December 29, 2014
The NYU Journal of Law & Business has posted a special issue devoted to the GSE shareholder litigation. Here are the links for the the individual articles:
- The Government Takeover of Fannie Mae and Freddie Mac: Upending Capital Markets with Lax Business and Constitutional Standards
- Richard A. Epstein
- The Fannie and Freddie Bailouts Through the Corporate Lens
- Adam B. Badawi & Anthony J. Casey
- Reforming the National Housing Finance System: What’s at Risk for the Multifamily Rental Market if Fannie Mae and Freddie Mac Go Away?
- Mark Willis & Andrew Neidhardt
I have blogged about drafts of some of the articles here (Epstein), here (Badawi and Casey) and here (my contribution) and I may very well blog about the rest of them over the next few weeks. Given the nature of legal scholarship, these articles were written well before many of this year’s developments in the GSE shareholder litigations (such as Judge Lamberth’s ruling in the District Court for the District of Columbia case). Nonetheless, these articles have a lot to offer in terms of understanding the broader issues at stake in the ongoing litigation (the first three articles) and in terms of reform efforts going forward (the last two articles).
December 25, 2014
The True Christmas, Henry Vaughan (1678)
So stick up ivy and the bays,
And then restore the heathen ways.
Green will remind you of the spring,
Though this great day denies the thing.
And mortifies the earth and all
But your wild revels, and loose hall.
Could you wear flowers, and roses strow
Blushing upon your breasts’ warm snow,
That very dress your lightness will
Rebuke, and wither at the ill.
The brightness of this day we owe
Not unto music, masque, nor show:
Nor gallant furniture, nor plate;
But to the manger’s mean estate.
His life while here, as well as birth,
Was but a check to pomp and mirth;
And all man’s greatness you may see
Condemned by His humility.
Then leave your open house and noise,
To welcome Him with holy joys,
And the poor shepherd’s watchfulness:
Whom light and hymns from heaven did bless.
What you abound with, cast abroad
To those that want, and ease your load.
Who empties thus, will bring more in;
But riot is both loss and sin.
Dress finely what comes not in sight,
And then you keep your Christmas right.
December 24, 2014
One of the great joys of being a professor is being able to brag about your students’ accomplishments. Brooklyn Law School just posted this about Leanne Welds on our website:
Leanne Welds ’14 has been awarded the 2014 Brown Award by The Judge John R. Brown Scholarship Foundation for her paper “Giving Local Municipalities the Power to Affect the National Securities Market.” The Brown Award recognizes excellence in legal writing in American law schools. This is the first time a BLS student has taken first place in the national competition, which awards a $10,000 stipend to the winner.
Welds is currently an associate at Simpson Thatcher & Bartlett LLP in its Real Estate Group. As a student, she served as Executive Articles Editor for the Brooklyn Law Review and was the recipient of the Lorraine Power Tharp Scholarship from the New York State Bar Real Property Section. She was a member of the Community Development Clinic taught by Professor David Reiss, and externed with Enterprise Community Partners, an affordable housing firm. She also served as secretary of the Black Law Students Association.
“It is truly gratifying to have my work recognized in this way,” Welds said. “I picked this topic for my Law Review Note because of my combined interests in both the real estate and social justice aspects of the issue, but I never once thought I could be writing an award-winning paper. I am especially thankful to Professor David Reiss for believing in my work and sponsoring me for this competition, as well as both Professor Brian Lee and Professor Reiss for their detailed and thoughtful comments throughout the drafting process.”
Welds’ winning paper evaluates the constitutionality and wisdom of plans by local governments to condemn underwater mortgages without also condemning the land that is attached to the mortgages. These plans are in response to the foreclosure crisis that has hit certain communities particularly hard. If successful, these plans would result in refinanced and smaller mortgages on homes that have seen their values drop dramatically since the start of the financial crisis. The financial industry opposes these plans because they would reduce the face value of the existing mortgages.
“Leanne is a perfect candidate for this prize,” said Professor David Reiss. “Her passion for the law is complemented by an excellent work ethic, good legal judgment, and serious intellectual firepower. Leanne is a rising star of the bar. I have no doubt she will not only be a valuable member of the bar, but that she will also play a leadership role in the community.”
December 23, 2014
Law360 quoted me in New York’s Ocwen Deal Sets Tough Precedent For Regulators (behind a paywall). It reads in part,
New York regulators ordered Ocwen Financial Corp. to pay $150 million in hard cash and barred the company from claiming a tax deduction on the restitution payments in a mortgage servicing settlement that could set a new standard for regulators accused of being soft on the companies they penalize.
