As I look over the mortgage rescue legislation the Senate is considering, I conclude they are clueless about what it takes to keep families in their homes. No foreclosure is going to be prevented by counseling. No home is saved by giving buyers at foreclosure sales a tax credit. Measures to prevent this mess from occurring again don’t help today’s sufferers an iota.

The one provision in the proposed bill that might help today’s homeowners facing foreclosure was the provision that allows bankruptcy courts to perform the loss mitigation that the lenders talk about but don’t do. Let bankruptcy courts write secured claims down to the value of the property today; let the court excise the indexed increases in interest rates. Provide some meaningful help to real, live families who may otherwise be homeless.

If Congress can’t do that (and they show few signs of willingness to buck the bankers who brought us this mess) they should at least refrain from claiming they are doing anything to keep people in their homes. Would you say that’s likely?

I’ve often commented on the pressures in our society to spend. The US economy is fueled by consumer spending. The whole economic stimulus package is predicated on the recipients immediately spending the governmental windfall rather than saving it.

Marshall Loeb was spot-on with his Six Lies We Tell Ourselves About Our Spending. The excuse that I find most pernicious is ‘I work hard, I deserve it”. Ads fan the flames of a sense of entitlement to fine things and instant gratification. Few voices are heard suggesting that fine living comes after setting aside money for emergencies and retirement.

I see all too many clients at retirement age with absolutely nothing to live on but Social Security. The lucky ones have family that is financially stable. The unlucky are alone and living on the edge.

Read Loeb’s article, banish those excuses from your thinking, and start saving something today.

My inquiries among other bankruptcy lawyers nationwide has yet to unearth a real, live homeowner who has been able to meaningfully rework a bad mortgage into a tolerable one. Not one homeowner.

From where I sit, I cannot tell whether it’s because the lenders are unwilling to do anything significant or because the homeowners are not effective in asking for enough to make a difference. Which ever it is, the foreclosure avalanche continues.

I suspect that the lenders (or their agents, the mortgage servicers) haven’t committed to making meaningful changes and haven’t staffed their loss mitigation departments with sufficiently empowered employees. It isn’t enough to allow a delinquent borrower to make a payment and a half til they catch up, or to tack the arrears onto the end of an ever adjusting ARM.

Which makes it more imperative that Congress pass, and the President sign, the Foreclosure Prevention Act with its provision allowing the modification of existing mortgages on family homes in bankruptcy.

My colleague Jonathan Ginsberg pointed out the play that the bankruptcy filing numbers are getting in the press: his local paper reports that bankruptcy filings are soaring.
In looking at the filing numbers, it is important to remember that 2006 was an aberrational year in consumer bankruptcy. The bankruptcy “reform” act became effective mid October, 2005. Huge numbers of people rushed to file bankruptcy before the law changed.

After the law changed, there was a lull in bankruptcy filings. I think two things are behind the low filing numbers in 2006. People who were on the fence about filing bankruptcy accelerated their decision to file because of the consumer-hostile provisions of BAPCPA, so those folks who normally would have filed in 2006, filed in 2005 to beat the change.

Secondly, after the amendments became effective, it took a while for the public to realize that bankruptcy relief was still available and for bankruptcy lawyers to master the changes in the law. Some bankruptcy lawyers left the practice and debt collectors told debtors that bankruptcy was not longer available to them or for the kind of debt that collector was trying to collect.
Certainly, there was no drop off in 2006 of people up to their ears in impossible debt; prosperity did not break out because we erected barriers at the bankruptcy court door. People’s ability to deal with the debt they had remained unchanged.

So, one should be cautious in drawing conclusions from a comparison between bankruptcy filing numbers between 2006 and 2007. That said, my experience suggests that there will be an onslaught of bankruptcy filings in 2008: the mortgage meltdown, slowing economy, and higher awareness of bankruptcy’s continuing availability will make debt relief look good to the consumer.

I find a real irony in discussion of the economic stimulus package under consideration to give out money to consumers in the expectation that they will immediately spend it, to our general benefit. Prof. Elizabeth Warren started a discussion of the economy’s reliance on consumer spending.

Commentators and economists consider a stimulus dollar that is saved to be wasted in the equation of avoiding recession. Yet the people I see daily need some savings more than any material thing you can name. They live from paycheck to paycheck, they have nothing for emergencies much less retirement.

While I don’t buy the canard that most people in bankruptcy recklessly overspent, there is something wrong with an approach to the economy that is dependent on continuous consumer spending.

Savings needs a better publicity agent.

