Patricia A. McCoy

State and Local Anti-Predatory Lending Laws: The Effect of Legal Enforcement Mechanisms

Subprime mortgage lending has grown rapidly and so has enactment of state anti-predatory lending laws. Our analysis suggests that anti-predatory lending laws influence subprime market dynamics and that disaggregating them into component parts is essential for understanding their market impact. Restrictions, coverage, and enforcement provisions all have significant relationships with subprime outcomes, the latter being a new finding. One finding, that broader coverage is associated with higher subprime origination likelihoods, is consistent with a reverse lemons hypothesis. There is also evidence that newer mini-HOEPA laws affect the subprime market above and beyond the older preexisting laws, particularly for subprime originations.

Predatory Lending: What Does Wall Street Have to Do with It?

Abstract In this article, we examine the contention that the secondary market will exert sufficient market discipline to drive predatory home loan lenders from the subprime marketplace. Using a so‐called lemons model, we identify the potential risks that investors encounter if they buy securities backed by predatory home loans. We then explain how structured finance, deal provisions, pricing mechanisms, and legal protections shield investors from much of the risk that those loans entail. While the secondary market does impose some discipline on the subprime home loan market, it is not enough to bring predatory lending to a halt. We provide rationales for imposing liability on the assignees of predatory loans and describe the parameters of our proposed assignee liability legislation.

Mortgage Product Substitution and State Anti-Predatory Lending Laws: Better Loans and Better Borrowers?

Mounting foreclosures and disclosures of abusive lending practices led many states to adopt new anti-predatory lending (APL) laws. Researchers have examined the impact of such laws on credit flows and the cost of credit. This research extends the literature by examining whether the market responded to these laws by substituting different mortgage products for those restricted by APL provisions. The evidence indicates that the laws were effective in restricting loans with targeted characteristics, and that the market substituted other product types to maintain access to credit and affordability in the face of these restrictions. The laws reduced the involvement of investor and second home purchases but appeared to impact borrower credit scores or down payments.

Mortgage Product Substitution and State Anti-predatory Lending Laws: Better Loans and Better Borrowers?

Mounting foreclosures and disclosures of abusive lending practices led many states to adopt new anti-predatory lending (APL) laws. Researchers have examined the impact of such laws on credit flows and the cost of credit. This research extends the literature by examining whether the market responded to these laws by substituting different mortgage products for those restricted by APL provisions. The evidence indicates that the laws were effective in restricting loans with targeted characteristics, and that the market substituted other product types to maintain access to credit and affordability in the face of these restrictions. The laws reduced the involvement of investor and second home purchases but appeared to impact borrower credit scores or down payments.

The Impact of State Antipredatory Lending Laws: Policy Implications and Insights

Over half the states and several localities have enacted statutes and ordinances to regulate abuses in the residential mortgage market. The effect of these statutes is a matter of debate. This paper seeks to improve the understanding of this increasingly important issue and pays particular attention to the role that legal enforcement mechanisms play in this context. We created a legal index of laws governing mortgage lending terms and practices, giving each state an overall score for the strength of its laws. In addition, we disaggregated the index to create sub-indices along three dimensions: (1) the scope of loans covered by the laws; (2) the prohibited loan terms and practices; and (3) the strength of the legal enforcement mechanisms. We use these indices to determine the effect of anti-predatory lending laws-- using both total index scores and the scores using the sub-indices-- on loan applications, originations and rejections. To control for variations within state borders, we employ a geographic sampling approach that focuses on lending activity along state borders, including only loans that were originated in a county that is geographically along a state border and if at least one of the two abutting states has an anti-predatory lending law. We find that the extent of coverage, restrictions, and enforcement embodied in a states legal framework is associated with significant changes in the probability that a subprime application is rejected and a subprime loan is originated. Coverage is associated with lower subprime rejection probabilities. Restrictions tend to increase the likelihood of rejection and hence retard originations in the subprime market. Finally, the key result in the analysis of enforcement is that stronger enforcement mechanisms reduce subprime rejection probabilities. We conclude the paper by discussing the possible implications of these findings, including how anti-predatory lending laws may have shaped borrower and lender behavior and how our results can help inform shape future lending regulations. This paper makes a timely contribution given the current crisis in subprime lending and the call for increased scrutiny of lenders and the loans they originate.

