Foreclosures and Bankruptcy

Lately (and I will not support that statement with links or evidence), there seems to be much ado about homeowners, foreclosures, and what we can do to prevent these two things from coming together. From Obama's loan modification plan to Chapter 13 bankruptcies, there seems to be a glut of people trying to save their homes.

From my position, I can't help but wonder why. During the last ten years or so, with the real estate and lending markets going completely bonkers, there have been literally millions of bad loans written - loans were there was insufficient equity in the property to secure the loan, where the debtors had insufficient income to support the loan, and loans were every bit of information on the loan was false, fraudulent, or misrepresented. The real estate agents, brokers, lenders, and everyone in between was complacent if not fully complicit in writing and securing these "toxic" mortgages. (Update: 1 in 4 mortgages are underwater!)

And now those seeds have come to bear fruit. Almost every mortgage and almost all the real property I see coming through my office is a negative equity situation. Basically, any property purchased in the last 5 years is going to be underwater - that is, the balanced owed is more than the sale value of the property today.

The issue is simple - people are chasing smoke, in situations where they will not have home equity for a decade or longer. A decade of interest payments, and of principal payments that aren't building equity.

The solution is even simpler - foreclosure. Oh, but what a bitter pill! Let it go to foreclosure, then on the oft and rare chance the bank decides to bring a deficiency action, obtain good legal counsel or file for bankruptcy. Dump the McMansion with the negative amortization loan and rent a nice apartment for half or two-thirds the cost. Save that money - the money that would go to rent for the twelve months or longer that it would take to foreclose, and the difference of your eventual rent cost against your previous mortgage - save that money, and in a few years, you'll have $25k to $50k for a nice, safe, traditional mortgage.

The plus side - and there is one - is that you'll get to stick it to the man. I'm a fan of capitalism; I find no evil in making money. However, our current hybrid capitalism/socialism system, where profits are privatized and losses are subsidized, serves to line the pockets of those who don't deserve it while penalizing everyone else. For capitalism to work, there needs to be consequences. You write a bad loan, you take the loss - the necessary corollary to the idea that if you write a good loan, you take the profits. Instead, our current state lets the government (i.e., the taxpayer) take the loss instead. Heads they win, tails we lose.

The reality of this situation is that, if you are going through foreclosure, you cannot afford your home. Your $2,000 mortgage payment on your $3,000 monthly take-home income is unfeasible and unsustainable, and will continue to be for the foreseeable future. It is time to stop subsidizing these bad loans and losses, and let these folks reap what they have sown.

Bankrupt means having insufficient funds to pay your creditors - being insolvent. The number of people who file bankruptcy is but a small portion of the people who are actually bankruptcy. What we, as a society and as an economic system, need is more bankruptcies. More bankruptcies equal more losses and a greater deterrent to writing bad loans. Nobody - and I don't care if you're Bill Gates - needs a $50,000 credit limit.

The credit system - from mortgages to car loans to credit cards - is fundamentally flawed; the foundation is rotten. Financially, the system needs to be leveled to the bedrock and rebuilt, into a system that rewards those who manage their money wisely and punishes those who wield it recklessly.

The Hard Way . . .

I caught this article the other day, and I'm still amazed at how hard-headed and, well, dumb these people are.

Quick summary: four person household, $106,000 in GUC (general unsecured debt), no major assets. They spent five years funneling $2,000 a month through CCCS to pay off their debt.

Several family friends recommended that they file for bankruptcy. That was out
of the question, Russell says. "We were committed to paying off our debts."
They also resolved to continue to tithe and home-school their daughters.

Now, without knowing the exact details, I can't be sure of where they would fall on the bankruptcy continuum, but I image it would either be (a) a Chapter 7, or (b) a low-payment Chapter 13. Under federal law, they would be able to continue their tithing, and the extra educational expenses from home-schooling can be included, to a limited extent, under the Form 22 means test.

