Live Blogging at The Foreclosure Crisis Symposium: Challenges and Solutions to the Mortgage Meltdown

By Joseph Santiesteban, J.D. Candidate 2013, U.C. Berkeley School of Law | Posted on

By Joseph Santiesteban, J.D. Candidate 2013, U.C. Berkeley School of Law

Moderator Bill Falik just delivered his opening remarks, explaining in detail the nature of the mortgage crisis and potential solutions. Out of 50 million mortgages in the United States, 11 million have negative equity.  In addition, 10 percent of homes in the U.S. are currently in default. Panelists in the first session will be discussing both market-based and government-based solutions to this crisis from a policy perspective.

National Mortgage Servicing Reform Proposals are Under Consideration

By James Nguyen, J.D. Class of 2013 | Posted on

As the debate over how to reform the housing finance market takes a back seat to the 2012 General Election, Dodd-Frank’s statutory changes to mortgage servicing will see no delay in its implementation.  On April 10, 2012, the Consumer Financial Protection Bureau released its first set of proposed mortgage servicing rules:

“The proposed rules currently under consideration aim to protect consumers from surprises by directing servicers to provide:

  • Clear monthly mortgage statements that explicitly breakdown principal, interest, fees, escrow, and due dates
  • Warnings before adjusting interest rates on certain adjustable rate mortgages (ARMs) that explain how the new rate was determined, when it will take effect, dates of future adjustments, and a list of alternatives for consumers to consider
  • Options for avoiding expensive “forced-placed” insurance, which is insurance charged to borrowers by servicers when their existing insurance appears to have lapsed
  • Early outreach to struggling borrowers that informs them of potential options to avoid foreclosure

We also want to address the issue of consumers getting the “run-around” when dealing with servicers.  To accomplish this, the Bureau is considering proposals that would require:

  • Payments to be credited to consumer accounts the day payment is received
  • Implementing new policies and procedures so that records are kept up-to-date and accessible
  • Quickly addressing and correcting errors
  • Giving homeowners direct and ongoing access to servicer staff members who have access to the homeowners’ records and can actually help address their issue(s)”

The rules are scheduled to become effective in early 2013 unless the Bureau issues finals rules first.  An outline of the proposals under consideration was also posted on the Bureau’s website.

To learn more about these proposed changes to mortgage servicing as well as other housing reforms arising out of the financial crisis, please register for “The Foreclosure Crisis: Challenges and Solutions to the Mortgage Meltdown,” Friday, April 13, 2012 at the International House on the U.C. Berkeley Campus, and stay tuned as we live-blog the event throughout the day.

$25 Billion Foreclosure Settlement Approved: What’s Next?

By Mike Perez, J.D. Candidate Class of 2012 | Posted on

On April 5, 2012, U.S. District Court Judge Rosemary Collyer approved the $25 billion settlement negotiated on February 9, 2012, between 49 states and the federal government and five banks – Bank of America, Citigroup, JPMorgan Chase, Wells Fargo, and Ally Financial.  The deal, the largest multistate settlement since the Tobacco Settlement in 1998, settles federal and state claims against five of the largest banks in the United States for what has become known as “robo-signing”: signing foreclosure related documents outside of the presence of a notary public and without ensuring the documents were correct.

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The Network Lecture Series: The Optimal Corporate Bailout – A Presentation by Professor Eric Talley

By Joseph Santiesteban, J.D. Candidate 2013, U.C. Berkeley School of Law | Posted on

By Joseph Santiesteban, J.D. Candidate 2013, U.C. Berkeley School of Law, with contribution by Professor Eric Talley, Rosalinde and Arthur Gilbert Professor of Law; Director, the Berkeley Center for Law, Business, and the Economy

Introduction

In 2008-09, when the government spent $350 billion dollars bailing out corporations that it deemed systemically important, it confronted several issues. First, which companies should be bailed out? Second, what should the terms of the bailout be? And third, how should the program be funded. On March 20th at Berkeley Law’s weekly Law and Economics Workshop, Berkeley Law Professor Talley Eric Talley presented “A Model of Optimal Corporate Bailouts,” a paper he co-authored with UCLA Business School Professors Antonio Bernardo and Ivo Welch, which attempts to confront these issues with a theoretical model and compare their results to the Troubled Asset Relief Program (TARP).

