REFinBlog

Editor: David Reiss
Cornell Law School

July 21, 2015

Showdown at the Dakota

By David Reiss

"The Dakota May 2005" by Makemake at the German language Wikipedia. Licensed under CC BY-SA 3.0 via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:The_Dakota_May_2005.jpg#/media/File:The_Dakota_May_2005.jpg

Jeremy Cohen, a partner with Wolf Haldenstein Adler Freeman & Herz, and I discussed a lawsuit brought by a New York City co-op owner who says he’s been unable to move into his apartment at the famed Dakota coop for 16 years.

We spoke with June Grasso on Bloomberg Radio’s “Bloomberg Law” show. The podcast of the show is here and the complaint in the case is here. A Bloomberg news story summarizes the allegations:

Robert Siegel, chief executive officer of Metropole Realty Advisors Inc., said in his lawsuit that he paid $2.23 million in 1999 for an apartment at the Dakota and has never spent a night there because the board refused to approve his renovation plans and took part of his unit as storage space for the building. He’s seeking $55 million in damages and a court order allowing him to make the renovations.

“These bad-faith acts foreclosed the possibility of Mr. Siegel constructing bedrooms there and thus ensured that the apartment could not be used by Mr. Siegel and his family,” according to the June 29 complaint, filed in New York State Supreme Court.

Before buying the street-level duplex at the building on 72nd Street and Central Park West — once home to celebrities such as John Lennon and Lauren Bacall — Siegel got permission from the co-op board to convert the lower level into four bedrooms with air conditioning for his children, according to the lawsuit. Once the sale was complete, the board said it would only approve Siegel’s plans if he agreed to buy additional shares of Dakota co-operative stock for $1.8 million, which would about double his monthly maintenance charges, according to the complaint.

After Siegel refused to make the additional payments, the board voted to reclassify half of Siegel’s apartment as “non-habitable storage space,” according to the lawsuit. The board also barred him from adding air conditioning or ventilation to the lower level, thereby making it unsuitable for bedrooms, according to the complaint.

July 21, 2015 | Permalink | No Comments

Tuesday’s Regulatory & Legislative Round-Up

By Serenna McCloud

July 21, 2015 | Permalink | No Comments

July 20, 2015

The Prime Crisis

By David Reiss

Ben Franklin, Founder of the University of Pennsylvania

Fernando Ferreira and Joseph Gyourko, both at Penn’s Wharton School, have posted A New Look at the U.S. Foreclosure Crisis: Panel Data Evidence of Prime and Subprime Borrowers from 1997 to 2012 to SSRN. Unfortunately it is behind a National Bureau of Economic Research paywall. The paper makes the case for “a reinterpretation of the U.S. foreclosure crisis as more of a prime, rather than a subprime, borrower issue.” (1) The authors conclude,

The housing bust and its consequences are among the defining economic events of the past quarter century. Constructing and analyzing new and very large micro data spanning the cycle and all sectors of the mortgage market leads us to reinterpret the ensuing foreclosure crisis as something much more than a subprime sector issue. Many more homes were lost by prime mortgage borrowers, and their loss rates not only increased relatively early in the crisis, but stayed high through 2012. This new characterization of the crisis motivates a very different empirical strategy from previous research on this topic. Rather than focus solely on the subprime sector and subprime traits, we turn to the traditional home mortgage default literature that explains outcomes in terms of common factors such as negative equity and borrower illiquidity.

The key empirical finding is that negative equity conditions can explain virtually all of the difference in foreclosure and short sale outcomes of Prime borrowers compared to all Cash owners. This is true on average, over time (including the spike in their foreclosure rate beginning in 2009), and across metropolitan areas. Given the predominance of this group in terms of foreclosures and short sales, this is tantamount to explaining the crisis itself. We can explain much, but not all, of the variation in Subprime borrower outcomes in terms of negative equity or borrower illiquidity conditions, so something potentially ‘special’ about the subprime sector still is unaccounted for. That said, it also could be that a less noisy measure of borrower illiquidity would be able to account for this residual variation. That remains for future research.

None of the other ‘usual suspects’ raised by previous research or public commentators change this conclusion. Housing quality traits, household demographics (race or gender), buyer income, and speculator status do not have a material influence on outcomes across borrower types. Certain loan-related attributes such as initial LTV, whether a refinancing occurred or a second mortgage was taken on, and loan cohort origination quarter do have some independent influence, but they are much weaker than that of current LTV. (27)

I will have to leave it to other empiricists to evaluate whether this sure-to-be-controversial study is methodologically sound, but I sure did find their policy conclusion to be interesting:

We are not able to provide a definitive recommendation one way or another, but we can rule out one noteworthy reason offered for not aiding homeowners—namely, that the crisis was mostly about irresponsible subprime sector actors (both lenders and borrowers) who were undeserving of transfers. Of course, this is not to say that there was no such behavior. The evidence from other research and serious journalists is that there was. However, it is clear from the passage of time (and the accumulation and analysis of new data that provides) that the problem was much more widespread and systemic.  (28)

Hopefully, this is a lesson that we can take with us into the next (inevitable) housing crisis so we lay the foundation for policy solutions based on facts and not rely on moral judgments about borrowers that are built on shaky ground.

July 20, 2015 | Permalink | No Comments

Monday’s Adjudication Roundup

By Shea Cunningham

July 20, 2015 | Permalink | No Comments

July 17, 2015

Bank Break-ins

By David Reiss

"Balaclava 3 hole black" by Tobias "ToMar" Maier. Licensed under CC BY-SA 3.0 via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Balaclava_3_hole_black.jpg#/media/File:Balaclava_3_hole_black.jpg

Chris Odinet has posted Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure to SSRN. The abstract reads,

During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles began cropping up in newspapers and media outlets across the country recounting stories of people who had fallen behind on their mortgage payments returning home one day to find that all of their belongings had been taken and their homes heavily damaged. These homeowners soon discovered that it was not a random thief that was the culprit, but rather property management contractors hired by the homeowners’ mortgage servicer.

The issues arising from these practices have become so pervasive that lawsuits have been filed in over 30 states, and legal aid organizations in California, Florida, Michigan, Nevada, and New York report that complaints against lender-engaged property managements firms number among their top grievances. This Article analyzes lender-engaged property management firms and these break-in foreclosure activities. In doing so, the paper makes a three-part call to action, which includes the implementation of bank contractor oversight regulations, the creation of a private cause of action for aggrieved homeowners, and the curtailment of property preservation clauses in mortgage contracts.

This is a timely article about a cutting edge issue. All too often I have heard pro-bank lawyers claim that banks almost never foreclose improperly. The news reports and lawsuits discussed in this article counter that claim. And yet, I hope that some empirically-minded person could quantify the frequency of such misbehavior to better inform policymakers going forward.

July 17, 2015 | Permalink | No Comments

Friday’s Government Reports Roundup

By Shea Cunningham

July 17, 2015 | Permalink | No Comments