Speakers: Making Money Work

By Richard Smith, a recovering capital markets IT specialist

Housing Wire’s Paul Jackson has another post up continuing his row with Yves over securitization chain of title issues. It presents itself as a rebuttal of her previous post, about an Alabama trial court decision that Jackson deems to be a significant defeat, but which Yves and more recently Adam Levitin have argued is both insignificant and not very relevant.

Normally I’d leave the two of them to slug it out. However, Jackson’s weekend submission, in which he says he is “going to address her latest talking points” piqued my interest. Rather than addressing any of the substance of the post itself, he mounts a bizarre attack on the motives of the attorneys behind the Alabama case, based on a pretty peculiar interpretation of one of Yves’ comments to the post. The comment:

Are you kidding? Each side spent over $250K on this case. Trials where you are making real legal arguments, as opposed to presenting papers for a judge to approve, are costly. And Alabama billing rates are a lot lower than in other states. For borrower’s counsel, since the borrower has no money, the “spent” is what their time was worth plus hard dollar expenses (experts witnesses and so on). They are out the real out of pocket real costs.

The banks’ lawyer gets paid, so yes, this is an epic fail for the bank. I’ve mentioned this in other posts. The more borrowers fight cases, the more loss severities are gonna rise. Investors already are losing 70% on the average foreclosure and housing prices are projected to fall further in most states this year. If on top of that they start having more cases with 300% losses on foreclosure, investors might wake up and finally do something a lot more serious to pressure servicers.

Sooo…bank attorneys run up a tab fighting a foreclosure in a pretty obscure courthouse, that results in a 300% loss to investors, when all the borrower’s attorney wanted was the house back and a loan modification. The big numbers are the result of the bank attorney’s posture, and of eleventh hour moves that many judges would have rejected: introducing an allonge on the eve of the trial. This was clearly a bad economic result for the borrowers’ attorney! It was not hard to see that the trial had become a war of escalation, with the bank’s attorney in an ideal position to up the ante. The post makes clear that unlike the bank’s lawyers, borrower’s counsel was “out”, in hard dollar terms, vastly less than the total, which would have to include the opportunity cost of unpaid for billing time.

For Jackson this somehow becomes the basis for a statement of his worldview: that everyone is greedy, ergo these attorneys must be too! In his own words:

Morality and the accompanying emotions to that noble love of justice are simply a varnish for the fires of greed. In other words, everything is about the money, and if you can find a viable angle to make more of it than someone else. And I mean everything.

Taking guidance from this exceedingly dubious, indeed self-refuting claim (if it’s all about the money, we can’t trust Jackson either, can we?) is quite foolish. In fact Jackson doesn’t really believe it either: elsewhere in his oeuvre, we find a bizarre exception to his rule:

Believe it or not, mortgage servicing is a noble industry. Or, at least, it’s supposed to be. Even in managing borrower defaults and repossessing property, there is something noble to the work, underneath it all — and it comes from following the law, enforcing contracts, ensuring that our nation’s system of property rights maintains its integrity for all Americans.

Though it could be that he’s just slapping a spot of varnish, on some fires of greed, for the money; I do hope that varnish isn’t flammable, Mr Jackson, or you may decide you are underpaid.

At any rate, armed only with his distractingly inept imagery and his defective moral compass, Jackson sets out on a fishing trip, in his latest, and gets hopelessly lost almost immediately:

Yves tries to suggest that in writing about the Congress case I was claiming “Mission Accomplished,” attempting to associate me with an infamous Dubya moment during the far-from-over war in Iraq. Nothing could be further from the truth.

If you have the attention span of a gnat, you might take this at face value. On the other hand, the very next sentence says this:

Yves spends a fair amount of time suggesting that the effect of the Congress case elsewhere will be muted, if it has any effect all. In attempting to minimize the relevance of this case, however, what she misses is an important reality: that the defense here saw fit to mount one in the first place.

So make your mind up, Mr Jackson: is the case widely relevant or not?

