April 28, 2014
Texas Court Rejects Break-in-the-Chain Claim
The court in deciding Martinez v. Wilmington Trust Co., 2013 U.S. Dist., (W.D. Tex. 2013) found that plaintiffs’ petition failed to state a claim to which relief could be granted and dismissed the action.
Plaintiffs argued that the 2005 assignment was “fraudulent and forged,” “manufactured,” and “void and invalid,” constituting a “break in the chain.” Plaintiffs also claimed that defendant had no standing to foreclose on the instrument.
Plaintiffs alleged the 2005 assignment from Washington Mutual to Wells Fargo was “suspicious” due to the five year delay in recordation and because “Washington Mutual was bankrupt in August of 2010 and no longer existed in 2010.” According to plaintiffs, the 2005 assignment was flawed because it was recorded “some twelve years after the original transaction.”
Defendant argued that the plaintiffs’ claims should be dismissed because plaintiffs lacked standing to complain of any alleged defects in the assignments, and, standing aside, plaintiffs’ claims lack viability. Plaintiffs argued that defendant’s motion was moot. This court ultimately found that the defendant’s motion to dismiss had merit and granted it.
April 28, 2014 | Permalink | No Comments
April 25, 2014
The Ghosts of the Housing Bubble
NYC Councilmember Daniel Garodnick has released a report, The Ghosts of the Housing Bubble: How Debt, Deterioration, and Foreclosure Continue to Haunt New York after the Crash. The report opens,
New York continues to have the highest rents in the country and a housing crisis that has lasted for decades. Many residential rents are below market value – a result of the myriad of state and local laws that have been implemented to protect working and middle class tenants from being forced out of their homes. This gap between the current affordable rent and potential fair market value can fuel the imaginations of investors and owners who dream of squeezing out the unrealized value hidden in these properties. This leads some developers to make riskier and riskier decisions following visions of real estate fortune, only to find themselves tilting at windmills, stuck with unpayable mortgages and escalating maintenance costs. (1)
The report proposes a number of interesting solutions to the problems it identifies, all of which should be looked into further. I am particularly intrigued by the proposal that Community Reinvestment Act exams should include a review of “the quality of the investments being made, measuring if banks are lending mortgages to landlords with portfolios of distressed housing. Were their bad loans to be reflected in their CRA ratings, banks might change their behavior.” (8)
But as with a similar ANHD report, the magnitude of the proposed solutions does not seem to match that of the identified problems. Market forces are extraordinarily powerful in NYC right now. It is unclear whether initiatives such as the “First Look Program,” which gives “good developers the first opportunity to buy” properties in foreclosure, can do anything when valuations are so frothy and predatory equity is on the prowl. (1)
That being said, the report is still quite valuable for shining light once again on the problem of owners who seek to illegally force rent regulated tenants out of their homes.
April 25, 2014 | Permalink | No Comments
April 24, 2014
NYC’s Housing Affordability Challenge
NYC’s Comptroller Stringer has issued The Growing Gap: New York City’s Housing Affordability Challenge. The report tells
a sobering story—of stagnant incomes, rising rents, and a deepening affordability crunch, especially for the working poor and others at the lower end of the income spectrum. This financial squeeze comes despite significant housing investments during the 12 years of the Bloomberg mayoralty. From 2000 to 2012, this report found:
• Median apartment rents in New York City rose by 75 percent, compared to 44 percent in the rest of the U.S. Over the same period, real incomes of New Yorkers declined as the nation struggled to emerge from two recessions.
• Housing affordability—as defined by rent-to-income ratios—decreased for renters in every income group during this period, with the harshest consequences for poor and working class New Yorkers earning less than $40,000 a year.
• There was a dramatic shift in the distribution of affordable apartments, with a loss of approximately 400,000 apartments renting for $1,000 or less. This shift helped to drive the inflation-adjusted median rent from $839 in 2000 to $1,100 in 2012, a 31.1% increase. In some neighborhoods – among them Williamsburg, Greenpoint, Ft. Greene and Bushwick in Brooklyn, average real rents increased 50 percent or more over the 12-year period.
• The elderly and working poor are making up a growing portion of low-income households with 40 percent of the increase tied to households in which the head is 60 years or older.
• In 2000, renters earning between $20,000 and $40,000 in inflation-adjusted dollars were dedicating an average of 33 percent of their income to rental costs. Twelve years later that average jumped to 41 percent. Their housing circumstances became more precarious even though their labor force participation rates soared.
It is clear that affordable housing remains one of New York City’s most pressing needs. Mayor de Blasio has laid out a goal of creating or preserving 200,000 units of affordable housing over a 10-year period, an ambitious increase over the 165,000 units pledged under Mayor Bloomberg’s 12-year New Housing Marketplace Plan.