The New York Department of Financial Services’ penalty against Ocwen, which also saw the company’s executive chairman lose his job, comes amid criticism that major penalties against Bank of America Corp., JPMorgan Chase & Co. and other banks have been too lax. In a move aimed at addressing concerns over companies’ abilities to game the penalties, New York’s settlement specifically says Ocwen will not be able to use some of the techniques banks have used to lessen the blow of earlier settlements.
“They’ve tried to make a very tight settlement that demonstrates that Ocwen is suffering measurable costs for their behavior,” said David Reiss, a professor at Brooklyn Law School.
The New York Department of Financial Services announced Monday that Ocwen, the country’s fourth-largest mortgage servicer, with some $430 billion in unpaid servicing balances, would pay out $150 million in “hard money” to New York homeowners who were victim to the company’s problematic servicing operations. A third of that $150 million would go directly to people who were foreclosed upon, and the remaining $100 million would go to housing-related projects chosen by the state.
But, unlike in previous mortgage-related settlements, Ocwen will not be able to count what are known as “soft dollar” modifications of mortgages they do not own and other techniques toward its settlement total, the DFS said. Banks and other servicers have been able to count such modifications in their total settlement amounts in previous deals, including the $25 billion national mortgage settlement from 2012.
Critics say such soft-dollar remediation has allowed law enforcement agencies, regulators and banks to inflate the amount of money banks and servicers are said to be paying out while limiting the amount of money they actually pay.
“It seems like a transparent settlement,” Reiss said.
* * *
“A lot of the problems that people have had with these financial settlements are specifically identified,” Reiss said.
December 22, 2014
The Consumer Financial Protection Bureau has announced a Project Catalyst Pilot to Promote Regular Saving Behavior Among Prepaid Card Users.The pilot involves an American Express product, a prepaid card with a saving feature.
> Gain insight into consumer saving behavior and identify practices that promote saving behavior among prepaid card users
> Evaluate the impact of saving on consumer wellbeing among prepaid card users (2)
I have been critical of some of the CFPB’s financial literacy initiatives, but this seems like a good one. What is important about this pilot study is that it is not just evaluating whether consumers respond to the product in the expected way — save more, for instance — but whether it has longer-term and more significant effects. Does it help consumers develop saving habits in other contexts? Do those saving habits lead to better outcomes in housing and consumer credit contexts? These are really important questions. If the pilot study helps to answer them, it will be of great value.
December 20, 2014
E-Commerce Times quoted me in Feds Pounce on Sprint for Phone Bill Cramming. It opens,
The United States government is delivering a one-two punch to Sprint over the practice of cramming — allowing third parties to place unauthorized charges on customers’ bills.
The Consumer Finance Protection Bureau on Thursday filed a civil suit against Sprint over the issue.
Meanwhile, the Federal Communications Commission reportedly is planning to hit Sprint with a US$105 million fine.
Coordination between the government agencies “is not atypical,” said David Reiss, professor of law at the Brooklyn Law School.
“Frequently federal government agencies coordinate their actions for better results,” he told the E-Commerce Times.
It’s possible that the FCC was negotiating with Sprint prior to the CFPB taking action, suggested Robert Jaworsky, a partner at ReedSmith.
“I doubt the FCC will take any action while this lawsuit is pending,” he told the E-Commerce Times.
The CFPB’s Allegations
Sprint charged wireless customers for unauthorized third-party services from 2004 through 2013, costing them millions of dollars each year, by creating a billing and payment system that provided third parties with unfettered access to its customers’ accounts, according to the CFPB complaint.
Sprint automatically enrolled customers in this billing system without their knowledge or consent, and many customers were unaware of the unauthorized charges, the bureau maintains.
Sprint continued to operate its system despite numerous red flags, including high refund rates, along with complaints from customers, law enforcement agencies and consumer groups, the CFPB claims. The carrier retained 40 percent of the gross revenue collected for the third-party charges, totaling “hundreds of millions of dollars.”
Sprint took advantage of its customers, treated them unfairly in various ways, mishandled or ignored complaints about the unauthorized charges, and didn’t track them, said CFPB director Robert Cordray.
Sprint refused to provide refunds to some customers, instead telling them how to block future third-party charges, he added — and sometimes it referred victims back to the scammers themselves.