So, this couple spends five years scrimping and saving, working two jobs, the husband rarely seeing his family, just so they can get out of debt. While admirable, it is also silly and ignores the point and policy of bankruptcy law. It would be the equivalent of cutting down a redwood with a handsaw, or tunneling through a mountain with claw hammer. Sure, it is possible, and it is one hell of an achivement, but why would you do it?

I get really tired of people who look down on bankruptcy. It isn't theft and it isn't a moral failing. In life, things happen that you can't control. For that family, medical bills and indiscretions killed them financially. So, Congress, in its infinite wisdom, has provided a way out of debt, for a fresh financial start. They then chose to ignore that start and go the hard way.

There's a term for that: pride. Also, masochism.

Now, as a bankruptcy attorney, I have a somewhat cavalier attitude toward the entire process. However, I can't help but wonder what the family could have accomplished had they filed bankruptcy, then put for that same effort toward rebuilding their credit and for the health and welfare of their family.

For starts, the could have likely paid off at least half their mortgage. Or, the could have greatly improved the quality of life for their friends and family.

Bankruptcy is designed to help people. It really bothers me when people look down on the helping hand and benefits of bankruptcy. In my own experience, I've done more good for more people in bankruptcy than I ever did volunteering in college or working in family law in the Domestic Violence clinic in law school.

Nonsense and Bankruptcy Exemptions

I've come to realize that my posts are lacking a certain amount of polish and coherence, so I have decided to make an effort to post more often and to make my posts more pithy and generally more intelligent. After all, I can write very well when I put for the effort.

Now, some more on bankruptcy exemptions.

The Illinois Homestead Exemption, or . . .
punishing those who actually try to pay for their homes.

I touched on this topic with my last post. Bankruptcy clients in the current real estate market (read: down the drain and minced in the garbage disposal) either have (a) zero equity or negative equity, or (b) a ton of equity.

Rarely is there a situation, in my experience, were a debtor has, say, $50k in equity. Most often, in those situations, the debtor would have already tapped that with a HELOC or other form of second mortgage. While practical in theory, these "debt consolidation" 2nd mortgages are just a way to eat into home equity while preserving the unsecured lines of credit that debtors horribly mismanaged in the first place and will quickly resume to horribly mismanage.

In Illinois, the homestead exemption is $15,000 for an individual, and $30,000 for a married couple. Federal exemptions are worth $20,200 , and the rest very by state. Some are as high as $100k or even unlimited (Arizona and Texas, respectively).

So, in general, Illinois has dinky exemptions.

As a policy standpoint, these exemptions do not encourage people to build equity in property, since it it easy to lose your home in the event of misfortune. I had a client who had over $100k in equity, but minimal income sufficient only to pay the small mortgage on the property. The debt level was median, between $40k and $75k, with a judicial lien.

If she had been mortgaged to the hilt, we could have filed ch. 7, avoided the judicial lien, and made her life easy as pie. Instead, she's looking at a 100% repayment ch. 13 at over a $1,000 a month (unfeasible and unaffordable). Or she can sell the house and loose that which she struggled long and hard for.

The results are simply not fair and, more importantly, do not serve the purpose of bankruptcy. One's home is one's castle, and, unfortunately in Illinois, your gate is down if you have equity.

The Lameness of Exemptions in Illinois

In bankruptcy, certain property is exempt from a trustee's taking. Under the Illinois code, 735 ILCS 5/12, certain things of value are exempt. The most typical examples are as follows:

• Homestead Exemption, 735 ILCS 5/12-901: $15,000 of equity for your residence ($30,000 for married couples)
• Wearing apparel, school books, Bible, and family pictures. (735 ILCS 5/12-1001)
  
• Motor vehicle equity: $2,400 (735 ILCS 5/12-1001)
• Trade tools and implements: $1,500 (735 ILCS 5/12-1001)
• Personal Property (divisible): $4,000 (735 ILCS 5/12-1001)

It is time to revisit these exemptions. They have been revised in 2006 and 2008, but they are still too low from a policy standpoint.

