Tag Archives: Reiss

“Deed in a Box”

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I was happy to present on a recent “Deed in a Box” case (more on that below) at the American College of Mortgage Attorneys annual meeting on the Professors’ Panel along with

  • Steven W. Bender, Associate Dean for Planning and Strategic Initiatives and Professor of Law; Co-Faculty Director of Critical Justice Initiative, Seattle University School of Law, Seattle, WA
  • R. Wilson Freyermuth, Robert L. Hawkins/Dale A. Whitman Chair Emeritus, Curators Teaching Professor Emeritus, University of Missouri School of Law; Executive Director, Joint Editorial Board of Uniform Real Property Acts, Columbia, MO
  • Julia P. Forrester Rogers, Provost Faculty Research Fellow and Professor of Law, SMU Dedman School of Law, Dallas, TX

Professor Bender explained that Vargas v. RRA CP Opportunity Trust 1 (Wash. 2026), now under reconsideration, could limit nonjudicial foreclosure to holders of negotiable instruments, which would push lenders on HELOCs and most commercial loans toward receiverships and mezzanine structures and expose similar “holder” statutes in other states.

Professor Freyermuth provided an update on the Restatement (Fourth) of Property (for which he is an Associate Reporter). The Restatement 4th will, for the first time, address when a long delay in a foreclosure operates to time-bar the right to foreclose.

Professor Forrester Rogers previewed the Uniform Law Commission’s draft Deed Fraud Act (for which she is the Reporter), which pairs prevention tools (owner notification, title freezes, a known-filer program, and notarial verification) with an expedited court proceeding to void fraudulent deeds and mortgages.

Deed in a Box

My presentation focused on Shanghai Commercial Bank Ltd., New York Branch v. New Tent, LLC, No. 850240/2024 (Sup. Ct. N.Y. Cnty. June 13, 2026), in which Justice Masley of the Commercial Division held that a deed in lieu of foreclosure delivered as consideration for a forbearance agreement is a mortgage under Real Property Law § 320. The decision appears to be the first in New York to hold this expressly in the forbearance context.

The facts will be familiar to anyone who has worked out a troubled loan. The lenders had made about $75 million in loans secured by a mortgage on 335 West 35th Street in Manhattan. After the borrowers defaulted, the parties signed a forbearance agreement. In exchange for the forbearance, the borrowers delivered a conveyance in lieu of foreclosure that would take effect if the loan was not repaid by the end of the forbearance period. The agreement said the conveyance was absolute “in fact as well as in form” and was not intended as a mortgage or security instrument. The borrowers did not pay and then refused to cooperate with recording, so the lenders sued.

The court’s reasoning follows a long line of New York cases, including Basile, Leonia Bank, Patmos, and RTT Holdings. Those cases hold that a deed given to secure a debt creates only a mortgage, however it is labeled. Here the conveyance was given in exchange for forbearance on an existing, defaulted obligation, so it functioned as security for the debt, and the disclaimer could not change that.

The practical lesson is that a deed in lieu is not a shortcut around a NY foreclosure in a forbearance deal. Lenders who want speed should consider other tools, although they have their own limitations: a consent judgment of foreclosure, an accommodation pledge of the borrower’s equity interests that can be enforced through a UCC sale, or an assignment in lieu of the membership interests. The lenders have appealed to the First Department, so there may be further developments regarding the “deed in a box” in New York.

Mayor Mamdani @ The Brooklyn Navy Yard

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I was quoted in At Brooklyn Navy Yard, Mamdani’s Jobs Agenda Collides with His Anti-ICE Politics. It reads, in part, 

… BNYDC’s leases generally do not give the corporation authority to govern a tenant’s customers or what those customers do with products they purchase.

Asked specifically whether Crye had come up in her conversations with Mamdani, Greene said it had not.

A City Hall source similarly said the Mayor’s Office does not get involved in individual Navy Yard leases and that evictions may only take place when tenants violate contractual requirements such as financial obligations, legal compliance or permitted uses.

However, Council Member Shekar Krishnan, chair of the Council’s Oversight and Investigations Committee, said public ownership should change the equation.

“Public land like the Navy Yard should not be doing business with companies that dress ICE officers and support ripping families apart,” Krishnan said, adding that he was exploring “all tools at our disposal to keep public land away from ICE operations.”

Asked what those tools could include, his office said it was still exploring its options.

Cornell Law School clinical professor David Reiss, a real estate law expert, who reviewed two other Navy Yard leases and BNYDC’s bylaws but not Crye’s private agreement, told amNewYork that the legal options may look very different depending on whether Crye is still in the middle of a lease or seeking another term.

