March 9, 2015
- Shareholders of Deutsche Bank petitioned for cert to the U.S. Supreme Court to clarify the standard for a claim for pleading a fraudulent claim under Section 11 of the Securities Act of 1933 following the Second Circuit tossing their suit in July 2014.
- 10th Circuit revives National Credit Union Administration’s $550 million suit against Barclays for misrepresentation of the quality of over $555 million in RMBS.
- First wave of Hurricane Sandy cases settle with FEMA and insurers over the improper cutting of the homeowners’ payouts following the storm.
March 6, 2015
Ray Brescia recently posted the final version of The Community Reinvestment Act: Guilty, but not as Charged to SSRN. The article wades into a seemingly technical debate that has extraordinary political and ideological implications: did misguided liberal policies push financial institutions to engage in the risky lending practices that led to the financial crisis. I never gave this argument much credit because the supposed chain of causation seemed too attenuated to me. Nonetheless, the debate has had legs among some policy analysts. The article generally agrees with my own — admittedly impressionistic — views of the matter. It also argues that the CRA needs to be modernized to reflect how mortgage credit is extended in the 21st century. The abstract reads,
Since its passage in 1977, the Community Reinvestment Act (CRA) has charged federal bank regulators with “encourag[ing]” certain financial institutions “to help meet the credit needs of the local communities in which they are chartered consistent with safe and sound” banking practices. Even before the CRA became law – and ever since – it has become a flashpoint. Depending on your perspective, this simple and somewhat soft directive has led some to charge that it imposes unfair burdens on financial institutions and helped to fuel the subprime mortgage crisis of 2007 and the financial crisis that followed. According to this argument, the CRA forced banks to make risky loans to less-than creditworthy borrowers. Others defend the CRA, arguing that it had little to do with the riskiest subprime lending at the heart of the crisis.
Research into the relationship between the mortgage crisis and the CRA generally vindicates those in the camp that believe the CRA had little to do with the risky lending that fueled these crises. At the same time, recent research by the National Bureau of Economic Research attempts to show that the CRA led to riskier lending, particularly in the period 2004-2006, when the mortgage market was overheated.
This paper reviews this and other existing research on the subject of the impact of the CRA on subprime lending to assess the role the CRA played in the mortgage crisis of 2007 and the financial crisis that followed. This paper also takes the analysis a step further, and asks what role the CRA played in failing to prevent these crises, particularly their impact on low- and moderate-income communities: i.e., the very communities the law was designed to protect. Based on a review of the best existing evidence, the initial verdict of not guilty – that the CRA did not cause the financial crisis, as some argue – still holds up on appeal. At the same time, as more fully described in this piece, an appreciation for the weaknesses inherent in the law’s structure, when combined with an understanding of the manner in which it was enforced by regulators, lead one to a different conclusion; although the CRA did not cause the crisis, it failed to prevent the very harms it was designed to prevent from befalling the very communities it is supposed to protect.
The defects in the CRA that emerge from this review, in total, suggest not that the CRA was too strong, but, rather, too weak. They also point to important reforms that should be put in place to strengthen and fine-tune the CRA to ensure that it can meet its important goal: ensuring that financial institutions meet the needs of low- and moderate-income communities, communities for which access to capital and banking services on fair terms is a necessary condition for economic development, let alone economic survival. Such reforms could include expanding the scope of the CRA to cover more financial institutions, creating a private right of action that would grant private and public litigants an opportunity to enforce the law through the courts, and having regulators enforce the CRA in such a way that will put more pressure on banks to modify more underwater mortgages.
I doubt that this article will be the final word on this topic, both because the existing empirical work seems inconclusive and also because the topic is one that has important ideological implications for the right and the left (‘government caused the financial crisis’ versus ‘corporate greed run amok caused the crisis’). Nonetheless, this article provides a thorough critique of one of the leading empirical studies of the topic.
- Budgetary Impact of Major Federal Programs that Guarantee Mortgages—Congressional Budget Office’s January 2015 Baseline
- California Assembly Democrat’s Proposal to Create More Affordable Housing in California
- Dr. Michael Stegman, Counselor to the Treasury Secretary for Housing Finance Policy, Remarks before the Third Annual Goldman Sachs’s Housing Finance Conference
- Fannie Mae: Housing Forecast February 2015
March 5, 2015
New York City’s Department of Housing Preservation and Development (HPD) has released its initial findings of its 2014 Housing and Vacancy Survey. There are some interesting findings about the housing stock, particularly for those of us who follow the NYC housing markets closely:
- There were 1,030,000 rent-stabilized units, which amounted to 47 percent of the housing stock.
