CBS News Says Obama Won by a Wide Margin Among Uncommitted Voters

September 30, 2008

CBS says that Obama won, although the polls do not seem to show a bump after the debate.  This may be because there were so many things happening last week, including last week’s declaration by McCain of “Mission Accomplished” with respect to the bailout. It was only this week that this was shown to be as illusory as previously accomplished missions.

McCain’s seizing the headlines last week and his efforts to portray himself as leader of the congressional bailout coalition no doubt caused expectations for his performance in the debate to rise, particularly when foreign policy, his acknowledged strength, was the focus of the debate.  Higher expectations may have contributed to the perception that he lost the debate.

I got the impression that he was betting the house when he “suspended” his campaign to demonstrate his leadership ability with the bailout legislation.  He of course did not suspend anything except his own public appearances and arguably the television time he got for this gesture exceeded anything that he would have received had he continued to make scheduled public appearances.  Once again though he took a short term gain — the appearance of leadership in crisis — and risked a long term loss.  Once again, as with the vice presidential decision, it looks like the long term loss will outweigh the immediate gains.  For all the broohaha last week, this week McCain looks ineffective.  His white horse seems to have charged in the wrong direction.

The vice presidential debate could given the recent downward direction of the polls momentum.  I shudder to think what episode awaits us to curb that event if it occurs.


McCain’s High Wire Act

September 30, 2008

McCain once again has hoisted himself by his own petard.  McCain’s effort to reverse the downward trend in the polls last week seems to have backfired.  His highly publicized return to Washington risked hindering those negotiations by turning them into a political spectacle.

He seemed to minimize the risk of derailing the negotiations by not taking an active part in them.  Instead he seems to have limited his participation to contacting members of congress to encourage them to pass the bailout bill, focusing on the doubting Republicans in the House.  His efforts got him into the news and stopped the chatter about his deregulation policies creating the crisis.

At the end of the week, when people believed that the bailout bill would pass, he was taking credit for solving the problem.  With the bill’s spectacular failure, McCain finds himself in a worse situation than the one last week.  Instead of diverting discussion from how we got into this difficulty and receiving accolades for averting disaster, he finds himself ducking the ricochets of his own salvos.

The man who claims to embody the best leadership qualities could not lead his own party in a time of crisis.  The intense degree of attention McCain called to this matter puts the failure of his efforts in sharpest relief. Increasingly his judgment appears to be somewhat superficial and geared to public realtions rather than substance.

The polls indicate that McCain is suffering the most erosion of support among older voters.  These people are generally regarded as a more knowledgeable group of voters.  My guess is that McCain’s predilection toward snap judgments, and willingness to take serious risks are causes of diminishing support from this quarter.  His record shows him voting almost entirely for deregulation and he has boasted about it consistently until very recently.  There is nothing in his recent activity to show insight and judgment sufficient to separate him from his record.


Where is the Money Going?

September 26, 2008

I’m having trouble understanding this bailout business and I cannot find an explanation anywhere. Apparently a lot of other people are having trouble understanding this as well.  My confusion relates to the claim that the problem is due to the foreclosure crisis and that at least $700 billion dollars is needed to fix it.

The total amount of troubled home loans is $112 billion. This at least was the number bandied around over the last year. It was that portion of Washington Mutual’s portfolio that brought it down. The Wall Street Journal this morning reports that Washington Mutual has $30 billion in bad loans that will be written down with the purchase. What are these loans? Are they not home loans?

From published reports just paying off the home loans would have rendered Washington Mutual highly solvent. If the government stepped in and paid them all off, what would we use the remaining $588 billion for?

Furthermore that does not take into account the collateral for the loans. If we were able to recover just one quarter of the amount for which the collateral had been orginally valued, that would reduce the cost by an absolute minimum of $28 billion, leaving a cost to the tax payers of $84 billion. It is likely that more would be recovered so that the actual cost would be around $50 billion.

Either the total amount of troubled home loans is more than six times greater than previously reported or there is a lot going on that I have not been able to find explained.


The Economy: Pouring Gasoline on Fire?

September 18, 2008

The United States does not have enough money to sustain its own activities.  For reasons that I did not understand, nor apparently Alan Greenspan, rather than curb our country’s excesses we went into historic levels of indebtedness.  Our foreign debt has more than quadrupled and our total national debt is over three trillion dollars.

