A Bad Week for Countrywide’s David Sambol

This was not a good week for Countrywide president and COO David Sambol. 

First, a federal court refused to dismiss a shareholder suit against Sambol and other executives and directors of Countrywide.

The lawsuit that alleges that Sambol and the other defendants violated their fiduciary duties by lack of good faith and lack of oversight of Countrywide’s lending practices, improper financial reporting and internal controls, and the unlawful sale of over $848 million of Countrywide stock between 2004 and 2008 at inflated prices based on material inside information.

In refusing to dismiss the case, the judge said that the evidence presented by the plaintiffs “create[s] a cogent and compelling inference that the Individual Defendants misled the public with regard to the rigor of Countrywide’s loan origination process, the quality of its loans, and the Company’s financial situation – even as they realized that Countrywide had virtually abandoned its own loan underwriting practices.”

The plaintiffs are seeking millions of dollars in damages.

Second, Sambol was given the heave-ho by Bank of America, the new boss at Countrywide.

When Bank of America announced plans to take over Countrywide in January, CEO Ken Lewis said Sambol would continue to lead the entire mortgage business for B of A once the merger was complete. Sambol was even given a retention bonus of $1.9 million and 335,126 restricted stock units. 

Then in March, Bank of America agreed to set up a $20 million retention account for Sambol, plus $8 million in restricted stock.

But that was then. 

This is now:  

Bank of America announced this week that Sambol is being replaced by Barbara Desoer, B of A’s chief technology and operations officer.

One of the allegations in the shareholder suit is that Bank of America “bought” Sambol’s support for its takeover of Countrywide with extravagant remuneration offers and the promise that he would run the combined company’s consumer mortgage business.

Now it appears that Sambol, along with Countrywide CEO Angelo Mozilo, are too tied to the subprime mortgage debacle and the foreclosure crisis  — and perhaps unlawful stock sales and other breaches of fiduciary duties – for Bank of America to keep around.

 

When Can — or Should — You Revoke an Identification in a 1031 Exchange?

Sometimes it is necessary to revoke an identification in a 1031 exchange.

For example, Dwight is doing a Section 1031 exchange involving a 300 unit apartment complex he owns in San Antonio, Texas, and has identified three replacement properties under the Three Property Rule. He then learns that one of the properties he has identified is no longer available.

What should he do?

Dwight should revoke his identification of the unavailable property and identify a new replacement property in its place.

An identification of replacement property can be revoked at any time before the end of the identification period. 

If Dwight did nothing, he would be left with only two replacement properties, and if those properties did not close he would be unable to complete a Section 1031 exchange.

If, however, Dwight timely revokes the identification of the property that is no longer available — or appropriate — for whatever reason — then he can add a new property to his identification list.

For maximum security when using the Three Property rule, the goal is to end the identification period having named three qualified and suitable replacement properties, any of which can be used as a replacement property in the exchange.

This strategy also applies to other 1031 exchange identification rules (the 200 Percent Rule and the 95 Percent Rule).

Remember, too, that the revocation of identification must, like the earlier initial identification, be made in a written document signed by you that unambiguously describes the property whose identification you have chosen to revoke.

And as with the earlier identification, a revocation of identification must be hand delivered, mailed, telecopied, or otherwise sent to either the person obligated to transfer the replacement property to the exchanger, or any other person involved in the exchange other than the taxpayer or a disqualified person.

To contact Melissa J. Fox about serving as a qualified intermediary or for other 1031 exchange services, send an email to strategicfox@gmail.com

Can You Use a 1031 Exchange for Non-Real Estate Assets?

Section 1031 exchanges are not limited to real estate.

To qualify for the tax benefits of an exchange under Section 1031, the property you want to exchange (or relinquish) needs to be “held for productive use in a trade or business or for investment.”

The property does not have to be real estate.

But when you’re exchanging non-real estate assets, the requirement that the relinquished property and the replacement property be “like kind” is much more narrowly construed.

Here is an example:

Stan is an avid collector of boxing memorabilia. His collection includes posters for the famous fight between Joe Lewis and Max Schmeling, several pairs of boxing gloves used in the ring by Mohammed Ali, a gold platted championship belt once owned by Jake LaMotta, a mouth piece that belonged to Sugar Ray Robinson, a pair of Archie Moore’s boxing trunks, and a wedding ring worn by Gentleman Jim Corbett, among other treasures.