In the 15 mile drive to bankruptcy court yesterday, the radio had two doom and gloom stories about the housing market and the dive on Wall Street, interspersed with no less than three, back to back, buy-my-book-and-get-rich pitches. I think the juxtaposition is not random.

When people are out of work or underemployed, they are open to ideas to “eliminate their debt in months” or make a bundle trading stocks. These appear to be avenues of escape for those in financial distress. We saw it the last down turn: everyone around me in Silicon Valley became a day trader of stocks or a realtor. After all, who could lose money dealing in California real estate?
As always, the only people likely to prosper as a result of these products are the sellers, not the buyers.

May I suggest a New Year’s resolution to look at your financial situation, including your preparation for retirement, with detachment and consider whether a fresh financial start makes sense?
A university study done about 10 years ago found that one in 7 American families would be better off if they filed bankruptcy. The point was that Americans were not heedlessly filing bankruptcy to avoid repaying debt. At the time, about one in 17 families actually filed. My experiences in the past decade suggest that the finding remains true in 2008.

A life of minimum payments, minuscule bank accounts, and no retirement savings is a life fraught with financial danger. My clients all too often try to pretend that all is well if they can make the minimum payments on credit cards and juggle no-interest offers to move money from card to card. The debt remains and savings are postponed.

I did a little exercise that contrasted paying off a modest credit card debt by making minimum payments with devoting the same about of money to retirement savings. The results are mind boggling. However much money you have during your working life, you are likely to have less at retirement. Take a look at your statement from Social Security and calculate how you are going to live on that amount.

Clients walk into my office hoping that there is a magic wand, The Alternative to Bankruptcy, that I can wave and allow them to solve the debt problem without bankruptcy. For most, there is no such secret, unknown cure to debt.

It may be time to swallow your pride, file bankruptcy, and devote the energy now spent on managing debt to saving for the future and enjoying the present.

Carmen Dellutri looked at the effect of the mortgage modification bill in Congress and the claims of bankers that interest rates will rise if bankruptcy judges can modify residential mortgages. He pointed out that the mortgage industry has not offered any proof that interest rates would rise.

Enter Prof. Adam Levitin. He has looked at data from a time when mortgages on a borrower’s principal residence could be modified in bankruptcy. Guess what he found? The risk of judicial modification made no discernible difference in interest rates.

So perhaps there is a very good reason, Carmen, that the bankers offer no proof to back up their scare mongering. Perhaps, there is no such evidence.

As each week brings a new wave of clients who have mortgages they can’t afford even before the loan resets, I ponder what happened in the Northern California real estate market.

While it has been practically a law of nature that California real estate only increases in value (despite not so recent evidence to the contrary), the increases over the past couple of years have been eye popping. With median home prices around $700,000, first time home buyers should be a very small subset of the population.

Yet the clients in my door have been middle income at best, yet they bought one or more properties with mortgages in the $700,000-$800,000 range. Almost invariably, they were told that the “friendly” mortgage broker would get them a better mortgage before the miserable one on the table reset. The ability to do that, of course, was predicated on a rising real estate market which would lower the loan to value ratio.

When you think about it, of course the real estate market was rising, when housing in the Bay Area is a limited commodity, and easy mortgage money has made practically anyone with a pulse eligible for a home loan and therefore a potential buyer. More people chasing fewer goods=price increase.

Of course the housing mania was also dependent on these buyers never having to make a fully amortized payment on a $700,000 mortgage. In most cases, the illusion of affording the house was dependent on mortgage “products” that required payments less than even the interest alone.

So, consider that the loss of value we are seeing, at least here in the Bay Area, merely represents the market wringing out the “value” created by mortgage madness.

For all of the administration hype, I’ve found it hard to get details on the President’s negotiated plan with the mortgage industry to prevent foreclosures. I’ve found a link to the plan.

Elizabeth Warren, Harvard law professor and bankruptcy expert, isn’t impressed. She calls it the Sandbag Plan . I find her conclusion, that the plan was put forth only to derail the pending bill to empower bankruptcy judges to address loan modifications, absolutely plausible.

In my practice I see no evidence that the lenders are interested in voluntarily modifying these loans. My letters on behalf of clients don’t even get a response. My clients seem to have no feasible option but to walk away from exploding ARMS. I’ve likened it to working in a financial emergency room.
I’m rooting for the passage of legislation like Senator Durbin’s bill, S. 2136, which would remove the bar to altering a mortgage secured only by the debtor’s principal residence in a bankruptcy proceeding. Hearings on the bill were held this week and the prepared statements of the witnesses are available.