Author Archives: David Reiss

Reiss on the Right to Complain

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Crane in NYC

Super Lawyers quoted me in Development’s Back, Baby!  But Do Neighborhoods Rights Extend Beyond the Right to Complain? It reads, in part,

The list of what can go wrong during construction is longer than Long Island, and some of the items on it are very bad indeed. Reading Chapter 33 of the New York City Construction Code, “Safeguards during Construction or Demolition,” is like Googling skin diseases: You encounter possibilities that, in your previous blissful ignorance, you’d never worried about.

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So how can citizens stand up for their rights?

“City residents do not have tons of rights regarding construction,” says Brooklyn Law School professor David Reiss, who focuses on real estate finance and community development. But, he adds, “They do have some. Technically, many of them are not rights. Rather, citizens have a right to complain.”

According to Reiss, the Department of Buildings is the agency to call about excessive debris, problems with fences, safety netting, scaffolding or cranes; or work being done without a permit. (The DOB’s phone number is New York’s general information and non-emergency kvetching number: 311.)

To complain about after-hours construction-before 7 a.m. or after 6 p.m. Monday to Friday, or anytime on Saturday or Sunday, unless the contractor has a permit stating otherwise-Reiss recommends contacting the DOB or the Department of Environmental Protection. The latter’s number is also 311.

“It never hurts to start by talking with the contractor and/or owner directly, “ says Reiss, who also recommends talking to your community board and city councilmember. As with most things, there’s strength in numbers. “The more people that complain, the more likely it is to get on the radar of officials,” he says.

He also recommends collecting all the evidence you can, whether to show officials or, if worse comes to worst, to use in court. “Create a paper trail. Pictures, of course, are worth a thousand words, particularly if they are time- and date-stamped and you annotate them as appropriate.”

Affirmatively Furthering Fair Housing

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OLYMPUS DIGITAL CAMERAAnthony22 at English Wikipedia [GFDL (https://www.gnu.org/copyleft/fdl.html) or CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

The United States Court of Appeals for the Second Circuit issued a ruling in Westchester v. HUD, No. 15-2294 (Sept. 25, 2015) the longstanding case regarding whether Westchester County has “adequately analyzed — in its applications for HUD funds — impediments to fair housing within the County’s jurisdictions.” (3) The Second Circuit affirmed the District Court’s judgment in favor of HUD, which means that HUD’s withholding of funds under the Community Planning and Development (CPD) Formula Grant Programs stands.

HUD withheld those funds because it found that the County had failed to “assess the impediments to fair housing choice caused by local zoning ordinances or to identify actions the County would take to overcome these impediments.” (6) HUD further found, as a result that the County would not “affirmatively further fair housing” as required by the Fair Housing Act. (6)

The case resolved a narrow, legalistic question:

May HUD require a jurisdiction that applies for CPD funding to analyze whether local zoning laws will impede the jurisdiction’s mandate to “affirmatively further fair housing”? Because HUD may impose such a requirement on jurisdictions that apply for CPD funds, and because the decision to withhold Westchester County’s CPD funds in this case was not arbitrary or capricious, we conclude that HUD’s action complied with federal law. (50)

While the case was decided on narrow grounds, the Court does notes that

The broader dispute between the County and HUD implicates many “big‐picture” questions. Beyond prohibiting direct discrimination based on race or other protected categories, what must a jurisdiction do to “affirmatively further fair housing”? What is the difference, if any, between furthering “fair” housing and furthering “affordable” housing? How much control may HUD exert over local policies, which, in its view, impede the creation of “fair” or “affordable” housing? And if conflicts of this sort between HUD and local governments are to be avoided, is the simplest solution to avoid applying for federal funds in the first place? (32)

These are all very good questions and it is unfortunate that this case does not help to answer any of them. The level of segregation in the United States by race has been a tragedy for many, many decades and we are no closer to figuring out how to deal with it after all these years.

The New Mortgage Disclosure Rules

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President Barack Obama meets with Rep. Barney Frank, (D-Mass), Sen. Dick Durbin, (D-Ill), and Sen. Chris Dodd, (D-Conn) by White House (Pete Souza)

TheStreet.com quoted me in New Mortgage Rule Requires Disclosure Documents to Help Consumers Compare Costs. It reads, in part,

A new set of shorter and simpler mortgage documents will be disclosed to consumers before they close on a loan, making the costs more transparent and helping home buyers compare offers from multiple lenders easier.

