April 14, 2016
- A new report, The Community Listening Project, finds that in Washington D.C., one of the most dominant stressors for low-income residents is finding and maintaining affordable housing.
- The National Alliance to End Homelessness released is 2016 State of Homelessness in America report, finding that 33 states have reported decreases in overall homelessness, while 16 states reported increases.
- Governing the Single-Family House: A (Brief) Legal History, Priya S. Gupta, University of Hawaii Law Review, Vol. 37, 2015, p. 187.
- Fracking the Unconventional Energy Response to Climate Change: Implications for the Real Estate Industry, Celeste M. Hammond.
- Why are Aggressive Mortgage Products Bad for the Housing Market?, Andrew Davidson, Alex Levin, Andrey D. Pavlov & Susan M. Wachter.
- Neighborhood Externalities, Rental Regulation, and Property Values, Jin-Hyuk Kim, Tin Cheuk Leung & Liad Wagman.
- Because of Winn-Dixie: The Common Law of Exclusive Use Covenants, Tanya D. Marsh, University of Miami Law Review, Vol. 69, No. 4, 2015.
- The American Dream, Deferred: Contextualizing Property after the Foreclosure Crisis, Priya S. Gupta, Maryland Law Review, Vol. 73, No. 2 (2013-2014) 523.
- The Value of the Right to Exclude: An Empirical Assessment, Jonathan Klick & Gideon Parchomovsky, University of Pennsylvania Law Review, Vol. 165, Forthcoming; U of Penn, Inst. for Law & Econ. Research Paper No. 16-8.
- The Vested Rights Doctrine: How a Shiled Against Injustice Became a Sword for Opportunistic Developers, Steve Calandrillo, Chryssa V. Deliganis & Christina Elles, Ohio State Law Journal, Forthcoming; University of Washington School of Law Research Paper No. 2016-06.
- Aging in Place: Analyzing the Use of Reverse Mortgages to Preserve Independent Living Summary Report of Survey Results, Stephanie Moulton et al.
April 12, 2016
Law360 quoted me in PHH Case Poised To Test CFPB’s Constitutionality (behind a paywall). It opens,
A battle over the Consumer Financial Protection Bureau’s interpretation of mortgage regulations in assessing a $109 million penalty against a New Jersey-based mortgage firm has morphed into a fight over the authority vested in the bureau’s director that could reshape the consumer finance watchdog, experts say.
The appeal from PHH Corp. to the D.C. Circuit originally centered on CFPB Director Richard Cordray’s decision to dramatically hike a $6 million mortgage insurance kickback penalty issued by an administrative law judge against a company subsidiary, to the final, $109 million figure. But the judges hearing the case warned the bureau to prepare to answer questions at oral arguments Tuesday about language in the Dodd-Frank Act that says the president could remove the CFPB director only for cause, and about how the court should view an administrative agency led by a single director rather than the more typical commission structure.
Those questions have been hanging over the CFPB since its inception in the 2010 law, and if the D.C. Circuit rules against the bureau, that could fundamentally alter the way the bureau operates, said Jonathan Pompan, a partner at Venable LLP.
Cordray “is potentially going to have to address questions that go to the core of his authority, which really hadn’t been at the forefront of the PHH case until now,” he said.
Challenges to the CFPB’s constitutionality are not new. Everything from the bureau’s single-director rather than commission structure to the agency’s funding through the Federal Reserve’s budget rather than the congressional appropriations process have been constant refrains for the CFPB’s opponents.
Those concerns have been addressed through legislation aimed at curtailing the CFPB’s power, and claims challenging the agency’s constitutionality have been an almost pro forma rite of any litigation involving the bureau.
Up until now, however, those complaints and attempts to curb the CFPB have gone nowhere.
So it was a surprise when the D.C. Circuit last Wednesday told the bureau’s attorneys to be prepared to face questions about whether Dodd-Frank’s provision stating that the president can remove the CFPB director only for “inefficiency, neglect of duty, or malfeasance in office” passed constitutional muster.
The panel, made up of three Republican appointees led by U.S. Circuit Judge Brett M. Kavanaugh, is also seeking answers about potential remedies for any problems that that provision brings, including potentially removing it from the statute and allowing the president to remove the CFPB director without any specific cause.
The judges also want to know how any fix to the problem, if they determine there is one, would affect the CFPB director’s authority.
“This is not, by any stretch of the imagination, idle thinking on their part,” said David Reiss, a professor at Brooklyn Law School.
The questions being posed by the D.C. Circuit panel do not pose the same level of threat that the other constitutional challenges the CFPB could potentially face would, but it is certainly a more defining question than what most observers thought the case would be about.
PHH is challenging Cordray’s interpretation of violations under the Real Estate Settlement Procedures Act that allowed him to supersize a $6 million penalty handed down by an administrative law judge, to the $109 million that the CFPB director handed down when PHH appealed.
But the arguments set for Tuesday are expected to go far beyond that issue.
There will be the central question of whether the U.S. Constitution allows Congress to put in restrictions on when the president can fire officials at an administrative agency. The U.S. Supreme Court addressed these issues in the 2010 Free Enterprise Fund v. Public Company Accounting Oversight Board decision, which affirmed a D.C. Circuit ruling that such protections were constitutional.
