State mortgage industry regulators have been warned to be on the lookout for a long-outlawed "churning" scheme in which unscrupulous mortgage brokers generate thousands of dollars in extra fees by convincing unwitting borrowers to refinance their loans every few months.

Though the lenders maintain no one is getting hurt, least of all consumers, the authorities say just the opposite is true.

Not only do borrowers who participate in the multiple refinance scheme fail to build equity, said R.J. Harvey of the Illinois Office of Banks and Real Estate, they also could lose their good credit standings.

"Each time they refinance, their credit scores drop," explained Harvey, who sounded the alarm at a conference late last month in Chicago. "Eventually, they won't qualify and they'll be stuck with a higher (mortgage) rate."

Perhaps even worse, participants also could unwittingly be named as co-conspirators in a plot that investors in mortgage-backed securities say damages the integrity of their investments.

Churning was banned by the Department of Housing and Urban Development more than a dozen years ago. "We expect the refinance transaction to be in the home owner's best interest" by resulting in an improvement in affordability, not as a "vehicle for churning new mortgages," the government said in a 1990 memo to lenders.

Fannie Mae and Freddie Mac, the two largest investors in mortgages, also prohibit the practice by refusing to take delivery of any loan in which the broker has taken another application from the same borrower for the same property or has entered into an agreement to do so within a certain number of months.

Fannie and Freddie are two giant government-sponsored financial institutions chartered solely to keep the money flowing for home loans. They do so by purchasing loans from local lenders and packaging them into securities that are prized by investors throughout the world.

Because Fannie and Freddie touch perhaps 60 percent of all home loans and lenders like to have the option of being able to sell their loans at any time, most mortgages are written to conform to the GSEs' rules. And both companies say they want no part of those that are repeatedly refinanced by the same broker over short periods.

Despite these prohibitions, several lenders in Illinois seem to have revived the ploy, according to Harvey, who is manager of supervision in the mortgage banking division of the state banking and real estate office.

Harvey stressed, however, that no charges have been filed because it has yet to be determined whether churning is illegal.

Harvey told regulators from other states that he also has alerted HUD, Fannie Mae and Freddie Mac, all of which are now in the process of reviewing loan files to see if their rules have been broken.

The scheme in question works like this: Brokers, targeting borrowers with high interest rates, promise to refinance loans to the current market rate or sometimes even lower. But rather than make the jump down to the lowest rate in one fell swoop, lenders step the rate down in five or six-month increments over an extended period.

Because the first refinancing is still above market, brokers can obtain a premium price for the mortgage when it is placed with a lender which actually funds the loan and then sells it on the secondary mortgage market, where Fannie Mae, Freddie Mac and other investors operate.

After a few months, the loan is refinanced again pursuant to a pre-arranged agreement with the borrower, but only to a slightly lower rate so the broker can once again sell the mortgage for a premium price. Then the process is repeated again and again until the rate that was originally promised is reached.

Each time the loan is refinanced, the broker establishes what's known as a "temporary buydown" by using all or part of the proceeds from the loan to pay the closing costs and fees on behalf of the borrower.

Sometimes the broker pays the borrower's entire monthly payment during the step-down period, which can run on for as long as five or six months. In other instances, the borrower is required to make the payment at the lower rate and the broker makes up the difference, keeping the remainder as profit.

But in almost all instances, the lender pockets thousands of dollars in extra fees each time the loan in refinanced. "One young guy (under investigation) is building a $1 million house with the earnings" he generated by churning mortgages, Harvey said.

Originally, the offending brokers targeted borrowers with good credit or those whose loan amounts exceeded the limits set by HUD and Fannie Mae and Freddie Mac. Currently, the Federal Housing Administration can insure loans up to a maximum of $260,600, and Fannie and Freddie can buy loans up to $300,700.

Now, their marks run the entire spectrum, and they frequently sell the loan to different lenders each time it is refinanced to avoid detection. "Greed has set in," Harvey said.

To persuade borrowers to participate in their schemes, some brokers claim that many major lenders are eager participants. They also assert that sharing a commission with a client is "a legal alternative" that can save thousands in interest.

In an example offered by one lender, the borrower would receive a check of $7,587 no later than 14 days after closing. The check represents the difference between the payment at the refinanced rate and the promised rate for five months.

The borrower also is told the money need not be reported as income to the IRS. "The check you receive from us is not regarded as income, but as a return of interest paid," the company claimed. But that's may not be correct, according to Harvey.

Moreover, many borrowers are not told that to receive a new interest credit, they must requalify each time the loan is refinanced . Thus, if their credit situation should take a turn for the worse, they may no longer be eligible and they would be stuck with the higher rate.

Also, if a borrower decides to opt out of the scheme before all stages are reached, he, too, would be throttled with a higher than promised rate.

Published: September 25, 2002

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When Lew Sichelman first started writing about housing in 1969, he was the youngest real estate writer in the country. Now, 37 years later, he's one of the oldest -- and most decorated. He has been rated the top housing columnist in the country by the National Association of Realtors as well as by his peers in the National Association of Real Estate Editors. Indeed, NAREE has recognized his work on numerous occasions. One year - due to his advancing age, he can't recall which one - he earned top honors in the annual NAREE Journalism Contest in three out of the four major writing categories. It was the first time one writer has won so many NAREE awards in a single year. Known for his ability to make even the most difficult topics understandable, Sichelman also has been honored by the National Association of Home Builders and the Mortgage Bankers Association. He began providing in-depth coverage of and consumer-oriented information about housing and housing finance at the Washington Daily News, where he was real estate editor. He held that same position for nine more years at the Washington Star, which purchased the News in 1972. The Star, a so-called "writer's newspaper" which also had the misfortune of being an evening paper, was put out of its misery in 1981, and Sichelman, who had begun self-syndicating his column in 1978, decided to become a full-time columnist. Today, his column, "The Housing Scene," is distributed by United Media to newspapers throughout the country. He also is on the staff of National Mortgage News, an independent newspaper which is considered the bible of the mortgage business. And he writes for numerous other publications, including MarketWatch.com, where he answers readers questions once a week, Sports Illustrated (don't ask), RealtyTimes.com, BigBuilder and others. Sichelman is married, the father of five and grandfather of eleven.