He is thinking about selling his collection to buy a tenancy-in-common interest in a new hotel that his friend Barbara is opening in Las Vegas, Nevada. 

Stan has heard about the tax benefits of using Section 1031. Can he use Section 1031 to exchange his collection of boxing memorabilia for an ownership interest in Barbara’s Las Vegas hotel.

1031 exchanges are not limited to real estate. One can also exchange other types of tangible non-real estate property held for investment or used in a business. But the “like-kind” requirement is interpreted much more narrowly by the IRS for non-real property than for real property.

While any real property held for trade or business use or for investment and located in the United States can be exchanged for any other real property held for trade or business use or for investment use and located in the United States, non-real estate property exchanged under Section 1031 must be essentially the same type of asset.

Airplanes can be exchanged for airplanes,trucks for trucks, pizza ovens for pizza ovens, oil digging equipment for oil digging equipment, but airplanes cannot be exchanged for trucks and oil digging equipment cannot be exchanged for pizza ovens.

Because Stan wants to exchange his boxing memorabilia for a tenancy-in-common interest in a hotel – an asset of a very different kind – the exchange would not be allowed under Section 1031.

If Stan wants to exchange his boxing memorabilia under Section 1031, he should consult his tax advisor to determine what kind of assets would be considered “like-kind” to his collection.

To contact Melissa J. Fox about serving as a qualified intermediary or for other 1031 exchange services, send an email to strategicfox@gmail.com

Housing Meltdown Continues as Home Prices Fall 14.1 Percent

Despite a slight uptick in the sales of new homes, there is new evidence that the U.S. housing slump will not end anytime soon. 

Yesterday the Standard & Poor’s/Case-Shiller Index showed that national home prices fell 14.1 percent in the first quarter compared with a year earlier, the lowest since its inception in 1988.

And even though the sales of new homes were up slightly in April, they remained near their lowest levels since 1991.

New home sales were up 3.3 percent from March, but were down a stunning 42 percent from a year ago.

April’s new home sales were the second-lowest since October 1991, behind only March of this year.

The National Association of Realtors, in its typically disingenuous fashion, spins these bleak figures as an “easing” of home sales.

According to the New York Times, “Even markets that once seemed immune to the slump, like Seattle, are weakening. Prices nationwide might fall as much as 10 percent more before a recovery takes hold, economists said. As the home-buying season enters what is traditionally its busiest period, there are simply too many homes in many parts of the country, and too few people with the means to buy them. The situation is likely to get worse because a rising tide of foreclosures is flooding the market with even more homes, while a slack economy and tight mortgage market are reducing the pool of potential buyers.”

Those who can hold on to their properties are not selling at current prices and those who can buy are waiting for prices to fall still lower.

And they will get lower.

With more than 4.5 million homes on the market, and with a rising tide of foreclosures that continues to add dramatically to that figure, prices are certain to continue to fall even further.

There is plenty of money waiting for prices to stabilize, but that won’t happen for quite a while.

First, something must be done to stop the flood of foreclosures that are adding to the nation’s already overloaded housing supply.

Second, the banks and lenders must respond to the Federal Reserve’s lowering of interest rates by passing these lower rates on to more borrowers.

Our guess is that little or nothing will happen on these fronts until after the presidential election.

Meanwhile, the meltdown continues.

 

 

Realtors Settle Anti-Online Broker Lawsuit with Justice Department — NAR Agrees to Stop Blocking Access to Web Listings

Online realtors will now have the same access to Multiple Listing Service (MLS) data and other services as traditional real estate brokers, according to a proposed settlement reached on Tuesday between the U.S. Justice Department and the National Association of Realtors (NAR).

In September 2005, the Justice Department’s Antitrust Division filed an antitrust lawsuit against NAR charging that its obstruction of Internet based reatlors and its restrictive MLS policies were stifling competition and hurting consumers. The Justice Department said that these policies prevented consumers from receiving the full benefits of competition, discouraged discounting, and threatened to lock in outmoded business models. 

The case was scheduled to go to trial in federal court in Chicago in July 2008.

Under the terms of the settlement, brokers participating in a NAR-affiliated MLS will not be permitted to withhold their listings from brokers who serve their customers through virtual office websites (VOWs). 