Mortgage lenders are required to start giving loan applicants the new disclosure documents starting on October 3, a new government requirement imposed by the Dodd-Frank Act.

“The disclosures will be easier and shorter so that consumers understand the mortgage they are getting because it will be simpler to compare offers,” said Holden Lewis, a mortgage analyst for Bankrate.com, the Palm Beach Gardens, Fla.-based financial content company.

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Drawbacks of New Documents

Of course, it’s not all positive. You can now expect your closing to take longer than before while lenders and title companies adjust to the new procedures. Consumers should definitely lock in their interest rates “a little longer to be safe in case there are delays,” he said. The process might stretch to three days, so lock in your mortgage rates for 45 days instead of the traditional 30 days and “err on side of caution,” Lewis said.

 Major changes to the terms in a mortgage can push back the closing and this can present a serious problem if the current interest rate lock is “on the verge of expiring and interest rates are rising,” said David Reiss, a law professor at Brooklyn Law School. In a worst case scenario, a lender could withdraw an offer because the consumer cannot afford higher monthly payments due to an increase in interest rates.

Homebuyers can mitigate this issue by negotiating the terms of their interest rates cautiously and discussing them with their lender or real estate broker who can help determine “whether there is enough of a cushion to take into account all of the things that can delay a closing,” he said. “Borrowers should know that a rate lock without a sufficient cushion of time offers a false sense of security.”

Closing on a house might take longer, so consumers should make sure their timing meshes with the apartment or house they are renting or if they are selling their current home. This is more critical right now because of the transition to the new documents.

“Through the end of the year, homebuyers may want to build in a cushion as to when they have to close on the purchase,” Reiss said. “This could offer some protection if the mortgage application process takes longer than expected because of TRID-related issues.”

If tax reasons are prompting homeowners to close on a sale by a certain date, then it is even more vital to focus on documents a buyer, lender or tittle company might require during the process.

“As with many things, staying on top of everyone at each stage such as the contract negotiation, mortgage application and closing is the best bet for avoiding surprises and bad results,” he said.

Inclusionary Housing and Equitable Communities

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Lincoln_Institute_of_Land_Policy_-_Cambridge,_MA_-_DSC00178

The Lincoln Institute of Land Policy has released a policy focus report, Inclusionary Housing: Creating and Maintaining Equitable Communities. The Executive Summary opens,

After decades of disinvestment, American cities are rebounding, but new development is often driving housing costs higher and displacing lower-income residents. For cities struggling to maintain economic integration, inclusionary housing is one of the most promising strategies available to ensure that the benefits of development are shared widely. More than 500 communities have developed inclusionary housing policies, which require developers of new market-rate real estate to provide affordable units as well. Economically diverse communities not only benefit low-income households; they enhance the lives of neighbors in market-rate housing as well. To realize the full benefit of this approach, however, policies must be designed with care. (3)

The report uses the term inclusionary zoning to refer to

a range of local policies that tap the economic gains from rising real estate values to create affordable housing—tying the creation of homes for low- or moderate-income households to the construction of market-rate residential or commercial development. In its simplest form, an inclusionary housing program might require developers to sell or rent 10 to 30 percent of new residential units to lower-income residents. Inclusionary housing policies are sometimes referred to as “inclusionary zoning” because this type of requirement might be implemented through an area’s zoning code; however, many programs impose similar requirements outside the zoning code. (7)

The report notes that

Policy makers are understandably concerned that affordable housing requirements will stand in the way of development. But a review of the literature on the economics of inclusionary housing suggests that well-designed programs can generate significant affordable housing resources without overburdening developers or landowners or negatively impacting the pace of development. (4)

The report is obviously addressing two of the most important issues facing us today — the housing affordability challenge that many households face as well as the increasing stratification of communities by income and wealth.

There is a lot of value in the survey of the academic literature on inclusionary housing policies that is provided by this report. At the same time, there is some fuzzy thinking in it too. For instance, the report states that, “As the basic notion of supply and demand suggests, the addition of new units in a given market will inevitably put some downward pressure on the cost of existing units. But the larger effect tends to be upward pressure on housing costs because new homes are primarily built for higher-income residents.” (12)

This analysis ignores the well-accepted concept of filtering in urban economics. Filtering describes the process by which occupants of housing units go from higher-income to lower-income as the unit ages, becomes outdated and is subject to wear and tear. If higher-income households move to the newest housing, then other another household, typically of lower-income, can move into the vacant unit. If the number of households remains constant, then housing prices should decrease as housing development increases.

