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April 16th, 2009:

Incentives We Have: Motivation We NEED!

Yesterday the Obama Administration released the names of 6 mortgage companies participating in its Making Home Affordable.  Today it was announced that the number of American households threatened with losing their homes grew 24%.

While the Administration’s plan provides incentives to those involved in a refinance, modification, short sale or deed in lieu, it has to be clear to the American public that the plan is worth little absent a real motivating factor.

Don’t get me wrong, the Washington think-tank that came up with the plan did a fantastic job structuring a solution to the problem they were given.  But the crux of the plan’s success depends on our elected officials in Washington passing legislation making it possible for a bankruptcy judge to modify a debtor’s loan in a Chapter 13 Bankruptcy.

Without the threat of a cram down ,a bank’s corporate executives have little choice but to do their duty, and make decisions based on what is best for their company.  Until the possibility of a cram down in bankruptcy becomes reality, things are going to need to get a lot worse before banks stop taking government hand outs and start making loan modifications that aren’t just for show.

Make no mistake, things will get better.  If you have any doubt read Chuck Lorre Production’s Vanity Card #248.   It is one of my favorites.

Faces of those facing foreclosure

The elderly, the unsophisticated, and non English speakers are a significant part of  my clients who need access to mortgage modification in bankruptcy.  The Wall Street Journal reported on a number of victims of unscrupulous mortgage brokers, sold loans by means of false representations.  The facts all rang true to me.

My two lawyer firm has seen in the past year at least three cases of elderly Hispanic couples with limited or no English and fixed incomes being solicited for interest only, adjustable rate loans.  The loan documents signed by the homeowners were all in English, which they couldn’t read if they’d tried.  Absent either a lawsuit or a legislative solution, these folks will lose their homes.

It is clear that these cases are not unique;  they are part of a pattern of exploitation that went on at the height of the easy money, housing bubble. These are not people who “bought more home than they could afford.”  They are victims of crimes that no one seems to care about prosecuting.

So, what do we do as a society about the foreclosure situation?  Given the scope of the problem, we need a low cost, broadly available, routinized approach to modifying  home loans that will stabilize the housing market, encourage home buying by halting waves of foreclosure, and spreading the pain of the solution between borrowers and lenders.

Thus far, all of the approaches to the mortgage mess have thrown money at the banks, the very folks who made this crisis possible.  Evidence is that the tax dollars are not trickling down in any way that keeps families in their homes.

When will the Senate grasp that some new thinking is necessary and  allow use of Chapter 13 to address mortgage modification?