May 13, 2019
Unfair, Unlawful and Abusive
I signed on to a Memorandum in Support of a bill to amend New York’s consumer protection law to make it consistent with the laws of 39 other states and the federal government. St. John’s Gina Calabrese led this effort. The Memorandum opens,
STATEMENT OF SUPPORT: The undersigned consumer law professors support S.2407/A.679, which would expand the scope and improve enforcement of General Business Law §349 (“GBL 349”), New York’s statute prohibiting deceptive business acts and practices. By adding unfair, unlawful and abusive to the categories of prohibited conduct, this bill would make New York’s consumer protection policy consistent with the laws of 39 other states and the federal government, reflecting policies integral to a well-functioning marketplace.
BACKGROUND: Enacted almost 50 years ago, GBL 349 prohibits “deceptive” acts and practices. However, it does not currently prohibit unfair, unlawful, and abusive business acts and practices. Most states and the federal government recognize that unfair, unlawful, and abusive acts and practices cause great harm to the public. Traditional businesses have long-standing methods that take advantage of consumers. Modern business developments, products, and services have increased the public’s vulnerability to various harms that may not be encompassed by prohibitions against “deceptive” acts. Technology, collection of personal data, and complex business models (e.g., several entities handling different aspects of a transaction) all play a role. For example:
Wells Fargo opened millions of unauthorized bank accounts using customer data already in its possession. The Consumer Financial Protection Bureau fined Wells Fargo $100 million using its power to address unfair and abusive practices, not its power to punish deceptive practices.
New York’s law fails to prevent unfair tactics well-known to consumer experts, including high pressure sales tactics in automobile sales and illegal fees charged by mortgage servicers. Law school clinics have assisted elderly car buyers who were persuaded to relinquish their keys to car dealership staff then detained for hours until they were “worn down” and bought cars or add-ons they didn’t want or need with expensive financing.
Dozens of other states already prohibit unfair practices, such as New York’s neighbors Connecticut, Pennsylvania, and Massachusetts. Even states like Mississippi, Georgia, Tennessee and West Virginia permit consumers to sue for unfair practices. Contrary to fears stoked by business groups, there is no evidence that that has led to an explosion of litigation. And the federal Dodd-Frank Act proscribes abusive consumer financial practices. S.2407/A.679, is not a broad expansion of consumer rights, but more like having New York catch up.
The bill would eliminate the “consumer-oriented” requirement that the courts grafted onto the law. It does not appear in the text of GBL 349. It prevents consumers from holding businesses accountable because meeting the requirement often involves substantial pre-suit investigation. We know of no other state that requires “consumer-oriented” conduct before a court can impose liability.
The bill would improve compliance with and enforcement of GBL 349 because it increases the outdated $50 cap on statutory damages, codifies organizations’ standing to sue, permits class actions, and ensures that a successful plaintiff will be able to recover fees to pay her attorney. Very few consumers will bother to sue for $50, meaning that many bad actors do not have to fear private claims and the law will not be properly enforced. The bill would permit statutory damages of $2,000, which seems modest compared to penalties consumers can obtain under Kansas law of up to $10,000. Strengthening the ability of individuals and organizations to sue businesses for unfair, unlawful, deceptive, and abusive acts ensures that the public will be protected when government agencies do not act to stop illegal practices, whether the reason be different priorities, lack of resources, or lack of impact on a large number of people.
The bill would empower the Attorney General to ensure New Yorkers enjoy a fair and just marketplace and private persons to better protect themselves from unfair, unlawful, abusive, and deceptive practices engaged in by businesses with greater bargaining power and protect the public from ever-evolving anticompetitive and harmful business practices.
May 13, 2019 | Permalink | No Comments
May 9, 2019
Financing The American Dream
I published Financing The American Dream in the May/June 2019 issue of the ABA’s Probate & Property magazine. it opens,
Two movie scenes can bookend the last hundred years of housing finance. In Frank Capra’s It’s a Wonderful Life (RKO Radio Pictures Inc. 1946), George Bailey speaks to panicked depositors demanding their money back from Bailey Bros. Building and Loan. This tiny thrift in the little town of Bedford Falls had closed its doors after it had to repay a large loan and temporarily ran out of money to return to its depositors. George tells them:
You’re thinking of this place all wrong. As if I had the money back in a safe. The money’s not here. Your money’s in Joe’s house…right next to yours. And in the Kennedy house, and Mrs. Macklin’s house, and a hundred others. Why, you’re lending them the money to build, and then, they’re going to pay it back to you as best they can.
