MReport August 2020

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M R EP O RT | 15 COVER STORY "Advocates of the law wanted the director to be exempt from oversight—by Congress or the President. As a result, the CFPB Director position was referred to by a D.C. Circuit court panel as ' … the single most power- ful official in the entire United States Government other than the President, at least when measured in terms of unilateral power,'" Rood said. Rood added that de-politicizing the agency, replacing the Director with a bipartisan multimem- ber commission, and making the agency more accountable to Presidential and Congressional oversight will go a long way towards building a more balanced and predictable regulatory environ- ment for the mortgage industry. "However, if the current struc- ture, as modified by the [Supreme Court] ruling, of a single Director who can be fired by the President stays, it will certainly result in a more politically motivated institu- tion where policies can change wildly and rapidly depending on what party holds the Presidency," Rood said. He said the last six months of the director's reign has the potential to become a "lame duck" period where little will get done. An example of this, Rood said, is the proposed rulemaking by CFPB Director Kathleen Kraninger regarding QM and non-QM. "Given the 2021 implementa- tion timeline of those proposed changes, a new administration could now replace the Director and come up with a completely new set of rules. Therefore, the industry will likely be frozen on these topics until after the presi- dential election," Rood said. Rood said, given the similari- ties of the single-family director structure to the CFPB, "it's hard to imagine a scenario where the structure isn't deemed to be un- constitutional." "If the FHFA's single-director structure is overturned, then a Biden administration could replace Director Calabria about three and a half years earlier than the end of his five-year term," Rood continued. "Calabria has been laser-focused on fulfilling his statutory requirement to get the GSEs out of conservatorship if they can fulfill the requirements of the recently published capital framework." He observed that Democratic Presidential candidate Joe Biden could theoretically replace FHFA Director Dr. Mark A. Calabria with someone who would use the GSEs as instruments of public policy to help implement his plan for housing. Pinto said that, while he agreed with the conclusion, he would have thrown out the entire CFPB statute based on the single-direc- tor provision. However, he noted that the presiding President should have the ability to appoint or announce a replacement, subject to confir- mation by the Senate, for a policy position such as the Director of the CFPB. And for how this could impact the FHFA, he said the bigger question is when the Supreme Court will render a decision, which he noted could be in either spring or summer 2021. If Biden were to be elected, Pinto agreed that he could theo- retically go to Calabria and ask for his resignation and, if he refuses, could relieve him of his duties. "I think that's easier to do, given the Supreme Court case in the CFPB." Pinto said. A Noteworthy November S peaking of Biden, the former Vice President made waves earlier this year during an in- terview with Vanity Fair when he called for mortgage and rent forgiveness—across the board— during the COVID-19 pandemic. "There should be rent for- giveness and there should be mortgage forgiveness now in the middle of this crisis. Forgiveness. Not paid later, forgiveness," he said during an interview on Good Luck America, Snapchat's daily political show. "It's critically im- portant to people who are in the lower-income strata." During the interview, Biden said nobody should be paying more than 30% of their income for rent. Golding argued that Biden's notion of all foreclosures and evictions needing to be eliminated during this pandemic could be a necessary step. "That goal can be accomplished in a variety of ways and the de- tails can be worked out," Golding said. Plans to cancel rent and mortgages for the duration of the pandemic have been pre- sented by other lawmakers as well. According to an article by Forbes, Democrat Rep. Alexandria Ocasio-Cortez (D-NY) has backed similar initiatives, including one sponsored by Rep. Ilham Omar (D-Minnesota)—the Rent and Mortgage Cancellation Act—that would cancel all rent and mort- gage payments for the duration of the pandemic. "The coronavirus crisis is more than just a public health crisis—it's an economic crisis. Minnesotans are losing jobs, getting their hours reduced, and struggling just to put food on the table. We must take major action to protect the health and economic security of the most vulnerable, including the millions of Americans currently at risk of housing instability and homelessness," said Rep. Omar in a release. "Congress has a respon- sibility to step in to stabilize both local communities and the hous- ing market during this time of uncertainty and crisis. In 2008, we bailed out Wall Street. This time, it's time to bail out the American people who are suffering." The measure proposed by Omar and Ocasio-Cortez would set up federal relief funds for landlords and lenders to recoup the cost of the lost mortgage and rent payments if they agree to abide by a set of renter protec- tions for five years. Hale said businesses, consum- ers, and borrowers are pursuing normalcy when possible despite the coronavirus' disruptive nature. She suggests that Biden's proposal, if well intentioned, could have unintended consequences. "A complete, across-the-board mortgage and rent forgiveness plan seems to be a blunt ap- proach that would have much larger costs than a more targeted assistance program," Hale said. "More targeted assistance also seems more appropriate given the disproportionate effects of the pandemic on lower socioeconomic status groups." Rood said that the idea of rent and mortgage "jubilees" is appeal- ing to many politicians and at-risk households, but they come with "meaningful consequences." "The political will to radically reform these organizations through legislation simply does not exist on Capitol Hill, as there is much to lose and little to gain." —Tim Rood, Head of Industry Relations, SitusAMC

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