For exampe, as a bankruptcy matter, the homestead exemption is either irrelevant or not nearly enough. Debtor generally can't manage their finances at all (i.e., underwater on their 12% adjustable 10 year balloon mortgage) or have some recent disaster (medical illness or job loss) that causes bankruptcy. So when the homestead exemption actually is useful, it isn't enough.

A good example is someone I met with a few weeks ago. Age 62, married, not eligible for medicare or medicaid, no health insurance, pre-existing medical conditions, etc. House is worth $200k (typical for the Chicago suburbs) and is paid off. He keeps food on his table and the lights on because his mortgage is paid off. His $60k in medical bills is either (a) a Chapter 13 payment that is way too high for him to afford at 100% repayment, or (b) requires him to sell his home to pay off, or (c) requires him to take out a HELOC, with payments he can't afford and a credit history that means most banks won't lend to him, despite a 100% security interest.

A chapter 7 would help him out tremendously - except the trustee would sell his house. The solution is simple: let's thriple the homestead. Going to $50k/$100k would help families protect hard-won equity and still give them major protections in bankruptcy.

Another good example of how the exemptions are terrible is blue-collor industry - truckers, landscapers, and the like. These folks are selling their skills, essentially. To use their skills though, they need certain expensive equipment. That equipment makes Ch. 7 generally a bad idea. If your truck is worth $40k, or your landscaper is worth $25k, then it is going to be vulnerable to seizure. Generally, these are the things that those in those industries pay off first, to save on expenses. Paid-off equipment is another $1,000 a month or more in the bank.

Their white-collar conterparts (real estate brokers, attorneys, computers, accountants) who are also in the business of selling their skills, can file ch. 7 much easier, then restart their businesses with even less of an issue.

The solution: make the trade tools exemption unlimited, or nearly so. If you need something to secure your livelihood, exempt it permanently. Don't take someone's fishing rod when they need it to eat.

Irony and Reality at Whole Foods

From John Mackey's Op-ed in the WSJ:

The combination of high-deductible health insurance and HSAs is one solution that could solve many of our health-care problems. For example, Whole Foods Market pays 100% of the premiums for all our team members who work 30 hours or more per week (about 89% of all team members) for our high-deductible health-insurance plan. We also provide up to $1,800 per year in additional health-care dollars through deposits into employees' Personal Wellness Accounts to spend as they choose on their own health and wellness

And the fallout.

Reading both articles is rather poignant for me. One of my most recent cases is for a client employed, full-time, at, you guessed it, Whole Foods, for the past several years. Her primary reason for bankruptcy is medical bills. HSA sucks when the deductibles run in excess of $40,000. That "up to" $1,800 a year won't even put a significant dent in those debts.

Student Loan Changes

From: http://articles.moneycentral.msn.com/CollegeAndFamily/SavingForCollege/big-changes-ahead-for-student-loans.aspx

On July 21, the House Committee on Education and Labor began marking up a bill, introduced by Rep. George Miller, D-Calif., that seeks to eliminate government-subsidized private student lending and replace it with direct loans to students through the Department of Education.

"This is the biggest change in federal loans for higher education since 1965, when the original program was created," says Terry Hartle, senior vice president at the American Council on Education.

About damn time. Private-lender student loans are one of the worst deals one can get into when paying for education. I had to take out just one private loan - to cover BARBRI and summer school. The interest rate is 3% points higher than my federal loans. When I was unemployed for 6 months following graduation, all it took was a a short form and a signature to get my federal loans deferred. For my private loans, the best Sallie Mae could offer was a 3 month forebearance for a $50 fee.