This previously unknown level of debt quite predictably caused the dollar to weaken.  As the dollar fell we have made a variety of efforts to prop it up but the weight of our debt has been too much for the interim measures we have undertaken.

While our leaders were focused on a war we entered into for reasons that have never been adequately explained by our leaders, they did not mind the store at home so that reckless lending practices were allowed to metastasize.  This certainly artificially sustained the economy for a while and just as certainly these practices were unsustainable over the long haul.  They were doomed to fail with fluctuations in the real estate market and like all houses of cards a tremor would be ruinous.

For reasons the Bush administration can best explain we were caught unprepared.   We have been forced to take measures that will be hard for our economy to endure if they are successful in stemming the current disaster.  At a time when we are borrowing money almost as fast as we can, the government is committing its resources to propping up its financial and insurance institutions.  This diversion of funds that are already inadequate to meet expenses will add to our sorry state of indebtedness.

The second measure that we are taking is to print more money.  Yesterday the Federal Reserve announced that it will be dumping $56 billion into the economy.  When you print the stuff that is pretty easy to do. This however will contribute to the downward spiral of the value of the dollar.

I have commented, after reading Naomi Klein’s “Shock Doctrine,” that the United States really has been taking on the attributes of many South American countries.  It has a diminishing middle class; the polarization of wealth distribution is greater than it has been since the beginning of the industrial age, before the first timid implementation of the restraints complained of by Republicans.

Like our neighbors to the south we have promoted the power of the executive to a greatly heightened level. We have reduced oversight of private financial activity while loosening restraint on governmental activity with respect to its citizens.  Like South American countries we have gone deeply in debt and our financial institutions are not stable.  Similar to them our currency is falling.

The current measures to cure the crisis are not the smoke and mirrors approach that we have adopted in the past. At the same time if they avert disaster they will leave us with an economy in worst condition than we thought it was in before the crisis.  In short we will bring the crisis in the wings that we already knew about a few steps closer to center stage.


Selling Short: What You Need to Know

September 10, 2008

A “short sale” in Washington State real estate agent parlance is selling during the pendency of a foreclosure. It involves convincing the foreclosing lender to accept less than the full amount owed.

One of the things to watch out for here is a fairly subtle manipulation by the real estate agent to profit by the situation. The case I’m familiar with involved a home owned by a very unsophisticated woman. The real estate agent disclosed that a relation was the buyer and that the sale was “a short sale.” The owner did not understand what this meant and signed the papers offered to her, again relying on her agent and not understanding the terminology of the contract.

She was next told to come down to sign the papers for closing and that there would be no money for her. When she objected, the agent gave her verbal promises that she would receive three thousand dollars after closing but declined to put it in writing.

It turns out that she would have received over ten thousand dollars except that the addenda to the contract provided that she would pay all the buyers’ costs of the loan and settlement charges. It also provided that almost $6000 would go to the Nehemiah Down Payment Assistance Program, which according to the closing agent is a program to refund the buyer’s down payment.

This lady had no understanding that, while she got the price she wanted, over ten thousand dollars of the money was going directly for the buyer’s benefit.

In this way the buyer gets the home for absolutely no money out of pocket and the owner gets nothing. The real estate agent gets the commission. The buyer though is left in the same position as if there had been a foreclosure, except that her credit report will contain reference to a “short sale” rather than foreclosure. What the seller has lost is time that might have been spent trying to make a sale that would give the buyer some money to at least move.


Another Local Approach to Foreclosure Crisis

August 27, 2008

Seattle this spring adopted a small loan program to help foreclosure victims. The program was so narrowly defined that it could not help most of the people needing assistance, but represented a step in the right direction. The principal recommending feature of the program was that the money advanced to homeowners was treated as a secured loan, so the cost of the program would be quite limited.

San Diego’s City Attorney proposes another inexpensive approach that warrants study. He is pushing the City Council to pass a moratorium on foreclosures. Cities and local governments could certainly do this. There might be an argument that the legislature had not conferred this power on local governments, but this at the very least is debatable. The possibility of a challenge alone is no reason to avoid doing something that is helpful to people.