“Based on other Navy Yard leases I have reviewed — not Crye’s own, which I have not seen — Brooklyn Navy Yard Development Corporation leases can only be terminated for specific things like nonpayment, misuse of the space, or sanctions-list status, not because of who a tenant’s customers are or how they use a tenant’s products,” Reiss said.

“Lease renewal is a different question,” he added. “Landlords generally have much broader discretion about whether to keep renting to a tenant once a lease has fully run its course.”

Reiss said BNYDC would likely have broad discretion not to renew Crye, unless the company has an unexercised option giving it a contractual right to another term. A nonrenewal could still draw a lawsuit.

“Crye might argue the decision was arbitrary and capricious or exceeded BNYDC’s corporate authority under state law,” Reiss said. Federal constitutional claims involving retaliation, viewpoint discrimination or equal protection, he added, “could face significant doctrinal hurdles on these facts.”

That makes the terms of Crye’s lease, and who sits on BNYDC’s board when a renewal decision arrives, central to what happens next.

BNYDC’s bylaws allow the mayor to appoint up to 29 members, including as many as 25 discretionary appointees who serve at the mayor’s pleasure. The mayor may also remove members with or without cause.

Reiss said that structure gives Mamdani “real leverage” over such decisions even though BNYDC itself is the landlord.

President Trump’s Two Residential Mortgages

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Dan Abrams

I was interviewed in Trump’s Mortgage Fraud Hypocrisy on The Dan Abrams Show (SiriusXM POTUS 124) (behind paywall). A recording is available on YouTube (no paywall). The auto-generated (cleaned up a bit) transcript of the relevant part reads,

Dan Abrams: This effort to get rid of Lisa Cook as one of the governors at the Fed has heated up. Remember, the Supreme Court basically said Trump couldn’t do it without due process, and it seems now he’s beginning the process of quote-unquote doing the due process, telling her that they want to get rid of her. It made me remember an article that came out in December, which I think is very important in this context — it’s from ProPublica, and the headline is “Trump’s Own Mortgages Match His Description of Mortgage Fraud, Records Reveal.” It talks about how in 1993, Trump signed a mortgage for a home in Palm Beach, pledging it would be his principal residence. Seven weeks later, he got another mortgage for a seven-bedroom, marble-floored neighboring property, saying it too would be his principal residence. And in reality, ProPublica reports, Trump — then a New Yorker — does not appear to have lived in either home, let alone used them as a principal residence. That seems to me precisely the issue the administration is focusing on with regard to Lisa Cook. And if you’re interested in the article, it’s got all the documents Trump signed, with images of them.

Remember, in October federal prosecutors charged Letitia James, and a central claim in that case was that she purchased a house in Virginia pledging to her lender that it would serve as her second home, and then used it as an investment property and rented it out. [The source transcript is garbled here — something to the effect that Trump’s mortgage agreements were arguably a more significant misrepresentation, since his said the properties would be his primary residence, not merely a second home as in the James case; recommend checking the audio for the exact wording before publishing.] But Trump, when he was declaring that he was going to fire Lisa Cook, specifically noted that she had signed two primary-residence mortgages within weeks of each other — exactly as the records show he did in Florida. Here’s the quote they sent her: “You signed one document attesting that a property in Michigan would be your primary residence for the next year. Two weeks later, you signed another document for a property in Georgia stating it would be your primary residence for the next year. It is inconceivable that you were not aware of your first commitment when making the second. At a minimum, the conduct at issue exhibits the sort of gross negligence in financial transactions that calls into question your competence and trustworthiness.” The Trump administration has made similar claims regarding Adam Schiff and Eric Swalwell as well.

So when Trump administration officials are confronted about this, they do the usual, which is talk about it from a law enforcement perspective, talk about how important this is. This is Bill Pulte — remember, this guy’s the worst person in this administration, as far as I’m concerned, the most politicized. He’s the one who was acting director of National Intelligence; he couldn’t get confirmed, I don’t think, for any position, and yet they keep bouncing him around — but he’s been overseeing housing, and that’s given him access to all these mortgage records. So here is Bill Pulte, speaking in June:

“This is not political from my perspective. I’m in charge of making sure that we have a mortgage market that is safe and sound. It doesn’t matter whether you’re Republican or Democrat or a Fed governor — if you commit mortgage fraud, we’re going to refer it. And that’s what we did in the Lisa Cook case. I do believe that eventually she’ll be indicted. And let’s say the Supreme Court rules against the people who are saying there’s cause, or there’s ability, to fire her — I do expect her to eventually be indicted. That’s just my own opinion; I’d refer you to the DOJ for specifics. But if she is indicted, obviously that would give the ability to fire her for cause, even more so than we believe — I’ll just speak for myself — already exists.”