Because the real world does not look like an economic model, many people think that new housing causes increased housing prices. But the cause of the increased housing prices is often the same thing that is causing new housing construction:  increased demand.

Take NYC for instance. In recent years, it issues permits for 10,000-20,000 or so new units of housing a year, but its population has grown by about 60,000 people a year. Combine this with the fact that new housing construction is both a sign and result of gentrification in a particular neighborhood, it is no wonder people think that housing construction pushes prices higher. While this is an understandable line of thought for the man or woman in the street, it is less so for the Lincoln Institute.

My bottom line: this is worth a read, but read with care.

 

Foreclosed Between a Rock and a Hard Place

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Congress has awarded NeighborWorks over $750 million for housing counseling since 2007.  NeighborWorks has submitted its most recent quarterly report to Congress on Foreclosure Counseling Successes & Challenges for its National Foreclosure Mitigation Counseling Program. NeighborWorks prepares different reports on outcomes for homeowners while the quarterly reports like this one focus on “successes and challenges of foreclosure mitigation counseling,” as the title of the report suggests. (1) Notwithstanding this limited focus, the report is structured in such a way that it makes me somewhat skeptical of the successes of foreclosure counseling.

The report summarizes the Program’s counseling successes as follows:

Foreclosure rates are waning nationwide; however, the crisis continues to plague many areas of the country in a significant way. Over the course of the NFMC Program, counselors have faced many successes and challenges as they provided foreclosure counseling. Despite many of the challenges counselors faced with foreclosure counseling earlier in the NFMC Program, they have risen to the task by streamlining operations, developing better relationships with servicers, cross-training staff, and expanding counseling services to meet the need of homeowners in crisis. NFMC counselors across the country continue to provide foreclosure mitigation assistance to homeowners with the funds appropriated by Congress. (2)

If you break this down, the successes are:

  • counselors have streamlined their own operations
  • counselors have developed better relationships with mortgage servicers
  • counselors have cross-trained staff
  • counselors have expanded their services

Not one of those successes actually talks about achieving efficiencies in the provision of services or improved rates of success for homeowners based on these changes. For instance, I would think that Congress would want to know whether streamlined operations resulted in more homeowners served and more positive outcomes for homeowners achieved. Discussing metrics that are solely internal to the program without any discussion of how those metrics impact the population to be served seems like a step in the wrong direction to me.

That being said, the report highlights the fundamental problems that homeowners in foreclosure face: “counselors for the NFMC Program continue to report that a big challenge is communicating with servicers. Lack of adequate homeowner resources also remains a persistent problem and is a growing challenge for counselors.” (2)

Recalcitrant banks and impoverished homeowners.  It sounds like counselors are stuck between a rock a hard place, much like the homeowners themselves.

 

Putting Disclosure to the Test

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Scientist looking through microscope

Talia Gillis has posted Putting Disclosure to the Test: Toward Better Evidence-Based Policy to SSRN. This is another one of those papers that seems so esoteric, but really addresses an incredibly important topic in consumer protection.  The abstract reads,

Financial disclosures no longer enjoy the immunity from criticism they once had. While disclosures remain the hallmark of numerous areas of regulation, there is increasing skepticism as to whether disclosures are understood by consumers and do in fact improve consumer welfare. Debates on the virtues of disclosures overlook the process by which regulators continue to mandate disclosures. This article fills this gap by analyzing the testing of proposed disclosures, which is an increasingly popular way for regulators to establish the benefits of disclosure. If the testing methodology is misguided then the premise on which disclosures are adopted is flawed, leaving consumers unprotected. This article focuses on two recent major testing efforts: the European Union’s testing of fund disclosure and the Consumer Financial Protection Bureau’s testing of the integrated mortgage disclosures, which will go into effect on August 1, 2015.

Despite the substantial resources invested in these quantitative studies, regulation based on study results is unlikely to benefit consumers since the testing lacks both external and internal validity. The generalizability of the testing is called into question since the isolated conditions of testing overlook the reality of financial transactions. Moreover, the testing method mistakenly assumes a direct link between comprehension and improved decisions, and so erroneously uses comprehension tests.

As disclosure becomes more central to people’s daily lives, from medical decision aids to nutritional labels, greater attention should be given to the testing policies that justify their implementation. This article proposes several ways to improve the content and design of quantitative studies as we enter the era of testing.

