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This occurred on a panel at a meeting of the Mortgage Bankers Association, where Platt appeared with Georgetown Law Professor Adam Levitin, who has been critical of MERS. I corresponded with Levitin, and this was an accurate rendering of Platt’s remarks.

“My response was that’s nonsense,” Levitin wrote in an email. “No one, absolutely no one, is arguing that a valid security agreement should not be enforced. Instead, the issue is whether we should enforce invalid security interests or let parties that do not hold a security interest enforce someone else’s. I hardly think that denying parties that right will result in a change in the cost of credit. It might result in them changing law firms, however, to ones that didn’t screw up their securitization deals.”

MERS, an electronic database created and funded by the banks to avoid land recording fees at county offices, has been criticized on multiple fronts. First of all, they don’t track the information inputted in the database, leading to inaccuracies between what appears in MERS and what appears on the note. Second, they stand in as the mortgagee and sell Vice Presidencies in their company when servicers attempt to foreclose, at the same time saying they have no financial interest in the loan. Third, banks using MERS failed to convey mortgages and notes properly, instead using this unregulated private system, and have broken chain of title in many circumstances, voiding their right to foreclose or even collect payments from a borrower.

Platt clearly wants to threaten the political system here. He’s saying that mortgage interest rates will skyrocket and constituents will become angered if the banks aren’t allowed to do what they want. That aims at a political settlement that stops the courts from making findings of the banks’ wrongdoing under the law. “If we want to have a well functioning credit system, we need to enforce security interests when they are done in compliance with the law, and not enforce them when they fail to comply,” Levitin wrote. “This is fundamental commercial law—you screw up on dotting the I’s and crossing the T’s in a security interest and you’re SOL. Everyone knows the rules of the game going in and there’s no reason to bailout sophisticated parties who failed to comply with the law.”

The notion that MERS saves the banks so much money that they can offer loans at multiple percentage points less than what they’d have to without it is extremely puzzling. “I don’t know of anyone who has argued that MERS lowered interest rates,” Levitin wrote. He estimated that the banks saved “maybe $50 per loan” using MERS, which certainly makes it worthwhile from their perspective, given the millions of loans on the system, but which makes the claim of massive savings to interest rates just foolish. “Of course, even if MERS lowers interest rates, we have to ask at what cost, and a screwed up title system is a pretty high cost for saving a few bps (basis points),” Levitin concluded.

Looking at this chart of mortgage rates from before and after MERS came into existence in 1995, you can see no evidentiary basis for the claim that MERS lowered interest rates; the mortgage lending rate basically tracks the prime interest rate.

At the root, this is a scare tactic. The banks don’t want to change their systems, and they certainly don’t want them found illegal. So they trot out corporate lawyers to make baseless charges that will be taken in Washington as conventional wisdom. And the politicians will scramble to make sure the inaccurate consequences never take place.

Whenever you hear a business executive or politician use the term "American competitiveness," watch your wallet. Few terms in public discourse have gone so directly from obscurity to meaninglessness without any intervening period of coherence.

President Obama just appointed Jeffry Immelt, GE's CEO, to head his outside panel of economic advisors, replacing Paul Volcker. According to White House spokesman Robert Gibbs, Immelt has "agreed to work through what makes our country more competitive."

In an opinion piece for the Washington Post announcing his acceptance, Immelt wrote "there is nothing inevitable about America's declining manufacturing competitiveness if we work together to reverse it."

But what's American "competitiveness" and how do you measure it? Here are some different definitions:

It's American exports. Okay, but the easiest way for American companies to increase their exports from the US is for their American-made products to become cheaper internationally. And for them to reduce the price of their American-made stuff they have to cut their costs of production in here. Their biggest cost is their payrolls. So it follows that the simplest way for them to become more "competitive" is to cut their payrolls -- either by substituting software and automated machinery for their US workers, or getting (or forcing) their US workers to accept wage and benefit cuts.

It's net exports. Another way to think about American "competitiveness" is the balance of trade -- how much we import from abroad versus how much they import from us. The easiest and most direct way to improve the trade balance is to coax the value of the dollar down relative to foreign currencies (the Fed's current strategy for flooding the economy with money could have this effect). The result is everything we make becomes cheaper to the rest of the world. But even if other nations were willing to let this happen (doubtful; we'd probably have a currency war instead as they tried to coax down the value of their currencies in response), we'd pay a high price. Everything the rest of the world makes would become more expensive for us.

It's the profits of American-based companies. In case you haven't noticed, the profits of American corporations are soaring. That's largely because sales from their foreign-based operations are booming (especially in China, Brazil, and India). It's also because they've cut their costs of production in the US (see the first item above). American-based companies have become global -- making and selling all over the world -- so their profitability has little or nothing to do with the number and quality of jobs here in the US. In fact, it may be inversely related.

It's the number and quality of American jobs. This is my preferred definition, but on this measure we're doing terribly badly. Most Americans are imprisoned in a terrible trade-off -- they can get a job, but only one that pays considerably less than the one they used to have, or they can face unemployment or insecure contract work. The only sure way to improve the quality of jobs over the long term is to build the productivity of American workers and the US overall, which means major investments in education, infrastructure, and basic R&D. But it's far from clear American corporations and their executives will pay the taxes needed to make these investments. And the only sure way to improve the number of jobs is to give the vast middle and working classes of America sufficient purchasing power to get the economy going again. But here again, it's far from clear American corporations and their executives will be willing to push for a more progressive tax code, along with wage subsidies, that would put more money into average workers' pockets.

It's politically important for President Obama, as for any president, to be available to American business, and to avoid the moniker of being "anti-business." But the president must not be seduced into believing -- and must not allow the public to be similarly seduced into thinking -- that the well-being of American business is synonymous with the well-being of Americans.

Robert Reich is the author of Aftershock: The Next Economy and America's Future, now in bookstores. This post originally appeared at RobertReich.org.

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Monday, January 24, 2011

Making Money Without

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