March 31, 2014

Reiss on Snuffing out FIRREA

By David Reiss

Law360 quoting me in BofA Fight Won’t Blunt DOJ’s Favorite Bank Fraud Weapon (behind a paywall). It reads in part,

A federal magistrate judge on Thursday put a Justice Department case against Bank of America Corp. using a fraud statute from the 1980s in peril, but the case’s limited scope means the government is not likely to abandon its favorite financial fraud fighting tool, attorneys say.

Federal prosecutors have increasingly leaned on the Financial Institutions Reform, Recovery and Enforcement Act, a relic of the 1980s savings and loan crisis, as a vehicle for taking on banks and other financial institutions over alleged violations perpetrated during the housing bubble years.

*     *     *

Some banking analysts hailed the ruling as potentially the beginning of the end of the government’s pursuit of housing bubble-era violations.

“If the judge’s recommendation is accepted by the federal district court judge, then this development will represent a significant setback for the government’s legal efforts and likely mark the beginning of the end for crisis-era litigation,” Isaac Boltansky, a policy analyst at Compass Point Research & Trading LLC, said in a client note.

However, others say the government’s case was brought under relatively narrow claims that Bank of America did not properly value the securities to induce regulated banks to purchase securities they otherwise might not have.

That is a tougher case to bring than the broad wire fraud and mail fraud claims that were available to the government under FIRREA. The government has employed those tools with great success against Bank of America and Standard & Poor’s Financial Services LLC in other cases in far-flung jurisdictions, said Peter Vinella, a director at Berkeley Research Group.

“There was no issue about whether BofA did anything wrong or not. It’s just that the case was filed incorrectly. It was very narrowly defined,” he said.

It is not entirely clear that Bank of America is in the clear in this case, either.

U.S. district judges tend to give great deference to reports from magistrate judges, according to David Reiss, a professor at Brooklyn Law School.

But even if U.S. District Judge Max O. Cogburn Jr. accepts the recommendation, the Justice Department has already lodged a notice of appeal related to the report. And in the worst-case scenario, the government could amend its complaint.

A victory for Bank of America in the North Carolina case is unlikely to have a widespread impact, given the claims that are at stake. The government will still be able to bring its broader, and more powerful claims, under a law with a 10-year statute of limitations.

“It is one opinion that is going against a number of FIRREA precedents that have been decided in others parts of the country,” Reiss said. “It also appears that this case was brought and decided on much narrower grounds than those other cases, so I don’t think that it will halt the government’s use of the law.”

March 31, 2014 | Permalink | No Comments

March 28, 2014

Ohio Court Held That the Promissory Note was a Negotiable Instrument Subject to Relevant Provisions of R.C. Chapter 1303

By Ebube Okoli

The court in deciding Bank of Am., N.A. v. Pasqualone, 2013-Ohio-5795 (Ohio Ct. App., Franklin County, 2013) ultimately decided that the motion to strike moot, thus this court affirmed judgment of the lower court.

This court held that the promissory note was a negotiable instrument subject to relevant provisions of R.C. Chapter 1303 because it contained a promise to pay the lender the amount of $100,000, plus interest, and did not require any other undertakings that would render the note nonnegotiable. Moreover, because Bank of America was the holder of the note it was a person entitled to enforce the note pursuant to R.C. 1303.31(A)(1).

The court noted that based on the authorization, the note became payable to the bank as an identified person and, because the bank was the identified person in possession of the note, it was the holder of the note. Further, as the property owner’s defenses to the mortgage foreclosure did not fit the criteria of a denial, defense, or claim in recoupment under R.C. 1303.36 or R.C. 1303.35, the bank’s right to payment and to enforce the obligation was not subject to the owner’s alleged meritorious defenses.

March 28, 2014 | Permalink | No Comments

Ohio Court Reverses Summary Judgment in Favor of HSBC Bank

By Ebube Okoli

The court in deciding HSBC Bank USA v. Teagarden, 2013-Ohio-5816 (Ohio Ct. App., Trumbull County, 2013) reversed the ruling for summary judgment in favor of HSBC Bank.

