November 26, 2013
Reiss on Government’s Role in Housing Finance
The Urban Land Institute New York Blog posted Housing Finance Leaders Gather to Discuss the Future of Freddie and Fannie about a recent panel on the housing finance market. It begins,
Housing finance industry leaders came together last week to debate the future role of government-sponsored lending giants, Fannie Mae and Freddie Mac. Both entities were placed under the conservatorship of the Federal Housing Finance Agency (FHFA) during the financial crisis from which they have yet to emerge.
Panelists included David Brickman, Head of Multifamily for Freddie Mac, Robert Bostrom, Co-Chair of the Financial Compliance and Regulatory Practice at Greenberg Traurig, Mike McRoberts, Managing Director at Prudential Mortgage Capital Company, David Reiss, Professor of Law at Brooklyn Law School, and Alan H. Weiner, Group Head at Wells Fargo Multifamily Capital.
The debate centered around the proper role for the mortgage giants and to what extent government-backed entities should intervene in capital markets.
A market failure or liquidity crisis is the only reasonable basis for government intervention in the housing market, according to Reiss. “However, it is not possible for the government to create liquidity only in moments of crisis, so there is a need to have a permanent platform that is capable of originating liquidity at all times,” said Brickman. Fannie Mae, which was created during the Great Depression and Freddie Mac, which was created during the Savings and Loan crisis, were both responses to past market failures.
November 26, 2013 | Permalink | No Comments
November 25, 2013
Doing Justice with the $13B JPMorgan Settlement
I have posted a couple of items on this massive settlement (here and here). This should be my last one. Perhaps I am ungrateful, but the Statement of Facts agreed upon by the Department of Justice and JPMorgan Chase left me with an empty feeling. Recovering $13 billion for homeowners, investors and the government is certainly a key aspect of the justice done in this case. But the law can and should have an expressive function — it should make a statement about the difference between right and wrong behavior. Unfortunately, the Statement of Facts almost completely fails as an expressive document.
It only makes it clear at one point that JPMorgan, Bear Stearns and Washington Mutual did something very wrong:
employees of JPMorgan, Bear Stearns, and WaMu received information that, in certain instances, loans that did not comply with underwriting guidelines were included in the RMBS sold and marketed to investors; however, JPMorgan, Bear Stearns, and WaMu did not disclose this to securitization investors. (1)
The Statement of Facts provided a couple of facts that made clear what JPMorgan did wrong (see page 2), but I could not even parse the sections of Bear Stearns and WaMu to tell you what they did wrong. This is about as strong as it gets:
in 2008, internal WaMu reviews indicated specific instances of weaknesses in WaMu’s loan origination and underwriting practices, including, at times, non-compliance with underwriting standards; the reviews also revealed instances of borrower fraud and misrepresentations by others involved in the loan origination process with respect to the information provided for loan qualification purposes. (10)
You can’t tell from such language whether WaMu was acting intentionally, recklessly or negligently. You can’t really tell whether this behavior was endemic, frequent, occasional or rare. You can’t tell whether it was the fault of some low-level employees or of upper management. Just about the only thing you can tell from the WaMu section (and the Bear Stearns section, for that matter) is that it was not JPMorgan’s fault:
The actions and omissions described above with respect to WaMu occurred prior to OTS’s closure of WaMu and JPMorgan’s acquisition of the identified WaMu assets and liabilities. (11)
No doubt, JPMorgan tried to control the PR and legal liability to third parties that this Statement of Facts could engender. But Justice could have held the line on the expressive aspect of the settlement just as it did with the monetary aspect. In the long run, that could turn out to be just as important.