One of those clauses bears repeating: “the testing method mistakenly assumes a direct link between comprehension and improved decisions.” I have said repeatedly that the CFPB should rigorously test its financial literacy initiatives because the academic literature does not lend much support to the claim that those initiatives actually help consumers make better financial decisions.

This paper makes a strong case that the CFPB is not paying sufficient attention to the scholarly literature in this area. If so, it may, as a result, lead consumers down a path paved with good intentions that ends at a destination nobody wants to go.

CFPB Mortgage Market Rules

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woodleywonderworks

Law360 quoted me in Questions Remain Over CFPB Mortgage Rules’ Market Effects (behind a paywall). The story highlights the fact that the jury is still out on exactly what a mature, post-Dodd-Frank mortgage market will look like. As I blogged yesterday, it seems like the new regulatory regime is working, but we need more time to determine whether it is providing the optimal amount of sustainable credit to households of all income-levels. The story opens,

Despite fears that a set of Consumer Financial Protection Bureau mortgage rules that went into effect last year would cut off many black, Hispanic and other borrowers from the mortgage market, a recent government report showed that has not been the case.

Indeed, the numbers from the Federal Financial Institutions Examinations Council’s annual Home Mortgage Disclosure Act annual report showed that the percentage of black and Hispanic borrowers within the overall mortgage market actually ticked up in 2014, even as the percentage of loans those two communities got from government sources went down.

However, it may be too early to say how the CFPB’s ability-to-repay and qualified-mortgage rules are influencing decisions by lenders and potential borrowers as the housing market continues to recover from the 2008 financial crisis, experts say. 

“Clearly, there’s a story here, and clearly there’s a story from this 2014 data,” said David Reiss, a professor at Brooklyn Law School. “But I don’t know that it’s that QM and [ability to repay] work.”

The CFPB was tasked with writing rules to reshape the mortgage market and stop the subprime mortgage lending — including no-doc loans and other shoddy underwriting practices — that marked the period running up to the financial crisis.

Those rules included new ability-to-repay standards, governing the types of information lenders would have to collect to have a reasonable certainty that a borrower could repay, and the qualified mortgage standard, a class of mortgages with strict underwriting standards that would be considered the highest quality.

The rules took effect in 2014, after the CFPB made changes aimed at easing lenders’ worries over potential litigation by borrowers should their QMs falter.

Even with those changes, there were worries that black, Hispanic and low-income borrowers could be shut out of the market, as lenders focused only on making loans that met the QM standard or large loans, known as jumbo mortgages, issued primarily to the most affluent borrowers.

According to the HMDA report, that did not happen in the first year the rules were in effect.

Both black and Hispanic borrowers saw a small uptick in the percentage of overall mortgages issued in 2014.

Black borrowers made up 5.2 percent of the overall market in 2014 compared with 4.8 percent in 2013, when lenders were preparing to comply with the rule, and 5.1 percent in 2012, the report said. Latino borrowers made up 7.9 percent of the overall market in 2014 compared with 7.3 percent in 2013 and 7.7 percent in 2012, the federal statistics show.

And the percentage of the loans those borrowers got from government-backed sources like the Federal Housing Administration, a program run by the U.S. Department of Housing and Urban Development targeting first-time and low- to middle-income borrowers, the U.S. Department of Veterans Affairs and other agencies fell.

Overall, 68 percent of the loans issued to black borrowers came with that direct government support in 2014, down from 70.6 percent in 2013 and 77.2 percent in 2012, the HMDA report found. For Hispanic borrowers, 59.5 percent of the mortgages issued in 2014 had direct government support, down from 62.8 percent in 2013 and 70.7 percent in 2012.

For backers of the CFPB’s mortgage rules, those numbers came as a relief.

“We were definitely waiting with bated breath for this,” said Yana Miles, a policy counsel at the Center for Responsible Lending.

To supporters of the rules, the mortgage origination numbers reported by the federal government showed that black and Hispanic borrowers were not being shut out of the mortgage market.

“Not only did we not see lending from those groups go to zero, we’re seeing a very, very small baby step in the right direction,” Miles said. “We’re seeing opposite evidence as to what was predicted.”

And in some ways, the CFPB has written rules that met the goal of promoting safe lending following the poor practices of the housing bubble era while still giving space to lenders to get credit in the market.

“We have a functioning mortgage market,” Reiss said.