Dual Agency Issues: The New Depressed Property Law

June 17, 2008

Real estate agents are concerned about the situation in which they present an offer to buy unlisted property that is being foreclosed.

In that context if the agent says that the owner ought to sell to avoid the foreclosure or something of the sort the agent risks risk being deemed a “distressed home consultant,” and would then have fiduciary obligations to both sides of the transaction, as the agent would with a dual agency. In this situation though there is an inherently strong conflict of interest.

I believe that you would have to have the seller consult with a lawyer of his or her choice and have the seller be independently represented in the sale by the lawyer or an independent agent, perhaps chosen by the lawyer. The seller’s interests would then be protected and in the abstract I believe the agent would probably be deemed to have fulfilled his or her duty to the seller.

I would certainly recommend that even after the seller has independent representation the agent make full disclosure to the other side and maintain the highest level of honesty. I would strictly comply with the other requirements of the new law.

I’m not sure whether the new NWLS forms cover this situation, but it would certainly be appropriate to discuss the details of the situation with a lawyer at that time.


Washington Distressed Property Law (2)

June 11, 2008

It appears that most of the complaints about the equity skimming law are originating with representatives of real estate agents. (See a comment to an earlier entry.) The reason for this is that the law impresses new duties on the agents and with the new duties the prospect of liability. Over the years there has been a good deal of marketing to get you to think of real estate agents as “real estate professionals.” This law they believe is taking this idea too far.

The crux of this concern is that real estate agents might be characterized as “distressed home consultants” who the new law says owe a fiduciary duty to the the distressed home owner, someone facing foreclosure. Courts have described “fiduciary duty” as the highest obligation of care, loyalty and good faith. Most distressed home owners believe that they are getting this from the person who is advising them. (For that matter many people who retain a real estate agent imagine that they are receiving this level of commitment.) Illegal equity skimming, at least the cases I have seen, all involve engendering this level of confidence in the home owner and practicing beneath that level.

Representatives of real estate agents argue that this is not fair to the agents because the standard is vague and broad in scope. Remember though that the law applies only to agents, as well as all other people, who meet the definition of “distressed home consultants.” The law describes two categories of these “distressed home consultants.” The first is a person who solicits or contacts a “distressed home owner” and makes a representation or offer to to provide a service that will avoid the foreclosure.

The statute lists 13 types of offers that render a person a “distressed home consultant.” They include such things as avoiding or delaying the foreclosure, arranging a lease with a purchase option and the like. Do any of these things and you are a “distressed home consultant” with a fiduciary duty to the home owner. Clearly a real estate agent could inadvertently say something that would render him or her potentially liable as a fiduciary. So could anyone else.

The other way a person can be a “distressed home consultant” is by systematically contacting owners of homes that are in foreclosure. If you systematically solicit people in foreclosure you owe them a fiduciary duty. This should reduce the wildly misleading solicitations that are routinely sent to people after a notice of foreclosure is recorded, then published. Home owners in foreclosure receive dozens of these mailed promises of relief. Real estate agents, and others, who do mass mailings and target these people fall under the definition.

“Fiduciary duty” is a court-defined term that has been in use since long before Washington was a state. It is a term imposed by the courts where there is a relationship of trust and dependence. Its scope is defined by published cases, trial judges and juries. Lawyers have a fiduciary duty to their clients. Escrow agents and closers have fiduciary duties to both the buyer and the seller. The successor trustee performing the foreclosure has fiduciary duties. Trustees of real estate trusts and all other trusts have fiduciary duties. Partners in real estate transactions have fiduciary duties to each other. The concept is far from alien in real estate transactions.

What is interesting to me is that the real estate agents who are so confounded by the idea of having a fiduciary duty already have a fiduciary duty to their clients. This was imposed by the courts some time ago. When agents represent the buyer and the seller, a “dual agency,” they have fiduciary obligations to both sides. I hope that they are aware of this.

I presume that the aspect of fiduciary duty that troubles real estate agents the most is the standard of care. If a real estate agent or anyone else presumes to tell a person in foreclosure what to do or promises relief from the foreclosure, he or she should be held to the standard of care of a profession that can give such advise. This is currently the law. A real estate agent has court approval to fill in the blanks on real estate forms. A real estate agent is not permitted to discuss with the client the legal effect of contractual provisions. This would be the unauthorized practice of law. They are supposed to refer the client to a lawyer for legal advise.

