Real Estate Finance

CITE THIS READING MATERIAL AS: SAMPLERealty Publications, Inc. Real Estate Finance Eighth Edition Chapter 1: Wellenkamp to Garn and beyond 1 Chapter 1 Wellenkamp to Garn andSAMPLE beyond After reading this chapter, you will be able to: Learning • recognize key cases and turning points in the law governing mortgage holder enforcement of the due-on clause in trust deeds; Objectives • describe the shift in influence from mortgage holders to buyers, and back again, as due-on rules evolved in response to institutional pressures forcing changes in federal mortgage law; • understand the government’s role in mediating the economy through monetary and fiscal policy; and • identify the financial and political circumstances which led to the housing bubble and mortgage crisis of the 2000s. comparative advantage Garn-St. Germain Federal Key Terms due-on clause Depository Institutions Act of 1982 Federal Home Loan Bank Board (FHLBB) mortgage-backed bond (MBB) Financial Institutions Reform, recast Recovery, and Enforcement restraint on alienation Act (FIRREA) secular stagnation formal assumption subject-to transaction further encumbrance The positions, goals and anticipations of the lender originating a mortgage Lenders vs. (or mortgage holder servicing and collecting income from a mortgage) and the owner of real estate are diametrically opposed. owners in the recent past 2 Real Estate Finance, Eighth Edition This adversarial relationship stems partly from greed, an entrepreneurial trait which is generally what brings both parties to a property in the first place. California Supreme Court decisions in the 1960s and 1970s brought the confrontation between mortgage holders and owners into sharp focus, as did anti-deficiency legislation in the 1930s. Property owners took one case of mortgage holder injustice after another to the courts. They challenged the mortgage holders’ right to flex their due- on muscle by raising interest rates at will when the owner of real estate encumbered by a mortgage needed to sell or further encumber the property for funds. To understand the cause of ongoing mortgage holder-versus-owner battles today (which are today limited to foreclosure conduct), a review of the events SAMPLEin the 1960s and the 1970s is helpful. As case law developed before the early 1980s, important factors included the shifting control of the marketplace from mortgage holders to owners, then back to mortgage holders again, and the often conflicting policies and economies of California and the larger nation. Rising interest rates in the early 1960s produced a severe real estate recession The early in 1965-1967 while the general economy improved, due solely to the stimulus ‘60s: a stable of war effort employment. market The economic boom experienced just prior to that recession, in 1963-1964, lead to disastrous results for the savings and loan associations (S&Ls) in Southern California. Much like the lending environment during the Millennium Boom, individual credit was secondary. Anyone, it was said, was able to use the back of an old envelope to sketch a building plan and obtain a lender’s “horseback” commitment for a construction loan. The lender’s objective was to get the funds out to as many borrowers as possible. Lenders viewed the excess monies on deposit as lettuce about to rot on the shelf. Money had to be lent, quickly. As a result, lenders chased deals to place the funds, a classic prelude to investment error whether practiced by lenders or investors. In the early 1960s, builders and buyers selected projects and properties with Broker little concern for the availability of mortgage funds. Funds were readily control advanced for the asking. Interest rates were below 7%, and inflation was during the much lower. early ‘60s To no one’s surprise, builders funded by lenders created excess inventory. By 1966, vacancy rates and foreclosures soared. Mortgage lenders had lent and sellers had sold to unqualified builders and buyers, soon triggering defaults and increasing foreclosure rates. Chapter 1: Wellenkamp to Garn and beyond 3 Editor’s note — During this time, brokers did their job rendering services needed to bring these parties together. Suddenly, the real estate industry became mired in its own excesses, having grown too fast in the absence of financial safeguards on mortgage lending. Turnover rates for owners and tenants dropped, and sales volume fell naturally. By the late 1960s, lenders started looking for ways to protect themselves from insolvency, and, with administrative governmental assistance in a rampant series of institutional mergers, regained control of their mortgage investments. In 1964,SAMPLE the California Supreme Court modified the common-law application Lenders of the due-on clause. While receiving little fanfare at the time, this case was the first in a series of rulings relating to the mortgage holder’s use of a amass their mortgage’s due-on trust deed provision.1 forces Common law had rendered due-on clauses absolutely