The Color of Credit: Cities vs. Banks

posted by Alan White

Appendix 4 Foreclosures Miami Reduced

On Election Day, the Supreme Court will hear argument in the cases of  Wells Fargo v. City of Miami and Bank of America v. City of Miami. At issue is the standing of cities to sue banks for mortgage redlining and reverse redlining.

The history of redlining is well known. Banks, in concert with the housing agencies of the New Deal, drew lines around minority neighborhoods where no home mortgage loans would be made (or backed by federal agencies). Starting in the 1990s and until the 2008 crisis, subprime mortgage lenders, some of them affiliates of major banks, targeted the same minority neighborhoods for high-cost, high-risk loans. Inevitably, the same minority neighborhoods have been devastated by the recent wave of foreclosures.

Less well known is that since 2008, the overcorrection and severe tightening of mortgage loan approvals has had a hugely disparate impact on communities of color, especially in cities. Redlining is back. 


Continue reading "The Color of Credit: Cities vs. Banks" »

Join us for the "The NCBJ at 90"

posted by Melissa Jacoby

ABLJInfoWill you be in San Francisco for the National Conference of Bankruptcy Judges annual meeting and related events? Please mark your calendars now for Thursday October 27, 3:oo pm Pacific Time: a special educational session honoring the 90th anniversary of the NCBJ.* We (Profs. Gebbia, Simkovic, Pottow, and me, with great guidance and input from Judge Colleen Brown and Judge Mel Hoffman) will be discussing original historical research on bankruptcy courts and bankruptcy law conducted for this occasion. Early abstracts can be found on the NCBJ blog. In the meantime, Prof. Gebbia has been posting quizzes; I suspect some Credit Slips readers would ace these tests, but you won't know until you try!

So please do join us on October 27 to be part of this commemoration and conversation.

* The mission of the NCBJ, according to its website, is:

The National Conference of Bankruptcy Judges is an association of the Bankruptcy Judges of the United States which has several purposes: to provide continuing legal education to judges, lawyers and other involved professionals, to promote cooperation among the Bankruptcy Judges, to secure a greater degree of quality and uniformity in the administration of the Bankruptcy system and to improve the practice of law in the Bankruptcy Courts of the United States.


Ironic Observation of the Day, CFPB Edition

posted by Adam Levitin

I just want to observe the irony that while the anti-consumer echo chamber was jumping up and down in joy over the ruling in PHH v. CFPB (see, e.g., here, and here), Wells Fargo's CEO resigned over a consumer financial abuse scandal.  Hmmm.   But surely if the CFPB had been a multi-member commission or the Director were subject to at-will removal, all would be well. 

(I'd also point out that for all of the self-congratulations in these pieces, they don't seem to have realized how little the PHH ruling actually buys them. Maybe if they actually bothered to understand the agency, rather than just spout rhetoric, they might realize what a manqué victory this was.)

PHH v. CFPB: A Blessing in Disguise for the CFPB

posted by Adam Levitin

The headlines look pretty bad:  the DC Circuit Court of Appeals held the CFPB's structure to be unconstitutional in a case call PHH v. CFPB, which deals with kickbacks in captive private mortgage reinsurance arrangements allegedly in violation of the Real Estate Settlement Procedures Act.  In fact, however, the ruling is a blessing in disguise for the CFPB. While the 110 page decision is filled with inflammatory rhetoric, it gives the CFPB's detractors very little succor in the end.  The CFPB lost on the decision's rhetoric, but won on the practical implications.  Although the CFPB’s current structure was declared unconstitutional, the court also immediately remedied the flaw by declaring that the CFPB Director is now removable by the President at will, rather than only "for cause" as provided for by the Dodd-Frank Act.  There are four critical implications from this ruling:   

  • First, the CFPB’s existing rule makings and enforcement actions remain valid and unaffected.  That's a huge win for the CFPB.  It's business as usual at the CFPB for all intents and purposes. 
  • Second, the CFPB’s Director is now under direct Presidential political control, but that doesn’t have partisan implications:  a GOP-appointed director could be removed as easily by a Democratic president as a Democratic-appointed director could be removed by a Republican president. Now the CFPB Director, instead of running on a five-year term will be on a five-year term that might get curtailed with every change in Presidential administration. That's not a particularly big deal. 
  • Third, the CFPB remains budgetarily independent.  The importance of this cannot be over-emphasized.  It means that if anyone wants to affect the CFPB's ability to function it has to be done out in the open. The agency cannot be quietly asphyxiated through the appropriations process as has happened with the SEC and FTC. 
  • And finally, the decision takes the wind out of sails of House GOP efforts to gut the CFPB by turning it into an ineffective commission structure and subjecting its budget to appropriations.  The House GOP has been attacking the CFPB as relentlessly as it has attacked Obamacare, and the DC Circuit just took away their leading argument, namely that the CFPB has to be removed wholesale because its structure is unconstitutional.  Not so said the court.  There was a very targeted surgical fix, and now the agency’s structure is kosher. Combine that with the Wells Fargo fake account scandal, which underscored the need for a strong CFPB, and the House GOP's attacks on the CFPB are standing on increasingly shaky ground. 

