By: Hussam Qutub, Vice President of Communications
The title of a recent blog post that drew over 100 comments on MuslimMatters read “Halal Mortgages: Alleged Misuse of Taqi Usmani's Fatwa and 3 Important Questions.” What began as perhaps a sincere attempt by the author to alert readers about the abuse of a respected scholar's fatwa and invite Islamic financial institutions to provide as he put it “a little bit of transparency”, resulted in a heated online debate that achieved very little in terms of “removing doubts” about Islamic home finance companies in the US, as originally intended.
Because Guidance Financial Group and its subsidiary, Guidance Residential were mentioned in both the blog and the comments that followed, we felt that a response was appropriate to counter some of the misinformation that has been spread not only about our company, but also the chairman of our Sharia Supervisory Board and the six fatawa he and the other prominent members of our board issued specifically for our Declining Balance Co-Ownership Program. Guidance has helped thousands of Muslim-American families become homeowners through this authenticated program and since our inception in 2002, we have always believed in the value of transparency having issued a comprehensive WhitePaper that provides insight on our unique and pioneering structure.
It is important to start off by clarifying one major matter that could go unnoticed by the reader. It is that the blog begins by quoting Mufti Muḥammad Taqi Usmani as saying “I have never approved any ijarah contract or scheme for any financial institution in America, Australia or Canada.” We would like to emphasize that this statement is in no way, shape or form directed at Guidance or its Program. It is unfortunate that the author mistakenly refers to the ijarah model as a “co-ownership” while in reality Guidance does NOT and has never used the ijarah (lease) structure or contract. Guidance's Program is based on a musharakah mutanaqisa (diminishing partnership) structure, which was developed with the help of and finally approved by our Sharia Supervisory Board led by none other than Mufti Taqi Usmani as its Chairman.
The underlying question that needs to be asked is how can Muslims determine if a financial contract or institution is in compliance with Islamic financial transaction principles? For starters, we would need to know who are the scholars behind the product or institution. To develop our Program, we spent millions of dollars in research and development over the course of 3 years and involved 18 different law firms while working with 7 of today's most authoritative and highly respected scholars in Islamic finance. The scholars are from 6 different nations and are trained in the different schools of thought. Throughout the development process and beyond, these ulema researched and debated all aspects of Guidance's Program, including the life cycle of the transaction and how it would involve an actual home-buyer. Eventually, ijma (consensus) was achieved among these renowned scholars and a formal certification through the issuance of fatawa was complete.
To further validate our approach and our Program, one can evaluate the scholars themselves to assure that they are qualified in matters relating to Islamic financial transaction principles. In doing so, you will find that a majority of Guidance's Sharia board members belong to the prominent Sharia board of the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI, pronounced “a-yo-fee”), formed in 1990 as an independent, non-profit, international standard-setting body, AAOIFI is the industry standard for Islamic finance practitioners. AAOIFI's regularly updated texts have become the definitive reference work for those seeking a comprehensive rule book about internationally recognized standards in Islamic finance. Its 85 standards cover everything from accounting and auditing to governance and product-specific Sharia standards. The 20 international scholars who sit on AAOIFI's Sharia board are distinguished Islamic scholars who are legally qualified to issue a fatwa and adjudicate on matters of Islamic finance. Guidance is privileged to count among the members of our Sharia board a quarter of AAOIFI's most eminent and authoritative scholars in Islamic finance. In fact, the Chairman of AAOIFI's Sharia board is none other than Mufti Taqi Usmani.
Guidance and its distinguished Sharia board have been sought after for technical expertise in Islamic finance by international organizations in Saudi Arabia, Malaysia, Egypt and Indonesia. In 2007, Guidance helped establish what has become today's leading home finance institution in SaudiArabia – DarAlTamleek. In 2009, Guidance was nominated by the Dubai-based international trade publication Islamic Business and Finance Magazine for the “Best Islamic Home Finance Provider” award. All these efforts did not go unnoticed by the mainstream media and in fact, major outlets like The Wall Street Journal, The New York Times, The Washington Post and even Al Jazeera to name just a few have all recognized Guidance's pioneering endeavors. We hope that more Muslim media outlets delve in to this subject in greater detail for the benefit of our community as a whole.
We would like to extend an open invitation to all of the Muslim Matters staff and its bloggers to talk with us directly and even visit with us at our corporate headquarters in Reston, Virginia. Furthermore, please feel free to communicate directly with me, Hussam Qutub, and ask any and all questions by emailing me at firstname.lastname@example.org.
In addition to relaying all of the above, Guidance's intention in writing this post was also to answer the questions posed by the author of the article. To that end, we have provided our answers below.
MMQ1: How often are updated contracts reviewed and approved by a Shari'ah board (“SSB”), and which scholars have signed off on the actual contract being used by an Islamic finance company?
