The Positive Externalities of Chapter 13 “Cramdowns” Could Prevent the Next Foreclosure Crisis

Revision of Bankruptcy Code 11 U.S.C. § 1322(b)(2) would permit “cramdowns” wherein bankruptcy judges would administer the modification of residential mortgages only when mortgage-lending abuses were most rampant (a real estate bubble). Foreclosure spill-over effects systemically worsened the housing crisis and were not evenly diffused throughout the broader housing market. Throughout 2003–2006, an oversupply of underpriced mortgage finance emanating from lax underwriting standards bid up residential prices. Relaxation of underwriting protocols came about from the mortgage market’s institutional swing from regulated agency securitization (predominantly government-sponsored enterprises “GSEs”) to unregulated securitization (shadow banking). This resulted in an untenable residential-price bubble as synthetically inexpensive credit from investors’ mispricing amplified mortgage demand, while greater mortgage quantity nudged up housing prices. The result was a self-referential cycle of waning residential prices supporting and perpetuating nigh incessant foreclosures: the bubble had burst. Cramdowns would incentivize lenders to be less inclined to loosen underwriting standards, or when done, to include this factor in the risk premium of the cost of credit. Enhancing Chapter 13 with the muscle to alter residential mortgages would ameliorate an institutionally structural issue endemic to the past (and upcoming?) foreclosure crisis.