Editor: David Reiss
Brooklyn Law School

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August 24, 2015

Monday’s Adjudication Roundup

By Shea Cunningham

August 24, 2015 | Permalink | No Comments

August 21, 2015

Friday’s Government Reports

By Serenna McCloud

  • The Department of Housing and Urban Development (HUD) and the Census Bureau have released July’s New Residential Construction Statistics.  According to the federal agencies building permits are up 7.5% over last July, while housing starts are up 10.8% and completions are up 14.6% during the same period.

August 21, 2015 | Permalink | No Comments

August 20, 2015

Thursday’s Advocacy & Think Tank Round-Up

By Serenna McCloud

  • Community Builders, an initiative of the Sonoran Institute has released Place Value: How Communities Attract, Grow and Keep Jobs and Talent in the Rocky Mountain West recommends walkability and quality of life conscious development of communities .
  • According to the National Association of Realtor’s analysis of the New Housing Starts data homebuilders are increasingly developing high density housing with “walkability” suburban and single family housing has been deemphasized.
  • The Urban Institute released its Housing Finance at a Glance monthly chartbook, which Prof. Reiss finds to be a very helpful holistic view of the mortgage industry.
  • The U.S. Department of Housing and Urban Development (HUD)’s Office of Policy Development and Research has developed the Creating Connected Communities: A Guidebook for Improving Transportation Connections for Low and Moderate Income Households in Small and Midsize Cities – the guidebook contains recommendations geared toward cities with 250,000 or fewer residents which among other things suggest a refocus of financial resources on critical needs and improvement of the alignment between housing and transportation investments.
  • Zillow has announced that home prices are rising faster than incomes for most Millenials (no surprise there).  This report also finds that first time home buyers rent for longer before buying typically more expensive homes which are paid for with a larger share of income.

August 20, 2015 | Permalink | No Comments

August 19, 2015

Wednesday’s Academic Roundup

By Shea Cunningham

August 19, 2015 | Permalink | No Comments

August 18, 2015

Tuesday’s Regulatory & Legislative Round-Up

By Serenna McCloud

  • The Consumer Financial Protection Bureau has launched an Online Guide for Real Estate Professionals to understand their obligations under the new “Know Before You Owe” mortgage disclosure rules, which become effective October 3, 2015.  The Know Before You Owe mortgage initiative is designed to empower consumers with the information they need to make informed mortgage choices. It includes the implementation of the TILA-RESPA (Truth in Lending Act – Real Estate Settlement Procedures Act) Integrated Disclosure rule. The new rule primarily does two things, first it consolidates some of the disclosures that must be made unto fewer forms and second it changes the timing of certain activities in the mortgage lending process.
  • Fannie Mae and Freddie Mac have announced an auction of Non-Performing Loans (NPLs) in the amount of 1.2 billion and provided details for bidder pre-qualification and servicer requirements. The reasons for the program are fourfold: 1. reduce illiquid assets, 2. encourage broad investor participation; 3. consider borrower outcomes; 4. a well controlled transparent process.
  • The New York City Council has passed three Tenant Buyout Bills which were designed to protect tenants from landlords who want them out of rent stabilized apartments.
    • The Bills are: Intro 682 – buyout offered in a threatening manner are an act of harassment.  This includes untoward language, odd hour contact, frequent contact, and abusive contact.
    • Intro 700 – requirement of a writing to memorialize the buyout offer, this writing must include important facts including the tenant’s right to seek legal representation and the right to refuse.
    • Intro 757 – Bars repeated buyout offers by making such behavior a form of harassment when the tenant has indicated she/he is not interested.

August 18, 2015 | Permalink | No Comments

August 17, 2015

Monday’s Adjudication Roundup

By Shea Cunningham

  • Plaintiffs in class action suit against JPMorgan Chase & Co., who were fraudulently charged unnecessary home inspection fees, argue that the bank cannot avoid class certification because Chase admitted that “determining whether an inspection was reasonable requires an assessment of the borrower’s and property’s individual circumstances.” The plaintiffs claim “Chase cannot turn back time and do now what it was required to do then.”
  • Deutsche Bank AG and Massachusetts Mutual Life Insurance Co. settle in suit accusing Deutsche Bank of misleading investors over approximately $125 million in residential mortgage-backed securities by failing to determine the accuracy of the statements in its offering documents.

August 17, 2015 | Permalink | No Comments

August 14, 2015

Smoldering FIRREA

By David Reiss

Jens Buurgaard Nielsen

American Banker quoted me in Banks Take Losses in MBS Case Appeals; Is Supreme Court Next? (behind a paywall) The story reads, in part,

Banks that sold faulty mortgage-backed securities right before the crisis have suffered a string of legal defeats over the timing of government lawsuits, but some experts believe the industry may still have a shot in the Supreme Court.

Since the crisis regulators have brought a slew of actions against big banks for assets they sold to acquirers that ultimately failed. But in some cases, the parties have tussled over whether the government missed the statutory deadline for bringing a claim.

Appeals courts lately have disagreed with banks that plaintiffs missed court filing deadlines imposed by state law and other regimes, which are stricter than deadlines in federal law. Most recently, the U.S. Court of Appeals for the 5th Circuit ruled in favor of the Federal Deposit Insurance Corp. in the agency’s case against RBS Securities and other issuers related to the 2009 failure of Guaranty Bank.

Still, other cases are pending and some say banks may be emboldened after the Supreme Court last year favored state-mandated timelines in an environmental case.

“I would expect that [banks] would continue to try to pursue the issue and get relief from the Supreme Court,” said Paul Rugani, a partner at Orrick, Herrington & Sutcliffe LLP based in Seattle.

The government has sought billions from MBS issuers that officials say misrepresented the quality of securities leading up to the crisis. The FDIC and National Credit Union Administration sued companies that had sold assets to institutions that ultimately failed, and the Federal Housing Finance Agency brought claims over securities sold to Fannie Mae and Freddie Mac.

But many banks have fought the agencies over whether they could bring the suits in the first place. Defendants seemed to gain ground in the lower courts and when the Supreme Court handed down its decision last year in a North Carolina environmental case.

*     *     *

“The Supreme Court generally does not take a case where there isn’t a split among different circuit appeals courts, and the 5th and 10th circuits are in agreement,” said an attorney familiar with the situation.

But other decisions are still pending. Rulings have yet to come from the 9th circuit as well as a separate case still to be decided in the 2nd circuit. Both involve the FDIC’s extender statute related to MBS losses at the failed Colonial Bank.

“I would think that the parties that lost the case would wait for the 2nd and 9th circuits to decide and then hope that either of them disagrees with the 5th circuit before deciding to take the case up to the Supreme Court,” said Sanford “Sandy” Brown, a partner at Bracewell & Giuliani LLP.

Others said the extender statute in the law at issue in the Supreme Court’s environmental decision – the Comprehensive Environmental Response, Compensation, and Liability Act – is different enough from the extender statute in FIRREA that the justices on the high court may want to weigh in.

The 5th circuit decision “is a well-reasoned opinion, but there is no question that such an interpretation could be challenged in an appeal to the Supreme Court,” said David Reiss, a professor at Brooklyn Law School. “While circuit courts have had a consistent interpretation of the FIRREA extender statute, there is enough interpretation going on that the Supreme Court could come up with a reasonable alternative to the courts of appeal that have ruled on this issue.”

August 14, 2015 | Permalink | No Comments