Editor: David Reiss
Brooklyn Law School

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June 30, 2015

Tuesday’s Regulatory & Legislative Round-Up

By Serenna McCloud

  • U.S. Department of Housing and Urban Development Issues a Revised Rental Assistance Demonstration (RAD) notice, RAD which is the program by which Public Housing Authorities obtain funding for project based rental assistance.  The revised notice, among other things, increases the maximum number of units per project, provides additional rights and protections for tenants and provides greater incentives for green initiatives.


June 30, 2015 | Permalink | No Comments

June 29, 2015

CFPB Mortgage Highlights

By David Reiss

Richard Cordray 2010

The Consumer Financial Protection Bureau issued its most recent Supervisory Highlights. The CFPB is “committed to transparency in its supervisory program by sharing key findings in order to help industry limit risks to consumers and comply with Federal consumer financial law.” (3)

There were a lot of interesting highlights relating to mortgage origination and servicing, including,

  • one or more instances of failure to ensure that the HUD-1 settlement statement accurately reflects the actual settlement charges paid by the borrower.
  • at least one servicer sent borrowers loss mitigation acknowledgment notices requesting documents, sometimes dozens in number, inapplicable to their circumstances and which it did not need to evaluate the borrower for loss mitigation.
  • one or more servicers failed to send any loss mitigation acknowledgment notices. At least one servicer did not send notices after a loss mitigation processing platform malfunctioned repeatedly over a significant period of time. . . . the breakdown caused delays in converting trial modifications to permanent modifications, resulting in harm to borrowers, and may have caused other harm.
  • At least one other servicer did not send loss mitigation acknowledgment notices to borrowers who had requested payment relief on their mortgage payments. One or more servicers treated certain requests as requests for short-term payment relief instead of requests for loss mitigation under Regulation X.
  • At least one servicer sent notices of intent to foreclose to borrowers already approved for a trial modification and before the trial modification’s first payment was due without verifying whether borrowers had a pending loss mitigation plan before sending its notice. As the notice could deter borrowers from carrying out trial modifications, it likely causes substantial injury . . .
  • at least one servicer sent notices warning borrowers who were current on their loans that foreclosure would be imminent. (14-18, emphasis added)

All of these highlights are interesting because they reflect the types of problems the CFPB is finding and it thus helps the industry comply with federal law. But from a public policy perspective, the CFPB’s approach is lacking. By repeating that each failure was found at “one or more” company, a reader of these Highlights cannot determine how widespread these problems are throughout the industry. And because the Highlights do not say how many borrowers were affected by each company’s failure, it is hard to say whether these problems are isolated and technical or endemic and intentional.

Future Supervisory Highlights should include more information about the number of institutions and the number of consumers who were affected by these violations.

June 29, 2015 | Permalink | No Comments

Monday’s Adjudication Roundup

By Shea Cunningham

June 29, 2015 | Permalink | No Comments

June 26, 2015

Homeowners Heading to Pottersville?

By David Reiss


Mr. Potter from It’s A Wonderful Life

The Urban Institute has issued a report, Headship and Homeownership: What Does The Future Hold? The report opens,

Homeownership rates averaged around 64 percent until about 1990, when they began to climb dramatically, reaching 67.3 percent in 2006. The housing crisis that began in 2007 and the ensuing recession, from which the US economy is recovering slowly, resulted in a fall in the homeownership rate to 63.6 percent, according to the latest ACS numbers. Such a trajectory has generated important questions about the future of homeownership at all ages. The issues with young adults seem particularly acute. Will young adults want to own houses? Even if they do, will they be able to afford homeownership? The answers to these questions are still unclear, especially because millennials are not just slower to start their own households and purchase homes: they also are more likely to live in their parents’ homes than any generation in recent history. The rapidly changing racial and ethnic composition of the population also has profound implications for household formation and homeownership.

In this report, we dive deeply into the pace of household formation and homeownership attainment—nationally and by age groups and race/ethnicity over the past quarter-century—and project future trends. Considering the great uncertainty about household formation and homeownership, single-point forecasts of homeownership rates and housing demand could seriously mislead policymakers and obscure the potential implications of their decisions. Instead, we offer plausible competing scenarios for household formation and homeownership that generate a range of future national housing demand projections. (1)

I am not in a position to evaluate how well the report projects future trends, but some of its conclusions are worth considering together:

  • the homeownership rate will decline from 65.1 percent in 2010 to 61.3 percent in 2030; (46)
  • the rapid growth of the renter population will create significant demand for new rental housing construction and encourage shifting of owner-occupied dwellings to rentals; (47)
  • very tight credit availability standards will retard homeownership attainment and may exacerbate the growing shortage in rental housing; (48) and
  • the erosion of black homeownership needs to be addressed by more than mortgage policy. (48)

Taken together, these conclusions all point to a backsliding in the housing market: the American Dream disappearing for millions of Americans, particularly African Americans, who will end up living in overcrowded Pottersvilles straight out of It’s A Wonderful Life. Just like George Bailey, we have choices to make before that nightmare becomes a reality. But before we decide anything too hastily, we should consider the fundamental goals of housing policy.

