October 2, 2014
The Divided City — New York Edition
Richard Florida and colleagues at the Martin Prosperity Institute have posted a report, The Divided City: And the Shape of the New Metropolis. The executive summary explains that
To better understand the relationship between class and geography, this report charts the residential locations of the three major workforce classes: the knowledge-based creative class which makes up roughly a third of the U.S. workforce; the fast-growing service class of lower-skill, lower-wage occupations in food preparation, retail sales, personal services, and clerical and administrative work that makes up slightly more than 45 percent of the workforce; and the once-dominant but now dwindling blue-collar working class of factory, construction, and transportation workers who make up roughly 20 percent of the workforce.
The study tracks their residential locations by Census tract, areas that are smaller than many neighborhoods, based on data from the 2010 American Community Survey. The study covers 12 of America’s largest metro areas and their center cities: New York, Los Angeles, Chicago, Washington, DC, Atlanta, Miami, Dallas, Houston, Philadelphia, Boston, San Francisco, and Detroit. It examines these patterns of class division in light of the classic models of urban form developed in the first half of the 20th century. These models suggest an outward-oriented model of urban growth and development with industry and commerce at the center of the city surrounded by lower-income working class housing, with more affluent groups located in less dense areas further out at the periphery. It also considers these patterns in light of more recent theories of a back-to-the-city movement and of a so-called “Great Inversion,” in which an increasingly advantaged core is surrounded by less advantaged suburbs.
The study finds a clear and striking pattern of class division across each and every city and metro area with the affluent creative class occupying the most economically functional and desirable locations. Although the pattern is expressed differently, each city and metro area in our analysis has evident clusters of the creative class in and around the urban core. While this pattern is most pronounced in post-industrial metros like San Francisco, Boston, Washington, DC, and New York, a similar but less developed pattern can be discerned in every metro area we covered, including older industrial metros like Detroit, sprawling Sunbelt metros like Atlanta, Houston, and Dallas, and service-driven economies like Miami. In some metros, these class-based clusters embrace large spans of territory. In others, the pattern is more fractured, fragmented, or tessellated.
The locations of the other two classes are structured and shaped by the locational prerogatives of the creative class. The service class either surrounds the creative class, being concentrated in areas of urban disadvantage, or pushed far off into the suburban fringe. There are strikingly few working class concentrations left in America’s major cities and metros. (iv)
As a New Yorker, I was particularly struck by the map of New York City on page 12. It is striking to see how few blue-collar communities are left in the City and how starkly divided the rest of the City is between the “creative” and “service” classes. This is not particularly surprising, but striking nonetheless.
October 2, 2014 | Permalink | No Comments
October 1, 2014
Big Decision in GSE Litigation
Regular readers of this blog know that I have written a lot about the shareholder suits arising from the conservatorships of Fannie and Freddie. One of the main cases is being presided over by Judge Lamberth in the District Court for the District of Columbia. This case raises a range of challenges to the government’s action: violations of the Administrative Procedures Act, violations of the Housing and Economic Recovery Act of 2008 and more. Judge Lamberth has issued an opinion that dismissed all of the plaintiffs’ claims, dealing a severe (but not fatal) blow to their cause. His conclusion captures the tenor of the whole opinion:
October 1, 2014 | Permalink | No Comments
September 29, 2014
Reiss on Green Bonds
Law360 quoted me in Green Bond Bandwagon Promises Cash Returns For NYC (behind a paywall). It opens,
A New York City proposal to market billions in so-called green bonds could reduce debt costs for the city by enticing investors who have stampeded toward guilt-free returns elsewhere, but buyers must tread carefully lest their money ends up funding projects not seen as environmentally relevant.
New York City Comptroller Scott M. Stringer put forth a plan last week that would see the city’s capital spending program add municipal bonds for financing environmentally friendly projects to its plans to issue $30 billion in new debt over four years.