Continue reading "PHH v. CFPB: A Blessing in Disguise for the CFPB" »

Are Consumer Protection Regulations Harming the Middle Class?

posted by Adam Levitin

new paper by Franceso D'Acunto and Albert Rossi, both at the University of Maryland's Department of Finance, contends that the Dodd-Frank Act resulted in "a substantial redistribution of credit from middle-class households to wealthy households", as lenders reacted to regulations by reducing credit to middle-class households and increasing it to wealthy households.  This conclusion is based on a regression analysis of loan and ZIP-code level HMDA data.  The redistribution point is a serious charge to be leveled at the Dodd-Frank Act, and you can bet that this paper is going to be repeatedly cited by Congressional Republicans in their attempts to repeal Dodd-Frank. 

Unfortunately, the paper is founded on a pair of mistaken factual claims about the legal landscape that are so staggering that I am puzzled how they could have been made in good faith. Once these mistakes are corrected, it becomes apparent that the paper's analysis cannot actually support its claims because it is testing the wrong thing.  The paper is observing changes in the mortgage market that pre-date the implementation of Dodd-Frank.  By definition, then, these changes cannot have been caused by Dodd-Frank.  What the paper shows (without realizing it) is that there has been a redistribution of credit from middle class households to wealthy ones, but that it wasn't caused by Dodd-Frank.  Whoops. 

Continue reading "Are Consumer Protection Regulations Harming the Middle Class?" »

Premier Cru American Express Billing Disputes and the Deceptive Nature of TILA Section 170

posted by Adam Levitin
I'm not an oenophile.  But some folks are, and some of them spend very large amounts of money on wine, even without knowing how it tastes.  Not surprisingly, this is a market vulnerable to fraud. One fraud varietal is simply to market swill as high-end wine.  But another is to sell wine before it's even been made--basically forward contracts on wine--collecting the money at time 1 and then never delivering at time 2.  It's a simple Harold Hill (The Music Man) type scam.  It can also be rolled over into a Ponzi scheme whereby later customers are funding the purchases of the initial customers.  And that seems to be what happened with an outfit called Premier Cru, which ultimately filed for bankruptcy. 
Now here's the catch.  Many of the $45 million of undelivered wine orders were charged on credit cards, with the bulk of it being on American Express.  (Think mini-Salad Oil Scandal.  Perhaps this is the Vinegar Scandal.) The question, then, is who bears the losses:  the cardholders or American Express?  A lot of cardholders have been surprised to hear that American Express is saying that the losses are on them.  Is that right?  As it turns out, it's a trickier question than it might seem.  The cardholders' dilemma was covered recently by the New York Times, with some reference to yours truly.  Below is my extended (and updated) analysis of the situation. It might seem obvious, but I'll state for the record that I have no involvement with this matter other than as an outside observer. The bottom line is that I believe that all of the Amex cardholders who never got the wine delivered have a very strong legal claim for the losses to be borne by Amex, but that it probably doesn't matter a lick because they're all going to get shunted off into arbitration, and the CFPB's proposed arbitration rulemaking won't do anything to change the situation. 

Continue reading "Premier Cru American Express Billing Disputes and the Deceptive Nature of TILA Section 170" »


posted by Stephen Lubben

John Dizard has a useful, and clearly written, piece on the lay of the land in this morning's FT. What puzzles me is why PDVSA, the national oil company,  has not done a UK scheme of arrangement or a US prepack to exchange the bonds, instead of messing around with an exchange offer. But the entire situation is rather opaque.

Police Misconduct in Bankrupt Cities: Ninth Circuit Update

posted by Melissa Jacoby

"But Chapter 9 has awakened, and we do not presume further disputes over its interpretive and practical complexities will remain long at rest."