Now, with the winding down of one major housing initiative and the launching of another, it is appropriate to take stock of the City’s housing circumstances, to evaluate the changes that have taken place in the city’s housing ecology, and to outline strategies for future housing investment that are informed by the city’s evolving housing landscape. (1)
While the report diagnoses many of the problems in the housing market, it does much less in terms of proposing solutions to them. It also fundamentally misunderstands the role that new housing plays in the housing market (see page 24). The report only focuses on the high rents for the new units without taking into account the fact that those new units reduce the pressure on rents for older units of housing, a process that housing economists refer to as “filtering.” There is no question that the CIty needs to increase the supply of housing if it wants to reduce the cost of housing overall. The de Blasio Administration understands this. We will have to wait and see how the Mayor’s housing plan, to be released in May, will tackle the under-supply problem head on.
April 24, 2014 | Permalink | No Comments
April 23, 2014
Inclusionary Housing and Stigma
Hughen and Read have posted their abstract for Inclusionary Housing Policies, Stigma Effects and Strategic Production Decisions to SSRN (it is not available for download from there and must be purchased from the publisher one way or the other). The abstract reads,
Inclusionary housing policies enacted by municipal governments rely on a combination of legal mandates and economic incentives to encourage residential real estate developers to include affordable units in otherwise market-rate projects. These regulations provide a means of stimulating the production of mixed-income housing at a minimal cost to the public sector, but have been hypothesized to slow development and put upward pressure on housing prices. The results of the theoretical models presented in this paper suggest that inclusionary housing policies need not increase housing prices in all situations. However, any observed impact on housing prices may be mitigated by density effects and stigma effects that decrease demand for market-rate units. The results additionally suggest real estate developers are likely to respond to inclusionary housing policies by strategically altering production decisions.
The authors conclude that “Density bonuses can limit the upward pressure on housing prices in strong markets, but may prove much less effective in weak markets where developers have little incentive to increase production in response to this type of economic incentive.” (609)
As NYC Mayor de Blasio drafts his ambitious affordable housing plan, he needs to maintain flexibility in his inclusionary zoning initiative. I think the stigma effects discussed in the article are much less relevant in NYC than in many other jurisdictions because NYC has a long history of successful mixed-income housing projects. But I do think that the de Blasio Administration needs to ensure that its initiative is designed to work effectively during both strong and weak markets. The administration will also need to ensure that it works well in the outer boroughs as well as in Manhattan’s red hot housing market.
April 23, 2014 | Permalink | No Comments
April 22, 2014
Reiss on Hedge Funds’ GSE Strategy
American Banker quoted me in Everything Lenders Need to Know About GSE Shareholders’ Lawsuits (behind a paywall, but available in full here). It reads in part,
A powerful group of shareholders is amplifying attacks on housing finance reform legislation as they await resolution of a major legal battle, attempting to slow momentum on the bill before it likely passes the Senate Banking Committee.
Several big hedge funds that stand to possibly win billions of dollars for their shares in Fannie Mae and Freddie Mac are leading the charge, both in federal court and in the court of public opinion.
New investors’ rights groups said to be backed by the funds have popped up in recent weeks attacking legislation by Sens. Tim Johnson, D-S.D., chairman of the Senate Banking Committee, and Mike Crapo, the panel’s top Republican.
Their presence is yet another complicating factor in the tumult ahead of a scheduled April 29 vote by the committee, potentially hurting efforts to secure additional support for the measure.
“Now that different people have come out with their bills, it’s been laid bare that the people working on [government-sponsored enterprise] reform aren’t going to do major favors for the shareholders,” said Jeb Mason, a managing director at Cypress Group. “As a result, the shareholders have adjusted their strategy to muddy the waters – and, if they can, kill the Johnson-Crapo bill.”
* * *
As part of their effort, investors have begun taking their concerns public through new tax-exempt groups in Washington. The investors argue they were on the receiving end of a rotten deal from the government, particularly those that bought the stocks before the enterprises were put into conservatorship.
“The hedge funds have this incredibly sophisticated, multi-pronged strategy – lawsuits, legislation, academics on the payroll, funding anonymous PR campaigns, offering to buy the companies. They’re coming at it from all angles,” said David Reiss, a professor at Brooklyn Law School.
* * *
Given the size and complexity of the cases, it’s likely to take years before the matter is resolved entirely. Analysts have suggested that if both sides continue to push the issue, it could even rise up to the Supreme Court over the next several years.
“You’re talking about many-year or potentially, decades-long lawsuits,” said Reiss. “The stakes are humongous and the parties are incredibly sophisticated and well financed. The government parties’ incentives to settle are not the same as a private party – I could imagine them seeing this all the way through.”