Let me bring in David Reiss. He’s a clinical professor of law at Cornell Tech and Cornell Law School, an expert in the real estate sector. Professor, thanks very much for coming on — appreciate it.

David Reiss: My pleasure.

ABRAMS: From a legal perspective, these are the kinds of cases that are almost never prosecuted — is that right?

REISS: That’s correct. There was a lot of this kind of behavior before the Great Financial Crisis in the early 2000s, but it was very rarely prosecuted.

ABRAMS: So is there a difference between what ProPublica seems to have been able to show that Donald Trump did and what Lisa Cook is accused of?

REISS: I don’t think so. I think it’s the same, or in some ways an even worse set of facts. There’s the statement by the broker who said these were going to be rentals from the beginning. This is exactly the kind of behavior that Pulte says is unacceptable — the kind he’s identified with opponents of the Trump administration.

ABRAMS: So could she use that — meaning, let’s assume for a moment that she is indicted — is that really just something for the court of public opinion, or is that something she could potentially introduce as a defense?

REISS: That’s an interesting question. On a straight legal answer, I’d say selective enforcement — arguing that I’m being prosecuted but somebody else isn’t — is a very high standard to meet, especially for a political case like we’re seeing with Cook and some of the others. But I do think judges have been choosing not to give a [presumption of regularity] to the Trump DOJ, so judges may use their discretion to look at this with some sense that it’s just a political hit job.

ABRAMS: Right — because the Trump allegations, the Trump information, is outside the statute of limitations. So there’s no way that could be prosecuted. Correct?

REISS: That is correct. Even if it violated the law, it’s past the statute of limitations. There’s no way to bring it back.

ABRAMS: Right. Now, in response to questions, a White House spokesperson told ProPublica: “President Trump’s two mortgages you’re referencing are from the same lender. There was no defraud[ing]. It is illogical to believe that the same lender would agree to defraud itself.” [As transcribed — worth checking this quote against the ProPublica article’s exact wording before publishing.] What do you make of that?

REISS: Well, it’s interesting, because that’s not the standard that applies. It’s a federal standard — a section of federal law, 1014. It’s really about whether, at the time you signed it, you knew it was false. It’s not a fraud standard — it doesn’t have all the elements of fraud, such as materiality. So that’s a bit of a misdirection, suggesting that the lender knew about this or went along with it. That’s not the standard for the criminal law here.

ABRAMS: Putting aside the criminal law for a minute — does what they’re saying make sense? I’m trying to figure out what their point even is. “President Trump’s two mortgages you’re referencing are from the same lender … it’s illogical to believe that the same lender would agree to defraud itself.” It seems to be suggesting the lender wouldn’t have done it a second time — but if there was fraud in the first case, maybe they just didn’t realize it. I don’t know — this isn’t my area of expertise, but as I think about it, maybe they didn’t realize, when they made the first mortgage, that the information was false, and so they just used the same information for the second one.

REISS: Interpreting the statement from the administration in the best possible light, they’re saying perhaps he intended the first property as his primary residence, and that was true at the time — and the lender knew about the first one and knew about the second one. If you think about the statute requiring knowledge of falsehood at the time of signing, you can construct a story where that’s the case. That would be the argument they’d make at trial, if this weren’t past the statute of limitations and if Pulte had referred it to DOJ and DOJ chose to pursue it.

ABRAMS: It is amazing to me — and again, I don’t know if you’re going to want to answer this, you don’t have to — but it feels like the double standard the president often applies to others versus himself is astonishing. This is such an apples-to-apples comparison. We often say, well, it’s not really apples to apples — but this really is apples to apples, isn’t it?

REISS: It is. I’m going to say a few things in response to that. One: this is genuine hypocrisy, but unless it enrages his base — unless they say, “yes, our leader is applying two standards, and that’s unfair, and we want to punish him for that and not vote for him or for his slate” — it doesn’t really matter. Second — and this doesn’t excuse his behavior in the slightest, or Pulte’s behavior in the slightest — hypocrisy is a real bipartisan issue. You have Spitzer prosecuting johns, you have Hastert and Gingrich bringing the impeachment against President Clinton. There’s a lot of hypocrisy by politicians, and this, I think, is just part of something massive—

ABRAMS: I guess what makes this different to me is that with these cases, you can make the argument that none of them should be brought, or you can make the argument that they’re really important to be brought. I don’t think Eliot Spitzer — who suffered, who lost his job, there were real consequences for him — was out there in public saying, “these johns, they’re a real problem.” And that’s what Trump is doing. He’s going out there criticizing Lisa Cook as if she’s a criminal. I think that’s what makes this different.