The proposal, which Mayor Bill de Blasio’s administration is studying, suggests moving quickly while there this still a focus on reinforcing the city after Superstorm Sandy and amid the strong demand for green bonds in the private sector as well as in California, Massachusetts and Washington, D.C. As soon as next year, the city could being to convert a large portion of its Municipal Water Finance Authority debt — some $1.5 billion per year — into green bonds and could allocate up to $200 million per year in Transitional Finance Authority and general obligation bonds to similar use.
“Green bonds should be another example of how New York City leads the nation in finding solutions that work,” Stringer said.
While experts in public debt investment largely see the proposal as a promotional bid to market New York City debt, they note that the city’s high national profile could make such a move profitable amid investor hunger to capitalize environmentally friendly projects.
“The big question is: How much demand would this create? One of the main points of the green bonds would be to increase demand,” said Brooklyn Law School professor David Reiss, an expert in real estate finance and community development. “If there really is pent-up demand, and New York City acts as an early mover, it might get a short-term benefit in the cost of borrowing.”
Stringer’s prediction that New York City could spark others to follow suit would also likely come true, Reiss said.
“If this is demonstrated to materially drive down borrowing costs, you’ll see others doing the same thing,” he said. “I’m a little skeptical, over the long term, that you’d have serious savings. But in the shorter term, you might.”
September 29, 2014 | Permalink | No Comments
September 26, 2014
Weaker Reps and Warranties on the Horizon
Inside Mortgage Finance highlighted a DBRS Presale Report for J.P. Morgan Mortgage Trust, Series 2014-IV3. This securitization contains prime jumbo ARMS, some with interest only features. So, these are not plain vanilla mortgages.
The report raises some concerns about loosening standards in the residential mortgage-backed securities market, particularly relating to standards for the representations and warranties that securitizers make to investors in the securities:
Relatively Weak Representations and Warranties Framework. Compared with other post-crisis representations and warranties frameworks, this transaction employs a relatively weak standard, which includes materiality factors, the use of knowledge qualifiers, as well as sunset provisions that allow for certain representations to expire within three to six years after the closing date. The framework is perceived by DBRS to be weak and limiting as compared with the traditional lifetime representations and warranties standard in previous DBRS-rated securitizations. (4)
Underwriting and fraud (other than the above-described fraud) representations and warranties are only allowed to sunset if certain performance tests are satisfied. . . .
Third-party due diligence was conducted on 100% of the pool with satisfactory results, which mitigates the risk of future representations and warranties violations.
Automatic reviews on certain representations are triggered on any loan that becomes 120 days delinquent, any loan that has incurred a cumulative loss or any loan for which the servicers have stopped advancing funds.
Pentalpha Surveillance LLC (Pentalpha Surveillance) acts as breach reviewer (Reviewer) required to review any triggered loans for breaches of representations and warranties in accordance with predetermined procedures and processes. . . .
September 26, 2014 | Permalink | No Comments
September 25, 2014
How Much Did the FHA Cost Us?
Until the financial crisis hit, the Federal Housing Administration has never required budgetary support for its mortgage insurance programs. When it received a $1.7 billion infusion from the Treasury, it was seen as a sad day in the FHA’s long history by many. Others felt that the FHA worked, overall, at a relatively low cost to keep the mortgage markets functioning through the 2000s.
The budgetary impact of the FHA will certainly be factor in the politics of housing finance reform. The Congressional Budget Office has produced a report, Budgetary Estimates for the Single-Family Mortgage Guarantee Program of the Federal Housing Administration, that sheds some light on this topic. The CBO first estimated the costs of FHA loan guarantees made from 1992 through 2013 and found that between “1992 and 2013, FHA guaranteed roughly $2.8 trillion of single-family mortgages. Using the methodology specified by FCRA, CBO estimates that those guarantees account for $2.2 billion in subsidy costs to the federal government.” (2) In contrast, the CBO’s projects that FHA loan guarantees being made in 2014 and 2015, “will generate savings—negative subsidy costs—of $16.4 billion.” (2)
FHA’s critics and fans will both be able to crow about these figures. But perhaps the most important issue is whether the FHA’s capital reserve requirements can be designed to both cushion the FHA during severe housing market downturns while also keeping FHA borrowers (often low- and moderate-income households) from effectively subsidizing the federal budget by generating “savings” or “negative subsidy costs” when the market is functioning more normally. Such a goal seems to best align with FHA’s mission.