April 22, 2014 | Permalink | No Comments
April 21, 2014
“Lies, Damned Lies, and Statistics”
Judge Chesler issued an Opinion in The Prudential Insurance Company of America et al. v. Bank of America, National Association et al., No. 13-1586 (Apr. 17, 2014), deciding the motion to dismiss the Complaint. Claims relating to fraud, a theory of underwriting abandonment and the 1933 Securities Act survived the motion to dismiss. The Court summarized the case as follows:
In a nutshell, this case arises from a dispute over the sale of certain residential mortgage-backed securities (“RMBS”) by Defendants [various Bank of America parties , including Merrill Lynch parties] to Plaintiffs [various Prudential parties]. The Complaint alleges that Defendants obtained the underlying mortgages, created the securitizations based on them, issued “offering Materials” for their sale, and sold them to Plaintiffs.
* * *
The Complaint alleges a variety of statistics in support of its claims. It is often not clear, however, what the basis for a particular statistic is. (1-2)
The Court’s description of the Complaint is pretty damning. But the Court does not find that the poor use of statistics in the Complaint is fatal to all of its claims.
Here are some highlights of the Court’s assessment of the Complaint:
- “this Court does not find that the Analysis, as described in the Complaint, is such obvious junk research that it fails to constitute relevant factual allegations which, considered along with the other factual allegations in the Complaint, make plausible certain of the assertions of misrepresentation.” (8)
- “The Complaint alleges that Defendants knowingly misrepresented that they would properly transfer title to the underlying mortgage loans to the particular trusts. The sole factual allegation made in support is: ‘Prudential’s forensic loan-level analysis revealed that across the Offerings Prudential tested, 43% of the Mortgage Loans were not properly assigned to the Trusts.’ Yes, if true, that is an astonishing fact– but there is not even a suggestion in the Complaint of a theory of how this gives rise to the inference of a knowing misrepresentation.” (13)
- “The Complaint has so little explanation of the AVM [automated valuation model] methodology that this Court has no idea of how the computer used what information to generate property appraisals.” (15)
Notwithstanding the Court’s critique, it ends up finding the Complaint persuasive in the main:
The claim that Defendants’ representations about the underwriting practices and standards used in the issuance of the underlying mortgage loans were fraudulent because of a systemic abandonment of such underwriting standards is perhaps the central claim in this case. in brief, this Court has carefully examined the Complaint and finds that it states an abundance of factual allegations supporting this claim. (21)
The drafters of the complaint might reckon, ‘no harm no foul’ from the Court’s conclusion. But the rest of us might better see this as their having dodged a bullet, a bullet that the Plaintiffs’ attorneys shot at themselves. Mark Twain had said that “There are three kinds of lies: lies, damned lies, and statistics.” Not sure what he would have said about those in this Complaint — damned statistics?
April 21, 2014 | Permalink | No Comments
April 18, 2014
The Unzoned City
Matt Festa has posted an interesting, short article, Land Use in the Unzoned City, to SSRN. He writes,
The popular conception that Houston is unzoned because it is some sort of ultra-Texan free-market landscape is not accurate. Houston’s land use is in fact highly regulated. While no Houston ordinance explicitly uses the “z-word,” and its rules for the most part don’t prescribe limitations on use, there are numerous land use regulations that, in any other city, would be part of the zoning code. Houston defines certain areas as “urban” versus “suburban,” with different regulations.There are laws prescribing minimum lot sizes, which in turn restrict density. There are setbacks from the street, buffer zones for development, and regulated street widths. There are other laws that affect land use, such as the new historical preservation ordinance, which allows citizens to petition the council for designation as a historic area, which comes with additional restrictions. These are all government measures that, in my opinion, operate as “de facto zoning”— they prescribe different land use rules based partly on geographic location. And even these rules pale in comparison to the extensive regime of private covenants and deed restrictions that govern a majority of the property in Houston. (17)
Festa explains that this lack of zoning may have some partial explanations that have to do with the culture of the city. But he finds a more compelling explanation in the ban on zoning contained in the Houston City Charter. This ban, which can only be overturned by referendum, has been challenged three times but zoning supporters have come up a bit short each time.
Festa is certainly correct that land use scholars (Edward Glaeser, for instance) use Houston as a foil to communities that heavily limit new construction with restrictive zoning provisions. So Festa’s thesis is an important one that I hope he develops in a longer article. Until we determine how much less restrictive Houston’s land use regime is than other American cities’ formal zoning ordinances, we can’t fully understand the interaction between restrictive land use policies and the housing crisis affecting cities across the country.
April 18, 2014 | Permalink | No Comments