A1: Our full Sharia board has signed off on our program as you can see from the link above. Our Declining Balance Co-Ownership Program documents have not changed from the time reviewed by the scholars. Subsequent to those fatawa, in 2005 and 2006, two additional fatawa were issued to certify adjustments that needed to be made in order for us to serve Texas Muslims while adhering to their state's unique challenges and the second to introduce adjustable programs that were in high demand at the time.
While there have been lots of changes in the mortgage business since the credit crisis in terms of licensing and disclosures, these changes have not impacted our contract or the documents reviewed by our Sharia board. As an FYI, our agreement with our investor, Freddie Mac, does not involve a lending and borrowing relationship of any kind. And although they have made significant underwriting and operational changes, their documents also have not changed since we started the Program. Part of the reason our contract has stayed intact is that we have a unique and exclusive contract with Freddie Mac. No banks or financial institution can use our agreement without our permission. Additionally, banks in general cannot use our contract by law because banks cannot co-own, they can only lend.
MMQ2: Are all practices done by the Islamic finance institution during the course of the contract and “declining co-ownership” Shari'ah approved?
A2: Yes and we continue to be compliant in all aspects of our business and we are not aware of any aspect that is not compliant. The entire course of the contract from purchase, transfer and full ownership by client has been studied, observed and deemed compliant with Sharia principles. It is important to note that many disclosures are federally mandated requiring us to use them even though their terminology mischaracterizes the nature of our Program. For this challenge, we have a fatwa on disclosures that can also be found in the link above.
To further address the authors comments for this question:
“The company itself tried to say that they simply transferred the administrative duties of collecting payment. However, the paperwork from the other bank indicated clearly the transferring of the debt (i.e. selling the debt) from the Islamic company to the bank.”
Recently, to enhance our customers' overall experience we transferred the servicing of our contracts to a new vendor, namely US Bank's servicing division. To better understand this transfer one would need to understand “servicing” and its place in the mortgage industry. In simple terms, it means collecting and administering monthly payments, mailing monthly statements, fielding questions and handling late payments. For a company of the size of Guidance, this administrative task is usually contracted out to vendors that will then act on behalf of a home financing company and become an extension of their operation. In our situation, although the vendor handles all our correspondence with existing customers, everything is done in our company's name and all payments made by our customers are made to Guidance.
The process of transferring from one servicer to another is a complicated and often challenging administrative process. There are federally mandated letters that must be sent out to all customers by the old and new servicer on behalf of the home financing company. During our transfer period, some of this mandated correspondence was sent out on our behalf with language that did not properly characterize our Program. Unfortunately, this caused some concern among our customers and we have since worked diligently to address and clarify the situation. At the end, we admit that this could have been handled better but it must be said that this in no way changes the contract or compromises our program. If it is unclear or requires any further clarification, please contact us.
MMQ3: How are inconsistencies between what Mufti Taqi Usmani advocates in his writings and the actual schemes used by these banks to be addressed?
A3: First, we recommend that all Islamic financial institutions establish an independent Sharia board consisting of specialized, distinguished and credible scholars that regulate their specific products and services in the context of laws in the land they wish to operate as Guidance has done. Second, consumers need to do their due diligence in understanding not only who the scholars are but also how the program is designed to work.
If one were to investigate further in Mufti Usmani's writing and our White Paper, which was approved by our board, Guidance's Declining Balance Co-ownership Program is designed to create a co-ownership for the purpose of providing the home-buyer with financing to acquire a home. This co-ownership is based on Shirkat ul Milk. It is not designed as a commercial partnership (Shirkat ul Aqd) for the purpose of making profit from trading in real estate. Consequently, the Program is intended for the customer to fully buy out Guidance's share in the property over time, and not for the two co-owners to sell the property jointly and share the gains.
The White Paper further stipulates that should the home buyer sell earlier than the term agreed upon, the appreciation that the property will have likely earned is theirs to keep since they did all the leg work to identify the community and property. If the property sells for a loss then the shortfall is something they must consider. However, if the property depreciated so much that the shortfall is below what is considered Guidance's share in the property, Guidance incorporates a unique “non-recourse” clause that protects the seller in this case from owing the full amount to Guidance. We would consider the difference a loss on our books.
Furthermore, if the government were to impose on the co-owners to sell the property in order to make room for a road, a park or another public project the Co-ownership Agreement specifically stipulates that the two co-owners would share the gains or losses from such a forced sale according to their ownership shares. As a result, Guidance may end up with proceeds that fall short of the amount of financing it had provided, in contrast with what would be owed under a conventional mortgage loan.
The principle that the two co-owners should share in the gains and losses of their respective shares in the property applies to situations other than a sale. Consider the example of a property that suffers total destruction and cannot be repaired using available insurance proceeds. In this case again, the Co-ownership Agreement stipulates that the two co-owners would share the insurance proceeds according to their ownership shares, resulting in an outcome quite different from that of a loan.
All of the above items and questions were addressed and documented in the fatawa and white papers that were certified and amended by our board in 2002, 2005 and 2006. We can always try to facilitate a direct discussion for an extensive and more thorough analysis between your staff and our Sharia board. Our only request is for due diligence and open communication.