Countercyclical Regulation and Its Challenges

Following the 2008 financial crisis, countercyclical regulation emerged as one of the most promising breakthroughs in years to halting destructive cycles of booms and busts. This new approach to systemic risk posits that financial regulation should clamp down during economic expansions and ease during economic slumps in order to make financial firms more resilient and to prick asset bubbles before they burst. If countercyclical regulation is to succeed, however, then policymakers must confront the institutional and legal challenges to that success. This Article examines five major challenges to robust countercyclical regulation – data gaps, early response systems, regulatory inertia, industry capture, and arbitrage – and discusses a variety of techniques to defuse those challenges.

Predatory Lending and Community Development at Loggerheads

For decades, cities have invested in decaying neighborhoods, leading to increases in home values and home equity. As a result, these neighborhoods have become ready targets for predatory lenders, who market their abusive loans to financially unsophisticated homeowners with home equity and no relationships with traditional lenders. Some borrowers lose their homes; others forsake home repairs to avoid default and foreclosure. Neighborhoods that once were stable become littered with abandoned and neglected homes, resulting in increased crime, falling home values, rising demands for social services, and lower tax revenues. In the wake of the devastation done by predatory lenders, the question for policymakers is: what can be done? This paper seeks to answer this question. The paper opens by defining predatory lending. Next, the paper describes how the rise of securitization, deregulation of price terms, affordable lending incentives, bank closings, and historical credit discrimination together fueled the rise and institutionalization of predatory lending in the 1990s. Lastly, the paper evaluates different possible approaches to redressing predatory lending, including industry self-regulation, consumer education and counseling, Community Reinvestment Act oversight, criminal enforcement, existing private causes of action, and a suitability proposal.

The Performance of New Private-Label Mortgage Loan Modifications after 2009

This paper presents summary statistics and a preliminary analysis of the success rate of loan modifications made in 2010 and January 2011 to residential mortgages securitized in private-label residential mortgage-backed securities. We find that these more recent private-label loan modifications had a higher overall success rate, compared to similar modifications made in earlier years. Consistent with prior literature, having a fixed-rate mortgage, a prime mortgage, a higher Fair Isaac & Company (FICO) credit score, and/or a lower interest rate at origination were positively correlated with lower redefault rates post-modification. Borrowers with interest-only and teaser-rate loans performed slightly better than other borrowers after receiving loan modifications. Similarly, modifications of purchase loans did worse not only than plain vanilla refinance loans, but also worse than debt consolidation and cash out refinance loans. Modifications of private-label mortgages in the four “sand states” – Arizona, California, Florida, and Nevada – did better than modifications in other parts of the United States, although the difference was small. Surprisingly, modifications of fully documented loans performed worse, while modified no-documentation loans performed best. Finally, we confirm that capitalizations of arrears performed worse than interest rate reductions and principal modifications, with the latter appearing to be the most effective.

Knightian Uncertainty, Systemic Risk Regulation, and the Limits of Judicial Review

In MetLife, Inc. v. Financial Stability Oversight Council, Civil Action No. 15-0045 (RMC) (D.D.C. March 30, 2016), the U.S. District Court for the District of Columbia overturned the designation of MetLife, Inc., as a systemically important financial institution regulated by the Federal Reserve Board. It reversed on two grounds. First, it held that the Financial Stability Oversight Council ignored its published guidance by not calculating the statistical probability of MetLife experiencing material financial distress or the magnitude of ensuing losses to MetLife’s counterparties. In addition, it determined that FSOC failed to but should have considered the costs of designation to MetLife. In doing so, the District Court ignored the fact that much of systemic risk oversight operates on the frontiers of what the economist Frank H. Knight termed the unknowable. It is impossible to quantify the likelihood of material financial distress (in its systemic sense) at any given nonbank financial services provider through multivariate statistical analysis. For that reason, in the Dodd-Frank Act, Congress permitted FSOC to evaluate systemic risk at nonbank firms based on qualitative factors and descriptive statistics without the need for multivariate statistical regressions or multivariate similar techniques. By requiring FSOC to make statistical projections that are impossible to make with confidence, the District Court not only vacated MetLife’s designation but undermined major aspects of the broader scheme for regulating systemic risk that Congress mandated in Dodd-Frank.