I had better help from my credit card companies during my unemployment period. The private loan provides, like Sallie Mae and NelNet, use the student loan protections (non-dischargeability in bankruptcy, ease to obtain, and relatively low interest rates) to hook students, who in a lot of cases have the choice of an a private loan or no education, if they don't satisfy the FAFSA requirements. Then, they can use their own policies to fiddle with the interest rates, charge late fees, and have tough deferment/forbearance/forgiveness policies. They aren't even eligible for the Income Contingent Repayment options or the federal loan forgiveness programs for public service. And you can't consolidate them through the federal loan consolidation programs.

So, to recap - all the drawbacks for the borrower, and none of the risks for the creditor.

Letting the Fed handle student loans just makes sense - their Direct Loan program is great ($93,000 @ $370 a month @ 4.75% fixed, thanks to consolidation) for students, generates a minimal but still positive return for the government (i.e., it more or less pays for itself eventually), and can provide huge benefits by encouraging public service through forgiveness programs. And it lets students pick occupations that require major education but have minimal income, with ICR options that forgive the loans after 20 years of repayment.

In conclusion, here's to Sallie Mae - and to the hope that you die unloved, unmourned, and soon to be forgotten. And keep cashing my $200 a month checks.

Quasi-Obligatory Commentary

From http://www.bloomberg.com/apps/news?pid=20601087&sid=acQvgRoLQmXQ:

"More than 126,000 consumers filed for bankruptcy in the U.S. last month, 34 percent more than in July 2008, the ABI said in its latest report on Aug. 4. The increase came after a 36.5 percent rise in personal bankruptcies nationwide in the first six months, to 675,351, according to the ABI research group, which interprets data collected by the National Bankruptcy Research Center."

and:

"Credit Card Losses

JPMorgan said losses in its Chase credit-card portfolio may be 10 percent next quarter and will be “highly dependent” on unemployment after that. Losses for cards issued by Washington Mutual, which the bank acquired in September, may reach 24 percent by the end of the year, the company said.

JPMorgan’s credit cards lost $672 million, compared with income of $250 million in the second quarter last year. Home- equity charge-offs climbed to $1.3 billion, or 4.61 percent. Prime mortgage defaults rose to $481 million, or 3.07 percent, from $104 million, or 1.08 percent a year earlier."

Too bad the article failes to mention how Chase and most of the other lenders are at least partially, and often majorly, responsible for the bankruptcies themselves. Time and again I get client whose almost sole reason for filing bankruptcy is their credit card rates getting jack to 30%. I have seen debtors who have struggled along for years, through unemployment and famine, after tapping their 401(k)'s and IRA's dry, just to make their minimum payments. Then they watch their minimum payments triple and their interest rates quadruple.

Chase could very well be posting profits, or at least much smaller losses, if it had left the interest rates and minimum payments where they were. Instead, the screw around and drop some more straw on the camel's back, and the next step is a visit to my office.

Thank you Chase; you are one of the best feeders for my services. I love nothing better than adding you to Schedule F with a big fat 5 or 6 figure number in the amount column. You bring it down upon yourself by biting too hard on the teat of the honest but unfortunate debtor.

They even cut my limit and boosted my rate, after I paid off my balance from college. I was using the card for gasoline and whatnot, paying it off every month, and they cut my limit, 6 months after I paid off my $2,000 college indiscretion balance. I was only using it to keep it active and boost my credit score. Their reason: "Not paying bankcards as agreed," despite the fact that my balances are minimal and my monthly payments are quadruple the minimums.

Now? I'll just let it languish with a zero balance until they close it. I'll stick with my Sears Mastercard (they keep bumping my limit) and my credit union credit card (I love my credit union too) - the folks that actually treat me right.

The horrible downside is that, in the next few years, we'll see another bankruptcy reform act, which will further tighten the screws on the already completely-screwed, force more people into nearly impossible Ch. 13 repayment plans (100% of my disposable income for five years? God forbid I need a new alternator), all on the justification that too many debtors are filing bankruptcy after Chase (and others) gave them too much credit, and then turned around and screwed them by jacking the rates and payments.