Local lenders lent locally, and local conditions caused local problems. And in the early 20th century, that was largely how Americans bought homes.
In Adam McKay’s movie The Big Short (Plan B Entertainment 2015), the character Jared Vennett is based on Greg Lippmann, a former Deutsche Bank trader who made well over a billion dollars for his employer by betting against subprime mortgages before the market collapse. Vennett demonstrates with a set of stacked wooden blocks how the modern housing finance market has been built on a shaky foundation:
This is a basic mortgage bond. The original ones were simple, thousands of AAA mortgages bundled together and sold with a guarantee from the US government. But the modern-day ones are private and are made up of layers of tranches, with the AAA highest-rated getting paid first and the
lowest, B-rated getting paid last and taking on defaults first.
Obviously if you’re buying B-levels you can get paid more. Hey, they’re risky, so sometimes they fail. . . .
Somewhere along the line these B and BB level tranches went from risky to dog [excrement]. I’m talking rock-bottom FICO scores, no income verification, adjustable rates. . . dog [excrement]. Default rates are already up from one to four percent. If they rise to eight percent—and they will—a lot of these BBBs are going to zero.
After the whole set of blocks comes crashing down, someone watching Vennett’s presentation asks, “What’s that?” He responds, “That is America’s housing market.”
Global lenders lent globally, and global conditions caused global and local problems. And in the early twenty-first century, that was largely how Americans bought homes. This article provides an overview of the strengths and weaknesses of each aspect of the housing finance system in order to enable discussion of how to design a stronger system for the rest of the 21st Century. For a much more extensive treatment of this topic, see the author’s forthcoming book, Paying for The American Dream: How To Reform The Market for Mortgages (Oxford University Press, 2019).
May 9, 2019 | Permalink | No Comments
March 18, 2019
Skyscraper’s Future up in The Air
The New York Law Journal quoted me in Upper West Side Skyscraper’s Future Uncertain After NY State Court Ruling. The story opens,
The development at 200 Amsterdam Ave. in Manhattan is slated to be the tallest building on the Upper West Side, with its 51 stories rivaling the skyscrapers located further downtown.
But whether this will ever happen has now become questionable, after a state court ruling that found city officials were wrong to follow an interpretation of city zoning law used by the developer to achieve the project’s awesome height.
Supreme Court Justice Franc Perry of Manhattan sided with local community groups looking to halt the building underway at the site. The plaintiffs—the Committee for Environmentally Sound Development and the Municipal Arts Society of New York—were joined by numerous local state and city elected officials in opposing what they say is not only an out-of-character monster development in the Manhattan neighborhood, but one that relied on a faulty zoning law interpretation to move forward.
“It is finally a declaration that zoning law means something and developers can’t make it up as they go along,” said Emery Celli Brinckerhoff & Abady name attorney Richard Emery, who represented the plaintiffs.
Since 1978, developers and city buildings officials have relied on the so-called Minkin Memo, named after the former head of the city’s Department of Buildings’ Irving Minkin, for guidance on what experts call an ambiguity in the city’s zoning law towards so-called tax lots. These are additional subdivisions of city real estate, which can overlap with or be included inside a zoning lot.
Under the Minkin memo, developers have been able to pull together extra vertical building rights that nearby property owners aren’t using, offering the opportunity to boost the size of a project such as 200 Amsterdam beyond what would normally be allowed.
“The zoning resolution is ambiguous about when a zoning lot can be formed from partial tax lot; it never deals with that problem,” said Stewart Sterk, the Mack Professor of Real Estate Law and director of the Center for Real Estate Law & Policy at the Cardozo School of Law.
Initially, city officials had no problem with the move. DOB issued a permit to the developers for a residential and community facility building at the site of the Lincoln Towers condos on the Upper West Side. The developers relied on the Minkin memo as the basis for the acquisition tax lots that combined partial and whole lots to provide the developers with the vertical building rights needed for their skyscraper.
