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Editor: David Reiss
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December 23, 2013

A Shared Appreciation for Underwater Mortgages

By David Reiss

New York State’s Department of Financial Services has proposed a rule that would allow for “shared appreciation” of a property’s value if an underwater loan is refinanced. The Department states that this will provide a helpful option for underwater homeowners facing foreclosure. If a homeowner were to take a shared appreciation mortgage, he or she would get a principal reduction (and thus lower monthly payments) in exchange for giving up as much as fifty percent of the increase in the home’s value, payable when the property is sold or the mortgage is satisfied.

The precise formula for the holder of the mortgage is as follows:

The Holder’s share of the Appreciation in Market Value shall be limited to the lesser of:

1. The amount of the reduction in principal (deferred principal), plus interest on such amount calculated from the date of the Shared Appreciation       Agreement to the date of payment based on a rate that is applicable to the Modified Mortgage Loan; or

2. Fifty percent of the amount of Appreciation in Market Value. Section 82-2.6(b).

The principal balance of a shared appreciation mortgage “shall be no greater than: (i) an amount which when combined with other modification factors, such as lower interest rate or term extension, results in monthly payments that are 31% or less of the Mortgagor’s DTI; or (ii) 100% of the Appraised Value.” Section 82-2.11(i). The proposed regulation contains mandatory disclosures for the homeowner, including some examples of how a shared appreciation mortgage can work.

How does this all play out for the homeowner? We should note that similarly situated homeowners can be treated differently in a variety of ways. Here are a few examples. First, two similarly situated homeowners with different incomes can receive different principal balances because of the DTI limitation contained in section 82-2.11(i). Second, similarly situated homeowners can receive different principal balances because their houses appraise for different amounts. And third, different rates of appreciation of homes can make two similarly situated homeowners give up very different absolute dollars in appreciated value.

All of this is to say that homeowners will have to consider many variables in order to evaluate whether a share appreciation mortgage is a good option for them. They should also know that what is a good deal for one homeowner may not be a good deal for a similarly situated one. It is unlikely that the mandatory disclosures will be sufficient to explain this to them in all of its complexity. It is not even clear that loan counselors could do a great job with this either.

I am not arguing that the share appreciation mortgage is a bad innovation. But I do think that lenders will be able evaluate when offering one is a good deal for them while homeowners may have trouble evaluating when accepting one is a good deal on their end. I would guess that many may take one for non-economic reasons — I want to keep my home — and just take their chances as to how it all will play out financially.

December 23, 2013 | Permalink | No Comments

Supreme Court of Vermont Denied a Motion Requesting a Declaration That U.S. Bank Had Violated Vermont’s Consumer Fraud Act (CFA)

By Ebube Okoli

The court in deciding Dernier v. Mortgage Network, Inc., 2013 VT 96 (Vt. 2013) reversed the trial court’s dismissal of the counts that alleged irregularities in the transfer of the note and mortgage unconnected to the PSA. The court also partially remanded certain claims.

Plaintiff borrowers brought suit against defendant bank in which they sought a declaratory judgment that defendant had no right to enforce either a note or a mortgage and that defendant had violated the Consumer Fraud Act (CFA).

Plaintiffs appealed the dismissal for failure to state a claim, of their action for (1) a declaratory judgment that defendant U.S. Bank National Association cannot enforce the mortgage and promissory note for the debt associated with plaintiffs’ purchase of their house based on irregularities and fraud in the transfer of both instruments, (2) a declaration that U.S. Bank has violated Vermont’s Consumer Fraud Act (CFA) by asserting its right to enforce the mortgage and note, and (3) attorney’s fees and costs under the CFA.

Plaintiffs also appealed the trial court’s failure to enter a default judgment against defendant Mortgage Electronic Registration Systems, Inc. (MERS). After considering the merits of both claims, the court ultimately affirmed in part and reversed in part.

December 23, 2013 | Permalink | No Comments

Georgia Court Dismisses Wrongful Foreclosure Claim

By Ebube Okoli

The court in deciding Bowman v. U.S. Bank Nat’l Ass’n, 2013 U.S. Dist. LEXIS 149660 (N.D. Ga. 2013) eventually granted the defendant’s motion to dismiss.