Judge Kavanaugh cast a dissenting vote in that case, stating that a president should not have to notify Congress as to why the director of an administrative agency is removed.
“If the challenges were going to be taken seriously anywhere, it was probably going to be this panel,” said Brian Simmonds Marshall, policy counsel at Americans for Financial Reform, which seeks tougher banking regulations.
Removing that provision from the statute, should the D.C. Circuit elect to do so, could limit the CFPB’s independence, as well as that of other administrative agencies for which statute requires a reason for the dismissal of officials, he said.
“The CFPB doesn’t have to check with the White House right now before it brings an enforcement action,” Simmonds Marshall said.
Another case that will be heavily scrutinized will be a 1935 Supreme Court decision in Humphrey’s Executor v. U.S., which allowed for restrictions on the removal of Federal Trade Commission commissioners.
The CFPB relied heavily on that case in its filings with the D.C. Circuit, noted Benjamin Saul, a partner at White & Case LLP.
“I’ll be looking for the questions being driven by Judge Kavanaugh and his comments from the bench, particularly on the Humphrey’s case,” Saul said.
Whether the arguments focus mostly on the constitutional questions about the ability to remove the CFPB director or on remedies to fix that could also indicate where the court is headed on these questions, according to Reiss.
“It does sound that they’re searching for remedies that are not earth-shattering remedies,” Reiss said.
- The S. Department of Housing & Urban Development released guidance on discrimination against tenants with criminal records, aimed at helping protect those individuals from such discrimination.
- The S. Department of Housing & Urban Development released additional fair housing tools for local governments and public housing agencies after the release of an assessment tool for states and insular areas.
- The New York City Council passed two affordable housing plans, Mandatory Inclusionary Housing and Zoning for Quality and Affordability, in hopes of preserving affordable housing by reducing barriers and obtaining resources from the private market.
April 11, 2016
DepositAccounts.com quoted me in Types of Institutions in the U.S. Banking System – Savings and Loan Associations. It opens,
When you think of a savings and loan, maybe you think of the Bailey Savings & Loan from the movie It’s a Wonderful Life or remember the savings and loan crisis of the 1980s, when more than 1,000 savings and loans with over $500 billion in assets failed.
But there’s much more to the story. Savings and loan associations originally specialized in home-financing, be it a mortgage, home improvements or construction. According to Encyclopedia Britannica, Savings and loan associations originated with the building societies of Great Britain in the late 1700s. They consisted of groups of workmen who financed the building of their homes by paying fixed sums of money at regular intervals to the societies. When all members had homes, the societies disbanded. The societies began to borrow money from people who did not want to buy homes themselves and became permanent institutions. Building societies spread from Great Britain to other European countries and the United States. They are also found in parts of Central and South America. The Oxford Provident Building Association of Philadelphia, which began operating in 1831 with 40 members, was the first savings and loan association in the United States. By 1890 they had spread to all states and territories.
Today, explains, David Bakke, a financial columnist for MoneyCrashers.com, explains how S&Ls have evolved. “More recently, they have also expanded into areas such as car loans, commercial loans and even mutual fund investing. Currently, there isn’t much difference between them and other types of financial institutions.”
S&Ls are a type of thrift institution. Like all financial institutions they are bound to rules and regulations. They can have a state or federal charter. Those with a federal charter are regulated by the Office of the Comptroller of the Currency (OCC). The Office of Thrift Supervision (OTS) used to be the regulator before it was merged with the OCC in 2011.
Another big change that impacted S&Ls was the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). It abolished the Federal Savings and Loan Insurance Corporation, which had provided deposit insurance to savings and loans since 1934. It created two insurance funds, the Savings Association Insurance Fund (SAIF) and the Bank Insurance Fund (BIF), which were both administered by the FDIC. Those two funds were merged into the Deposit Insurance Fund (DIF) in 2006. In summary, your deposits at S&Ls today are insured by the FDIC.
If you’re wondering how S&Ls work, to put it simply, the money you deposit into your savings account, is used to fund the money the S&L doles out in loans.
Savings and loans have some advantages over other types of institutions. “Many S&Ls keep many of the loans that they originate in their own portfolio instead of selling them off for securitization. This means that they often have more flexibility in their underwriting criteria than do those lenders that sell off their mortgages to Fannie, Freddie and Wall Street securitizers. This means that borrowers with atypical profiles or borrowers interested in atypical properties might be more likely to find a lender open to a nontraditional deal in the S&L sector,” says David Reiss, a professor at Brooklyn Law School, that specializes in real estate.
- Two foreign investors brought suit against the U.S. Citizenship and Immigration Services claiming that its rule requiring EB-5 applicants to secure their loans by certain assets is arbitrary and capricious.
- A New York judge held that U.S. Bank’s (as trustee) suit against Credit Suisse was brought within the statute of limitations. The suit sought to make Credit Suisse buy back more than $1 billion in toxic mortgage loans used to back securities by the trust.
- A New York federal judge signed off on $1.2 billion settlement from Wells Fargo for defrauding the Federal Housing Administration by submitting insurance claims for defaulted loans that didn’t meet the FHA’s standards.