So says a panel of the U.S. Court of Appeals for the Ninth Circuit in Deocampo v. Potts (14-16192), filed since the last Credit Slips posting about civil rights debts in municipal bankruptcy. My working paper is newly revised to discuss the Ninth Circuit's ruling. Just a few points here.

The Ninth Circuit reached the right result in holding that the Vallejo bankruptcy did not relieve the police officer defendants of their individual liability for 1983 violations (excessive force). The court also held that Vallejo's state law obligation to indemnify the police officer defendants was not discharged by the city's bankruptcy, arising as it did after the city received its discharge.

Another element of the opinion should alarm civil rights advocates, however. For example, although it does not decide the issue, the panel suggests a surprising (especially for the Ninth Circuit) level of openness to explicit non-debtor releases of police officers in municipal bankruptcy restructuring plans. Surely everyone involved with the pending San Bernardino case is paying close attention.

Is It Time for the CFPB to Regulate Retail Bank Employee Compensation?

posted by Adam Levitin

It doesn't take a genius to figure out that incentive-based compensation like the type featured in Wells Fargo's current and previous consent orders has the potential to encourage fraud and steering of consumers into inappropriate products in order to make sales numbers. Here's the thing:  there's little regulation of retail banking employee compensation. Instead, banks are relied upon to self-regulate, to have the good sense not to have unduly coercive incentive compensation and to have internal controls to catch the problems incentive compensation can create. But when a leading bank like Wells Fargo repeatedly fails to have good sense and to have sufficient internal controls, it suggests that it might be time for more directed regulation that will create clearer lines that facilitate compliance.  

The CFPB already regulates the compensation of mortgage originators (loan officers and brokers), limiting compensation based on loan terms to 10% of total compensation. But this regulation applies only to mortgage loans. There's no regulation of retail banking employee compensation generally.  And there are some big wholes in the CFPB mortgage loan officer compensation regulation. In particular, the CFPB's regulation does not cover compensation based on the number of loans made or the size of the loans, only on the terms of the loans. That leaves the door open for banks to set up compensation schemes that pressure employees to engage in fraud to meet quotas and get bonuses. 

So what can be done going forward?  

Continue reading "Is It Time for the CFPB to Regulate Retail Bank Employee Compensation? " »

Not Wells Fargo's First Rodeo...

posted by Adam Levitin

Over on Twitter, Michael Barr noticed that there's an eerie similarity between Wells Fargo employees team members being incentivized to open up unauthorized deposit and credit card accounts for consumers and another practice that got Wells in trouble in 2011, falsifying borrower income and employment information in order to sell debt consolidation, cash-out refinance mortgage loans at sub-prime rates (often to prime borrowers).  Wells entered into an $85 million consent order with the Federal Reserve Board in July 2011 over these practices. (See summary here.) The consent order noted that it was Wells incentive-based compensation and minimum sales quotas that drove the employee fraud:  

B. Under Financial's sales performance standards and incentive compensation programs, Financial sales personnel, called "team members," were expected to sell (a) a minimum dollar amount of loans to avoid performance improvement plans that could result in loss of their positions with Financial, and (b) a minimum dollar amount of loans to receive incentive compensation payments above their base salary.

This rather expensive consent order should have been a giant red flag for Wells Fargo's compliance department, for Wells Fargo's board of directors, and for John Stumpf, Wells Fargo's Chairman/CEO.  It should have caused Wells Fargo to reexamine its loan officer compensation structures throughout the bank.  One assumes that the consent order did not come out of the blue in July 2011, but was likely the result of months if not years of investigation and negotiation.  That suggests that Wells should have been aware of problems with its compensation system substantially before it began firing employees in 2011 over the unauthorized account openings.  As ugly as things already look for Wells, we might learn that things were in fact worse. 

What is the point of that?

posted by Stephen Lubben

Perhaps as a result of GM, I've been thinking about notice issues in connection with insolvency. Thus, I was a bit surprised to see these three notices, all related to Lehman cases pending in Hong Kong (and schemes of arrangement in those cases), which appeared in this morning's Financial Times.

Credit Slips ImageNote that in the title the notice is addressed to the "Scheme Creditors," as "defined below." Yet below, we are told that Scheme Creditors are "as defined in the Scheme."  So unless you are an insolvency fanatic – I plead guilty – and going to run down the documents and read them, this published notice has told you absolutely nothing.

They might as well run an add that says "A company is insolvent. You might be a creditor. Or maybe not.  Good luck."



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