Banks Again Avoid Having Any Skin in the Game

Barney Frank, former chairman of the House Financial Services Committee,  said, “The loophole has eaten the rule, and there is no residential mortgage risk retention.”

Once upon a time, those who made loans would profit only if the loan were paid back. If the borrower defaulted, the lender would suffer.

That idea must have seemed quaint in 2005, as the mortgage lending boom reached a peak on the back of mushrooming private securitizations of mortgages, which were intended to transfer the risk away from those who made the loans to investors with no real knowledge of what was going on.

Less well remembered is that there was a raft of real estate securitizations once before, in the 1920s. The securities were not as complicated, but they had the same goal — making it possible for lenders to profit without risking capital.

The Dodd-Frank Act of 2010 set out to clean that up. Now, there would be “risk retention.” Lenders would have to have “skin in the game.” Not 100 percent of the risk, as in the old days when banks made mortgage loans and retained them until they were paid back, but enough to make the banks care whether the loans were repaid.

At least that was the idea. The details were left to regulators, and it took more than four years for them to settle on the details, which they did this week.

The result is that there will be no risk retention to speak of, at least on residential mortgage loans that are securitized. It remains to be seen if there will be a private securitization market at all, since the government-sponsored enterprises will have major advantages.

But if there is, the primary defense against a repeat of the lending orgy that took place before the collapse will be the wisdom of investors asked to buy the securities. Last time around, they showed no such wisdom.

Under Dodd-Frank, the general rule was to be that if a lender wanted to securitize mortgages, that lender had to keep at least 5 percent of the risk. There was an exception. The lender didn’t need to retain any risk in mortgages deemed to be supersafe. Those mortgages were to be known as Qualified Residential Mortgages, or Q.R.M., in the jargon that promptly developed.

In 2011, when the regulators first proposed rules to carry out the risk-retention law, the idea was that there would be a two-tier mortgage market. Mortgages deemed to be Q.R.M. would be characterized by substantial down payments that would minimize the risk of default, while the other tier would include riskier mortgages — although still safer than some of the ridiculous mortgages that characterized the boom — and could be securitized only if those responsible for either the loans or the securitizations kept some of the risk.

But when the final rule was adopted this week, that idea was dropped.

“The loophole has eaten the rule, and there is no residential mortgage risk retention,” said Barney Frank, the former chairman of the House Financial Services Committee and the Frank in Dodd-Frank.

What happened? The sense of outrage over the actions that led to the credit crisis faded, and the economic recovery that followed the Great Recession was slow. The argument was made that we need more mortgage loans, and that regulators should avoid rules that would make it harder for people to get mortgages.

Credit...Win McNamee/Getty Images

To Mr. Frank’s dismay, many consumer groups joined in fighting risk retention. “There was a coalition of mortgage lenders, homebuilders and low-income mortgage advocates,” he said.

That coalition had no trouble finding political support. One regulator involved in writing the rules told me that “between 400 and 500” members of Congress got involved in arguing against any requirement that would require significant down payments for loans to be classified in the Q.R.M. group. There are 535 seats in the House and Senate combined.

In bureaucratic speak, Q.R.M. will equal Q.M. That group, Qualified Mortgages, was also mandated by Dodd-Frank, to be established by the Consumer Financial Protection Bureau. Qualified mortgage rules, aimed at protecting borrowers, do exclude some of the most notorious mortgages, including no-document loans, negative amortization loans, interest-only loans and balloon-payment loans. But they do not require any down payment at all.

Why not have two groups of mortgages, as the legislation anticipated? To hear the consumer groups tell it, there would be no loans at all if any skin in the game were required. And the mortgage industry insisted that it would just be too burdensome for lenders to develop two sets of mortgage criteria in approving loans.

It is hard to understand why that argument was taken seriously by regulators, given the wide variety of loan types, with different costs and different rules, that proliferated during the boom.

It may not matter much what rules there are for private securitizations. That is because this is a market that will continue to be dominated by the government-sponsored enterprises, Fannie Mae and Freddie Mac. If they guarantee a loan, there is no need under the rules for any risk retention by those who made the loans.

Fannie and Freddie were taken in by mortgage lenders before. That is one reason they went broke and had to be put under government conservatorship. But somehow, their guarantee is now deemed sufficient to avoid the actual lender having to take any risk.

“Since securitizers won’t be required to retain risk for private-label securities,” said Sheila Bair, a former chairwoman of the Federal Deposit Insurance Corporation, “investors will continue to be reluctant to buy their securities. So the government-backed ones will remain pretty much the only game in town. Of course, taxpayers will be holding the bag if, or when, there is another downturn.”

In the final weeks before the rules were formally issued, it was clear that the lenders had pretty much won all the arguments on residential mortgage lending. But there was an intense lobbying campaign from lenders to eliminate or minimize risk-retention requirements on another form of securitizations, called collateralized loan obligations, or C.L.O.s.

That effort failed, in part because the loans making up C.L.O.’s are often of low credit quality and in part because they reminded regulators of collateralized debt obligations, which played a significant role in the financial crisis.

Wall Street’s response to that loss was to warn that loans might not be made if those making them had to bear the losses if the loans went bad.

“C.L.O.s are a key source of funding for Main Street businesses and other corporate borrowers, and this funding could become more expensive and less available,” said Kenneth E. Bentsen Jr., the president of the Securities Industry and Financial Markets Association. Complaints about excessive regulation played a major role in shooting down risk retention as a way of disciplining lenders. But genuine risk retention could be seen as a market-based approach, freeing lenders from government-imposed rules on who should be able to borrow, and on what terms. “You decide what is a sane loan,” Mr. Frank said. “But you have to risk your own money.”

That is the way it used to be, and the way it should be. But it is not the way it will be.

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