Kevin J. Taylor
BUS670: Legal Environment
Dr. David MacKusick
July 13, 2013
Abstract
This paper delves into the condition of mortgage discrimination and redlining. The American Dream for most Americans is to successful navigate the mortgage process and obtain a mortgage loan. Mortgage discrimination and redlining provide a hurdle to realizing that dream. Mortgage discrimination is a barrier to the consumer receiving a mortgage loan. Redlining is an obstacle to mortgage lending is high-risk neighborhoods. Durr observed that some “city leaders turned to racial covenants” (2011; p. 1176). The federal regulations that are in place to reduce mortgage discrimination include the Community Reinvestment Act, Home …show more content…
Mortgage Disclosure Act, and Equal Credit Opportunity Act.
Mortgage Discrimination
Individuals and families alike aspire to achieve the American Dream of owning their own home. To that end, it is often necessary to attain a loan for the purchase price of the desired property. The process of acquiring such financing is dependent upon the consumer must subject themselves to the scrutiny of a mortgage loan department. Mortgage underwriters are tasked with certifying the consumer is a valid mortgage loan risk. Mortgage underwriters validate the application information by confirming the consumer is who they say they are, earn the income indicated, are employed where stated, and historically repay their former and current debts. The mortgage underwriters must compute the consumer’s income-to-debt ratio to ascertain the maximum amount of income the consumer can allot to repaying a mortgage debt. When the consumer selects the property of their dreams, the property is appraised to establish a reasonable purchase price, substantiate said cost is fair and satisfactory for the area, and confirm the property is habitable. If the consumer is proven a satisfactory credit risk, the mortgage underwriter approves the mortgage loan and the consumer is allowed to assume the mortgage loan to purchase the property from the buyer, reside in the property, and repay the lender the purchase price plus the agreed upon interest amount. The mortgage lending process is a daunting task. The successful consumer is the one who is equal to the task and perseveres. As stated by the late Dr. Martin Luther King, Jr. (as cited in Barnes, 2001, “the ultimate measure of a person is not where they stand in moments of comfort and convenience, but where they stand in times of challenge and controversy”.
Effects on the Neighborhood
Lending may appear straight forward or black and white but it is not without its negativity. As with many other endeavors, it falls and has fallen victim to discriminatory practices. Much of the discrimination revolves around racial equality and redlining. One race determining their neighborhood should be devoid of any other races or of a particular race. Not only determining but also having the social and business wherewithal to ensure it becomes a reality. Manuel B. Aalbers (2007) affirmed that “redlining is the process of not granting mortgage loan applications from specific neighborhoods” (2007;p. 178). The original intent of redlining was to not racially motivated (Holmes, A.; 2000). Through redlining, neighborhoods were able to retain their separate but equal façade. Redlining discriminated based on where the neighborhood was. Mortgage lenders utilized lines of demarcation to maintain segregation. M B. Aalbers (2007) showed redlining as “the interaction between low income, unemployment, or ethnicity on the one hand, and the average value of sold units on the other hand” (2007, p. 177). Although the Supreme Court Civil Rights Cases of 1883 deterred public segregation, neighborhoods employed the use of racial covenants as a means to discriminate (Durr, 2011). Several laws in concert with Supreme Court rulings were enacted to combat discrimination, such as the Equal Credit Opportunity Act (ECOA), the Community Reinvestment Act (CRA), the Home Mortgage Disclosure Act (HMDA), and Shelley v Kraemer. The effect of the restrictive covenants was to ensure the neighborhoods remained segregated and reserved for the race or ethnic group it currently encompassed. While corporate America and schools integrated, cities and neighborhoods remained segregated.
Contributor to Mortgage Crisis
The mortgage crisis of 2008 is credited to creative financing programs, subprime lending, and predatory lending. “Under the CRA, banks must convince a set of bureaucracies that they are not engaging in discrimination” (Brook, 2008). Essentially, the opposite of discrimination caused the mortgage crisis. The Community Reinvestment Act (CRA) was enacted to restrict mortgage discrimination and redlining. However, its effectiveness endures the most of fault for causing the mortgage meltdown by encouraging mortgage lenders to relax the stringency of their lending criteria to enable riskier consumers to purchase properties. No doc and stated doc loans increased consumer’s buying power and facilitated purchases in more affluent and historically exclusive neighborhoods.
