July 9, 2015
Thursday’s Advocacy & Think Tank Round-Up
- Corelogic’s Home Price Index for May 2015, reports that home prices are up 6.3% compared to May of 2014 and with Mortgage rates at around 4% – leading to increased demand – areas with high demand and low supply, such as San Francisco are seeing double digit appreciation. Home prices peaked in April 2006 and are still 8.4% below peak.
- Over 1,000 members of Affordable Rental Housing A.C.T.I.O.N. signed a letter to Congress urging both houses to protect, strengthen and expand the Housing Credit and preserve Housing Bonds as it considers tax reform and tax extenders legislation. Specifically, the letter urges Congress to act quickly to approve a minimum 9 percent Housing Credit rate for new construction and substantial rehabilitation, as well as a minimum 4 percent rate for the acquisition of affordable housing.
- Furman Center’s Data Search Tool – is an online application that provides direct access to New York City data compiled by the NYU Furman Center. Visitors to the site can select from a range of variables to create customized maps, downloadable tables, and track trends over time. Variables include, among many others: Housing costs, mortgage lending, tax delinquencies, housing quality.
July 9, 2015 | Permalink | No Comments
July 8, 2015
The Dense State of NYC’s Housing
NYU’s Furman Center released its State of New York City’s Housing and Neighborhoods in 2014. I found its discussion of urban density to be the most notable aspect of this nexcellent and data-rich annual report. The discussion on density concludes,
The renewed attractiveness of New York City since the 1970s means population will likely keep increasing, and so will population and housing density. In 2010, few other U.S. cities had any neighborhoods that matched the density experienced by the typical New Yorker. Yet, by recent historical standards, today’s density levels are not extreme. In recent years, the typical New Yorker lived in a lower-density neighborhood than the typical New Yorker in 1970, as population growth in the city since 1980 was focused in moderate-density neighborhoods. Further, while great disparities in education and crime across neighborhoods exist, these differences are not generally associated with density levels.
High density cities like New York are playing an increasingly important role in the economy as drivers of productivity and innovation. This means the accessibility of the city to new residents is important both for New Yorkers and the nation. We have demonstrated that significant numbers of new residents can be accommodated without elevating density to levels above what the city has historically experienced, and that high-density neighborhoods do not perform lower on key quality of life indicators. City officials will need to ensure that neighborhoods have sufficient infrastructure to accommodate their new residents. (20)
This last point is key: density is not a problem so long as the appropriate infrastructure is built to support it. And while current residents are concerned about the impact of local increases in density, the city as a whole benefits from the increased economic activity and cultural creativity that comes along with heightened density. The De Blasio Administration knows this. Other local elected officials should sign on to increased density along with thoughtful zoning and infrastructure policies.
As a final note, I would compare the transparent acknowledgement of the report’s financial sponsors in the front matter with the much less transparent acknowledgment found in Harvard’s Joint Center for Housing Studies State of the Nation’s Housing 2015 report that I blogged about yesterday.
July 8, 2015 | Permalink | No Comments
Wednesday’s Academic Roundup
- Airbnb and the Housing Segment of the Modern ‘Sharing Economy’: Are Short-Term Rental Restrictions an Unconstitutional Taking?, Jamila Jefferson-Jones, Hastings Constitutional Law Quarterly, Vol. 42, 2015.
- The Use of Tenant Screening Reports and Tenant Blacklisting, Gerald Lebovits & Jen M. Addonizio, LEGALEase Pamphlet, New York State Bar Association (2015).
- Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure, Christopher K. Odinet, University of Cincinnati Law Review, Vol. 83, No. 4, 2015.
- Determinants of Mortgage Default and Consumer Credit Use: The Effects of Foreclosure Laws and Foreclosure Delays, Sewin Chan, Andrew Haughwout, Andrew T. Hayashi, & Wilbert Van der Klaauw, FRB of New York Staff Report No. 732.
- The Effect of Mortgage Payment Reduction on Default: Evidence from the Home Affordable Refinance Program, Douglas A. McManus, Jared Janowiak, Lu Ji, Kadiri Karamon & Jun Zhu, Real Estate Economics.
July 8, 2015 | Permalink | No Comments
July 7, 2015
The State of the Nation’s Sustainable Housing
The Joint Center for Housing Studies of Harvard University released its The State of the Nation’s Housing 2015 report. I typically focus on the discussion of the mortgage market in this excellent annual report. Here are some of the mortgage highlights:
- mortgage delinquency rates nationwide have fallen by half since the foreclosure crisis peaked. But the remaining loans that are seriously delinquent (90 or more days past due or in foreclosure) are concentrated in relatively few neighborhoods; (6)
- According to CoreLogic, 10.8 percent of homeowners with mortgages were still underwater on their loans in the fourth quarter of 2014; (8)
- Despite rising prices, homebuying in most parts of the country remained more affordable in 2014 than at any time in the previous two decades except right after the housing crash. In 110 of the 113 largest metros for which at least 20 years of price data are available, payment-to-income ratios for the median-priced home were still below long-run averages. And in nearly a third of these metros, ratios were 20 percent or more below those averages. (22)
The Joint Center believes that “Looser mortgage lending criteria would help. Given that a substantial majority of US households desire to own homes, the challenge is not whether they have the will to become homeowners but whether they will have the means.” (6) I am not sure what to make of that statement. It seems to me that the right question is whether looser mortgage lending criteria would result in long-term housing tenure for new homeowners. In other words, looser mortgage lending criteria that result in future defaults and foreclosures are of no benefit to potential homebuyers. Too few commentators tie mortgage availability to mortgage sustainability. The Joint Center should take a lead role in making that connection.