Plaintiff’s complaint was wide-ranging and repetitive, the gravamen of the complaint was a wrongful foreclosure claim which was premised on plaintiff’s allegations that: (1) Castle Rock Trustee was not the “secured creditor,” (2) the actual “secured creditor” was not identified to plaintiff in any notice, (3) the Castle Rock Trustee did not send notice of the November 6, 2012, foreclosure sale to plaintiff, (4) the assignments were invalid, and (5) the discharge of the underlying debt in a Chapter 7 bankruptcy case precluded foreclosure.

The court eventually held that plaintiff had fraudulently joined the LLC did not defeat diversity; the value of the property was the appropriate benchmark for the amount in controversy and there was no dispute that tax records value the property at $188,900. The court also found that plaintiff’s Chapter 7 discharge did not bar defendants from initiating foreclosure proceedings against the property nor did the Chapter 7 discharge render “false” defendants description that plaintiff had failed to pay the mortgage debt.

The court also found that plaintiff’s complaint failed to state a claim for wrongful foreclosure due to errors in the Foreclosure Notice where the Notice was sent to the property address, which was authorized under the statute, and plaintiff had not alleged that he requested the Notice be sent to an alternate address.

After considering the merits of both claims, the court ultimately agreed with the defendant and granted the defendant’s motion to dismiss, and dismissed with prejudice.

December 23, 2013 | Permalink | No Comments

Michigan Court Dismisses Fraud & RESPA Claims

By Ebube Okoli

The court in deciding Neroni v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 149190 ( E.D. Mich. 2013) eventually granted the defendant’s motion to dismiss.

Plaintiffs alleged claims against defendant [Bank of America, N.A.] for infringement of the Real Estate Settlement Procedures Act (“RESPA”) (Counts I–IV), common law fraud (Count V), common law silent fraud (Count VI), and common law breach of contract (Count VII).

Defendant responded by asserting that plaintiffs’ RESPA claims should be dismissed because (1) defendant had no legal obligation under RESPA to respond or, alternatively, (2) plaintiffs failed to plead any actual damages related to their RESPA claims. Defendant further asserted that plaintiffs had failed to adequately plead claims for fraud or breach of contract relating to defendant’s legal standing to foreclose on Plaintiffs’ Home.

After considering the merits of both claims, the court ultimately agreed with the defendant and granted the defendant’s motion to dismiss.

December 23, 2013 | Permalink | No Comments

December 20, 2013

More on Misrepresentation

By David Reiss

NY Supreme Court Justice Schweitzer (NY County) issued a Decision and Order on a motion to dismiss in HSH Nordbank AG, et al., v. Goldman Sachs Group, Inc., et al., No. 652991/12 (Nov. 26, 2013) that builds on the NY jurisprudence of RMBS misrepresentation. The decision notes that “The gravamen of the complaint is that Goldman Sachs knew that” its metrics and representations regarding various RMBS “were false, but did not alert Nordbank.” (2) In particular,

Nordbank alleges that Goldman Sachs knew that loan originators had systematically abandoned underwriting guidelines described in the Offering Materials. It alleges that Goldman Sachs knowingly reported false credit ratings, owner-occupancy percentages, appraisal amounts, and loan-to-value ratios. It alleges that although Goldman Sachs represented otherwise in the Offering Materials, Goldman Sachs never intended to properly effectuate transfer of the underlying notes and mortgages that collateralized the Certificates. (2)

The Court found that Nordbank “sufficiently alleged that Goldman Sachs had knowledge that originators were deliberately inflating appraisal values to artificially obtain understated CLTV ratios that corresponded with lower risk.” (9) As a result, “the complaint sufficiently describes actionable misrepresentations regarding appraisal values, loan-to-value ratios, and owner-occupancy rates.” (9)

Nordbank also alleged

that it has suffered losses totaling more than $1.5 billion as a result of the alleged misrepresentations regarding the loans’ conformity with originators’ underwriting guidelines. Specifically, Nordbank alleges that it has been unable to transfer notes and mortgages that have declined in value because of the poor quality of the underlying loans. The representations at issue allegedly resulted in higher rates of default, an impaired ability to obtain forecloses, and ultimately, a lower cash flow to Certificate-holders like Nordbank. Because Nordbank has sufficiently alleged a chain of causation leading from the alleged abandonment of underwriting standards to a decline in the market value of the Certificates, the complaint cannot be dismissed for failure to allege lost causation. (20)

As this decision was on a motion to dismiss, none of these findings result in actual liability for Goldman Sachs, but they do provide a road map for what liability could look like.  As I have noted in the past, it will be interesting to see how this body of law will affect the securitization process going forward.