September 25, 2014 | Permalink | No Comments
September 23, 2014
Is Freddie the “Government” When It’s In Conservatorship?
Professor Dale Whitman posted a commentary on Federal Home Loan Mortgage Corp. v. Kelley, 2014 WL 4232687, Michigan Court of Appeals (No. 315082, rev. op., Aug. 26, 2014) on the Dirt listserv:
This is a residential mortgage foreclosure case. The original foreclosure by CMI (CitiMortgage, apparently Freddie Mac’s servicer) was by “advertisement” – i.e., pursuant to the Michigan nonjudicial foreclosure statute. Freddie was the successful bidder at the foreclosure sale. In a subsequent action to evict the borrowers, they raised two defenses.
Their first defense was based on the argument that, even though Freddie Mac was concededly a nongovernmental entity prior to it’s being placed into conservatorship in 2008 (see American Bankers Mortgage Corp v. Fed Home Loan Mortgage Corp, 75 F3d 1401, 1406–1409 (9th Cir. 1996)), it had become a federal agency by virtue of the conservatorship with FHFA as conservator. As such, it was required to comply with Due Process in foreclosing, and the borrowers argued that the Michigan nonjudicial foreclosure procedure did not afford due process.
The court rejected this argument, as has every court that has considered it. The test for federal agency status is found in Lebron v. Nat’l Railroad Passenger Corp, 513 U.S. 374, 377; 115 S Ct 961; 130 L.Ed.2d 902 (1995), which involved Amtrak. Amtrak was found to be a governmental body, in part because the control of the government was permanent. The court noted, however, that FHFA’s control of Freddie, while open-ended and continuing, was not intended to be permanent. Hence, Freddie was not a governmental entity and was not required to conform to Due Process standards in foreclosing mortgages. This may seem overly simplistic, but that’s the way the court analyzed it.
There’s no surprise here. For other cases reaching the same result, see U.S. ex rel. Adams v. Wells Fargo Bank Nat. Ass’n, 2013 WL 6506732 (D. Nev. 2013) (in light of the GSEs’ lack of federal instrumentality status while in conservatorship, homeowners who failed to pay association dues to the GSEs could not be charged with violating the federal False Claims Act); Herron v. Fannie Mae, 857 F. Supp. 2d 87 (D.D.C. 2012) (Fannie Mae, while in conservatorship, is not a federal agency for purposes of a wrongful discharge claim); In re Kapla, 485 B.R. 136 (Bankr. E.D. Mich. 2012), aff’d, 2014 WL 346019 (E.D. Mich. 2014) (Fannie Mae, while in conservatorship, is not a “governmental actor” subject to Due Process Clause for purposes of foreclosure); May v. Wells Fargo Bank, N.A., 2013 WL 3207511 (S.D. Tex. 2013) (same); In re Hermiz, 2013 WL 3353928 (E.D. Mich. 2013) (same, Freddie Mac).
There’s a potential issue that the court didn’t ever reach. Assume that a purely federal agency holds a mortgage, and transfers it to its servicer (a private entity) to foreclose. Does Due Process apply? The agency is still calling the shots, but the private servicer is the party whose name is on the foreclosure. Don’t you think that’s an interesting question?
