Cramdowns shot down: another missed opportunity
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This article critiques the Federal Housing Finance Agency’s decision not to recommend principal reductions for negative equity mortgages held by Fannie Mae and Freddie Mac.
Too expensive for today’s taxpayer?
Although late by even Congressional standards, the Federal Housing Finance Agency (FHFA) has finally returned with a decision on their recent proposal for Fannie Mae and Freddie Mac (collectively dubbed Frannie) to begin offering principal reductions (cramdowns) to underwater homeowners. [Click here for the full FHFA report.]
Citing a threat to Frannie’s liquidity, the leaderless FHFA (read: congressional interference in appointments) concludes that cramdowns are not Frannie’s best loss mitigation tool. Thus, the federal government has decided against allowing Frannie to offer cramdowns. [For a report on the beginnings of the cramdown proposal, see the November 2011 first tuesday article, Cogitating cramdowns: a tale of suspense.]
The FHFA estimates that it would cost the Treasury nearly $100 billion to fund the capitalization needed to facilitate Frannie’s discharge of the negative equity associated with all of the mortgages in their portfolio. The benefits of instituting a cramdown program do not justify the cost to those in the U.S. who pay income taxes, according to FHFA Acting Director, Edward J. DeMarco.
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The other important part of the DBSD rnliug is that “gifting” is no longer permitted in the Second Circuit (i.e. in bankruptcies filed in NY). The court found that “gifting,” a practice by which secured creditors provide a small recovery to equity holders out of the secured creditors’ own recovery to buy equity’s support even though unsecured creditors are not being paid in full, violates the absolute priority rule. This had been a common practice to avoid fighting with old equity and had not previously been thought to violate absolute priority since a gift from secured creditors to equity holders doesnt really affect what unsecured creditors receive. The Second Circuit put a stop to this practice (assumming there is an objection by unsecured creditors), finding that “gifting” violates the language of the Bankruptcy Code and leaves open the potential for misbehavior by equity holders who control the ch. 11 process. It is likely that this decision will lead to more fights with equity holders who can no longer be as easily paid off to go away.
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