December 20, 2013 | Permalink | No Comments

December 19, 2013

Reiss on Predatory Online Lending

By David Reiss

E-Commerce Times quoted me in CFPB Suit Targets Predatory Online Lending Practices. It reads in part:

The Consumer Finance Protection Bureau this week put online finance companies on notice that it will not overlook them merely because they operate in cyberspace. Specifically, the bureau sued CashCall for collecting money consumers allegedly did not owe.  In its suit, the bureau charged that CashCall and its affiliates engaged in unfair, deceptive, and abusive practices, including illegally debiting consumer checking accounts for loans that were void.

CashCall and the associated companies are reportedly owned by J. Paul Reddam, a race-horse owner and philosophy professor-turned-businessman.

The Background

Beginning in late 2009, CashCall and its subsidiary, WS Funding, entered into an arrangement with online lender Western Sky Financial, according to the CFPB. Western Sky Financial has asserted that the laws in the state in which it is based — South Dakota — did not apply to it because it was based on an Indian reservation and owned by a member of the Cheyenne River Sioux Tribe.

The CFPB maintains Western Sky still must comply with state laws when it makes loans over the Internet to people in other states.

The loans ranged from US$850 to $10,000 and came with upfront fees, lengthy repayment terms and annual interest rates from nearly 90 percent to 343 percent, the CFPB said. Many of the loan agreements allowed payments to be debited directly from the borrower’s bank account.

By September 2013, Western Sky had become the subject of several states’ investigations and court actions, and it began to shut down its business. CashCall and its collection agency, Delbert Services, continued to take monthly installment payments from consumers’ bank accounts or otherwise sought to collect money from borrowers.

After its own investigation, the bureau concluded that the high-cost loans violated either licensing requirements or interest-rate caps, or both, in Arizona, Arkansas, Colorado, Indiana, Massachusetts, New Hampshire, New York and North Carolina, meaning the consumers did not owe that money that was being collected.

As part of its suit, the CFPB is seeking monetary relief, damages, and civil penalties.

The CFPB did not respond to our request for further details.

*     *     *

‘Particularly Weak’

 

While there might not be much controversy over the CFPB’s suit against an online lender, CashCall is certainly defending itself using other arguments.

Clearly, the action falls within the CFPB’s broad mission of protecting consumers from predatory behaviors in the financial services industry, asserted David Reiss, a professor of Law at Brooklyn Law School.

However, CashCall’s attorneys, Neil Barofsky and Katya Jestin, have said that the CFPB does not have a mandate to impose rate caps.

“Of all of CashCall’s arguments, this one seems particularly weak,” Reiss concluded, “as the CFPB is just seeking to enforce existing state laws that have been allegedly violated across the country.”

December 19, 2013 | Permalink | No Comments

December 18, 2013

Optimizing Principal Modifications

By David Reiss

S&P posted How Principal And Interest Rate Modifications Affect U.S. RMBS. Principal modifications — reducing the amount that the homeowner owes on the loan — have not been popular with lenders for obvious reasons. But they have also not been popular with politicians and even with the general populace for reasons that likely derive from variants of moral hazard: it just isn’t fair that some people don’t have to repay their debts. And if we give some people an out, won’t everyone else want one too?

Perhaps the better question to ask is whether principal modifications reduce defaults compared to other steps that lenders have taken with defaulting borrowers. S&P has looked at this question and they found “that even though rate reductions are the most common form of modification, principal reductions offer the most benefit to borrowers looking to avoid default.” (2)

While principal mods are good for borrowers — no big surprise there — their impact on investors is not so clear cut. S&P writes that

When it comes to principal reductions, investors can also have different outcomes based on the deal structure. A write-down in loan principal will cause an immediate reduction in credit enhancement, and bondholders would face greater exposure to collateral losses. But for deals with cumulative loss triggers, senior bondholders can receive extra principal diverted from subordinate classes once the triggers are tripped, thereby accelerating their recovery. . . . [S]tructural provisions and interest and principal payment mechanisms in RMBS transactions influence how loan modifications affect bondholders in RMBS transactions. Any type of modification brings with it nuances that may benefit the borrower while having a varied impact on investors. (5)

As we learn lessons that may apply in the next crisis, it is worth realizing that borrower workouts and investor outcomes are linked in ways that should be explicitly identified so that incentives can be properly aligned. With planning, mortgage-backed securities can be structured to be good for borrowers and investors, perhaps even Pareto optimal.

December 18, 2013 | Permalink | No Comments

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