Or was the choice of court and case, perchance, simply something of a goof by some attorneys looking to develop a theory that might have more lucrative applications? That’s one sensible conclusion you could draw, and a basic step in puzzling that out, that does not even occur to Jackson, is doing some minimal research and actually looking up the plaintiff’s lawyers. And the idea that deep pockets types would go to of all places Alabama, not exactly known for cutting edge jurisprudence or friendliness to consumers, and hire two no-name attorneys to represent a black borrower, is beyond belief. If you are Jackson, though, you skip the homework, or the sanity check, and go for the ASF paranoia:

In many ways, the plight of the distressed borrower is a convenient lever to pull if — for example— you’re a buyside Wall Street firm that decided to load up with cheap nonagency mortgage-backed securities in the wake of the market’s collapse, betting on a mechanism that could open the door to damage claims and settlements worth more than the securities themselves. Or maybe a mortgage insurer looking for novel ways to repudiate claims en masse.

I’m not at all suggesting that’s what went on here…

I have a suggestion straight back at Mr Jackson: if you want to not suggest something, the best way is simply not to make the suggestion. Otherwise, it looks as if you’re trying to have it both ways. Keeping the accusation vague is a smart move, admittedly, if you happen to be a bit clueless and not very brave. Bill Gross for one has made the trade that Jackson mentions, but does Jackson actually mean Bill Gross? He doesn’t say. Perhaps he doesn’t want Bill Gross on his case.

Yves by contrast doesn’t care a bit, roundly dissing Mr Gross’s self interested utterances. Ultimately, Jackson is too vague to be interesting here: it’s just a smear. As for the mortgage insurer theory: there’s no evidence for that either; just Tom Adam’s prior employment history and his occasional contributions at this blog. Mortgage insurers can make claims directly, on the very same theory that Naked Capitalism and the Congressional Oversight Panel have discussed. They have no reason to test a theory on a case in a largely irrelevant jurisdiction. And there are business reasons that the monolines are going the putback case route rather than this one. Remember that most of the MBS exposure (excluding CDOs) that monolines have is via HELOCs or second liens. That may put them in a position similar to that of the big banks: unwilling to take action on the first lien mortgages for fear of write downs on the second liens.

Yes, Bill Gross and MBIA and others are out there. And if they want to work the legals to make some money, or claw some back, they, or others like them, will. It’s really hard to see why the output of “Naked Capitalism” would so heavily in their ruminations as to be worth paying for (if that is what Jackson’s insinuating: he doesn’t seem to be able to bring himself to spell it out).

All of this stuff of Jackson’s is irrelevant and pretty much content-free; but still, it’s an interesting glimpse of sell-side anxieties.

So what really matters about this case? Three things: the unfortunate Erica Congress, who has had her hopes dashed twice over now, once when she couldn’t pay her mortgage and a second time when she was turfed out of her house; and two blithe but pernicious affirmations by the judge: first, that an allonge doesn’t have to be affixed to the note, which just opens up the floodgates for document fabrication, and second that “digital signatures” are valid endorsements to the note.

Unfortunately, neither Jackson nor the judge seem to grasp the difference between a digital signature, “a mathematical scheme for demonstrating the authenticity of a digital message or document”, as Wikipedia has it, and a digitally reproduced signature, a simulacrum that can be knocked up in minutes by any sad sack in a servicer that can use Photoshop, Word, and a laser printer, and doesn’t authenticate anything at all, least of all a transfer of title. Using 21st century technology to recreate a state of screwed-up title that hasn’t existed in anglophone countries since the mid-17th century is nothing to crow about, Mr Jackson. As a citizen of the US, it ought to make your blood run cold. It’s not just about the money.

At any rate, the more this stuff is talked about, the more lawyers (in less frivolous jurisdictions) will furrow their brows about the damage being done to the integrity of basic property transfers. So we will keep the pot boiling.

I know that memories are short on Wall Street. But are they short on Main Street too? Reading Linda Stern’s latest paean to leverage and housing risk, it certainly seems that way. Saving for a down payment is hard, she says. It can take time!

And that doesn’t seem to pay. If you think about the cost of paying rent for five or more years, you may be better off jumping into a home with a low down payment now. That’s true even if you have to spend more money on fees and mortgage insurance to get one of those low down payment loans.

