by Tanta on 10/18/2007 09:38:00 AM

Shall we start a pool on whether Congress caves in or not? National Mortgage News via absnet.com:

The Department of Housing and Urban Development has stuck to its guns regarding seller-funded downpayment assistance on Federal Housing Administration-insured mortgages. But third-party conduits which funnel financial aid from buyers to sellers are not going away without a fight.

Practically before the ink was dry last week on the final rule prohibiting anyone except family members, employers, government entities or true charitable organizations from giving would-be buyers money to cover the 3% downpayment required on FHA loans, the two largest DPA providers filed separate suits in Federal Court seeking to overturn the controversial rule.

Scott Syphax, president of the Nehemiah Corp., Sacramento, Calif., called the rule "outrageous," saying it removes practically the only "lifeline" left for working families to achieve ownership.

"Privately funded downpayment assistance programs have helped over 600,000 families become home owners and have been credited not only for helping people buy homes, but also stabilizing neighborhoods and cities and creating stronger families," he said.

AmeriDream, Gaithersburg, Md., another major DPA provider, expressed "great confidence" on its website that HUD will be overturned in court. "HUD's action makes no sense," said chair Ann Ashburn.

Several lawmakers also cried foul, as did the Mortgage Bankers Association and the U.S. Conference of Mayors.

In an interview with Bloomberg News, Rep. Al Green, D-Texas, said the program "could have been fixed and need not have been nixed." Reps. Gary Miller, R-Calif., and Maxine Waters, D-Calif., joined Rep. Green in registering their disapproval and calling on HUD to correct whatever problems exist in the program rather than simply can it.

"If there are concerns with certain downpayment assistance providers, HUD should address these individual providers, and put the controls in place to weed out the bad actors, rather than completely eliminating a program that has successfully expanded homeownership opportunities for millions of families," the three congressmen said.

They also vowed "to fight every effort to eliminate rather than reform this important tool that has built financial strength and formed lasting communities."

Nevertheless, unless the court or Congress goes against HUD - the House-passed FHA reform bill sets new standards for DPA providers but the Senate Finance Committee's version prohibits such assistance - the prohibition that bans anyone who has a stake in the transaction from providing buyers with cash for a downpayment takes effect Nov. 1. . . .

Mr. Montgomery told reporters during an unusual conference call set up by HUD - "We wanted to give you folks a little advance notice," he said at the outset - that nonprofits can still provide downpayment assistance in the form of a gift "so long as they don't collect 'donations' from sellers."

And therein lies the rub, the FHA commissioner said, for in most cases, there is "a clear quid pro quo" between the purchase of a house and the seller's "contribution."

The so-called gift often functions as an incentive to buy the house, the FHA contends, but the gift is ultimately paid for by the buyer through a higher mortgage amount because sellers tend to raise their asking prices to cover the amount they are giving away.

Mr. Montgomery said in the current slow housing market, sellers are "more willing than ever to participate" in these programs, even though they "circumvent our restrictions" and buyers "are often unaware that the gift is something they end up paying for and not a gift at all."

The FHA also maintains that loans to those who rely on seller-funded don't perform nearly as well as they should. Indeed, the agency says they are almost two and a half times more likely to fail than other FHA-insured mortgages.