One last comment, a repetition from my past discussions of Joint Center reports. The State of the Nation’s Housing acknowledges sources of funding for the report but does not directly identify the members of its Policy Advisory Board, which provides “principal funding” for it along with the Ford Foundation. (front matter) The Board includes companies such as Fannie Mae and Freddie Mac which are directly discussed in the report. In the spirit of transparency, the Joint Center should identify all of its funders in the State of the Nation’s Housing report itself. Mainstream journalists would undoubtedly do this. I see no reason why an academic center should not.
July 7, 2015 | Permalink | No Comments
Tuesday’s Regulatory & Legislative Update
- Consumer Financial Protection Bureau (CFPB) TILA-RESPA Integrated Disclosure rule webinar recording and the slides from their recent presentation about the changes to go into effect August 1st, 2015. The new Integrated Disclosures must be provided by a creditor or mortgage broker that receives an application from a consumer for a closed-end credit transaction secured by real property.
July 7, 2015 | Permalink | No Comments
Monday’s Adjudication Roundup
- Quicken Loans Inc. argues that its suit against the federal government is valid because it is more than just a fraud case. It claims that it is about broader issues with government housing programs.
- A class action suit against JPMorgan Chase Bank NA will not be dismissed over failure to file timely mortgage satisfactions even though one of the plaintiffs rejected a settlement offer for more than she could get from a court judgment.
- An administrative judge denied that the SEC had shown fraud in commercial mortgage-backed securities suit against Standard & Poor’s former executive, Barbara Duka, because the SEC failed to show that S&P had done anything wrong, let alone Duka.
- IKB Deutsche Industriebank AG’s suit against Goldman Sachs Group Inc. remains intact for losses after a $73.2 million purchase of residential mortgage-backed securities. Goldman Sachs argued that the suit was beyond the German 3-year statute of limitations.
- Law360 compiles lists of “The Top Banking Cases In The First Half of 2015.”
July 6, 2015 | Permalink | No Comments
July 6, 2015
Possession of Note Confers Standing to Foreclose
By David Reiss
Dale Whitman posted this discussion of Aurora Loan Services, LLC v. Taylor, 2015 WL 3616293 (N.Y. Ct. App., June 11, 2015) on the DIRT listserv:
There is nothing even slightly surprising about this decision, except that it sweeps away a lot of confused and irrelevant language found in decisions of the Appellate Division over the years. The court held simply holds (like nearly all courts that have considered the issue in recent years) that standing to foreclose a mortgage is conferred by having possession of the promissory note. Neither possession of the mortgage itself nor any assignment of the mortgage is necessary. “[T]he note was transferred to [the servicer] before the commencement of the foreclosure action — that is what matters.” And once a note is transferred, … “the mortgage passes as an incident to the note.” Here, there was a mortgage assignment, the validity of which the borrower attacked, but the attack made no difference; “The validity of the August 2009 assignment of the mortgage is irrelevant to [the servicer’s] standing.”
The opinion in Aurora makes it clear that prior Appellate Division statements are simply incorrect and confused when they suggest that standing would be conferred by an assignment of the mortgage without delivery of the note. See, e.g., GRP Loan LLC v. Taylor 95 A.D.3d at 1174, 945 N.Y.S.2d 336; Deutsche Bank Trust Co. v. Codio, 94 A.D.3d 1040, 1041, 943 N.Y.S.2d 545 [2d Dept 2012].) For an excellent analysis of why these decisions are wrong, see Bank of New York Mellon v. Deane, 970 N.Y.S.2d 427 (N.Y. Sup. Ct. 2013).
The Aurora decision implicitly rejects such cases as Erobobo, which suppose that the failure to comply with a Pooling and Servicing Agreement would somehow prevent the servicer from foreclosing. In the present case, the loan was securitized in 2006, but the note was delivered to the servicer on May 20, 2010, only four days before filing the foreclosure action. This presented no problem at all the court. If the servicer had possession at the time of the filing of the case (as it did), it had standing. (I must concede, however, that the rejection is only implicit, since the Erobobo theory was not argued in Aurora.)
If there is a weakness in the Aurora decision, it is its failure to determine whether the note was negotiable, and (assuming it was) to analyze the application UCC Article 3’s “person entitled to enforce” language. But this is not much of a criticism, since it is very likely that under New York law, the right to enforce would be transferred by delivery of the note to the servicer even if the note were nonnegotiable.
It has taken the Court of Appeals a long time to get around to cleaning up this area of the law, but its work is exactly on target.
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July 6, 2015 | Permalink | No Comments