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To Stagger Or Not To Stagger: Harvard’s Shareholder Rights Clinic v. Wachtell Lipton

By Mike Perez, J.D. Candidate Class of 2012 | Posted on

Recent days have seen a flurry of activity around a student clinical program at Harvard Law School: The Harvard Shareholder Rights Clinic (SRC). The clinic “provides advice and representation, on a pro bono basis, to public pension funds and charitable foundations seeking to improve corporate governance.” Harvard Professor Lucian Bebchuk is a corporate governance activist and the clinic’s faculty advisor. This academic year, the clinic has advised six public institutional investors, including Illinois State Board of Investment, the Los Angeles County Employees Retirement Association, the Massachusetts Pension Reserves Investment Management Board, the North Carolina State Treasurer, and the Ohio Public Employees Retirement System.

One of the clinic’s major projects has been eliminating the use of so-called “staggered boards.” Under a staggered board structure, board members are divided into classes and a different class is eligible for election each year. Thus, it takes at least two years to replace a majority of the board. Mr. Bebchuk argues that the use of staggered boards serves to unduly protect existing board members and diminishes shareholders’ voting power.  Furthermore, other academics have found that companies that utilize staggered boards tend to be of lower value, make poorer choices in asset acquisition, and have compensation schemes that do not necessarily reflect board performance.

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Second Circuit Set to Reign in Rakoff

By Peter Benesch, J.D. Class of 2013 | Posted on

On March 15, the Second Circuit stayed proceedings in the now notorious case of SEC v. Citigroup. The case hit headlines last November when District Court Judge Rakoff refused to accept a $280 million settlement agreement between the SEC and Citigroup. Judge Rakoff’s decision was outlined in great detail in a previous post on the Network.

By granting a stay in the proceedings, the Second Circuit is allowing the SEC and Citigroup to avoid having to proceed with the trial litigation while appealing Judge Rakoff’s decision. The appeal is scheduled to be heard in September, though the dicta in the March 15 decision appears to support the position that the Second Circuit is prepared to overturn Judge Rakoff’s decision.

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Benefit Corporations: A New Corporate Benefit to Society

By Angelica Salceda, J.D. Class of 2013 | Posted on

California is joining a wave of states that have enacted legislation creating new corporate forms that allow for the creation of for-profit companies with a general or specific public benefit.  During the 2011 legislative session, California enacted legislation allowing for the creation of a flexible purpose corporation and a benefit corporation.  As of January 2012, companies can choose between two new corporate forms that provide directors with the flexibility to pursue social and environmental objectives, while profiting from the corporate decisions.  The two new corporate forms differ in many ways despite both benefiting from a legal protection conferred by state statute to pursue social benefits.  This article specifically looks at the advantages of a Benefit Corporation.

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Facebook IPO: An Investment In Facebook Is An Investment In Zuckerberg

By By Juan O. Perla, J.D. Class of 2012 | Posted on

For the all the hype about Facebook’s initial public offering (IPO), analysts are raising important questions that the social network will need to answer to court investors successfully.

On February 2, Facebook filed its Form S-1 with the Securities Exchange Commission (SEC) seeking to raise $5 billion from the sales of Class A common stock. Analysts quickly reported their expectations that the behemoth start-up could be valued somewhere between $75 and $100 billion and that it could likely raise up to $10 billion, setting it up to become one of the largest IPOs in American history.

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The Second Circuit Casts Doubt on 5% Materiality Guideline

By By Charles Rogerson, J.D. Class of 2013 | Posted on

In Litwin v. Blackstone Group, L.P. (2011) the U.S. Court of Appeals for the Second Circuit concluded that the District Court erred in dismissing Plaintiffs’ complaint because Plaintiffs plausibly alleged that omitted or misstated trends from Defendants’ initial public offering registration statement and prospectus were material under Item 303(a)(3)(ii). In so holding, the Second Circuit stressed the importance of both a quantitative and qualitative analysis of materiality, stating that “[e]ven where a misstatement or omission may be quantitatively small compared to a registrant’s firm-wide financial results, its significance to a particularly important segment of a registrant’s business tends to show its materiality.” The decision casts doubt on the widely held belief amongst practitioners that a misstatement or omission that affects less than 5% of a firm’s assets is immaterial.

The case concerned the 2007 initial public offering of Defendant Blackstone Group, L.P., an alternative asset management and financial services company holding approximately $88.4 billion in assets in 2007. Plaintiff alleged misstatements and omissions with regard to its holdings in FGIC Corp., Freescale Semiconductor, Inc, and general residential real estate holdings.

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