There's Another Fiscal Cliff...and We're Heading Right for It

Dec. 9, 2012— -- With the presidential election over, the fiscal cliff is all anyone can talk about. The "cliff" is actually a drastic metaphor for a chronic political logjam caused by partisanship. There's another cliff on the horizon that is about to hit much closer to home for a lot of Americans. It's not the product of echo chamber hype. It's a family killer.

Worse, unless Congress drops the obstructionist approach, this second cliff is going to be hit soon, and the fallout will be epic.

Five years ago, with the economy in a freefall, Congress passed a tax provision known as the Mortgage Forgiveness Debt Relief Act. Enacted as the housing market imploded, with millions of families suddenly on the verge of losing their homes to foreclosure, the law exempted homeowners from paying a tax on certain forms of debt relief. It allowed millions of Americans to keep their homes, and avoid economic ruin.

Now, at a critical juncture in our economic recovery, that exemption is about to expire. The timing is atrocious; the stakes are incredibly high. But while the argument for extending it is a no-brainer, there's no telling when --- or even whether --- Congress will see how urgent this is and take appropriate action.

To understand why this matters so much, it's important to understand how burdensome debt relief was in the absence of this law.

When a lender agrees to forgive some or all of a strapped consumer's credit card or mortgage debt in order to recoup at least some of the money owed, the IRS taxes the forgiven amount as extra income.

So while an underwater homeowner may feel lucky to have a $100,000 mortgage forgiven, that good feeling quickly disappears when she finds out that it counts as taxable income. Worse, often that phantom income places the debtor in a higher tax bracket. Having dodged the first bullet, they step into a bear trap.

So the crux of the problem is that the debt relief reduces future obligations for people who are short on cash, but it comes with a bill that requires immediate payment (or another payment plan) with cash that doesn't exist. It's the sort of bad idea you might expect from folks who have never been in a financial bind -- like many of the folks in Congress who concocted it. But what Congress has done, Congress can undo.

The law, as it stands now, makes debt forgiveness tax exempt when related to a mortgage on a consumer's primary home that is valued at $2 million or less, or was used to buy, build or substantially improve a primary residence, the borrower can avoid the tax burden that normally comes with mortgage forgiveness.

The expiration of that exemption is the cliff we should be talking about.

"It's as if you're handing someone a life ring and then you cut the rope," observed Rep. Jim McDermott of Washington, author of a bill that would extend the tax provision.

In addition to treating homeowners to a gratuitous kick in the teeth, Congressional inaction on this tax provision would be a disaster. As economic momentum is kicking in, uncertainty regarding something as essential as homeownership will put a damper on consumer confidence.

Additionally, if the tax provision is allowed to expire, the market-friendly trend of banks approving short sales (nearly 340,000 of them in the year that ended in September), in which banks allow a property to be sold for less than the debt --- reducing the glut of foreclosed homes, stabilizing prices, and cutting lenders' losses --- will come to a screeching halt.

Failure to extend this provision could also scuttle the hard-won $25 billion mortgage foreclosure settlement so painstakingly negotiated by the federal government --- an agreement requiring banks to use the preponderance of the settlement money to help borrowers, with a minimum of $10 billion slated for principal reduction.

All of these measures will be savagely undercut if Congress doesn't find the moral courage to act on this extension.

The stakes are incredibly high. With almost three million mortgage loans in or near foreclosure, five million more borrowers suffering with high-rate loans that they have not refinanced, and nearly 12 million borrowers whose mortgage debt adds up to $600 billion more than the homes are worth, it is clear that mortgage relief is broken. It is just as clear that this is no time for Congress to make things even worse for homeowners through institutional lethargy and partisan foot-dragging.

The New York Times, in a powerful editorial published Saturday, said, "The question now is whether Mr. Obama will use his second term to get mortgage relief right and, in the process, put the economy on a firm footing." The same question applies to Congress --- and one excellent way for Congress to demonstrate its resolve would be to put aside the punting, name-calling, and stalling and extend the Mortgage Forgiveness Debt Relief Act.

Another, as the Times notes, would be to revise Senate rules to enable rapid confirmation of a new director for the agency overseeing Fannie Mae and Freddie Mac --- one who will not oppose efforts to reduce principal balances on underwater loans, as acting director Edward DeMarco has unwisely done. A third would be to pass two bills introduced by Senators Merkeley, Boxer, and Menendez to expand refinancing and principal reductions.

In a word, it's time for Congress to put aside childish things, learn the lessons of the last election, and take seriously the problems of the American people. American homeowners are still wobbling on the edge of a cliff. Our political leaders have one month to pull them --- and the U.S. economy back from the brink. While the fiscal cliff gets all the attention, the mortgage cliff is just as steep, and just as perilous. If American consumers take another big fall, our leaders are almost certainly not far behind.

Adam Levin is chairman and cofounder of Credit.com and Identity Theft 911. His experience as former director of the New Jersey Division of Consumer Affairs gives him unique insight into consumer privacy, legislation and financial advocacy. He is a nationally recognized expert on identity theft and credit.