Ethical Absolutism
Detecting mortgage discrimination and redlining requires documentation throughout the mortgage lending process because such illegalities are not overt. Regulations such as the Fair Lending Act and the Home Mortgage Disclosure Act were ratified as a means to associate mortgage discrimination and redlining with ethical absolutism – to present them as right and wrong concepts (Seaquist, 2012). In ethical absolutism, fair lending is always a right concept and discrimination is always a wrong concept. Whereas there may be gray areas in law, ethical absolutism allows for “concepts such as good and evil, right and wrong, and justice” (Seaquist, 2012). Discrimination oppresses a group and redlining discriminates against an area or neighborhood (Black, 1999). Redlining endeavors to maintain less risky loans in affluent and exclusive neighborhoods while approving riskier loans in lower income neighborhoods. Redlining was not historically illegal but always unethical or immoral or wrong. Right is always right and wrong is always wrong.
Justice Ethics
Because of concepts such as mortgage discrimination and redlining, the government enacted regulations such as the Community Reinvestment Act, Fair Lending Act, Equal Credit Opportunity Act, and Home Mortgage Disclosure Act. These Acts sought to generate fairness in the mortgage lending process. Fairness is akin to Justice Ethics. Whereas mortgage discrimination strove to render homeownership an elusive dream to citizens who were deemed inferior, the concept of Justice Ethics injected fairness into a racially and ethnically biased process. The Home Mortgage Disclosure Act “rules were refined to require lending institutions . . . to report on home loan pricing . . . to begin reporting higher-rate loans . . . on the race and ethnicity of the recipient” (Cocheo, 2005). The Home Mortgage Disclosure Act infuses the mortgage loan process with fairness or Justice Ethics.
Given a choice between right and wrong, and justice or fairness, justice wins. As a business, right is not always legal or ethical and wrong is not always illegal or unethical. Justice is fair and impartial. Justice pursues the fair and equitable solution to an unfair condition. In mortgage lending, all the consumer aspires to receive is a decision based on fairness. To be assured that any denial is for concrete reasoning and not due to any racial or ethnic biases.
Contract Law Governance
Mortgage discrimination and redlining, as aforementioned, are governed by various regulations and acts. In total, they seek to incorporate fairness, justice, and equality in the mortgage lending process. As stated by Jo Ann S. Barefoot, “public policy now views unintentional discrimination just as seriously as the overt, intentional kind” (1999; p. 24). Mortgage lenders must be cautious in every step of the mortgage loan process as any misstep can be construed as discriminatory. Whether it is during application, appraisal, underwriting, or closing, any misstep could be viewed discriminatorily.
Jo Ann S. Barefoot (1999) outlined seven risks that the Community Reinvestment Act endeavors to mitigate. Compliance risk is due a weak compliance program (Barefoot, 1999). Poor compliance programs lead to improper monitoring of fair lending, incomplete or incorrect data storage and quality, and an inability for the business keep up with others in the marketplace and any changes (Barefoot, 1999). Overt risk is exhibited when “a reasonable person who knows the market would see them as referring to racial characteristics” (1999; p. 27). A business is in violation of the Community Reinvestment Act if someone in the mortgage industry (I.e. processor, appraiser, underwriter, closer) could easily determine an item in terms of race. Underwriting risks are noticed “if lending criteria are vague or subjective, if the bank lacks clear guidance on making exceptions or overrides, if there is poor documentation of lending decisions, and if compensation programs reward high volume” (1999; p. 27). Underwriters must be certain each decision is sound and justified by lending guidelines. The risks associated with pricing include “compensating loan officers or brokers for charging higher rates, using risk-based pricing that is not empirically and statistically based, and allowing lenders broad discretion in pricing” (1999; p. 27). Pricing affects the interest rate on the loan. The rates assigned by the underwriters must be justified by the set policies for the company. Steering is connected to suggesting or directing the consumer to a specific product that may not be in their best interest. A product with unfavorable terms could be construed as discriminatory. Redlining is directing the lending dollars away from areas or neighborhoods determined by the institution to be higher risk and lower probability of repayment. Finally, marketing risk is advertising bank products only in specified areas.
The Home Mortgage Disclosure Act provides “the tracking of loans made and denied” (Phillips, 2003). It is the precursor to the Community Reinvestment Act and is in place to ensure that qualified consumers receive adequate financing with reasonable terms and conditions (Phillips, 2003). The Home Mortgage Disclosure Act collects data on all loans to judge the consistency with which mortgage lenders analyze the creditworthiness of borrower regardless of their racial or ethnic background. Robert M. Silverman (2005) remarked that “the proportion of the population (Detroit) that was African American remained a significant predictor of the ratio of mortgages originated to mortgages denied” (2005; p, 537). However, research by Harold A. Black (1999) found “HMDA data do not contain information on data that are important in the lending decision making process such as financial characteristics of the borrower” (1999; p. 25). In and of itself, the Home Mortgage Disclosure Act data is an ineffective means to prove mortgage discrimination.