Shortly after DOB green lighted the project, the Committee for Environmentally Sound Development challenged the DOB’s decision. The challenge snowballed, and soon seemingly every local elected official, from state Assemblyman Richard Gottfried to borough president Gale Brewer, were opposed to the plan. The project’s permit was appealed by both CESD and the Municipal Arts Society to the city’s Board of Standards and Appeals.
In March 208, DOB made an official about-face on the project. In a letter from assistant general counsel to the BSA, the department said the Minkin memo provided an incorrect interpretation and that zoning regulations did not in fact intend for zoning lots to consist of partial tax lots.
The BSA was not persuaded by the arguments and in July 2018 voted 3-1 not to grant the appeal, with one board member abstaining. The plaintiffs soon after pursued a review of the BSA’s decision in state Supreme Court.
In subjecting the developers’ permit to further review, Perry pointedly took issue with BSA view of the process.
“BSA found that the Subject Zoning lot is ‘unsubdivided,’ within the meaning of the [New York City Zoning Resolution], simply because Developer has declared it to be so,” the judge wrote.
Noting that the referenced law states that a zoning lot is defined by being “unsubdivided” within a single block, Perry said BSA’s interpretation would render the term “superfluous,” and run “afoul of elementary rules of statutory construction.”
Since DOB saw the light on the Minkin memo during the appeal process, the court said the department’s statutory basis for the issuance of the permit to begin with was undermined. BSA’s decision was nullified and vacated, and the board was directed to review the project’s permit application “in accordance with the plain language” of the zoning regulation and Perry’s order.
As Cordozo’s Sterk noted, the development at 200 Amsterdam was far from the first to use the Milkin memo to justify partial tax lot usage in a building plan. Perry’s decision has the ability to throw uncertainty around zoning and building issues into a business sector highly adverse to such things, Sterk said.
But just as important for Sterk is the question now of when a government agency becomes estopped from changing its mind after it’s already induced people to rely on its existing interpretation.
“That’s a big problem in this case, because clearly developers have put millions of dollars into this project in reliance on an existing interpretation,” he said.
Brooklyn Law School professor David Reiss, who is the research director of the school’s Center for Urban Business Entrepreneurship, said he saw the case as less of a “good guy vs. bad guy” dynamic as much as one of whether the assurances of government officials can be binding.
“There’s a reliance on government statements and government permissions,” Reiss said, while noting the project has already commenced.
Should the case stand, he predicted it would serve to rattle developers’ confidence in their dealings with the city going forward.
“It’s more uncertainty in a process that’s already pretty uncertain,” he said.
March 18, 2019 | Permalink | No Comments
February 19, 2019
Luxury Rental Turned Into College Dorm
Realtor.com quoted me in ‘Help! My Luxury Rental Was Turned Into a College Dorm’. It opens,
Finally! After years of scraping by in cramped apartments in sketchy neighborhoods, you’ve made it—into a luxury rental with a doorman, concierge service, gym, bike room, and other posh amenities. It seems perfect.
Then you meet your neighbors, sunning themselves on the roof deck. Topless.
Sound like the opening to a Skinemax flick? On the contrary, it’s a reality for residents at The Azure, a new high-end apartment building in Brooklyn, NY.
“There were girls sunbathing topless up there,” one tenant with a child told the New York Post. “My wife was, like, ‘WTF?!’ There are a lot of families [here].”
You see, The Azure was facing significant vacancies, so the management company decided to rent out 30% of its units to King’s College, a liberal arts school in lower Manhattan. The result? Families who paid top dollar to live in a building with a business center, cold storage space for grocery deliveries, and other luxe features suddenly found themselves in what felt like a college dorm. A “dormdominium”! And you know what that probably means: late-night parties with eau de weed wafting through the halls and, um, some awkward bump-ins during rooftop barbecues with bikini-clad (or unclad) residents. And noise. Lots of noise.
“We bought into the luxury experience of the nice rooftop,” another tenant lamented. “We didn’t expect it to be packed with 18-year-olds.”
When luxury apartments turn into dorms: Why it happens
This rude awakening for well-heeled renters isn’t as unusual as you might think. It’s just what many luxury developers may find themselves doing now that the high-end rental market is softening, leaving empty apartments that must be filled to make ends meet.
