Lender's new job: 'Mortgage nanny'

Perhaps you have heard that the Consumer Financial Protection Bureau, created to do what the name implies, issued rules last week to beef up mortgage-lending standards.

One of them, the ability-to-repay rule, was mandated by the Dodd-Frank financial-reform law, many of whose regulations are now being drafted. The new rule is "designed to ensure that lenders are offering mortgages that consumers can actually afford to pay back," Richard Cordray, the bureau's director, said in prepared remarks at a Jan. 10 field hearing.

And here I thought it was the borrower's job to determine if he has the means to repay a loan.

It used to be. Homebuyers would look at their income, assets, monthly cash flow, job security, debt outstanding and things like that to determine if the family could afford to own a home. The lender's job was to perform adequate due diligence and protect against loss by requiring a down payment.

That was before the housing bubble burst, before toxic mortgage loans rippled through the entire economy, before the government decided that allowing big banks to fail wasn't an option. Those events convinced lawmakers that more rules were in order, ones that shifted the onus to the lender.

What does it say when we have to codify what should be common sense and best lending practices? I think it says that incentives became misaligned. Lenders cared more about the quality of the collateral than the quality of the borrower, according to JPMorgan Chase senior economist James Glassman. It makes perfect sense when home prices are rising at 15 percent a year.

What it doesn't say is that new rules will fix the problem. They may even make it worse by creating the illusion of safety.

In the old days, a wannabe homeowner went into his local bank to get a mortgage loan. The banker knew the applicant, probably knew his father and grandfather, even handled the finances for the family business. The banker knew his customer, in the proper sense of the word.

Mortgage securitization helped change that relationship, made it impersonal. The ultimate lender became the buyer of the mortgage-backed security, which made the market more liquid and enabled financial institutions to make more loans. "Affordable housing" became a national priority. If a borrower didn't qualify for a mortgage under the existing rules, by all means, lower the standards.

Without re-litigating the cause of the housing bubble - greedy bankers or government housing policy — suffice it to say that more rules are no substitute for improved market mechanisms, increased protection (more capital, less leverage) and old-fashioned law enforcement. People seem to forget that mortgage fraud — providing "any materially false, fictitious or fraudulent statement or representation" on a loan application — was, and is, a felony. That applies to both borrower and lender.

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