways, Elizabeth Warren herself is the brand equity of the Bureau, and she is an effective brand--memorable, clear, and capable of making consumers feel good about themselves and about government. Warren is assembling an impressive group of people at the Bureau and increasingly those people are doing brand-building work, such as video interviews about issues or themselves on the Bureau website. But at this point, it is very much Elizabeth Warren (™) that is the Bureau's brand equity. This means that the the biggest problem with any other candidate for Director is likely to be the loss of Elizabeth Warren (™) in the minds of the public. The federal government currently has little brand equity overall and what it does have is under attack by the anti-government branding efforts. The Administration should not risk diminishing the brand equity of the Bureau, and by extension, the administration's efforts at social legislation with a director other than Warren. No successful business would ever fail to seize brand equity on the magnitude of Warren's popularity; this is one instance where I'll advocate that government look to private industry as a model and build up its brand by leveraging Elizabeth Warren to its advantage. 

 

Thanks to Lois Lupica

posted by Katie Porter

Credit Slips and its readers benefitted from the thoughtful posts of Prof. Lois Lupica during the last week. Her study on attorneys fees in consumer bankruptcy will surely contribute to policy discussions about reforming the bankruptcy system, and I'm glad to have had a preview of how Prof. Lupica is going about this important work. We hope she'll join us again as her work progresses to provide additional findings and insights. Thanks from your fans at Credit Slips

The Failures of Fannie: Responsibility for the Mortgage Servicing Mess

posted by Katie Porter

The news that an Illinois court is halting foreclosures by law firm Fisher and Shapiro LLC will spark another round of frustration about who is responsible for the mess that is the mortgage servicing industry. There is plenty of blame to go around, but I rarely hear mention of the contributions of Fannie Mae and Freddie Mac  to the mortgage servicing industry. 

Fannie and Freddie, whatever one thinks of them in their role as guarantors, are a serious part of the problem in the mortgage servicing world--and they long have been. As an initial matter, consider that Fisher and Shapiro, the Illinois firm that admitted to altering affidavits to add fees, is an approved Fannie Mae firm to foreclose on homeowners in Illinois. You can verify this for yourself on Fannie's publicly available "retained attorney list." Fannie pulled a couple of Florida firms off its list following allegations of misbehavior according to Housing Wire, but this type of "oops, a bad one slid by" reaction from Fannie is exactly part of the problem. It is still treating mortgage servicing as a "bad apple" problem and not a "rotten barrel" problem. Of course, Fannie built the barrel to a large extent through its servicing guidelines, so perhaps Fannie is incapable of rethinking mortgage servicing. 

Continue reading "The Failures of Fannie: Responsibility for the Mortgage Servicing Mess" »

Allocating Scarce Dollars: Payment Hierachy

posted by Katie Porter

When Americans have fewer dollars, creditors need to position themselves at the top of the pile to get paid each month. This is called payment hierarchy, and traditionally mortgage creditors have been at the top and unsecured creditors, and perhaps ubiquitous credit card creditors, near the bottom. At the Consumer Financial Protection Bureau conference on the anniversary of the CARD Act, I learned that the payment hierarchy has been upended. In 2010, consumers are paying their credit cards ahead of their mortgages. (Click on CFPB conference link above, then click on "Credit Card Profitability" by Credit Suisse and go to slide 7 to see the full data). Two key explanations for this change: 1) people may be more willing to risk losing their home when its value is plummeting and they are not certain they can hang onto it, and 2) credit card companies reduced the amount of credit lines and closed old accounts, making people more concerned about "preserving" their good standing with their credit card company. Another way to think about this is that homes used to be families' piggy banks, tapped when it is time to send a child off to college or do a home renovation. With no equity, Americans need to rely more on the credit card as their safety net. Unemployment rates are high, the economy remains fragile, medical costs are uncertain. In this economy, it seems entirely rational and reasonable to me for families to highly prize access to unsecured credit from cards.

When there are too many unsecured creditors to go around, however, how do consumers chose who gets their scarce dollars? A new research paper, Winning the Battle but Losing the War: The Psychology of Debt Management, uses a series of experiments to explore this question. The authors find that consumers focus on making payments that reduce the number of open accounts, which the researchers call "debt account aversion," rather than solely on paying off the debt with the highest cost interest rate. The latter would ultimately reduce the total cost of credit, an approach that the researchers term "perfectly rational."  In a series of stylized debt games played by students, not even one student consistently repaid in multiple rounds of the game all of their available cash to the open debt account with the highest interest rate. The pattern of debt account aversion--using some cash to pay off small accounts--held across a variety of conditions, although the researchers find some interventions that reduce the practice, such as prominently highlighting the amount of interest accumulated on each debt between rounds. But is debt account aversion really a "mistake"? Should policymakers be discouraging this behavioral trait?

Continue reading "Allocating Scarce Dollars: Payment Hierachy" »

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