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Wednesday, February 16, 2011

AMI Commends the Administration GSE Reform White Paper as a Good Start;
Private Capital Will Not Return to the Market without Transparency

Washington, D.C. – The Association of Mortgage Investors (AMI) publicly commends the
Administration on the release of its white paper, Reforming America’s Housing Finance Market.
AMI acknowledges that it presents a series of important reforms to bring back the country’s
housing opportunities. At today’s House Financial Services Subcommittee hearing, the
Administration witnesses state important goals:

“The return of private capital is particularly important given that today, Fannie Mae,
Freddie Mac and Ginnie Mae collectively insure or guarantee more than nine out of
every ten new mortgages . . . “1

“We must revive the PLS market [Private Label Securities] . . . “.2

We, however, see a number of omissions which will frustrate its goals and ultimate success of
returning private capital to the market. Accordingly, the AMI and its members are ready and
willing to engage policy-makers to create a truly viable plan that offers long-term, sustainable,
and effective solutions. The timely resolution of the foreclosure crisis is in the best interests of
homeowners and fixed income portfolio investors reliant upon returns from mortgage-backed
securities.

“The future and revitalization of the housing finance market is tied to the past legacy of what
happened to precipitate the crisis,” remarked AMI Executive Director Chris Katopis. “Any truly
viable solution must address the defective mortgage loans (many of which are a direct result
predatory lending practices) which still reside in pools and trusts across the country and plague
investors,” he continued.

History of the Problem. During the peak of the housing market in 2005 - 2007, banks
originated mortgages and put them into pools (also referred to as "Residential Mortgage-Backed
Securitizations" or "RMBS"). These pools were sold to mortgage investors, namely retirees,
government entities, state pension funds, retirement systems, universities, and charitable
endowments. In order to facilitate this process and get mortgage investors comfortable with
making these types of investments, the banks made promises (or "representations and

1
http://financialservices.house.gov/media/pdf/021611stevens.pdf.
2
http://financialservices.house.gov/media/pdf/021611tozer.pdf (emphasis in the original).
warranties") about these mortgage loans. These “reps and warranties” may include a number of
safeguards, including for example that the banks did not violate state laws including anti-
predatory lending and unfair and deceptive marketing statues. It has become evident that many
of these representations were not true (such as verifying a borrower’s income and determining
the ability of a borrower to repay the mortgage). In order for the housing market to recover and
for mortgage financing to expand, the banks responsible for writing the loan warranties must
fulfill their contractual obligation and repurchase loans that are defective under the terms of
these warranties.

Today ample research confirms that the loans originated during 2005-2007 were often
materially defective with respect to the reps and warranties:

A complaint involving one of JPMorgan Chase & Co subsidiaries finds over 80% of the
loans in certain deals breached representations.i
Fitch reviewed 45 early defaulting loans and found that the “result of the analysis was
disconcerting at best, as there was the appearance of fraud or misrepresentation in
almost every file”.ii
Recovco, a mortgage consulting firm, has reviewed several thousand loan files and has
found that over 50% of those files reviewed in the 2006-2007 vintage have material
breaches of representations and warranties.

Part of the problem is that the entities holding the evidence of breaches, or the mortgage files,
have been unwilling to follow their contractual obligations and release documents to trustees
and beneficiaries. This is evident in two recent lawsuits where trustees are suing a major
servicer to access mortgage loan documentation that trustees are entitled. “Promises made
must be promises kept. When parties ignore their contractual obligations and worse, block the
sharing of documentation, mortgage investors can only assume the nation’s consumers and
state institutions face a significant problem. Sunlight is the greatest disinfectant; let’s get the
documents and have the facts,” remarked Katopis.
As Congress reviews the proposed Administration plan and other recommendations, the issue
of defective loan put backs must remain high on the agenda, as it impacts a range of our
institutions back home, such as state entities. “It is the greatest hope of mortgage investors that
any GSE Reform plan carefully consider the impact on the soundness of state pension,
retirement systems, life insurance, and medical savings plans,” noted Katopis.

###

The Association of Mortgage Investors represents private investors, public and private pension
funds, and endowments, all of whom support the efforts of Congress and the Administration to
help responsible, though distressed homeowners avoid foreclosure. For more information,
please visit www.the-ami.org.

The AMI is now live on Twitter with the most recent news on mortgage investing. Follow us:
@MortgageInvest.

i
Ambac Assurance Corporation v. EMC Mortgage Corp., Cause No. 08 Civ. 9464 (S.D.N.Y.) (Complaint ¶
4)
ii
M. Diane Pendley, et al., The Impact of Poor Underwriting Practices and Fraud in Subprime RMBS Performance,
Fitch Ratings US Residential Mortgage Special Report, Nov. 28, 2007, at 4.