In addition, brokers will be able to use VOWs to educate consumers, make referrals, and conduct brokerage services.  Such brokers will not be excluded from MLS membership based on their business model. 

NAR agreed to report to the Justice Department any allegations of noncompliance.  NAR also has agreed to adopt antitrust compliance training programs that will instruct local Associations of Realtors about the antitrust laws generally and about the requirements of the proposed settlement

You can read the proposed settlement here.

“Today’s settlement prevents traditional brokers from deliberately impeding competition.  When there is unfettered competition from brokers with innovative and efficient approaches to the residential real estate market, consumers are likely to receive better services and pay lower commission rates,” said Deborah A. Garza, Deputy Assistant Attorney General of the Antitrust Division.  “In addition, under this settlement, NAR will foster compliance with the antitrust laws by educating its members and its 800 affiliated MLSs.”

According to the Justice Department, “the first rule challenged by the Department required MLSs to permit traditional brokers to withhold their listings from VOWs by means of an ‘opt out’  NAR does not permit brokers to withhold their listings from traditional broker members of an MLS.  Many local MLSs adopted NAR’s policy before NAR suspended its policy during the Department’s investigation.  In one market in which the MLS adopted the policy, all brokers withheld their listings from the one VOW in the community, which was then forced to discontinue its popular website.”

“The second rule prevented a broker from educating customers about homes for sale through a VOW and then referring those customers (for a referral fee) to other brokers, who would help customers view homes in person and negotiate contracts for them.  Some of the VOWs that focused on referrals also passed along savings to consumers as a result of increased efficiencies.

“Collectively, NAR’s policies prevented consumers from receiving the full benefits of competition in the residential real estate industry.”

NAR called the settlement a “favorable” conclusion to the Justice Department’s antitrust lawsuit.  “This is clearly a win-win for the real estate industry and the consumers we serve,” said NAR President Richard F. Gaylord.

NAR points out that the final order expressly provides that NAR does not admit any liability or wrongdoing and NAR will make no payments in connection with the settlement.

The proposed settlement between NAR and the Justice Department still needs to be approved by a federal judge.

 

 

Home Sales Set Record Low (Again) — Prices Decline and Inventory Sets Another Record

Existing home sales fell again to another record low in April.

The National Association of Realtors (NAR) reports that “Existing-home sales – including single-family, townhomes, condominiums and co-ops – declined 1.0 percent to a seasonally adjusted annual rate of 4.89 million units in April from an upwardly revised pace of 4.94 million in March, and are 17.5 percent below the 5.93 million-unit level in April 2007.”

The figures represent another record low since NAR has began keeping records in 1999.

The biggest decline was in sales of apartments and condominiums, which plunged 5.2 percent after two months of rising sales.

Demand for single-family homes dropped 0.5 percent in April.

NAR also reported that the national median existing-home price for all housing types was $202,300 in April, an 8.0 percent fall from April 2007 when the median price was $219,900.

Perhaps the worst news is that the inventory of homes for sale has continued to rise and is now at its highest level in more than 20 years. 

Inventory rose 10.5 percent to 4.55 million existing homes available for sale, an 11.2-month supply.  With so many homes on the market, it is likely that prices will continue to decline.  And with foreclosures continuing to flood the real estate market, it is expected that price declines will continue for at least several more months.

In addition, continued home price declines are keeping homebuyers, as well as investors, out of the market, as they expect even cheaper home prices in the near future. 

In other words, despite (and, to a large extent, because of) sharply declining prices, supply continues to rise while demand continues to fall.

Not a pretty picture for real estate.

As is usually the case, some regions fared better than others:

April sales dropped 6 percent in the Midwest and 4.4 percent in the Northeast, but rose 6.4 percent in the West (see our post on rising home sales in Orange County, California). 

Sales stayed steady in the South. 

Median prices fell across all regions.

In the West, the median price was $285,700, 16.7 percent lower than April 2007.  In the South, the median price was $170,800, down 5.1 percent from a year ago.  The median price in the Northeast was $262,000, 7.7 percent below April 2007.  The median price in the Midwest was $159,100, down 2.9 percent from April 2007.

NAR points the finger at the mortgage industry, blaming “restrictive lending practices” for the decline in sales, the lower home prices and the increasing inventory.

