Very early on a Wednesday morning in
September, the city council of Richmond, Calif., did something that no
American city had yet managed: It voted for a plan to wrest underwater
mortgages from the hands of Wall Street, depriving investors of tens
of millions of dollars in order to save borrowers from foreclosure.
For communities across the land -- North Las Vegas, San Bernardino
County, Calif., Chicago -- where too many are stuck with house payments
beyond what they can afford, this was the nuclear option. While those
cities backed away, Richmond hit the
button.
The mechanism? Eminent domain, the power of the government to seize
private property for public use, which has not typically been used to
help poor neighborhoods. After five years of the federal government
gently nudging banks to forgive homeowners debt they took on in better
days, cities have found a legal weapon the financial industry truly
fears.
The stability of those housing markets, and the banks that profit from it, could depend on the fallout.
The strategy's complexity has left stakeholders to lean on dogfight
rhetoric: From the community activists, "Save homes, stop foreclosures."
And the Realtors, "Stop investor greed." And the lawyers for the
investors, "Prevent this unconstitutional
investment scheme."
In short, here's how it would work: Richmond condemns mortgages on
homes that are now worth far less than what the borrower owes. The note
holders -- investors such as pension funds and mutual funds -- are
forced to settle for the current fair market value. The city pays for
this with cash from a new set of investors, who now own the mortgage.
The new price is set by the current market, and the homeowner settles
into a more manageable loan.
It's that smashing of the bond between lender and debtor that
animates investors. They've acted aggressively to stop it, lobbying the
mayor and council members directly. Wells Fargo and Deutsche Bank, on
behalf of scores of investment funds, sued to stop the plan. The
securities industry points out that the plan would also hurt pensioners
who own pieces of Richmond's mortgages. Indeed, last week, California
Public Employees' Retirement System -- the safety net for some Richmond
workers --
expressed concerns.
Richmond couldn't get insurance to shield it from a crushing judgment
-- if it lost its bid to spare struggling homeowners, the city could
find itself underwater. In the backlash to the plan, the market
boycotted the city's most recent bond issuance, forcing it to withdraw
the $34 million offer, which was supposed to refinance earlier debt.
Richmond's leaders stared hard at the threats. In the end, it seemed to only harden their resolve.
"They sold everybody a dream, and said 'you have to own a home, or
you're not American,'" said Council member Joel Myrick, explaining to an
auditorium packed with yellow T-shirts (those for seizing the
mortgages) and red (those against it) why he
voted in favor of using eminent domain. "I am not willing to allow
people to be dependent on the generosity of these same banks that are
suing us in order to be able to pay off their loan before they die."
After the council vote, a district court judge
threw out the investors' complaint as premature -- not on its merits, but because the city hadn't actually seized any mortgages yet.
"This is not a victory for the program and only postpones the day
that Richmond and Mortgage Resolution Partners will have to defend this
program in court," the banks' lawyers said in a statement.
A courtroom victory for Richmond, a town of about 100,000, could give
cities around the country the courage to act -- and potentially help
keep millions of people in their homes. But even a win could spell
defeat for Richmond if the financial industry cuts
off lending to make an example of the city.
So why hit that button? And what would it mean if other cities did the same?
Three minds, one conclusion
The plan for using eminent domain to seize mortgages has at least
three parents: Cornell Law professor Robert Hockett, Loyola University's
Lauren Willis and Harvard's
Howell Jackson, who independently came out with similar proposals as the housing
market was starting to collapse.
"We all three came to the idea more or less at the same day back in
September of 2008," said Hockett, who went on to become the strategy's
chief academic exponent. "It became clear that housing prices were going
to drop in a profound way, and that
there were going to be a lot of foreclosures."
They noticed two things.
First, although it was in the banks' interest to write down the
principal on loans to avoid an outright default -- after all,
it's better to get something than nothing -- the mortgages that had been
reshuffled into pools of securities owned by many different investors
were much more difficult to modify, because so many different investors
would have to sign off on the change. Because of that, these "private
label securitized" loans are much more likely to default than the banks'
portfolio loans.
And second, governments could help unwind that tangle by using
eminent domain to facilitate an exchange between a bunch of
investors who were likely to lose most of their money to a few other
investors who'd give them cash up front equal to the fair market value
of the loan. In effect, it's breaking what Yale housing economist Robert
Shiller
calls
real estate's collective action problem, wherein a large group of
investors can't coordinate to act in their shared best interests.
