I spoke on the 4th Panel, Why Do Lawyers Have to Care? Impacts on All Practice Areas, at the Web3 & The Metaverse: Preparing Your Practice & Clients for the Newest Digital Revolution program sponsored by the NYSBA in partnership with the Metaverse Collaborative at New York University School of Professional Studies. The video of the event is here and Panel 4 starts at 3:48:07. I discuss the use of NFTs in real estate (real real estate, not virtual real estate).
Author Archives: David Reiss
A Controversial Fix for America’s Housing Market
Insider quoted me in A Controversial Fix for America’s Housing Market: More Foreclosures. It opens,
How many people should lose their homes to foreclosure?
In an ideal world, of course, there would be no foreclosures at all. Everyone who buys a home would get one that fits their income and needs, and people would have enough money to make their mortgage payments on time and in full. But in a housing market built on debt, foreclosures are a painful reality. People lose their jobs or fall behind on payments, and lenders repossess the home to recoup their losses.
Too many foreclosures is obviously a bad thing — losing a home is devastating both financially and emotionally — but it’s also a problem to have too few foreclosures. Low rates of foreclosure activity signal that housing lenders aren’t taking enough risk, locking out hopeful buyers who could have kept up with payments on their mortgage if only lenders gave them the chance.
Most residential loans are backed by the government-sponsored enterprises Fannie Mae and Freddie Mac or the Federal Housing Administration. To try to find a happy medium of risk, the GSEs — government-sponsored enterprises — and FHA set a “credit box” to determine who gets a mortgage. The companies base these standards on factors including the borrower’s financial stability and the state of the housing market and economy. When the credit box gets tighter, fewer people get mortgages, and foreclosures generally go down. When it opens up, banks take more risks on people with lower credit scores or worse financial histories, increasing the possibility of foreclosures.
Finding the right size for the credit box is easier said than done. In the years leading up to the Great Recession, banks and private lenders handed out millions of risky loans to homebuyers who had no hope of repaying them. A tidal wave of foreclosures followed, plunging the US housing market — and the global economy — into chaos.
But some experts argue that in the years since the crash, the GSEs, lenders, and regulators overcorrected, shutting loads of potentially reliable buyers out of the housing market. Laurie Goodman, the founder of the Housing Finance Policy Center at the Urban Institute, a nonpartisan think tank, said there’s room today to “open the credit box” and relax lending standards without pushing the housing market into crisis. More foreclosures might come as a result, she said, but that would be “a worthwhile trade-off” if it gave more people the opportunity to build wealth through homeownership.
Opening the credit box isn’t a cure-all for housing, and given the weakening economy, more cautious experts argue that making it easier to get a mortgage is unnecessary or dangerous. But if lenders do it correctly, it could be a major step toward a healthier market. A more stable credit box over time could not only ensure future homebuyers aren’t locked out of getting the home of their dreams, but could also smooth out some of the market’s chaotic nature.
The ‘invisible victims’ of the housing market
In the aftermath of the Great Recession, the victims of the housing free-for-all were clear. An estimated 3.8 million homeowners lost their homes to foreclosure from 2007 to 2010, and plenty more also lost theirs in the following years. But the overly strict lending standards and tighter regulations that followed created a new class of victims: people who were unable to join the ranks of homeowners. David Reiss, a professor at Brooklyn Law School, called these would-be homebuyers “invisible victims” — people who probably could have stayed current on their payments if they’d been approved for a loan but who didn’t get that opportunity.
Improving Minority and Low-Income Homeownership Experiences
I participated in a very interesting event at the Chicago Fed last week: Risk and Racial bias: Workshop improving Minority and Low-Income Homeownership Experiences. The Community Development and Policy Studies (CDPS) team at the Chicago Fed sponsored the workshop. CDPS is specifically focused on the risks of homeownership, bias in housing and financial markets, how risk and bias interact to affect homeownership experiences for minority or low-income families, and how risks are shared among market participants.
The workshop featured papers from “researchers in the social sciences and law using a range of methodological approaches on questions related to homeownership as a means of wealth accumulation and the experiences of minority and low-income families.”
I was a discussant for an interesting paper, Strategically Staying Small: Regulatory Avoidance and the CRA by Jacelly Cespedes et al. (she presented the paper). The abstract reads
Using the introduction of an asset based two-tiered evaluation scheme in the 1995 CRA reform, we examine the consequences of regulatory avoidance. Banks exploit the attribute-based regulation by strategically slowing asset growth, bunching below the $250M threshold. The regulatory avoidance also produces real effects. Banks near the threshold experience an increase in the rejection rate of LMI loans, while areas they serve experience a decline in county-level small establishment shares and independent innovation. These results highlight a bank’s willingness to take costly actions to avoid regulatory oversight and subsequent credit reduction for individuals whom the CRA is designed to benefit.
The most recent version of the paper does not seem to be publicly available, but an earlier draft can be found here.
Helping Your Kids Qualify for a Mortgage?
The Wall Street Journal quoted me in Helping Your Kids Qualify for a Mortgage? What to Know Before Cosigning on the Dotted Line. It reads, in part,
With rising interest rates and slowing real-estate sales, homeownership remains out of reach for many would-be buyers. According to the National Association of Home Builders, in the second quarter of 2022, housing affordability fell to its lowest point since the 2007-09 recession.
The NAHB/Wells Fargo Housing Opportunity Index found that just 42.8% of new and existing homes sold between the beginning of April and the end of June were affordable to families earning the U.S. median income of $90,000. This is a sharp drop from the 56.9% of homes sold in the first quarter that were affordable to median-income earners.One option to improve affordability, especially for those who lack good credit: Have mom and dad cosign the mortgage. Many parents are willing to do so, according to data prepared for The Wall Street Journal by LendingTree Inc., an online loan marketplace, which reported that 57% of parents would be willing to cosign their child’s mortgage and 7% have done so in the past.