Always the optimist, NAR chief economist Lawrance Yun said that recent changes in lending would help homebuyers. “I would encourage buyers who were disappointed by poor mortgage options to take another look at the market because the lending changes are significant,” he said. “Also, a recent notable drop in interest rates on conforming jumbo loans will help consumers in high-cost markets like California and New York.”

We’re not holding our breath.

 

Judge Rules Mozilo and Countrywide Execs Must Face Multi-Million Dollar Federal Lawsuit

Angelo R. Mozilo, the perennially smiling and suntanned CEO of subprime giant Countrywide Financial Corp., may have finessed the recent Congressional hearingson the millions in compensation given to the executives of financially devastated subprime lenders even as their investors lost billions, but he hasn’t been able to escape a multi-million dollar shareholder lawsuit filed against him in federal court.

The shareholder derivative action was filed on behalf of Countrywide by the Arkansas Teacher Retirement System, the Fire & Police Pension Association of Colorado, the Louisiana Municipal Police Employees Retirement System, the Central Laborers Pension Fund, and the Mississippi Public Employees Retirement System, against Mozilo and other senior Countrywide officers and the members of Countrywide’s board of directors.

The lawsuit alleges misconduct by the defendants and disregard for their fiduciary duties, including lack of good faith and lack of oversight of Countrywide’s lending practices, improper financial reporting and internal controls, as well as the unlawful sale by Citywide’s officers and directors of over $848 million of Countrywide stock between 2004 and 2008 at inflated prices while in possession of material inside information.

You can read the complaint here

Last week, Judge Mariana R. Pfaelzer of Federal District Court in Los Angeles rejected the attempt by Mozilo and other defendants to dismiss the case and ruled that the case could go forward.

Judge Pfaelzer didn’t buy the arguments of Countrywide executives and directors that they were unaware of lax loan operations that led to ballooning defaults.  Instead, she found that confidential witness accounts in the shareholder complaint were credible and suggested “a widespread company culture that encouraged employees to push mortgages through without regard to underwriting standards.”

The judge found that the plaintiffs identified “numerous red flags” that should have warned directors of increasingly risky loans made by Countrywide.  “It defies reason, given the entirety of the allegations,” Judge Pfaelzer wrote, “that these committee members could be blind to widespread deviations from the underwriting policies and standards being committed by employees at all levels. At the same time, it does not appear that the committees took corrective action.”

In fact, rather than taking corrective action, the judge found that Countrywide executives made numerous public statements, proxy statements, and SEC filings that falsely stated both the financial condition of the company and the efforts being made to control potential loses.

The judge concluded that the evidence presented by the plaintiffs “create a cogent and compelling inference that the Individual Defendants misled the public with regard to the rigor of Countrywide’s loan origination process, the quality of its loans, and the Company’s financial situation – even as they realized that Countrywide had virtually abandoned its own loan underwriting practices.”

“During the relevant period, Plaintiffs assert that Countrywide began to approve even more risky loans that departed significantly from its established underwriting guidelines. While this increased the volume of loans originated by Countrywide and inflated its market share, this strategy also drastically lowered the quality of the loans and retained interests that Countrywide held for investment, as well as the quality of the mortgage-backed securities it sold into the secondary market. Plaintiffs contend that these low quality mortgages, many of which were approved with low or no documentation from the borrower, exposed Countrywide to a vast amount of undisclosed risk because loan quality is essential to virtually every facet of Countrywide’s business operations. Plaintiffs further assert that the Individual Defendants, due to their roles as members of certain Committees, proceeded with actual knowledge of these problems, or at least deliberate recklessness.”

It is expected that Mozilo’s $474 million in stock sales between 2004 and 2007 will get particular attention because he repeatedly changed the terms of his 10b5-1 prearranged stock-sale program to allow more shares to be sold. “Mozilo’s actions,” the judge wrote, “appear to defeat the very purpose of 10b5-1 plans.”

In addition to Mozilo, the defendants include David Sambol (Countrywide Director since Sept. 2007, President and Chief Operating Officer, and various other executive positions), Jeffrey M. Cunningham Director since 1998), Robert J. Donato (Director since 1993), Martin R. Melone (Director since 2003), Robert T. Parry (Director since 2004), Oscar P. Robertson (Director since 2000), Keith P. Russell Director since 2003), Harley W. Snyder (Director since 1991), Henry G. Cisneros (Director from 2001-Oct. 2007), Michael E. Dougherty (Director from 1998-Jun. 2007), Stanford M. Kurland (President and Chief Operating Officer until 2006, and various other executive positions), Carlos M. Garcia (several executive positions and former Chief Financial Officer), and Eric P. Sieracki (Chief Financial Officer and Executive Managing Director).