void and due-on clause unenforceable. The due-on clause, simply read, limited the free use and A trust deed provision disposition of any property ownership interest — known as a restraint on used by mortgage alienation.2 holders to call the debt due and immediately payable, In Coast Bank, the law of restraints on alienation was judicially altered, a right triggered by becoming more permissive with regard to a mortgage holder’s use of the due- the owner’s transfer of any interest in the on clause. But it came with one warning: the enforcement of the clause was real estate, with intra- to be “reasonable.” family exceptions; also called an alienation As a result of this new reasonable enforcement test, the lower courts clause. and attorneys for mortgage holders began carving out purposes for a mortgage holder’s use of the clause which were arguably reasonable under restraint on circumstances surrounding the mortgage. alienation A limit placed on a property owner’s If reasonable circumstances — a jeopardized security position or increased ability to sell, lease risk of default, for instance — existed to justify a mortgage holder’s call, for a period exceeding then the due-on clause was enforced. Payoff of the mortgage balance was three years or further encumber a property, demanded, but rate increases were offered as an alternative. However, if the as permitted by rate increase was not agreed to, foreclosure proceedings were initiated for federal mortgage failure to pay off the mortgage. policy. In 1965, mortgage rates increased and the money supply tightened. The late ‘60s: Availability of mortgage funds significantly decreased and inflation started to soar. marketplace Portfolio lenders did not foresee this massive inflation, which began to instability adversely affect their solvency. Their cost of funds rose while their portfolio assets were fixed rate mortgages (FRMs) with 30-year amortization schedules. 1 Coast Bank v. Minderhout (1964) 61 C2d 311 2 Calif. Civil Code §711 4 Real Estate Finance, Eighth Edition During this time, approximately a quarter of the S&Ls in California were in serious financial turmoil. The S&Ls had lent to everyone secured by anything, and had done so at rates inadequate to cover the risk of inflation reflected in their cost of funds – interest paid on deposits. The result was property foreclosures by the thousands — and by entire tracts — as well as the collapse of many large California-based S&Ls. Real estate-owned (REO) became common jargon in the language of the real estate broker. Mortgage holders acquired property in foreclosure which had to be sold, and insolvency ran rampant. Thus, a rapid succession of mergers occurred. As a result, the big got bigger. As struggling lenders merged into bigger, stronger institutions, the ranks of the brokerage business and the real estate SAMPLEtrade organizations were decimated. To top off the bad economic climate of the late 1960s for the real estate Sympathy for industry’s non-lending segments, California appellate courts decided two lenders in due-on-sale cases in favor of the beleaguered mortgage holders. some courts It thus became reasonable — and possible — for mortgage holders to use the due-on clause as a profit center. They were permitted to adjust their portfolio yields to reflect higher market yields when a property owner subject to their trust deed lien decided to sell their property.3 Although the Supreme Court repudiated the reasoning of one case (Cherry) two years later, it took nearly another decade for the legal confusion caused recast by the reasonableness doctrine of these cases, starting with the earlier Coast A mortgage holder’s 4 demand to modify the Bank case, to be put to rest judicially in Wellenkamp v. Bank of America. note terms and receive payment of additional Disclosure: Fred Crane, the Legal Editor or this publication, was the attorney fees in exchange for of record for property owners on the two leading due-on enforcement waiving the due- on clause in their cases of the time, Wellenkamp v. Bank of America (1978) 21 C3d 943 and mortgage. Fidelity Federal Savings & Loan Assoc. v. de la Cuesta (1982) 458 US 141. Vocabulary In the parlance of the day, conventional mortgages requiring formal assumption and modification upon a buyer’s takeover became known as development non-assumable mortgages. In contrast, assumable mortgages were insured by the Federal Housing Administration (FHA) and the Veterans geared Administration (VA) and did not require formal assumption or modification. to profit [See Chapter 21] mortgage When a buyer assumed a non-assumable mortgage, the interest rate was lenders increased to the mortgage holder’s current rate. Points and fees were charged as though the mortgage was newly originated. Terms were recast and adjusted upward by exploitation of the due-on clause on the buyer’s takeover on a mortgage. 3 Cherry v. Home Savings & Loan Association (1969) 276 CA2d 574; Hellbaum v.

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