Well, yes, let’s think about the cost of paying rent for five or more years. In fact, let’s plug all our numbers into a rent-vs-buy calculator and see where we’re at after five years. The problem with Linda’s formulation here is that it helps to reinforce the common fallacy that 100% of rent payments are “wasted,” in a way that mortgage payments are not. But that’s simply not true. In both cases you’re paying money every month for your shelter; in the rental case that money goes to the landlord, while in the ownership case it goes to the bank.

Some small part of your monthly payment may or may not end up helping you build equity in your home, if house prices move up rather than down and depending on how much of your payment goes towards principal. But remember that the alternative here is saving up for a down payment — which is essentially the same thing as building up equity in a future home. If you save up $250 per month for five years and then put down $15,000 as a down payment, then you immediately start off with $15,000 of equity in your home. By contrast, if you buy today with no money down and start making mortgage payments, there’s a good chance your equity will be much less than $15,000 in five years’ time.

But Linda’s on a roll here, and manages to come out with one of the most astonishing pieces of personal-finance advice I’ve seen since the crisis hit:

Even if you have the money for a bigger down payment, there can be good reasons to save your cash. Mortgage rates continue to skirt all-time lows: Why not put your money to work for yourself and borrow as much as you can reasonably afford, on a monthly basis, at today’s rates? You can put the money you’re not paying into a down payment to work elsewhere. If home values rise, you will have done your best to leverage a small down payment into bigger equity. If they fall, you’ll have less skin in the game, and that could put more pressure on your banker to improve your loan terms lest you walk away.

This, in a nutshell, is everything that was wrong with the housing market before the crash — everything that we want to avoid going forward. Can’t Linda look around at the current devastated state of many people who bought with little or no money down, and see the dangers here? Evidently not. Instead, she seems to think it’s a bright idea to borrow more money than you need, to the point at which you’re pushing the envelope of what you can reasonably afford. And then take the cash you’re not using for a down payment, and “put your money to work for yourself.”

I barely know where to start on this. Here’s one way of thinking about it: banks are not charities, and that they expect to make money from their loans. They have a cost of funds which is lower than the mortgage rate that you’re paying; the difference between the two rates is their profit. You, however, if you follow Linda’s advice, have a cost of funds which is your mortgage rate: if you wind up getting a lower return on your savings than you’re paying on your mortgage, you would have been better off just using the money for a down payment. Needless to say, if there was an easy way of getting a higher return on capital than the mortgage rate, the banks would have done it already, rather than lending you the money. And it’s pretty delusional, frankly, to think that you can invest better than say JP Morgan. Yes, there are tax benefits to having lots of mortgage-interest payments. But they’re not sufficient to make the difference here.

Here’s another way: let’s say you own your home outright. Would you take out a mortgage against 95% of your home’s present market value, and then invest that money in the market somehow, trying to “put it to work for yourself “? Of course not: you don’t have remotely that kind of risk appetite. Borrowing money against your house to invest in the market is, always, stupid. But that’s exactly what Linda’s proposing you do.

And here’s one more: shit happens. Sometimes, you end up needing money, in an emergency. If you’re already borrowing as much as you can reasonably afford, that’s a big problem. If you have a bit of fiscal breathing room, you’re much better off. If you end up in a situation where you’re in a position to put pressure on your banker to improve your loan terms lest you walk away, that’s not a good situation to be in. It means you’re broke. It’s something you want to avoid, whereas in Linda World it seems to be something to actively court.

Linda’s also convinced that house prices are going to rise: if you buy now rather than later, she writes, that means you’re buying “while housing prices are low.” That’s debatable — they still seem quite expensive, on some measures: the price-to-rent ratio, for instance, is still well above its historical average. And more generally, buying low doesn’t help you in the slightest if prices just continue to grind lower.

Linda’s conclusion is that “the less you put down, the better off you are.” Which is true so long as you keep on making all your mortgage payments without any problem, and nothing goes very wrong either with your personal economic situation or with the US economy as a whole. That’s the way that leverage works: it makes everything sunny, so long as things go right. And then it plunges you into misery when things go wrong.

The scariest part of Linda’s post, for me, is when she talks about how it’s a good idea to “do your best to leverage a small down payment into bigger equity.” It’s not the dollar amount of the equity she’s talking about here, it’s the leverage used to get there, and the higher the leverage the better off you are. Following that advice got us into our current mess. And taking it now is a recipe for disaster.

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