November 25, 2013 | Permalink | No Comments
Deutsche Bank Fails to Sufficiently Prove Ownership in Maine Supreme Judicial Court
In Deutsche Bank Nat’l Trust Co. v. Wilk, 2013 ME 79, 76 A.3d 363 (Me. 2013), the Maine Supreme Judicial Court vacated a judgment of foreclosure for Deutsche Bank on appeal by homeowner for Deutsche Bank’s failure to show ownership of the mortgage. Wilk procured a loan from Luxury Mortgage Company in 2005 with MERS named as nominee. Deutsche Bank commenced foreclosure proceedings after homeowners’ default in 2010, going to trial in 2012. The trial court found that Deutsche Bank provided evidence sufficient to merit foreclosure authority via a chain of assignments showing it was the holder of both the note and mortgage under 14 M.R.S. 6321. On appeal, the court notes that while Deutsche Bank evidenced its ownership of the note, it failed to adequately document its ownership of the mortgage, citing flaws in the chain of assignments. The court explains that the chain runs from MERS to IndyMac, then to FDIC as receiver for IndyMac to OneWest Bank, and finally OneWest Bank to Deutsche Bank; the problem is the date on the final assignment is two weeks prior to FDIC’s transfer to OneWest, meaning OneWest lacked authority to assign the mortgage at the time of its assignment to Deutsche Bank. Deutsche Bank attempted to rely on an earlier 2010 assignment from FDIC to Deutsche Bank, but provided no explanation for why the same mortgage as assigned twice by FDIC. As a result of the inconsistencies presented, the court found “the April 2010 assignment of the mortgage to Deutsche Bank, upon which the [trial] court relied, is not a ‘source whose accuracy cannot reasonably be questioned’ as a means of ‘accurate and ready’ proof of Deutsche Bank’s ownership of the mortgage.” See M.R. Evid. 201(b)(2); see also HSBC Mortg. Servs., Inc. v. Murphy, 2011 ME 59.
The court further found that the theory of estoppel by after-acquired property does not apply, and Deutsche Bank failed to prove its ownership under this theory; “the disputed assignment from OneWest Bank to Deutsche Bank did not involve a warranty deed or contain any factual allegation that OneWest Bank would need to contradict to assert title to the mortgage. The assignment purports to transfer ‘all interest’ OneWest Bank then held in the mortgage, without alleging that OneWest Bank had any interest to convey or making any other statement that could be interpreted to estop OneWest Bank from claiming title.” Pike v. Galvin, 29 Me. 183, 185 (1848); Bennett, 90 Me. at 461-62, 38 A. 372. Deutsche Bank was unable to prove any harmless error existed in the assignments, and therefore the trial court erred in granting the judgment of foreclosure.
November 25, 2013 | Permalink | No Comments
November 24, 2013
Michigan Dissmisses Plaintiff’s Action Seeking to Set Aside Sale of His Residence
The court in deciding Liddell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 153897 (E.D. Mich. Oct. 28, 2013) granted the defendants’ motion to dismiss plaintiff’s complaint.
Plaintiff commenced the action seeking to set aside a sheriff’s sale of his residential property. Plaintiff’s Complaint raised the following claims: Count I, Fraudulent Misrepresentation; Count II, Estoppel; Count III, Negligence; Count IV, Violation of Michigan’s Occupational Code, Mich. Comp. Laws §§ 339.915 and .918; and Count V, Violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k.
Defendants maintained that all of plaintiff’s claims challenging the foreclosure sale were subject to dismissal because plaintiff failed to redeem the property within the redemption period. Defendants further argued that even if plaintiff’s claims were not barred by the expiration of the statutory redemption period, his claims were subject to dismissal because he failed to state any valid claims upon which relief can be granted.
The Court agreed that plaintiff’s complaint failed to allege any claims upon which relief may be granted.
November 24, 2013 | Permalink | No Comments
Texas Court Dismisses Plaintiff’s Wrongful Foreclosure Action, as MERS was Authorized to Assign the Note and Deed of Trust to Defendant
The court in deciding Perez v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 153947, 2013 WL 5781208 (W.D. Tex. Oct. 25, 2013) dismissed the plaintiff’s wrongful foreclosure.
Plaintiff alleged that the defendant’s foreclosure action was wrongful. Also plaintiff alleged that the deed of trust was not enforceable due to that lack of ownership in the note by the defendants.