Defendants-appellants, [Teagardens], appealed two judgment entries from the lower court, dismissing the Teagardens’ counterclaims and granting summary judgment in favor of plaintiff-appellee, HSBC Bank USA, National Trust Company.

The first issue before this court was whether the original lender may be a debt collector for the purposes of the Fair Debt Collection Practices Act (FDCPA) when the debt is assigned to a third party. The remaining issues were: whether the one-year statute of limitations for FDCPA actions precluded claims based on false affidavits filed in a prior foreclosure action; whether there is justifiable reliance on false affidavits to support a fraudulent misrepresentation claim when the veracity of the affidavits were contested; whether the failure to comply with federal mortgage servicing guidelines may sustain a cause of action for breach of contract; whether the term “branch office” as used in federal regulations refers only to offices with qualified mortgage servicing personnel; and whether actual damages are a necessary element to state a valid claim for a violation of the Real Estate Settlement Procedures Act (RESPA).

This court found that the original lender of a mortgage debt was not a debt collector under 15 U.S.C.S. § 1692a(6) or liable under the FDCPA, even though it had transferred the debt to a transferee and subsequently attempted to collect the debt on behalf of the transferee.

The court noted that the original lender consistently dealt with the debtors in entities using its name and the debtors did not allege that they believed these entities were third parties, independent of the original lenders. The court found that the debtors’ claim that the original lender misrepresented that it was the holder of the loan when it was the mortgage servicer did not raise a reasonable inference that it used a false name to create the impression that another party was attempting to collect the debt. The also found that the debtors’ claim against the transferee was based on actions that were time-barred under 15 U.S.C.S. § 1692k(d); the claims based on the underlying fees and costs were also time-barred.

Accordingly, this court affirmed the lower court’s dismissal of the Teagardens’ counterclaims. This court also reversed the lower court’s entry of summary judgment in favor of HSBC Bank on the note.


March 28, 2014 | Permalink | No Comments

Tough Row to Hoe for Frannie Shareholders

By David Reiss

Inside Mortgage Finance quoted me in a story, GSE Jr. Preferred Shareholders Have a Tough ‘Row to Hoe’ in Winning Their Lawsuits (behind a paywall). It reads,

Expect a long and winding legal road to resolution of investor lawsuits challenging the Treasury Department’s “net worth sweep” of Fannie Mae and Freddie Mac earnings, warn legal experts.

More than a dozen lawsuits filed against the government – including hedge funds Perry Capital and Fairholme Capital Management – are pending in federal district court in Washington, DC, and in the Court of Federal Claims. The private equity plaintiffs allege that the Treasury’s change in the dividend structure of its preferred stock leaves the government-sponsored enterprises with no funds to pay anything to junior shareholders.

The complaints raise complex constitutional and securities law issues, according to Emily Hamburger, a litigation analyst for Bloomberg Industries. “It may be a year before the crucial questions can be answered by the courts because the parties are still in the early stages of gathering evidence,” explained Hamburger during a recent webinar.

Brooklyn Law School Professor David Reiss agrees. “The plaintiffs, in the main, argue that the federal government has breached its duties to preferred shareholders, common shareholders, and potential beneficiaries of a housing trust fund authorized by the same statute that authorized their conservatorships. At this early stage, it appears that the plaintiffs have a tough row to hoe,” notes Reiss in a draft paper examining the GSE shareholder lawsuits.

Government attorneys argue that Treasury has authority to purchase Fannie and Freddie stock when it’s determined such actions are necessary to provide stability to the financial markets, prevent disruptions in the availability of mortgage finance and protect the taxpayer. The government also argues that the plaintiffs do not have a legal property interest for purposes of a Fifth Amendment “takings” claim due to the GSEs’ status in conservatorship.

Hamburger predicted that the judges in the various suits won’t be able to ignore the “obvious equitable tensions” involved. “The government is changing the terms years after their bailout, but on the other hand, the timing and motivation of investors is going to be challenged too,” she noted.