At first, Hockett thought he might be able to get it done on the
federal level, through the Troubled Assets Relief Program. He says he
had strong interest from someone high up on Barack Obama's 2008
presidential campaign team, but it quickly waned.
"It became clear they were going to bail out the banks directly, rather
than help them indirectly, by helping the homeowners," Hockett said.
Then-Rep. Brad Miller (D-N.C.) proposed his
own version of
the idea, a throwback to a New Deal-era government agency that bought
distressed mortgages from banks and relaxed requirements on their
borrowers, taking the edge off a ballooning real estate crisis. It
attracted some interest on the Hill, but didn't make it into the final
mortgage relief programs, which ultimately
helped far fewer people than envisioned.
Frustrated with the feds, Hockett started throwing around the idea
with a friend of his, a former Rhodes Scholar and banker named John
Vlahoplus. They decided their plan could better be accomplished by
states and municipalities. To do that, they'd need money.
Passionate support
The day before Richmond's city council meeting, on the steps of San
Francisco's City Hall, City Supervisor David Campos (D) held a news
conference to announce his support for Richmond's plan. Backed by
homeowners bearing the wonky slogan, "We need principal reduction,"
speakers railed against banks like Wells Fargo.
"For the rich, eminent domain works," preached the local Archbishop
Franzo King. "But when the poor or black or brown people see it as a
solution to a problem the banks don't feel like dealing with, we're on
the wrong foot. We're going to put these
banksters on the run!"
At the edge of the sidewalk, a man with a white beard, baseball cap
and sunglasses leaned against a lamppost, watching quietly. He's
actually the guy responsible for it all: Steven Gluckstern, a former
insurance executive who had teamed up with Vlahoplus to co-found
Mortgage Resolution Partners, the firm that's lining up the capital --
from hedge funds, for instance -- to buy any mortgages that Richmond
might seize. After that happens, Mortgage Resolution Partners would help
the homeowner refinance through a Federal Housing Administration loan,
and earns a $4,500 fee per successful transaction.
Gluckstern knows the process is more complicated than the ralliers
are making it out to be -- for one, the banks pushing back don't own
these mortgages, but they are obligated to act on behalf of the
investors who do.
Even so, "it's helpful to have a bad guy," Gluckstern says. Wells
Fargo, headquartered across the plaza, makes a good one. This is the
kind of activism that was missing in San Bernardino County, one
jurisdiction to have seriously considered using eminent domain and opted
against it after a sustained opposition campaign and little community
support. Besides, he says, the financial services and real estate
industries are going all out.
"The opposition is so vehement because it's the 'shoot-the-puppy'
strategy," Gluckstern said, in his shiny Volkswagen SUV on the way to
his storefront personal office in a cute neighborhood in the southern
part of the city (Mortgage Resolution Partners used to maintain an
office downtown but closed it to save money). "If this can take hold in
one community, and other communities see that it can happen, and the sky
doesn't fall, and people see that homeowners can be kept in their
homes, you're going to see the tidal wave, which the other side's
figured out."
That's an accurate read of the situation. In court filings, the banks
suing Richmond estimated that investors stood to lose $200 million if
all eligible city homes received write-downs. Fannie Mae alone says that
if the program were extended nationwide,
the government-owned mortgage giant could theoretically lose $24
billion. Even if this crisis is unique and there's no reason Richmond
would need to use eminent domain in the future, as Gluckstern argues,
the industry would much rather not see anybody
else use it even once. Besides, they worry, what's next: Underwater car loans? Student loans? Credit card debt?
"There is no doubt, investors will not put capital to work in a
jurisdiction where there is a threat of a taking," said Tim Cameron, the
Securities Industry and Financial Markets Association's point person on
the issue. "We're going to go to those with the best credit, and where
the belief in property rights are sound."
For Gluckstern, the bigger problem is getting any support from
entities in the Washington establishment whose opinions carry weight.
The Federal Housing Finance Administration has
warned
it will stop Fannie Mae and Freddie Mac from lending in
jurisdictions that use eminent domain to seize mortgages. Since private
lending is at a standstill, that would effectively put Richmond's real
estate market into a deep freeze.