- There were 27,000 rent controlled units, which amounted to 1.2 percent of the housing stock.
- The city-wide homeownership rate was 32.5 percent, although the rate varied significantly among the boroughs.
- The rental vacancy rate was 3.45 percent.
- There were 55,000 vacant units that were unavailable because of occasional, seasonal or recreational use.
- The median annual income for all households (renters and owners) was $48,040. The median annual income for renter households was $38,500 and for homeowner households was $75,000.
- The median contract rent-income ratio was 31.2 percent.
There were also some interesting findings about housing and neighborhood conditions:
- “In 2014, housing and neighborhood conditions in the CIty were good.” (8)
- “The proportion of renter-occupied units with five or more of the seven maintenance deficiencies measured by the 2014 HVS remain extremely low; only 4.3 percent” (8)
- “The proportion of renter households that rated the quality of neighborhood residential structures as “good” or “excellent” was very high: 71.7 percent” (8)
Crowding remains a problem in the City, a finding that is unsurprising to all who are familiar with this housing market. The proportion of renter households that were crowded was 12.2 percent.
These numbers should inform numerous debates about housing in NYC, including those relating to rent regulation, foreign ownership of apartments and affordable housing goals, to name a few. It is important that these debates be data driven if we are to arrive at policy choices that are good for New Yorkers and good for the long term health of NYC itself. The whole document is worth a read for those who care about the City’s housing market and its impact on the overall health of the City.
March 4, 2015
Circuit Judge Elliott of Missouri Circuit Court issued a Judgment in Holm v. Wells Fargo et al. (No. 08CN-CV00944 Jan. 26, 2015) that awarded nearly three million dollars in punitive damages. This is just one of a number of searing judicial opinions that I’ve discussed on the blog. The Court found that
Wells Fargo and its agents expended immeasurable, if not incomprehensible, time and effort to avert reinstatement. The result of Wells Fargo’s egregious conduct was to impose approximately six and one-half years of uncertainty, lost optimism, emotional distress, and paralysis of Plaintiffs’ family.
The evidence established that Wells Fargo’s intentional choice to foreclose arose from its own financial incentives. Dr. Kurt Krueger testified that Wells Fargo had financial incentives to seek reimbursement of its fees at a foreclosure sale. This economic motivation collided with the well-being of David and Crystal Holm, and was clearly contrary to the interests of Freddie Mac. In other words, in this case, a powerful financial company exerted its will over a financially distressed family in Clinton County, Missouri. The result is predictable. Plaintiffs were severely damaged; Wells Fargo took its money and moved on, with complete disregard to the human damage left in its wake.
Defendant Wells Fargo is an experienced servicer of home loans. Wells Fargo knew that its decision to foreclose after reinstatement was accepted would inflict a devastating injury on the Holm family. Wells Fargo’s actions were knowing, intentional, and injurious. (7)
It is not certain that this judgment will be held up on appeal. If it is, it is still worth asking whether the occasional verdict of this magnitude is sufficient to change the behavior of servicers. There have been many efforts to change the incentives that servicers have, but cases such as these make one wonder if there is some deeper problem that has not yet been identified and addressed. One cannot imagine how Wells Fargo employees could have let this go on for so long in this case. But they did.
- American Dream in Flux: The Endangered Right to Lease a Home, by Andrea J. Boyack, Real Property, Trust and Estate Law Journal, Vol. 49, No. 2, 2014.
- A Guide to New York State Commercial Landlord-Tenant Law and Procedure, by Gerald Lebovits & Michael B. Terk, 87 N.Y. St. B.J. 22, February 2015.
- Super-Liens to the Rescue? A Case Against Special Districts in Real Estate Finance, by Christopher K. Odinet, Washington and Lee Law Review, Vol. 72, 2015. (Discussing availability of creditors willing to “make real estate-backed loans in special district areas”).
How to Make America Walkable, by Michael Lewyn, 42 Real Est. L.J. 512 & Touro Law Center Legal Studies Research Paper. (Discussing the necessity to make cities walkable, and thus more accessible, in areas where public transportation is lacking).
Unemployment as an Adverse Trigger Event for Mortgage Default, by Chao Yue Tian, Roberto Quercia, & Sarah F. Riley, Journal of Real Estate Finance and Economics, Forthcoming.