Sandra Phillips (2003) noted “The Equal Credit Opportunity Act guarantees access to credit regardless of race, ethnicity, or gender” (2003; p. 70). While the aforementioned Acts dictate the equivalency of the process, the Equal Credit Opportunity Act defines access to credit. It yields the opportunity for a qualified applicant to receive a mortgage loan.
Mortgage discrimination is an elusive and difficult proposal to substantiate. “Where discrimination is alleged, often the investigation is dropped or a settlement reached” as noted by Harold A. Black (1999; p. 23). Even when there is no statistical proof of any illegalities, mortgage lenders often settle out of court because they determine it is less costly to settle than it is to litigate (1999; p. 23). Fidel Ezela-Harrison, Glenda B. Glover, and Jane Shaw-Jackson (2008) noted “housing loan providers have not treated the underserved (minority) market equally, appropriate policy measures need to be taken to protect the anomaly” (2008; p. 53). To rectify mortgage discrimination and redlining, a collaborative effort is necessary. The Community Reinvestment Act provides competitive financing in all areas of a given city. By opening all neighborhoods to all qualified borrowers, businesses expand the pool of potential clients, which increases their asset base and prevents redlining. The Home Mortgage Disclosure Act ensures that all consumers are treated fairly and justly. Fair and just treatment expands the business’ public reputations and endears it to the constituents they serve. The Equal Credit Opportunity Act assures that each consumer has access to mortgage loan financing. Lenders do not want to approve bad loans (Black, 1999) so adhering to the Equal Credit Opportunity Act will ensure this does not occur.
Conclusion
Historically, mortgage discrimination and redlining have hindered the American Dream of homeownership. By enacting regulations, the federal government has reigned in its proliferation. The Community Reinvestment Act deterred redlining. The Home Mortgage Disclosure Act diminished discriminatory mortgage lending by enforcing fair and equitable treatment of all borrowers. The Equal Credit Opportunity Act afforded all applicants the right to have their creditworthiness judged equally and extended access to financing that historically was prohibited.Discrimination
References
Aalbers, M. B. (2007). What types of neighbourhoods are redlined? Journal of Housing and the Built Environment, 22(2), 177-198. doi:http://dx.doi.org/10.1007/s10901-007-9074-9
Barefoot, J. A. S. (1999). Are new fair-lending procedures an unwelcome blast from the past? American Bankers Association.ABA Banking Journal, 91(5), 24-29+. Retrieved from http://search.proquest.com/docview/218517143?accountid=32521
Barnes, T. R. (2001). The ultimate measure: Legal access for all. Vital Speeches of the Day, 67(13), 401-404. Retrieved from http://search.proquest.com/docview/221455009?accountid=32521
Black, H. A. (1999). Is there discrimination in mortgage lending? what does the research tell us? Review of Black Political Economy, 27(1), 23-30. Retrieved from http://search.proquest.com/docview/203728334?accountid=32521
Brook, Y. (2008, July 18). The government did it. Forbes, Retrieved from http://www.forbes.com/2008/07/18/fannie-freddie-regulation-oped-cx_yb_0718brook.html
Cocheo, S. (2005). Former fair-lending prosecutor looks at the new HMDA. American Bankers Association.ABA Banking Journal, 97(8), 62-64. Retrieved from http://search.proquest.com/docview/218502996?accountid=32521
Durr, K.
D. (2011). Not in my neighborhood: How bigotry shaped a great american city. The Journal of American History, 97(4), 1176. Retrieved from http://search.proquest.com/docview/897972120?accountid=32521
Ezeala-harrison, F., Glover, G. B., & Shaw-jackson, J. (2008). Housing loan patterns toward minority borrowers in mississippi: Analysis of some micro data evidence of redlining. Review of Black Political Economy, 35(1), 43-54. doi:http://dx.doi.org/10.1007/s12114-008-9020-4
Holmes, A. (2000). Neighborhood racial composition and mortgage redlining: A nationwide analysis. Journal of Real Estate Portfolio Management, 6(1), 37-51. Retrieved from http://search.proquest.com/docview/197885183?accountid=32521
Phillips, S. (2003). African americans and mortgage lending discrimination. Western Journal of Black Studies, 27(2), 65-79. Retrieved from http://search.proquest.com/docview/200360680?accountid=32521
Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.
Silverman, R. M. (2005). Redlining in a majority black city?: Mortgage lending and the racial composition of detroit neighborhoods. Western Journal of Black Studies, 29(1), 531-541. Retrieved from
http://search.proquest.com/docview/200338477?accountid=32521