Author Archives: David Reiss

Empire State Bidding War?

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I was quoted in a Law360 Story on the ongoing Empire State Building saga, Empire State Bids Soar Over Approaching REIT Deal (behind a paywall).  It reads in part:

the bidders that have come out of the woodwork since Schron’s left-field offer may be banking on the assumption that Malkin and its shareholders could be willing to part with the iconic skyscraper in an all-cash deal that would avoid some of the drama associated with the REIT proposal.

“The owners … may lose the prestige by losing control of the Empire State Building, but they may end up making more money,” said David Reiss, a professor of real estate law at Brooklyn Law School, on Friday. “They may be more than happy to sell to the highest bidder if they’re going to get more than what the REIT would get them for it.”

The bidders appeared to think the unhappy shareholders would find value in their offers as well.

In connection with his bid, Schron agreed to enter into a contract with Malkin with a $50 million nonrefundable deposit immediately and to close the all-cash deal in 90 days. As part of the deal, investors would be able to choose to remain invested in the building and receive a membership interest in Schron’s Cammeby’s International Group in lieu of cash, according to an offer letter revealed last week.

The offers that followed — one from Thor Equities that was “north of $2.1 billion,” one from a group of investors including Phil Pilevsky and Joseph Tabak, and another from an unnamed bidder — reportedly offered similar assurances.

In addition to the chance to own one of the most famous buildings in the world, experts say those who have thrown their hats into the sudden bidding war for the skyscraper are also keen to take advantage of its retail potential.

“I think there’s a belief that this is a valuable property, and that particularly the retail portion of it — and to some extent the office portion too — is undervalued,” Israel said. “I think they feel they could do a major upgrade.”

Those who may have been previously interested in the building also now have the assurance, after a May court ruling in one of the lawsuits over the proposed deal, that verified the legality of a controversial $100-per-share buyout provision, according to Reiss.

Potential buyers now know “that the buyout provision is valid and … that a good bid can get the requisite votes,” he said.

An appeal of the ruling on the buyout provision remains pending.

BoA Claws Back Clawback

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New York County Supreme Court Justice Bransten held, in U.S. Bank National v. Countrywide Home Loans, Inc., no. 652388-2011 (May 29, 2013), that a trustee cannot succeed in getting the defendants (Countrywide entities among others) to repurchase all of the mortgages in a securities pool based on a theory of “pervasive breach.” Rather, she holds that the repurchase obligations are determined by the terms of the agreements governing this MBS transaction.

The trustee asserted that the loans breached the reps and warranties.  The deal documents, however, limited the trustee’s remedy for such a breach to repurchase. The Court writes that

Plaintiff invites this Court to look past the absence of contractual language supporting its claim, asserting that it is entitled to the  benefit of every inference on a motion to dismiss.  While the Trustee is entitled to all favorable inferences with regard to its factual claims on a motion to dismiss, its bare legal conclusion that the Servicing Agreement accommodates its pervasive breach theory is not entitled to deference. (8)

Justice Bransten has ruled on a number of MBS cases involving alleged breaches of reps and warranties and is developing a coherent body of law on this topic. In the Bransten Trio of cases, she rejects the idea that vague disclosures are sufficient to immunize securitizers from liability for endemic misrepresentation. And here, she rejects the idea that vague theories of liability can replace the clear language agreed to by the parties.  In good judicial fashion, she is letting parties know that they should pay attention to the text of their agreements and be ready to face the consequences of those agreements.

Casting Light on the Shadow Docket

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New York Attorney General Schneiderman’s lawsuit against various HSBC entities, New York v. HSBC Bank USA et al., No. 2013-1660 (May 31, 2013), alleges that HSBC entities have sent hundreds or thousands of NY households into legal limbo because they did not comply with procedural requirements applicable to foreclosure.  The complaint outlines these procedural requirements as follows (warning:  technical details to follow):

13. At lease 90 days prior to filing a foreclosure action, the lender must send a homeowner a notice that (i) states the homeowner is at risk of losing the home, (ii) sets forth the amount owed and (iii) provides a list of approved housing counseling agencies that may provide free or low-cost counseling.  [RPAPL section 1304(1).]  The intent of RPAPL, section 1304(1) is to prevent the necessity of a foreclosure action the first place.

easy installment loans

14. It the matter is not resolved within 90 days, the lender may file a foreclosure action.  [RPAPL section 1304(1).]

15. In order to help homeowners avoid losing their home whenever possible, New York State law, CPLR section 3408(a), provides for the court to schedule a mandatory settlement conference for the homeowner and lender.