While national fair housing organizations condemned FHFA's threat as
"redlining," since it would cut off credit to a disproportionate number
of Hispanics and African Americans, other big groups - such as the
National Housing Institute,
National League of Cities and
National Housing Conference -- have been skeptical of the city's approach as well.
"I just don't think cities are going to want to take up the work,"
said Linda Couch, policy director at the National Low Income Housing
Commission. "Implementing eminent domain and buying up the properties is
the easy part. How do you know that a city manager is going to know how
to right size a mortgage? Does the city then become responsible for
evicting people if things don't work?"
Even credit unions, which made lower-risk loans and are rooted in
their communities, decry the plan. David Green is president and chief
executive of the Contra Costa County Federal Credit Union, which serves
city, county and state employees. He says
he's maintained strict underwriting standards and has foreclosed on only
three homes in the past few years. Green says he doesn't think
investors should be bilked through eminent domain.
"I don't agree with what they're doing, especially since it hits so
close to home," Green said. "I think their heart's in the right place, I
just think it's the wrong vehicle for doing it."
Gluckstern has made the rounds in Washington, too, with little
success: Richmond's own congressman, George Miller (D), only reluctantly
sent a
letter encouraging Bank of America to do more principal write-downs.
Gluckstern, frustrated by the timidity, is starting to sound like an Occupy Wall Street person himself.
"I think most politicians don't give a [expletive] about the middle
class," he said. "I think they wish they'd go away. It's hard to know
what to say to people about the fact that the rich keep getting richer
-- how long do you think we can sustain that? It's way too unequal, and
the consequences for my grandchildren are going to be severe." It seems
he's given this spiel before, including the doomsaying conclusion.
"And then what happens? The French Revolution."
Entrenched positions
Neutral parties are hard to find in Richmond.
Mortgage Resolution Partners has lots of investors to pay back (it's
spent more than $7 million promoting the plan and paying Richmond's
legal fees). Underwater homeowners are eager to see their debt reduced
and loans locked in at a lower interest rate. The pension and mutual
funds that own the securitized mortgages don't like the precedent of
government seizing their assets.
Real estate agents don't own the homes or the mortgages. They mostly
care about a healthy market. But having decided eminent domain would be a
disaster, they signed on as ground troops for the opposition. In
Richmond, the local Realtors' association
detailed 30-year veteran Jeff Wright to lead the charge.
As part of that mission, Wright offered a tour of the city to prove
that Richmond isn't the hardscrabble suburb it's been made out to be --
and that it doesn't need to take the kind of drastic measures the city
council is contemplating.
Wright pulled up to the El Cerrito Bay Area Rapid Transit railway
station in a silver Mercedes and shades, wearing a starched shirt with
gold cuff links and a carefully tended goatee, easily recognizable from
the glossy attack
mailers warning that
Wall Street was coming to "take a bite out of" Richmond's homes. First
stop: The house in the lower-middle-class neighborhood of South Richmond
where he grew up. Wright scans for boarded-up houses and finally finds
one.
"If you see a news account of Richmond, they take the picture here,
because that gives the slant of poverty and not looking so great," he
said, punctuating his sentences with pauses and hand gestures. Then we
drove west toward Point Richmond, which has breathtaking views of San
Francisco Bay and large houses with expensive cars in their driveways.
"Did you know that some of the houses on the list are in here?"
Wright asks, affecting astonishment. "Guess they need some help, too."
That's one of the pro-eminent domain contingent's public relations
failures. They included all owner occupied underwater mortgages locked
up in private label securities on their initial list of 624, even those
that were current on their payments. While
activists and city officials
have said
they'd probably reevaluate whether the borrower really needed help
before seizing the mortgage, opponents have successfully used the
cluster of listed homes in wealthy neighborhoods to characterize the
whole
program as an indiscriminate bailout for the wealthy.
Our tour of not-struggling Richmond continued.
"Okay, this is a country club," Wright said, pausing for effect as we passed a gated golf course. "The
Richmond
Country Club." And then, climbing the heights behind it: "This is
called Country Club Vista. Country Club Vista: Why? Because it overlooks
a country club. This is poor, impoverished Richmond," he finished, chuckling to himself.
The Realtors' opposing argument breaks down into three basic parts.
The first is self-interested. They're terrified of giving lenders and
bond buyers any reason to look twice at Richmond, which is what
appeared to happen when nobody bit at the $34 million bond issue it
floated in July. Wright uses a grocery store analogy
to explain his fear.