While Reiss agrees that the junior shareholders “look like they are receiving a raw deal from the federal government,” it’s a tall order to sue the federal government even under the most favorable of circumstances. The plaintiffs will have to overcome the government’s sovereign immunity, unless it is waived, and the government has additional defenses, including immunity from Administrative Procedures Act claims, under the Housing and Economic Recovery Act of 2008.

Reiss explained that HERA states that except “at the request of the Federal Housing Finance Agency, no court may take any action to restrain or affect the exercise of powers or functions of [FHFA] as conservator or receiver.” It remains to be seen how this language might apply to Treasury’s change in the preferred stock agreement, but Reiss said it could be read to give the government broad authority to address the financial situation of the two companies.

“The litigation surrounding GSE conservatorship raises all sorts of issues about the federal government’s involvement in housing finance,” said Reiss. “These issues are worth setting forth as the proper role of these two companies in the housing finance system is still very much up in the air.”

The full paper, An Overview of the Fannie and Freddie Conservatorship Litigation (SSRN link), can also be found on BePress.

March 28, 2014 | Permalink | No Comments

March 27, 2014

Paternalism or Consumer Protection?

By David Reiss

Adam Smith (not that one) and Todd Zywicki have posted Behavior, Paternalism, and Policy: Evaluating Consumer Financial Protection to SSRN. It opens,

The Consumer Financial Protection Bureau (CFPB) is one of the most powerful and least accountable regulatory agencies in American history. Immune from budgetary oversight by Congress and headed by a single director whom the president cannot remove except under special circumstances, the agency wields unconstrained, vaguely defined powers to regulate virtually every consumer and small business credit product in America In part, the CFPB has justified its ongoing intervention into financial credit markets based on a prior belief in the inability of consumers to competently weigh their decisions. This belief is founded on research conducted in the area of behavioral economics, which shows that people are prone to a variety of errors in their decision-making.

Beginning with the seminal work of Nobel Laureate Daniel Kahneman and his coauthor Amos Tversky, behavioral economics has identified numerous purported behavioral “anomalies” through extensive laboratory investigation. Anomalies (or behavioral biases) are defined as observed behavioral deviations from the predictions of neoclassical economic theory, where it is assumed that people rationally optimize according to a given set of information and constraints. Behavioral economists have sought to explain the sources of such anomalous choices by identifying and cataloging a variety of cognitive limitations and psychological biases.

Building on these findings, behavioral theorists have exported their research into the policy realm. This program, led by such luminaries as Richard Thaler and Cass Sunstein—and known as behavioral law and economics (BLE)—applies the insights gleaned from studies of human behavior to improve existing institutions by designing rules to compensate for (or take advantage of) behavioral biases. Starting from the premise that observed choices are inconsistent with neoclassical theory, behavioral economists argue that intervention is necessary to generate desirable outcomes for consumers who would otherwise make poor choices. (3-4, citation omitted)

As regular readers of this blog know, I am generally a fan of the CFPB. I recommend this paper to those who want the CFPB to be an effective tool of government. The paper critiques the CFPB in a variety of ways. I find a number of them convincing and one key one to be incredibly wrongheaded.


  • The CFPB must avoid “confirmation bias” in its decision-making and its evidence-based analyses. (7)
  • The CFPB’s behavioral law and economics approach needs “a complementary behavioral political economy framework” to apply to the CFPB itself as a political actor. (39)
  • The CFPB should account for the ways that its actions might drive consumers to worse choices than they would face in the absence of heavy regulation of the credit markets. The paper gives illegal loan sharking as an example of a possible worse choice.
  • The CFPB would benefit from “‘adversarial review’ by a body of experts housed elsewhere in the Federal Reserve.” (40) This seems like a reasonable way to ensure that the CFPB both maintains its independence and avoids the echo chamber effect that an agency with one director (as opposed to an agency led by a bipartisan commission) might suffer from.