16. The express purpose of the settlement conference is “to determin[e] whether the parties can reach a mutually agreeable resolution to help the [homeowner] avoid losing his or her home, and evaluat[e] the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate.” [CPLR section 3408(a).]

17. The lender or its counsel must appear a the mandatory settlement conference. If counsel appears, the lawyer must have authority to dispose of the case. CPLR section 3408(c) (emphasis added). The parties are required to negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, that will enable the homeowner to stay in his or her home on more affordable terms.

18. Recognizing that the success of a settlement conference will be enhanced if it is heldf as soon as possible before the arrears, interest, fees and penalties owed by the homeowner mount, CPLR section 3408(a) mandates that the court must hold a settlement conference within sixty days after the date that the lender files proof of service.

19.  However, proof of service is filed with the County Clerk and not the Uniform Court System, which is responsible for scheduling the mandatory settlement conference.  Because the Unified Court System is not aware that a foreclosure action has been commenced until a Request for Judicial Intervention (“RJI”) has been filed, New York Court rules regarding residential foreclosures and mandatory settlement conferences, 22 NYCR section 202.12-a(b)(1), expressly require that the lender file an RJI with the proof of service.

20. Filing the RJI with the proof of service furthers the New York State policy of preventing the loss of homes to foreclosures in two important respects.

21. First, without filing the RJI with the proof of service, the Unified Court System cannot comply with its legal obligation to hold the mandatory settlement conference within sixty days after the date when proof of service is filed.

22. Second, the court sends the RJI, or the homeowner’s name, address and telephone number to an approved housing agency “for the purpose of that agency making the homeowner aware of housing counseling and foreclosure prevention services and options available to them . . .” CPLR section 3408(d). The obvious intent of this requirement is to provide homeowners with the tools and resources that can help them avoid losing their homes. (3-5)

These cases are what is now known as the “shadow docket” because they are in a litigation limbo. it seems that HSBC will have a hard time arguing with the AG’s identification of hundreds of such cases in the four of NY’s 62 counties that it investigated. But it is unclear whether courts will be willing to impose the penalties requested by the AG, including “waiving all accrued interest charges, fees and penalties that accrued, or will accrue, beginning 60 days after the filing of proof of service on the homeowner.” (11) While the failure to hold the settlement conference most certainly has harmed some homeowners, it has also most certainly not harmed others who were not in the position to pay anything at all on a mortgage after losing a job or facing some other serious crisis. There may be a disconnect between the wrong exposed and the remedy requested.

FHFA: Critical Concerns Remain, Future Uncertain

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The FHFA issued its 2012 Report to Congress which provides a report of the annual examinations of Fannie, Freddie and the FHLBs. The report documents critical concerns about Fannie and Freddie, none of which are particularly newsworthy at this late date. But the report does have some intimations of what may lay ahead, which are particularly interesting now that the Senate has finally taken up GSE reform.

The report reviews the three goals set in 2012 for the ongoing conservatorship of Fannie and Freddie:

Build. Build a new infrastructure for the secondary mortgage market.
Contract. Gradually contract the Enterprises’ dominant presence in the marketplace while simplifying and shrinking their operations.
Maintain. Maintain foreclosure prevention activities and credit availability for new and refinanced mortgages. (1)

There are some interesting specifics attached to these general goals.

For the Build goal, FHFA has taken the position that there should be a new infrastructure for the secondary mortgage market that operates like a “market utility,” a model bandied about by Henry Paulson when he was Treasury Secretary. (13)

For the Contract goal, FHFA has indicated that it “will continue increasing guarantee fees in 2013  and evaluating how close current guarantee fee pricing is to the point where private capital would be willing to absorb credit risk.” 14)

For the Maintain goal, FHFA has taken the position that the mortgage market should transition to a more “competitive ” model, moving away from one in which “the government touches more than 9 out of every 10 mortgages.” (15)

While not surprising given Acting Director DeMarco’s past statements and actions, this report indicates that at least the FHFA believes that we should move away from such intense government involvement in the mortgage market to a system that better prices risk and which spreads that risk across a range of competitors. At such a high level of generality, I agree that these are worthwhile goals. But as with everything involving housing finance policy — the devil will be in the details.