*. *. *
There is a difference between cosigning and guaranteeing. According to David Reiss, a professor at Brooklyn Law School who specializes in real estate, a parent acting as a co-borrower has the same responsibilities under the loan as their child. They are liable for the payments as they come due and can be sued by the lender for nonpayment if the loan becomes delinquent. But a parent acting as a guarantor has a different legal relationship with both the lender and the child. A parent guarantor would be responsible for the loan only if the child first defaults.
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Rethinking The Federal Home Loan Bank System
Law360 published my column, Time To Rethink The Federal Home Loan Bank System. It opens,
The Federal Housing Finance Agency is commencing a comprehensive review of an esoteric but important part of our financial infrastructure this month. The review is called “Federal Home Loan Bank System at 100: Focusing on the Future.”
It is a bit of misnomer, as the system is only 90 years old. Congress brought it into existence in 1932 as one of the first major legislative responses to the Great Depression. But the name of the review also signals that the next 10 years should be a period of reflection regarding the proper role of the system in our broader financial infrastructure.
Just as the name of the review process is a bit misleading, so is the name of the Federal Home Loan Bank system itself. While it was originally designed to support homeownership, it has morphed into a provider of liquidity for large financial institutions.
Banks like JPMorgan Chase & Co., Bank of America Corp., Citibank NA and Wells Fargo & Co. are among its biggest beneficiaries and homeownership is only incidentally supported by their involvement with it.
As part of the comprehensive review of the system, we should give thought to at least changing the name of the system so that it cannot trade on its history as a supporter of affordable homeownership. But we should go even farther and give some thought to spinning off its functions into other parts of the federal financial infrastructure as its functions are redundant with theirs.
NYSBA Task Force on the Digital Economy (and the Real Economy)
The New York Law Journal ran a story on the NYSBA’s new Task Force on Emerging Digital Finance and Currency. The NYSBA Press Release is here. Joseph Bizub, my co-author, and I are members of the Task Force. We are writing about the impact of fintech on real estate investment. The Press Release reads:
The New York State Bar Association has launched a task force to make recommendations on how New York should regulate virtual currencies and digital assets and advise the association what the new technology can do for its operations.
“The rapid growth of the metaverse/Web3 and the digital economy present a confluence of issues for lawyers,” said President Sherry Levin Wallach. “At the same time, this technology has the power to significantly change the way we do business, bank, and interact both personally and professionally. It’s important that we are in front of the issues and able to engage productively in this quickly evolving space.”
The task force will work to educate NYSBA members and the legal community about the impact of the digital economy and the legal issues that are likely to arise in representation of clients. It will also evaluate legislative and regulatory proposals and explore how the metaverse and Web3 can benefit the legal profession and bar associations.
“We are already seeing the effects of this trillion-dollar industry in many areas of practice including entertainment, business, intellectual property, tax, criminal and environmental law and trusts and estates,” Levin Wallach said. “The Task Force on Emerging Digital Finance and Currency will ensure that the New York State Bar Association has a voice in this innovative and emerging field.”
Jacqueline J. Drohan, partner at Drohan Lee, and Dana V. Syracuse, co-chair of Perkins Coie’s Fintech Industry Group, will co-chair the task force. The vice chair will be Dr. Carlos Mauricio Sakata Mirandola, CMSquare, São Paulo, Brazil. Marc Beckman, founding partner of DMA United, New York, NY, and Nancy Chanin, who oversees business development at DMA United, will be consultants to the task force.
New York State Bar Association President-Elect Richard C. Lewis will be the task force’s liaison to the association’s Executive Committee. Joseph Bizub and Dina Khedr of Brooklyn Law School will be law student members of the task force.
The members of the task force include:
Alyssa Barreiro, head of fiduciary risk, BNY Mellon, Binghamton, NY
Joshua Lee Boehm, partner, Perkins Coie, Phoenix, AZ
Julie T. Houth, staff attorney, Robbins Geller Rudman & Dowd, San Diego, CA
Luca CM Melchionna, managing member, Melchionna, New York, NY
John W. R. Murray, partner, Foley Hoag, New York, NY
Jeffrey D. Neuburger, head of Blockchain group, Proskauer Rose; New York, NY
Rory J. Radding, partner, Mauriel Kapouytian Woods, New York, NY
David J. Reiss, professor of law and research director, Brooklyn Law School Center for Urban Business Entrepreneurship, New York, NY
Jason Schwartz, tax partner and co-head of Digital Assets and Blockchain Practice, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC
Robyn T. Williams, associate, Devlin Law Firm, Cleveland, OH
How Fintech Cos. May Transform Real Estate Investment
I published How Fintech Cos. May Transform Real Estate Investment along with Joseph Bizub and Justin Peralta in Law360. It opens,
Until relatively recently, real estate with a small footprint — one-to-four-family homes as well as small retail, office and industrial buildings — were generally within the sole purview of small investors who invested locally.
Today, because of technological advances, these owner-occupants and investors face significant competition from institutional investors and an emerging class of decentralized finance investors.
These fintech companies are bringing new approaches to the challenges that real estate investing traditionally poses: illiquidity, lack of capital, lack of diversification and uneven access to market information.
This article focuses on how decentralized finance investors in particular are meeting those challenges and suggests that while much of their vaunted innovation is simply old wine in new bottles, there is good reason to think that they will be driving a lot of investment in small real estate transactions in the future, in no small part because people like shiny new bottles.