REISS: I agree. It’s more extreme, but it’s really part and parcel of his approach to politics, which is attack, attack, attack, and deny, deny, deny, if anything comes close to touching your behavior or your team’s behavior. And it’s not just Trump — there are members of the administration who have similar mortgage issues, and allegedly Letitia James, Cook, and Schiff have that issue too. It’s part and parcel of behavior on the left and on the right, but he’s only going after Democrats. And that’s obviously true.

ABRAMS: Yep — and again, [the source transcript is garbled here: “only going after Democrats is sort of part and parcel of this administration going after Democrats for doing exactly what he did to me, is a step further” — recommend checking against the audio for the exact wording before publishing]. David Reiss, thank you so much for coming on the program. Really appreciate it.

Rising Property Tax Assessments

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Canton, NY (CC BY-NC 2.0 Decaseconds)

I was interviewed by North Country Public Radio in Canton’s  Reassessment Doubled Many Home Values. How Does That Affect Taxes? The story reads,

Last month, Canton residents started receiving letters in the mail notifying them of their new property value assessments. Some people said their home values more than doubled, causing concern about unaffordable tax increases.

Canton’s last property tax assessment was almost two decades ago, in 2008. Since then, the values of people’s properties have changed. They’ve mostly gone up.

The town says properties were assessed at only 60% of their market value, and that the new revaluation brings these property values back up to 100% of their assessed value.

Reassessments have also happened recently in Potsdam, Ogdensburg, and other towns in the North Country. According to the Department of Taxation and Finance, these revaluations are happening to equalize property values so that people are taxed fairly.

But these changes have shocked some Canton residents. At a town board meeting in March, Phillip Burnett said his assessment seemed way too high.

“It’s so far out of whack…we’re talking about a double wide that tripled in 13 years,” said Burnett. “The discrepancy is so large that I don’t have confidence in anybody inside of these four walls, because this is what you voted for. I mean, my hair’s blown back that you guys got it so wrong.”

Town Supervisor Jim Smith says that just because a property value increases, that doesn’t mean your taxes will.

“That does not mean your taxes are going to double. No way, does it mean your taxes are going to double,” said Smith. “They would only double if county, town, and school left their tax rates at the very same rates as what they are, but all those tax rates are going to come down.”

Smith says he’s expecting there to be a reduction in tax rates by next year. That’s because, due to this reassessment, Canton’s tax base is expected to grow from $417 million to $730 million.

David Reiss, a Clinical Professor of Law at Cornell University, says property assessments need to keep up with how neighborhoods change.

“And so if you don’t reassess, you don’t really capture the introduction of the park. You don’t capture the introduction of the highway exit,” says Reiss. “And so you have relative unfairness where maybe both houses were valued at $200,000 15 years ago, but one is now worth $250,000, and then the other’s worth $400,000. And the reassessment is supposed to capture how that has diverged over time.”

Reiss says there are many variables, but it’s important for property owners to understand not just the assessed value of their property, but also their neighbours and the town as a whole.

“You need to understand the tax rate. You need to understand the budget. And then you have a better sense of how this is playing out across the board and also how it’s playing out for each individual property owner.”

Canton residents have the opportunity to contest their new property values at Grievance Days, which start on May 26. Town Supervisor Jim Smith encourages people who have concerns with their assessment to get in touch with the assessor’s office.

Smith says that in the future, he’s hoping to make these assessments happen more often, so that people aren’t surprised by what their property’s assessed value is.

Why Was Housing So Much Cheaper in the 1950s?

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inequaltiMarketplace quoted me in Why Do Cars, Housing and Clothing Cost Much More Than They Did in the 1950s? It reads, in part,

Question: Why did a pair of jeans, a box of rice, cars, houses and other items that still exist today cost one price in the 1950s but now are so much more? They’re still the same products with very little change. In fact, due to automation, many of these things are actually cheaper to produce.

    *     *     *

Aren’t products today higher quality?

There has been an increase in the quality of some products over time, which means looking at costs from the 1950s vs. today can seem like an apples-to-oranges comparison.

One can make the argument that cars are equipped with better features than ones from the ‘50s. “We have all kinds of things like seat belts and anti-lock brakes and computerized systems in your dashboard,” Stapleford said.

But if you’re trying to determine affordability, you have to look at the options that are available to you at the time.

“If someone wanted a 1950 car, they couldn’t get it. You couldn’t go out and buy a car that’s exactly the same as it was in the 1950s. You don’t have that kind of discretion as a consumer. You’re sort of stuck with what’s available on the market. So you’re then forced, in a way, to buy this higher-quality thing, which you may or may not want,” Stapleford said.

