02/19/2009 11:33 am ET | Updated May 25, 2011

Bankruptcy Law is Key to Obama's Foreclosure Fight Economy NewsLadder

by Zach Carter, Media Consortium MediaWire Blogger

President Barack Obama unveiled his administration's plan to fight foreclosures on Wednesday. Unfortunately, the most important element of the program will require Congressional action—and the banking and business lobbies are already on the attack. The Homeowner Affordability and Stability Plan has three chief components:

  • Offer financial incentives to persuade loan servicers to modify mortgages
  • Allow Fannie Mae and Freddie Mac to refinance more mortgages
  • Change bankruptcy laws and give judges the power to reduce the amount borrowers owe on their mortgages.

The financial incentives probably won't help much, as Kevin Drum writes for Mother Jones. When a bank makes a mortgage, it doesn't usually hold onto the loan. Instead, the loan is packaged into a security with a other loans and sold to several investors. Another bank collects payments on the mortgage for the security's investors and acts as a point of contact, or loan servicer, for the borrower. To date, servicers haven't shown much interest in keeping people in their homes, even though foreclosure is the worst option for all parties involved.

"Loan servicers already have an incentive to rework loans that would otherwise go into default, and for the most part they aren't doing it," Drum writes. "Will a couple thousand dollars [of incentives] change their internal calculus?"

The provision aimed at Fannie and Freddie will help some. It's also a good use of the government's authority over the companies, which were nationalized last summer. But the key to Obama's plan is the bankruptcy provision. Until now, every government-enacted plan to reduce foreclosures has relied on incentives to encourage the banking industry to keep people in their homes. As Drum notes, bankruptcy is the stick behind those carrots. Obama is supporting a bill in Congress that would enable bankruptcy judges to reduce the amount a borrower owes to the present value of the home. The beauty here is that investors who own the mortgage securities, not taxpayers, will have to eat the losses. In short, investors will be held responsible for making a poor investment.

"The government is essentially presenting a choice for mortgage lenders: take our deal, which is standardized across the entire industry, or let a bankruptcy judge modify the loan however he or she sees fit," Tim Fernholz writes for The American Prospect.

The bank lobby has been fighting the bankruptcy law change since the foreclosure crisis began in 2007, and they wasted no time lashing out at Obama's proposal today. Elana Schor of Talking Points Memo highlights a nasty statement released by the U.S. Chamber of Commerce, one of "Washington's biggest lobbying groups." The release not only attacks the Homeowner Affordability and Stability plan, but takes a shot at Treasury Secretary Timothy Geithner as well, saying the policy "should have undergone a stress test to determine if it's ready to stabilize a major portion of our economy." Stress tests for the financial viability of banks were a big part of the murky bank bailout plan Geithner rolled out last week.

If Congress fails to pass a bankruptcy law overhaul, the entire plan will fall apart. And the record so far is not very promising—last year's bill garnered only about half of the votes necessary to override a filibuster in the Senate.

Team Obama deserves credit for taking action on foreclosures, as John Nichols writes for The Nation. The Bush administration spent years vilifying troubled borrowers and then dedicated hundreds of billions of dollars bailing out banks. If Congress can't pass bankruptcy law reform, the government should simply force banks to modify loans. The strategy would be simple—either keep borrowers in their homes, or return your check from the federal government.

"Ohio Congressman Marcy Kaptur and economist Dean Baker have some smart ideas," Nichols writes. "They argue that the proper role for the federal government is not to fund mortgage negotiations but to insist that banks—many of which have already collected billions in taxpayer dollars—carry them out."

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