Can a Bankruptcy Law Adjustment Stop the Mortgage Meltdown?

With the number of home foreclosures spiraling out of control, Congress is desperate for a means to stop the hemorrhaging of the losses banks and investors undergo. At the same time, the taxpayer underwritten cash infusions are doing precious little to counteract the financial disaster and while it may seem like grasping for straws, lawmakers are now taking a good hard look at current bankruptcy codes. The problem that market watchers and opposed lawmakers see, however, is the law of unintended consequences.

For example, if Congress were to change the rules of the bankruptcy game now, could they actually be borrowing trouble in the years and decades to come which – were the bankruptcy codes untouched – would be little more than a blip on the radar screen. What is more, is there a chance that in the effort to bail out consumer today, Congress might actually set in motion another set of problems that will hit the stock market and the national as well as international economies in years to come.

Banks claim that bankrupt borrowers who cannot afford their mortgage payments any longer will lose their homes to foreclosure, and it is this market safeguard that keep mortgage rates affordable. Thus far there was precious little a bankruptcy judge could do to help a homeowner, other than go by the book and encourage the debtor to see if there was any way of restructuring debt payments that would permit her or him to keep the home. Short of that, the bank would take over the property.

A movement is now underfoot that would actually give bankruptcy judges the ability to order mortgage modifications, and thus would force banks to comply and change the loan terms rather than simply taking back the property in question. Lenders state that this kind of move would have serious ramifications and unintended consequences, leading to a hike in the cost of mortgage loans, and also decreasing the banks’ willingness to underwrite new mortgages even further.

After all, if the investor or the banks are stuck with losses they neither anticipated nor planned for, there is little incentive to write any loans other than to those consumers with stellar credit, more than sufficient debt to income ratios, and of course also shy away from loans that might even give a hint to future troubles. While the arguments on both sides of the aisle sound compelling, there is some evidence that proponents of a change in the bankruptcy laws as well as proponents in the maintenance of current bankruptcy codes do not truly understand the depth of the arguments.

When the bankruptcy codes were last tinkered with in 2005 – at the request of the credit card industry – it was made harder for consumers to get out from unsecured debts and this forced repayment now makes it harder to actually repay the debts and keep a mortgage current. This showcases the shortsightedness of those supporting bankruptcy reforms then. Could that have been a precursor of the current debate?