Plaintiff asserted that First NLC, rather than MERS, was the only party authorized to assign the note and deed of trust to the defendant; she asserted that assignment is only complete upon recording, and recording has not been effectuated; and she asserted that the deed of trust and the transfer of lien document were fraudulently created, and therefore ineffective as a security instrument and assignment, respectively. Additionally, plaintiff asserted that the note and deed of trust were not enforceable because they had been split.
Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant argued that plaintiff has not stated a claim for wrongful foreclosure because she has not alleged that her home had been foreclosed.
Ultimately, the court rejected the plaintiff’s claims and the broader legal theories she asserted; however, the court granted the plaintiff leave to amend to allow her an opportunity to assert a valid claim.
November 24, 2013 | Permalink | No Comments
Supreme Court of New York Grants Plaintiff’s Motion to Dismiss and Denied Defendant’s Cross-Motion
The court in deciding Bank of N.Y. Mellon v Arthur, 2013 N.Y. Misc. LEXIS 4875, 2013 NY Slip Op 32625(U) (N.Y. Sup. Ct. Oct. 23, 2013) granted the plaintiff’s motion to dismiss and denied the defendant’s [Arthur] cross-motion.
The Plaintiff commenced a foreclosure of a mortgage. Plaintiff moved for an order: (i) pursuant to CPLR § 3212 granting summary judgment on its foreclosure claim; (ii) pursuant to CPLR § 3211(b) and § 3212, dismissing with prejudice each of the affirmative defenses and counterclaims raised by the defendant in his answer.
The court noted that in a mortgage foreclosure case, “a plaintiff may establish a prima facie right to foreclosure by producing the mortgage documents underlying the transaction and undisputed evidence of nonpayment.” Thus, once the plaintiff established its right to foreclosure, the burden is on the defendant “to raise a triable issue regarding his affirmative defenses and counterclaims in opposition to foreclosure.”
Here, the plaintiff made out its prima facie by producing undisputed affidavits. The court found that Arthur’s response failed to produce competent evidence of any defense to raise an issue of fact. Thus, the court eventually granted the plaintiff’s motion and denied Arthur’s cross-motion.
November 24, 2013 | Permalink | No Comments
November 22, 2013
Reiss on Urban Planning Legacy of the Bloomberg Administration
The BLS Real Estate Society is sponsoring The Zoning and Urban Planning Legacy of the Bloomberg Administration on Monday, November 25th from 6:30 p.m. – 9:00 p.m. in the Student Lounge on the first floor of Brooklyn Law School, 250 Joralemon Street. The press release reads:
Come hear two real estate experts discuss and debate zoning and urban planning issues and the legacy of the outgoing Bloomberg Administration.
Panelists
Mitchell Korbey ’03, Chair of Zoning and Land Use Group, Herrick Feinstein
David Reiss, BLS Real Estate Professor (previously Paul Weiss, and Morrison & Foerster)
No RSVP is required for this event. Contact Rafe Serouya at rafe.serouya@brooklaw.edu for more information.
Mitch’s bio reads in part,
Prior to joining Herrick, Mitch served for six years as commissioner of the New York City Board of Standards and Appeals under Mayor Rudolph Giuliani, and as director of the New York City Department of City Planning’s Brooklyn office, where he guided Brooklyn’s first mixed use zoning districts through the public review process and spearheaded plans for the rezoning and revitalization of a number of neighborhoods, including Williamsburg and Greenpoint. Prior to running the Brooklyn office, Mitch was deputy director of the Staten Island office and served in the City Planning Department’s Housing and Economic Development Division.
* * *
Mitch is an Adjunct Professor in Hunter College Graduate School’s Urban Affairs and Planning Department where he teaches Land Use Law and leads a seminar entitled “Lawyers and Planners in the Development Process.” His insights on real estate development and the intricacies of local zoning laws have appeared in major real estate and business publications, including Crain’s, The New York Times and The Real Deal.
He is also a co-author of Herrick’s land use and zoning blog, ZONE, which keeps readers up-to-date on the latest issues in land use and environmental law.
November 22, 2013 | Permalink | No Comments