The borrowers’ second defense was that Michigan statutes require a recorded chain of mortgage assignments in order to foreclose nonjudicially. See Mich. Comp. L. 600.3204(3). In this case the mortgage had been held by ABN-AMRO, which had been merged with CMI (CitiMortgage), the foreclosing entity. No assignment of the mortgage had been recorded in connection with the merger. However, the court was not impressed with this argument either. It noted that the Michigan Supreme Court in Kim v JP Morgan Chase Bank, NA, 493 Mich 98, 115-116; 825 NW2d 329 (2012), had stated
to set aside the foreclosure sale, plaintiffs must show that they were prejudiced by defendant’s failure to comply with MCL 600.3204. To demonstrate such prejudice, they must show they would have been in a better position to preserve their interest in the property absent defendant’s noncompliance with the statute.
The court found that the borrowers were not prejudiced by the failure to record an assignment in connection with the corporate merger, and hence could not set the sale aside.
But this holding raises an interesting issue: When is failure to record a mortgage assignment ever prejudicial to the borrower? One can conceive of such a case, but it’s pretty improbable. Suppose the borrowers want to seek a loan modification, and to do so, check the public records in Michigan to find out to whom their loan has been assigned. However, no assignment is recorded, and when they check with the originating lender, they are stonewalled. Are they prejudiced?
Well, not if it’s a MERS loan, since they can quickly find out who holds the loan by querying the MERS web site. (True, the MERS records might possibly be wrong, but they’re correct in the vast majority of cases.) And then there’s the fact that federal law requires written, mailed notification to the borrowers of both any change in servicing and any sale of the loan itself. If they received these notices (which are mandatory), there’s no prejudice to them in not being able to find the same information in the county real estate records.
So one can postulate a case in which failure to record an assignment is prejudicial to the borrowers, but it’s extremely improbable. The truth is that checking the public records is a terrible way to find out who holds your loan. Moreover, Michigan requires recording of assignments only for a nonjudicial foreclosure; a person with the right to enforce the promissory note can foreclose the mortgage judicially whether there’s a chain of assignments or not.
All in all, the statutory requirement to record a chain of assignments is pretty meaningless to everybody involved – a fact that the Michigan courts recognize implicitly by their requirement that the borrower show prejudice in order to set a foreclosure sale aside on this ground.
September 23, 2014 | Permalink | No Comments
September 30, 2014
Cool Mortgage Tool
By David Reiss
The Urban Institute has created a cool interactive tool to map mortgages in the United States. Enterprise describes the tool as follows: it
maps 12 years of data on more than 100 million mortgage originations throughout the U.S. by race and ethnicity, illustrating how the housing boom and bust affected borrowers of different backgrounds by metropolitan area. According to the data, not only were African-American and Hispanic communities particularly damaged by the housing bust, but they have also been the least likely to recover since the recession. The map also shows how geographically uneven the housing recovery has been. For instance, while mortgage originations have only decreased 18 percent in San Francisco and San Jose since 2005, they have fallen by 39 percent in Detroit.
The Urban Institute argues that
For a full mortgage market recovery, we need to expand the credit box again. A number of reforms can be undertaken to encourage lending to creditworthy borrowers who would have qualified before the housing boom. A return to 2005 and 2006 lending practices would be ill-fated, but the pendulum has unquestionably swung too far. Today’s tight standards have locked out many prospective borrowers from homeownership, disproportionately preventing African American and Hispanic families from building wealth and benefiting from the recovery.
There is a growing outcry to loosen credit. It is important that those calling for that loosening also support reforms that ensure that new credit is sustainable credit. The last thing that people need is a mortgage that has a high likelihood of ending up in default. The Urban Institute acknowledges this point, but it can get lost in the political fight over the future of housing finance.
Policy folk also need to better understand how homeownership helps households build wealth, particularly given the rapid changes in the mortgage market. If households can readily access the equity in their homes through home equity loans, homeownership’s wealth-building function becomes more of a consumption spreading one. That is, if homeowners access equity in the present in order to supplement current income, they will not be building wealth over the long term.
The robust Consumer Financial Protection Bureau should protect consumers from predatory attempts to get them to refinance, but people may not protect their future selves from their current desires. This may just be the way it goes, but we should not make claims about wealth building until we know more about how homeownership in the 21st century actually promotes it.
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September 30, 2014 | Permalink | No Comments