In the context of a foreclosure a real estate agent, or any other person offering advise about what steps to take, is usually offering legal advise regarding foreclosure procedure or legal artifices to avoid foreclosure. This is not something most people (including real estate agents) are qualified to do and it has recently led to broad scale disasters for home owners in connection with equity skimming. A real estate person or anyone else finding himself or herself in this situation should refer the home owner to a lawyer rather than offering legal advise. This is already the law.


Washington’s New Distressed Property Law (1)

June 9, 2008

HB2791, entitled “Property Conveyances — Distressed” becomes effective June 12 and this prospect is causing concern and confusion in the residential real estate industry. Memos are flying around real estate agencies and you hear occasional cries of doom from bleak Cassandras and doleful Jeremiahs The law is not complex, so reasonably diligent agents and others in the field should at least not be confused. Furthermore, the law will not entrap any reasonably well intentioned and informed person in the future. It should, however, dramatically reduce pandemic fraud.

First, it applies to contracts signed after June 12. Any pending unconscionable equity skimming transactions, while not subject to the terms of the new law, should be abandoned in some sensible fashion, however, because of common law and statutory liability that predates SB 2791. (I have several of these lawsuits brought by deceived homeowners under the previously existing law.)

I often hear that this new law does far more harm than good because it scares aware legitimate foreclosure rescue investors. The homeowners will be tied to the tracks of nonjudicial foreclosure procedure and left destitute and homeless. That of course is exactly where these equity skimming schemes leave people. I have been involved with these for a few years now and I have yet to meet a homeowner who cliamed to have benefitted by an equity skimming arrangement, and I have heard of only one family that came out of it with their home. They lost all their equity and could barely make the payments on their heavily encumbered house but they last I heard still had it.

What is not spoken of much is that part of the scam is to convince homeowners not to legitimate alternatives to avoid the foreclosure. First, people can sell their houses and buy new ones, using the equity from the sale. They can also resort to bankruptcy to sell the house or reorganize their debts. That after all is why bankruptcy courts were created. Also a foreclosure slae does not mean that the homwowner will necessarily be left penniless.

Equity skimming is generally done by people who cannot afford to bid at a foreclosure sale and who want to get homes more cheaply than they would if they could afford to bid at a foreclosure sale.

Recently prices of homes being sold at foreclosure sales, because of competitive bidding, were about 60% on average of fair market value. The difference between the balance on the mortgage being foreclosed and the foreclosure slaes price would go to the homeowner. If not it went to pay secured debt that would have followed the homeowner after the foreclosure. So usually the homeowner would be in better financial shape with a foreclosure than by falling into one of the equity skimming schemes.

Sincere investors who really wanted to help the homeowners would just have to loan them the money to bring the mortgage currently, typically $8,000 to $20,000, and take a second mortgage at a profitable interest rate. Very simple and straight forward. Equity skimmers are after extravagant profit at the expense of distressed homeowners.


Don’t Buy Foreclosed Property From Dirty Lenders

June 4, 2008

There is a hidden risk in buying foreclosed property that nobody seems to be talking about.  Many of the houses being foreclosed upon were subjected to liens securing sub-prime loans.  Many of these loans were made by disreputable lenders, sometimes by now indicted loan officers.

In Washington, like many other states, the purchaser at a foreclosure sale takes the title that existed at the time that the loan was made and the deed of trust recorded.  If the lender had nothing to do with any deceit on the owner and was not on notice of any irregularity, then the lender is deemed a “bona fide purchaser for value.”  This is a legal term meaning that title cannot be recovered by the owner, even if there was fraud.  When the lender was involved in the fraud or had reason to know of it, then the owner can clear title of the deed of trust and the ownership interest of the purchaser at the foreclosure sale.

Thus, a truly prudent buyer at a foreclosure sale or purchaser from a bank after foreclosure should check to see which lender made the loan originally.  Only after finding out about that lender can the purchaser have comfort that title cannot be reclaimed by a defrauded or deceived owner.