I have argued that a “fundamental goal of housing policy is to assist Americans to live in a safe, well-maintained and affordable housing unit.” I am less convinced than most housing scholars that homeownership, given the state of today’s economy, is such a sure road to stable housing and financial well-being. So, instead of blindly focusing on increasing the homeownership rate, I would focus on increasing opportunities for sustainable homeownership. I believe the report’s authors would agree with this, but I think that housing scholars in general need to focus on policies that keep households in their housing, given how much income instability they now face.

June 26, 2015 | Permalink | No Comments

Friday’s Government Reports

By Serenna McCloud

  • Consumer Financial Protection Bureau (“CFPB”) announces access to the consumer complaint database where users can read consumer narratives and download complaint data as desired.  The CFPB describes it as an enhanced public-facing consumer complaint database, which includes for the first time over 7,700 consumer accounts of problems they are facing with financial services providers – including mortgages, bank accounts, credit cards, debt collection, etc.
  • U.S. Department of Housing and Urban Development’s (HUD) Semi-Annual Report to Congress (SAR) for the period ending March 31, 2015 – In which it details how: $1.2 billion in funds put to better use; more than $1.7 billion in questioned costs; and more than $457 million in collections through 38 audit reports were reported. HUD also reported more than $38 million in recoveries.
  • HUD’s Policy Development and Research Division (PD&R) publishes reports every quarter profiling 12-15 housing markets, the latest batch includes, amoung others: Denver-Aurora-Lakewood, Colorado; Savannah, Georgia; and Spokane, Washington.


June 26, 2015 | Permalink | No Comments

June 25, 2015

SCOTUS Upholds Disparate Impact

By David Reiss

Texas Department of Housing and Community Affairs

The United States Supreme Court held today that disparate-impact claims are cognizable under the Fair Housing Act in Texas Department of Housing and Community Affairs et al. v. The Inclusive Communities Project Inc., (No 13-1371). The conventional wisdom had been that the Court was going to hold that the Fair Housing Act “does not create disparate-impact liability”  (in the words of Justice Alito’s dissent at page 2).

I found it striking the extent to which Justice Kennedy’s opinion, which was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, relied on the history of residential segregation in the United States. For those of us steeped in the history of housing in America, this history is pretty much standard, but it takes on a lot of meaning when it is restated in a Supreme Court opinion. The opinion reads,

De jure residential segregation by race was declared unconstitutional almost a century ago, but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races: Racially restrictive covenants prevented the conveyance of property to minorities; steering by real-estate agents led potential buyers to consider homes in racially homogenous areas; and discriminatory lending practices, often referred to as redlining, precluded minority families from purchasing homes in affluent areas. By the 1960’s, these policies, practices, and prejudices had created many predominantly black inner cities surrounded by mostly white suburbs.

The mid-1960’s was a period of considerable social unrest; and, in response, President Lyndon Johnson established the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission. After extensive factfinding the Commission identified residential segregation and unequal housing and economic conditions in the inner cities as significant, underlying causes of the social unrest. The Commission found that “[n]early two-thirds of all nonwhite families living in the central cities today live in neighborhoods marked by substandard housing and general urban blight.” The Commission further found that both open and covert racial discrimination prevented black families from obtaining better housing and moving to integrated communities. The Commission concluded that “[o]ur Nation is moving toward two societies, one black, one white— separate and unequal.” To reverse “[t]his deepening racial division,” it recommended enactment of “a comprehensive and enforceable open-occupancy law making it an offense to discriminate in the sale or rental of any housing . . . on the basis of race, creed, color, or national origin.”

In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. (5-6, citations omitted)

This straightforward acknowledgment of the history of racial discrimination in America may be the most powerful part of this opinion.

June 25, 2015 | Permalink | No Comments

Thursday’s Advocacy & Think Tank Round-Up

By Serenna McCloud

  • Capital New York reports another study which finds that non-whites are at a disadvantage when it comes to securing a home loan, this is more pronounced in the conventional loan market (less so for FHA loans). Includes an interactive chart which breaks down the stats by borough.
  • Harvard’s Joint Center for Housing Studies’ Annual State of the Nation’s Housing 2015 reveals historic lows in homeownership rates, and a corresponding “rental boom,” a shortage in supply for single family dwellings, and an increasingly severe rental affordability problem.
  • National Association of Realtors’ release of Existing Home Sales statistics for May reveal a strong rebound over April, in fact sales are strongest they have been in 6 years, with first time homebuyers making up the biggest portion of buyers.
  • NYU Furman Center’s new working paper – Utility Allowances in Federally Subsidized Multifamily Housing – advocates four policy changes which would help HUD increase energy efficiency in the properties it subsidizes.  These include, 1. Incentivizing owners to switch to individually metered units; 2. Incentivizing owners to make energy saving upgrades; 3. Provision of utility allowances that are affordable but make recipients bear the cost of consumption; 4. Provide information about relative utility costs to increase tenant purchasing power.

June 25, 2015 | Permalink | No Comments