“Building owners stuck with vacant properties will try to rent them to whoever they can within reason,” says Aaron Shmulewitz, a real estate attorney with Belkin Burden Wenig & Goldman in New York City. “When the economy goes bad, building owners have to scramble.”
Part of the problem is that a few years ago, the housing market was going so strong, developers got bullish on building—only to find themselves in a more sluggish market once their structures were complete.
“Opening a residential building is a many, many-year process,” says David Reiss, research director at the Center for Urban Business Entrepreneurship at Brooklyn Law School. “You have to acquire the site, you have to get financing, perhaps you have to get zoning approvals, you have to get your plans approved … then you have to build it and then you have to market it. You’re talking about years of work.”
Many of these builders were likely banking on the possibility that rental demand would just keep going up and up—but they bet wrong.
“We have a large amount of supply that came into the market within a fairly short period of time,” says Edward Mermelstein, a real estate attorney with One and Only Holdings in New York City. “At the same time, the demand has waned substantially.”
How do college kids afford a luxury rental, anyway?
While luxury rentals in any other city might be hurting right about now, New York is well-positioned to solve this problem, thanks to its high student population and limited dorm space.
“Renting to college students in Manhattan or Brooklyn has always been a trend, as there’s a total of almost 250,000 active students on this small island,” says Michael Jeneralczuk, a real estate agent with REAL New York. “With that said, luxury apartments are usually outside of student budgets.”
While a luxury rental might be outside of any individual student’s budget, a larger group of students can make it work. According to the Post, the King’s College students are paying a combined $6,000 per month for a two-bedroom apartment housing four people, which comes to $1,500 per person. This is more affordable than trying to rent alone; even a studio apartment at The Azure starts at $2,399 per month, according to the building’s website.
Meanwhile, the nonstudent rate for a two-bedroom apartment at The Azure starts at $3,391 per month. So by renting to King’s College students, the building is also making almost twice as much per apartment. So, at least for these two parties, it’s a win-win.
“It’s an opportunity to fill vacant apartments and collect rent,” says Becki Danchik, a real estate agent with Warburg Realty in New York City.
Given that the luxury rental market is slowing down nationwide, does this mean renters across the country might expect college-aged neighbors soon, too?
According to Reiss, it depends on development levels. In Los Angeles, construction has stalled, so apartments are filling up. Seattle, on the other hand, is facing similar issues as New York City.
“Seattle has had a construction boom, which means there are a lot of empty apartments,” says Reiss. “You face a similar situation where landlords are going to look to find some way to rent those out and make their money back.”
February 14, 2019
Housing Policy, Going Forward
Mark Calabria
The Hill published a column of mine, The Next Two Years of Federal Housing Policy Could Be Positive under Mark Calabria. it opens,
The Trump administration has been a nightmare for housing advocates. Housing and Urban Development Secretary Carson has stopped enforcing fair housing laws, with assists from Treasury Secretary Steven Mnuchin and Comptroller of the Currency Joseph Otting. Those two have been working to scale back fair lending enforcement and the Community Reinvestment Act.
Consumer Financial Protection Bureau Acting Director Mulvaney has gutted consumer protection in the mortgage market. I am more hopeful though when it comes to housing finance reform. The administration has nominated Mark Calabria to be the next director of the Federal Housing Finance Agency; the FHFA is Fannie Mae and Freddie Mac’s regulator.
There have been three types of leaders on Trump’s team that have been working on housing issues. First are those who seek to explicitly undermine the work of the agency they lead, like Mulvaney. Leaders like Mulvaney are generally proponents of a radical conservative ideology that has been way out of step with American political norms until the Tea Party movement swept through Congress. Second are those who pay some lip service to the agency’s mission, but work to undermine it, like Carson. And third are those who are clearly industry favorites, like Mnuchin and Otting. They primarily seek to address concerns of the industry they regulate at the expense of their agency’s broader public mission.
Calabria represents a fourth type of leader, one who is more likely to implement a more traditional Republican agenda for the housing sector. For the last couple of years, he has been serving as Vice President Pence’s chief economist.