If you’re comparing housing prices, you also have to look at changes in the types of homes people are buying.

A typical home in the 1950s could cost around $7,000 a year vs. about $400,000 now, said David Reiss, a law professor at Cornell University who studies housing policy.

But while today’s price is 57 times more the cost of a house in the 1950s, you have to adjust for inflation and look at the size of these homes. The average house is now much bigger, Reiss pointed out. So based on square footage, a home today is actually probably four or five times more expensive than one in the 1950s, Reiss said. They also have more amenities, he pointed out.

“The quality of the housing has gone up dramatically, and that’s probably reflected in the price to some extent,” Reiss said.

But there are still other factors explaining the increase in price, which include construction productivity and supply and demand. There are people who will pay $1 million for an apartment with a leaky roof because of the area it’s in, Reiss said.

In a lot of areas with job opportunities, the regulations that govern new construction are very strict, which contributes to these high prices, Reiss said.

Many Americans feel like homeownership has become increasingly out of reach.

There was less income inequality in the mid-20th century compared to now, Reiss said. In 1950, the household median income was $2,990, with the median home value about 2.5 times that. In 2024, the median sales price was almost five times the median household income.

There is one big caveat: Reiss noted that the housing market was “incredibly discriminatory” against different groups like Black Americans. But for those who didn’t face unjust policies, homeownership was more affordable.

“Now you have extreme wealth at the one end, and some very low incomes at the bottom end,” Reiss said.

Is It a Homebuyer’s Market?

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CC BY 2.0 Mark Moz

Marketplace quoted me in Is It Really a Homebuyer’s Market Now? It reads, in part,

Housing prices are dropping and buyers are scoring steep discounts on their purchases, indicating that the real estate market is becoming more favorable for buyers. But while some homebuyers are getting better deals, housing is still out of reach for many Americans and the 30-year mortgage rate remains above 6% — double what it was in 2021.

The typical homebuyer got a discount of 3.8% or $15,196 in 2025, with 62% of all homebuyers paying less than the list price, according to a new Redfin study.

“Some sellers haven’t adjusted to the fact that demand is much slower than it was during the pandemic homebuying frenzy. They watched their neighbor’s home sell for tens of thousands of dollars over the asking price back then, and are now pricing their homes based on that,” stated the authors of the study.

And for the first time in two years, national home prices have gone negative, declining 1.4% in the last quarter of 2025, according to Parcl Labs, a housing data and analytics firm.

“I think big picture, any decline or slowing of growth is better for buyers than the type of growth that we have been seeing for a few years,” said Nicholas Kacher, an associate professor of economics at Scripps College in California.

But although there are positive signals out there for homebuyers, there are also some “countervailing points” that indicate the market isn’t entirely in their favor, said David Reiss, a law professor at Cornell University who studies housing policy.

Signs that buyers may still struggle on the market

Home sales are at a 30-year-low, which means sellers are either keeping houses off the market or buyers are not willing to purchase them, Reiss said.

“The market is not super liquid right now,” Reiss said.

Plus, nearly a quarter of homes still sold above list price last year, Reiss pointed out.

     *      *      *

The solution: Increase supply

The major issue with the housing market is that the U.S. is simply not building enough housing, Reiss said.

“It’s tough to build housing, and a lot of markets, lots of localities, discourage it. They don’t want new housing. They don’t want the construction. They don’t want to pay for the social services that are attached to it, like new schools and new medical facilities,” Reiss said.

 

Housing Stability in the Mamdani Administration

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By Phillip Capper, Wellington, NZ – 143rd. St., Bronx, NY, 2/08, CC BY 2.0

I am looking forward to the discussion tonight on Housing Stability in the Mamdani Administration, hosted by the Urban Design Forum. While it is sold out, we will be discussing “what a potential rent freeze may look like under the Mamdani administration” and I am sure there will be some good reporting on this topic over the coming weeks and months. The Forum writes,

As living costs continue to rise, Mayor-elect Mamdani has proposed freezing rents on stabilized apartments as a way to support tenants and protect housing stability. At the same time, critics warn that such measures could make it harder for building owners—particularly those managing older buildings with thin margins—to maintain safe, livable homes.

We’ll begin with an overview presentation by Mark Willis of the Furman Center, followed by a panel with Oksana Mironova, Emily Kurtz, David Reiss, and Thomas Yuon how the next administration can promote tenant stability and preserve affordable housing.

What strategies can preserve deep affordability while ensuring stabilized buildings remain financially sustainable?