July 8, 2015
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 3, 2015
JFK on Independence Day
Here is an excerpt from Some Elements of the American Character, Independence Day Oration by John Fitzgerald Kennedy, Candidate for Congress from the 11th Congressional District, July 4, 1946:
The American character has been not only religious, idealistic, and patriotic, but because of these it has been essentially individual.
The right of the individual against the State has ever been one of our most cherished political principles.
The American Constitution has set down for all men to see the essentially Christian and American principle that there are certain rights held by every man which no government and no majority, however powerful, can deny.
Conceived in Grecian thought, strengthened by Christian morality, and stamped indelibly into American political philosophy, the right of the individual against the State is the keystone of our Constitution. Each man is free.
He is free in thought.
He is free in expression.
He is free in worship.
To us, who have been reared in the American tradition, these rights have become part of our very being. They have become so much a part of our being that most of us are prone to feel that they are rights universally recognized and universally exercised. But the sad fact is that this is not true. They were dearly won for us only a few short centuries ago and they were dearly preserved for us in the days just past. And there are large sections of the world today where these rights are denied as a matter of philosophy and as a matter of government.
We cannot assume that the struggle is ended. It is never-ending.
Eternal vigilance is the price of liberty. It was the price yesterday. It is the price today, and it will ever be the price.
The characteristics of the American people have ever been a deep sense of religion, a deep sense of idealism, a deep sense of patriotism, and a deep sense of individualism.
Let us not blink the fact that the days which lie ahead of us are bitter ones.
May God grant that, at some distant date, on this day, and on this platform, the orator may be able to say that these are still the great qualities of the American character and that they have prevailed.
July 3, 2015 | Permalink | No Comments
Happy Fourth of July!
“Where liberty dwells, there is my country.” — Benjamin Franklin
July 3, 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.
Share this:
Like this:
July 6, 2015 | Permalink | No Comments