February 14, 2019 | Permalink | No Comments
January 25, 2019
Protecting Small Businesses
Detail from Netherlandish Proverbs, Pieter Brueghel the Elder
Students in my Community Development Clinic and I have a column in the New York Law Journal, Small Business Jobs Survival Act May Have Opposite Effect. It reads,
The New York City Council is considering a bill, the Small Business Jobs Survival Act, that it claims will protect small businesses even though the Act contains no protections tailored to them. Instead, the Act would implement a new lease renewal arbitration system that treats all commercial tenancies the same, allowing businesses as large as Amazon to benefit.
The Act would create a bureaucratic process that works contrary to its stated goals. The Act is meant to “create a fair negotiating environment, which would result in more reasonable and fair lease terms to help small businesses survive and encourage job retention and growth.” The Act actually creates a system under which big businesses will benefit the most. Furthermore, the process is overly complex for mom and pop businesses owners who are not familiar with the legal system. To avoid exacerbating the advantages that big businesses currently enjoy in the rental market, the City should consider policy alternatives that are tailored to the needs of small businesses.
Although the Act is supposed to protect small businesses, it does not define what a small business is. By not distinguishing between big and small tenants, the Act gives businesses of all sizes the same rights to negotiate a lease renewal. For large businesses like Amazon with an in-house legal department, the new system is business as usual. Amazon does not need to worry about additional costs to negotiate a lease renewal. For mom and pop business owners, the system starts to feel like a tax simply to stay in business because they will need to increase their costs relative to big businesses.
The Act’s arbitration provision sets forth about a dozen factors that an arbitrator must consider when setting the rent. Those factors can then be supplemented by “all other relevant factors.” Such a complex and vague standard will lead to inconsistent and unpredictable results. Two arbitrators determining rents for similar businesses located near each other are likely to arrive at different rents for these businesses because of the broad set of criteria they can consider. Additionally, an arbitrator’s decision would be final and non-reviewable.
The City’s property tax system offers a cautionary tale. The system is complex, many of its decisions are unreviewable, and its results are arbitrary and unfair. One consequence has been that property owners in wealthier neighborhoods often pay lower property taxes than those in less affluent neighborhoods, a state of affairs leading to a high-profile lawsuit and a Mayoral push to reconsider the entire system.
In addition to a costly process, the proposed lease renewal system is not easily navigable for mom and pop business owners. These mom and pop shops would face a new world of legal processes not familiar to them and that have nothing to do with their businesses. The Act almost requires that small commercial tenants hire lawyers to guide them through a system that might begin to feel like the soul-crushing New York City Housing Court, where tenants and landlords spend countless hours and often obtain results as perplexing as the problems that brought them there in the first place. Unrepresented tenants, in particular, face steep odds against the confusing and impersonal system. They are often unaware of their rights and how the system works, leading to temporary relief that does not do much more than postpone the date of their eviction. If the Act is enacted, small business tenants who either can’t or don’t hire lawyers would face as many, if not more, obstacles than they do in the current system.
Given that the Act in its current form does not serve its intended goals, the City should consider policy alternatives like formula business restrictions, which may be a more effective way of targeting and protecting small businesses. The formula business restriction serves to prevent retail and fast food chains from operating in particular neighborhoods in order to protect their social fabric. These restrictions aim to protect the unique character of city neighborhoods that have yet to feel the full effects of gentrification and mall-ification. These restrictions will incentivize leasing to new small businesses while protecting existing ones that are at risk of losing their space to commercial chains.
Companies like Amazon should not be the principal beneficiaries of a “Small Business Jobs Survival Act.” Rather, the City should focus on targeted approaches like formula business restrictions that assist new and existing small businesses more directly.
David Reiss is a Professor at Brooklyn Law School, the director of the Community Development Clinic and the research director of the Center for Urban Business Entrepreneurship. Areeb Been Khan, Robert Levy and Juliana Malandro are legal interns in the Brooklyn Law School Community Development Clinic. They were recently invited to testify at a New York City Council hearing regarding the Small Business Jobs Survival Act.
January 25, 2019 | Permalink | No Comments
December 14, 2018
Last Chance to Vote for REFinBlog!
REFinBlog has been nominated for The Expert Institute’s Best Legal Blog Contest in the Education and Law School category. Click on the badge below to vote.
December 14, 2018 | Permalink | No Comments