It amazes me that in 2014, commentators could say — “autonomous consumer choice should receive greater priority. Regulatory bodies inevitably will have an effect on the services firms choose to offer” — without addressing the negative impact of the unfettered consumer choices of the Subprime Boom that were a factor in the Subprime Bust. (39) We have not even finished with the foreclosure crisis that was the inevitable result of that boom and bust cycle. Yet law and economics scholars are already bemoaning the reduction of consumer choice caused by the regulatorily-favored Qualified Mortgage without also considering the Wild West atmosphere that characterized the mortgage market in the early 2000s. The regulatory state may not be able to craft a perfect credit market but the unfettered market failed to do so as well.

This paper does not take the full range of possible market structures (from heavy regulation to no regulation) seriously and so it is seriously flawed. It also cherry picks its facts and scholarly support at points. That being said, it does offer some trenchant comments and criticisms about the CFPB as currently structured and is therefore worth a read.

March 27, 2014 | Permalink | No Comments

March 26, 2014

Affordable Housing and Air Rights in NYC

By David Reiss

NYU’s Furman Center released a report, Unlocking the Right to Build: Designing a More Flexible System for Transferring Development Rights. While its title does not reflect it, the report is really about increasing the supply of affordable housing in New York City. It opens,

New York City faces a severe shortage of affordable housing.  . . . Addressing this shortage of affordable housing is one of the biggest challenges facing the new de Blasio administration. The city’s affordable housing policy will undoubtedly require many strategies, from preserving the existing stock of affordable units to encouraging the construction of new affordable units. Over the past decades, the city has managed to subsidize the development of new affordable units in part by providing developers with land the city had acquired when owners abandoned properties or lost them through tax foreclosures during the fiscal crisis of the 1970s. Almost none of that land remains available, and the high cost of privately owned land poses significant barriers to the production of new affordable housing.

In this brief, we explore the potential of one strategy the city could use to encourage the production of affordable housing despite the high cost of land: allowing the transfer of unused development rights. As we describe in further detail below, the city’s zoning ordinance currently allows owners of buildings that are underbuilt to transfer their unused development capacity (often referred to as transferable development rights or TDRs) to another lot in certain circumstances. (1-2, footnotes omitted)

The report estimates that buildings below 59th Street in Manhattan that cannot use all of their development rights because of landmark restrictions could generate sufficient TDRs to produce about 7,000 affordable housing units. That number would be a significant step toward Mayor de Blasio’s goal of producing or preserving 200,000 units of affordable housing, so there is no doubt that this policy is worth a look. And the fact that one of the authors of the report, Vicki Been, is now the Commissioner of NYC’s Department of Housing Preservation and Development will ensure that it does get such a look!

The report acknowledges that loosening the restrictions on TDRs has downsides as well, such as the possible construction of big buildings that are out context of neighboring properties. But the report is intended as a “first step” in the exploration of an innovative land use policy. (19) And it certainly is a step in the right direction.

March 26, 2014 | Permalink | No Comments

Ohio Court Decides Bank’s Possession of Note was Properly Shown

By Ebube Okoli

The court in deciding M & T Bank v. Strawn, 2013-Ohio-5845 (Ohio Ct. App., Trumbull County, 2013) ultimately affirmed the lower court’s decision.

The court decided that the bank’s possession of the note was shown by the affidavit, along with attached copies of the note endorsed to the bank, and the court found that one in possession of a note endorsed to that party was a holder, for purposes of R.C. 1301.201(B)(21)(a). As such the court decided that the bank was thus entitled to enforce the instrument under R.C. 1303.31.

The court found that the affidavit for the bank clearly stated that the bank had been in possession of the original promissory note, and the affidavit was sufficient for the lower court to have held that the affiant had personal knowledge. The court further noted that nothing suggested that voided endorsements affected the bank’s status as a holder, and thus it did not create an issue of fact.

Lastly the court found that the bank acquired an equitable interest in the mortgage when it became a holder of the note, regardless of whether the mortgage was actually or validly assigned or delivered. Based on these conclusions this court affirmed the lower court’s judgment.

March 26, 2014 | Permalink | No Comments