"All prices being the same. If I reach for a can of beans and there's
a dent in the can, you know what I do? I put it back on the shelf and
get the can that has no dent in it," he said. "The contents might be
okay, but I don't want the dented can. In a sense, Richmond's bonds are
like a dented can."
Is that actually how bond buyers operate? Yes and no.
Deborah Lucas,
a municipal finance expert at MIT's Sloan School of Business, points
out they could see the threat of eminent domain as a signal that the
bonds are risky, even if they buy Gluckstern's
argument that a seizure would never happen again. At the same time,
though, bond markets are broad and deep. "The effect of a boycott by
some investors would only be to drive up yields, which would attract
others to take their place," Lucas said.
The second sort of argument the Realtors make is ideological.
Richmond conservatives also fought Green Party Mayor Gayle McLaughlin on
a proposal to tax soda, which Wright sees as evidence of a "nanny
state," just like intervening to break a contract with a lender to help
out someone who shouldn't have taken out that loan in the first place,
he says.
"Did you have to buy that property? No, you didn't," he said. "If
people can show me where their signature was forged on the document, or
you can show me you had to sign under duress, lender put you in a chair,
tied you up, put a gun to your head
and said 'you're going to do this loan,' I will shut the hell up and go to the other team."
Advocates respond that personal responsibility is irrelevant: In a
world where more people held good jobs and banks had lower standards,
paying a high price seemed perfectly reasonable. After all, many people
had fared well in a booming housing market.
Besides, the thinking goes, in the aggregate investors would be
better off getting fair market value now than losing the entire value of
those securitized loans that tend to fail at about a 30 percent higher
rate than regular bank-owned ones.
The last argument has to do with what's good for the neighborhoods.
Wright figures that there's no inherent harm in a foreclosure -- if
someone defaults and leaves, the market is hot enough that someone else
will take their place.
"So now the family that got foreclosed on. They're gone, that's
unfortunate, but now another family's in there," he said. "So it's
transitioned in the same way as my neighbor's, who's put his house up
for sale. Transition is transition. One's voluntary, one's involuntary.
What harm is caused to the community by one family moving out and
another family moving in?"
But this is the biggest point eminent domain advocates have to drive
home: That foreclosures are so devastating to a community, and more of
them are so inevitable, that it's worth risking the wrath of markets to
make them go away. So they'll talk about
how foreclosures lower property values and therefore tax revenue,
replace stable homeowners with investor-owned homes full of shiftless
renters and demoralize a community. In Richmond, it's been enough to
convince city leaders they have little left
to lose.
Too late for many
The tragic thing, for Richmond and other cities, is that even if they
decide to use eminent domain, it will be too late for many of the worst
affected. Two thousand Richmond homes have gone into foreclosure in
three years, and about 1,600 more homes with underwater mortgages are
wrapped up in private-label securities. Meanwhile, housing values are on
the rise, which means that they're less valuable for investors that
might supply the funds to buy them from those securitized pools.
Nationally the situation is similar; the plan wouldn't help 4.4 million households that Corelogic
estimates
have foreclosed since the beginning of the financial crisis in
September 2008. Another 4.5 million investor-owned loans are still
underwater,
by Hockett's estimates.
Some Richmond residents have adapted to the new normal.
Take Ricardo Cabral. He lost his house in Oakland to foreclosure
eight years ago after losing his job in construction, his back wracked
with the pain of decades as an ironworker. He moved with his wife and
daughter to Richmond, where they rented
a house from a friend until that house was foreclosed on as well.
They found another place in the city's notoriously run-down and
dangerous Iron Triangle, renting it for $1,200 per month. Cabral, who
stays home with four chihuahuas while his wife goes to work in Marin
County, keeps the lawn neat and tidy. They try to ignore the gunshots
that ring out at night and figure they'll stay as long as they can,
having given up on the idea of actually buying a house ever again.
"I don't own the home, but I'm very happy," Cabral said. "I'm here to stay in Richmond, not Oakland."
Cabral is hopeful that the city will be able to pull off its plan, but he's skeptical.
"If it comes true for the people, hooray for them, hooray for
Richmond," he said. "If you can back your story up and say, 'Hey, you're
for the underdog, you're going to help people keep their homes,' I'm
all for Richmond. Right now, you're just a piece of paper saying this is
what you're going to do, and you ain't done nothing, yet."