National Mortgage Settlement: Not Too Compliant

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The Summary of Compliance: A Report from the Monitor of the National Mortgage Settlement
documents just how hard it is for the big five mortgage servicers (ResCap parties (formerly Ally/GMAC), Bank of America, Citi, JPMorgan Chase and Wells Fargo) to comply with a settlement that they themselves had agreed to.
The report tracks, among other things, complaints by professionals who work for borrowers.  The top ten are
  1. Bank failed to offer loan modification/loss mitigation opportunity.
  2. Bank failed to provide single point of contact.
  3. Bank failed to make a determination on the borrower’s loan modification no later than 30 days after receiving the complete application.
  4. Bank foreclosed while a loan modification/loss mitigation was pending.
  5. Single point of contact failed to carry out responsibilities of working with borrower on loan modification/loss mitigation activities.
  6. Bank failed to notify borrower of any known deficiency in initial submission of information no later than 5 days of receipt.
  7. Bank failed to communicate with borrower’s authorized representatives.
  8. Bank failed to keep the same single point of contact assigned until all the borrower’s needs were met.
  9. Bank failed to provide one or more direct means of communication with the single point of contact.
  10. Bank failed to acknowledge receipt of first lien loan modification application within 3 business days. (8)

I assume that the servicers are not willfully flouting the settlement because of the negative publicity they would receive for doing so as well as the millions of dollars of fines that they could thereby accrue. So these complaints must reflect some kind of systemic incompetence.  Servicers must either continue to be dramatically under-resourced to handle their work or they are bloated bureaucracies that cannot consistently disseminate key information internally or externally. Taking just the most extreme example, it is shocking (if true) that in 2013 banks are still foreclosing while loan modifications are pending with homeowners.

The Monitor, Joseph A. Smith, Jr., concludes, “It is clear to me that the servicers have additional work to do both in their efforts to fully comply with the NMS and to regain their customers’ trust. There continue to be issues with the loan modification process, single point of contact, and customer records.” (9) Amen to that.

Investor HERA-sy

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As I have previously noted, Fannie and Freddie investors have filed a complaint, Washington Federal et al. v. U.S.A., No. 1:13-cv-00385-MMS (June 10, 2013), alleging that the federal government “expropriated [Fannie and Freddie’s] common and preferred shareholders’ rights and the value of their equity in the Companies without due process, and without just compensations, thereby constituting an impermissible exaction and/or taking in violation of the Fifth Amendment to the Constitution.” (8)

Personally, I think that there is a lot of nonsense in the complaint, both in terms of its factual description of the events that led up to the placement of Fannie and Freddie in conservatorship as well as its interpretation of those events.  But I did find its analysis interesting as to whether the government complied with HERA’s requirements for placing the two companies in conservatorship.  Not compelling, just interesting.

As the complaint notes, the federal government had a number of grounds for appointing a conservator. It takes the position that none of those grounds were met. This seems facially wrong.

One of the grounds is whether Fannie or Freddie “incurred, or became likely to incur, losses that would deplete substantially all of its capital with no reasonable prospect of becoming adequately capitalized.” (31) The complaint alleges that the two companies had not incurred such losses at the time that they were placed in conservatorship. (38-39) But it does not even argue that the two companies never “became likely to incur” such losses prior to their placement in conservatorship. Seems hard, particularly with the benefit of hindsight, to take the position that they were not “likely” to incur such losses. And if the plaintiffs can’t make that case, they lose.

Fannie and Freddie Myth-Statement

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Fannie Mae and Freddie Mac’s investors have sued the federal government in Washington Federal v. United States, No. 1:13-00385 (June 10, 2013), for how it bailed out the two companies and thereby the nation’s housing market at the expense of the two companies’ shareholders. Plaintiffs claim that they have been damaged to the tune of $41 billion.

The complaint contains one of my favorite myths about the two companies.  It states that its regulator “directed that, to support the economy, the Companies purchase subprime and other risky securities.” (1) Its evidence for this assertion is that in 2007 the two companies’ “lending standards were adjusted to allow them to purchase more subprime securities” and “Congress and regulators encourage” the companies to “buy subprime and other risky securities — products that did not meet either Company’s own prior lending standards.”(1-2) The misleading nature of these statements is two-fold. First, Fannie and Freddie had been investing in non-prime securities before 2007; and (2) being ‘allowed’ or ‘encouraged’ to invest is not the same as being ‘directed’ to invest.  This points to a fundamental myth about Fannie and Freddie — being allowed to do risky things is the same as being made to do so.

This myth has come up in discussions about their affordable housing goals as well.  When Congress increased these goals, the two companies would buy risky products not because they had to, but because they wanted to keep overall growing market share.  To the extent the goals were expressed as a proportion of their total portfolio, the companies could reduce the purchase of risky loan products by risking the overall size of their portfolios.  But no one ever considers this to be a legitimate option — of course growth is more important than managing credit risk!

More on this complaint anon.