Texas Attorney Blog

As a Texas real estate and development attorney who has represented lenders, commercial borrowers and developers for years, and as someone who has been critical of the "band-aid" solutions to the sub prime delinquency problem proposed by some politicians, I am heartened when I see solutions that appear to actually address the problem. Recently, an article by Karen Freifeld and Sharon L. Lynch in Bloomberg reported that Fannie Mae and Freddie Mac have reached an agreement with Andrew Cuomo, New York's Attorney General, regarding appraisal standards. The agreement provides that Fannie Mae and Freddie Mac will buy mortgages only from lenders that adopt new standards that are meant to make sure that appraisals for home mortgages are independent and objective. Specifically, the new standards would prohibit mortgage brokers from selecting the appraiser for a loan, and would also prohibit lenders from using in-house staff or lender-owned appraisal companies to do appraisals for home loans.

Fannie Mae and Freddie Mac are two federally chartered but privately operated organizations that buy real estate loans from banks. A large percentage of United States banks do not keep each home mortgage that they make for the full term of the loan. Instead, they sell their loans to Freddie Mac or Fannie Mae for a discounted amount of the full loan. Once the banks get paid by Freddie Mac or Fannie Mae, they can go out and make new loans with that money. Obviously, Fannie Mae and Freddie Mac are crucial to the liquidity of the United States mortgage industry. Banks will have to comply with standards set by Freddie Mac or Fannie Mae in order to sell loans to them.

From what I have read about the sub prime delinquency situation, inflated and even fraudulent appraisals appear to be at the heart of the current problem, just as they were for the Texas savings and loan debacle of the 1980's. I suggest that the adoption on a national basis of the rules that are going into effect in New York will go a long way towards preventing the sub prime loan problems we see now.

As a Texas real estate and development attorney who has represented lenders, borrowers and developers in Texas for years, I find the current debate over sub prime mortgages to be especially interesting. Sub prime loan foreclosures in Texas are not as extensive as they are in other states, however, they are still of concern in Texas and certainly nationally. Hillary Clinton has proposed a ninety day moratorium for foreclosures on sub-prime loans, according to her web site. Manny Fernandez in a recent article in the New York Times online describes how politicians in New York are pushing for a one year moratorium on sub-prime mortgage delinquencies in that state. One of these politicians, James Brennan, a Brooklyn Democrat, is quoted as saying: “There’s nothing wrong with giving people some time to see if better arrangements can be worked out.”

Will someone please send these politicians to economics school? Their proposals may be designed to get votes, but they do not appear to deal in an educated way with the current sub-prime mortgage issues. For one thing, these proposals are based on the assumption that all sub-prime loans were made by evil, greedy lenders who imposed fraudulent terms on unsuspecting borrowers. I doubt that this is the situation for every sub prime loan out there. Secondly, a certain portion of these borrowers will not be able to pay any type of reasonable monthly payment, and should not have qualified for these loans in the first place. Giving them more time to "work things out" may be a fantasy. Thirdly, who is going to be responsible for deterioration in the condition of some of these homes while payments are not being made (since the threat of foreclosure often serves to dampen homeowner maintenance and repair)? Fourth, have these politicians calculated the cost to the economy of the mortgages to qualified borrowers that do not get made because of the chill this "solution" has on the mortgage lending market? And finally, do we really want government to step in and rescue people who have, in many cases, made an uninformed or inappropriate financial decision?

This kind of mass moratorium is calculated to wreck havoc with financial markets (can you say recession?). So in answer to James Brennan's comment that there is nothing wrong with a moratorium, I would have to respond: think again! These proposals seem to illustrate what our form of government does best: create ill-considered quick-fixes to complicated problems in the hopes that voters will buy in to the illusion that something is being done.

As a Texas real estate and development attorney, I am concerned that Texas real estate lending suffered some unwelcome notoriety recently when the Dallas Business Journal, quoting an announcement by the online publication, Mortgage Daily, announced that Texas had the fourth highest level of fraudulent real estate loans in the country.

Mortgage fraud in Texas has elicited a strong response from the Texas Attorney General. In July, 2007, the Attorney General announced a judgment against Ameriquest Mortgage Co. in which Ameriquest must return $21 million to Texas residents as restitution for deceptive practices by Ameriquest. The deceptive practices alleged to have been committed by Ameriquest include not adequately disclosing whether loans carried fixed or adjustable rates, charging excessive origination fees and prepayment penalties and using inflated appraisals that qualified borrowers for loans.

The Texas Legislature has responded to the fraud crisis by enacting new rules governing loan officers and mortgage brokers and by requiring loan applicants to sign a notice that they are aware of the severe criminal penalties that apply if they are providing false information as to their identity, income, employment and/or intent to occupy the collateral. These rules are enforced by the The Texas Department of Savings and Mortgage Lending (formerly the Texas Savings and Loan Department).

The primarily vehicle for the fraud, from what I have read so far, is an inflated appraisal by a broker complicit in the fraud. Inflated appraisals were also one of the vehicles for the Texas savings and loan scandal of the 1980s. It seems we just don't learn. Or maybe the problem is that we learn, but greed wins out anyway!

The recent media attention to the problems in the subprime mortgage market, both in Texas and nationally, may hide the fact that subprime mortgage loans serve a valuable purpose: they are loans to low-credit households that could not previously afford to own a home.

First, it is important to put this situation in perspective. Subprimes make up 13% of all Texas residential mortgages, and only 4.3% of those mortgages were in default by the end of 2006. Nationally, subprime loans make up only 14% of all mortgages, and the national foreclosure rate on subprime mortgages at the end of 2006 was approximately 14.3%. (Statistics courtesy of Texas A&M Real Estate Center). Market Pulse reports in its June 2007 issue that nationally the subprime foreclosure rate as of June 2007 is 10.11%.

Despite the issues with subprimes, real estate markets are generally healthy throughout the country. For example, U.S. office vacancy rates are declining and commercial real estate investment reached record levels in 2006, according to the National Association of Realtors. Commercial rents nationally for the first half of 2007 recorded their largest increase in six years, according to a recent report by CNNMoney.com. Delinquencies among commercial borrowers continue to fall, according to Fitch Ratings U.S. CMBS loan delinquency index. According to Housing Intelligence, new home sales remain healthy, even though they may be down from the feverish pace of 2002 to 2006. Finally, the Mortgage Bankers Association reports that, while residential foreclosures are up, national residential delinquency and foreclosure rates are being driven by what is happening in four states: California, Florida, Nevada and Arizona. If the rates in these states were not considered, national residential delinquencies and foreclosures would be down.

The issues in the subprime mortgage market are serious, of course. The National Real Estate Investor estimates that hedge fund investors could lose up to $125 million, that there could be almost 12,000 layoffs due to bankruptcies of subprime lenders, and indicates that by August, 2007, there was a backlog of $35.2 billion in unsold commercial mortgage-backed securities. These statistics, however, should not cause us to lose sight of the importance of subprime mortgage lending.

Dr. James Gaines, a research economist with the Texas A&M Real Estate Center, tackles this issue head-on in a recent issue of Tierra Grande. He notes that "(t)here is no reason to overreact and kill something that has served, and could continue to serve, a useful purpose". Dr. Gaines goes on to say that "(t)he private sector found a way to make loans to low credit, previously unfinanceable, households so that they could own homes. While this effort was spurred by profit, not altruism, the effect on home ownership throughout the country was nevertheless profound".

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