One of the defendants, Countrywide Director Henry G. Cisneros, has had a particularly shaddy record since being forced to resign as President Clinton’s Secretary of Housing and Urban Development in 1997. Cisneros pled guilty to making false statements to federal officials in an investigation of illegal payments he made to his mistress. He was pardoned by Clinton in January 2001.

You can read the judge’s decision here.

UPDATE:

Read about Bank of America’s firing of David Sambol, Countrywide’s president and COO (and a principal defendant in the shareholder lawsuit).

 

One of Charles Head’s “Operation Homewrecker” Scammers Still Listed as Broker on Reverse Mortgage Website

Keith Brotemarkle, one of the people indicted with Charles Head in an alleged “equity stripping” scheme called Operation Homewrecker, was also involved in a reverse mortgage company called Reverse Mortgage Resources.

The company’s website ”invites qualified brokers to become Approved Reverse Mortgage Advisors” with Reverse Mortgage Resources.  It asks potential affiliated brokers “ Who did you speak with at Reverse Mortgage Resources?” 

One of the brokers listed as being at Reverse Mortgage Resources is Keith Brotemarkle.

Brotemarkle was allegedly a participant in Charles Head’s “equity stripping” scheme that netted approximately $5.9 million in stolen equity from 68 homeowners in states across the nation. Targeting distressed homeowners and defrauding mortgage lenders through the use of straw buyers, Head would receive approximately 97 percent of the stolen equity, while the other defendants received either the remaining 3 percent of equity or a salary from the fraudulently-obtained funding. The defendants used referrals from mortgage brokers to identify and solicit new victim homeowners, and also sent “blast faxes” to mortgage brokers throughout the country and mass emails to potential victims. Through misrepresentations and omissions, desperate homeowners would be offered what appeared to be their last best chance to save their homes. Victims were left without their homes, equity, or credit.

The FBI has recently announced that it has begun an investigation to the misuse of reverse mortgages.  Reverse mortgages release the equity in a property to the homeowner in one lump sum or multiple payments. The homeowner’s obligation to repay the loan is deferred until the owner dies, the home is sold, or the owner leaves the home.  In the U.S., reverse mortgages are available for people 62 years old or older. Reverse mortgages are typically used to finance retirement or pay unexpected medical bills.  While reverse mortgages can make sense for seniors, the FBI is concerned about possible abusive sales practices that prey on seniors, such as aggressive and untruthful marketing and excessive fees.

Reverse Mortgage Resources is run by mortgage broker Don Marginson.  Its website states that it is located in Ranch Bernardo, California, and that it is “expanding again with offices to cover the Southeast and Northeast United States.”

We have no reason to believe that Reverse Mortgage Resources is not legitimate, and we would not want to assume that it is illegitimate simply because of its association with Brotemarkle.

But we would suggest that they remove Brotemarkle’s name from its website.

 

 

Chronology of Home Price Declines in Orange County — Median Home Price Now Lowest Since March ‘04

We found this chronology of the decline in median home prices in Orange County, California, showing a $179,000 decline in single family home prices from its high in June 2007:

Single Family Median Home Price:

2006 ~ Monthly

$690,000 = Feb
$695,000 = Mar
$705,000 = Apr
$705,000 = May
$700,000 = Jun
$699,000 = Jul
$685,000 = Aug
$680,000 = Sep
$665,000 = Oct
$660,000 = Nov
$665,000 = Dec

2007 ~ Monthly

$675,000 = Jan
$675,000 = Feb
$695,000 = Mar
$720,000 = Apr
$695,000 = May
$734,000 = Jun – Peak of O.C. Housing Bubble
$718,000 = Jul
$710,000 = Aug
$655,000 = Sep
$650,000 = Oct
$655,000 = Nov
$600,000 = Dec

2008 ~ Weekly ~ Monthly

$600,000 = 01/07
$595,000 = 01/15
$595,000 = 01/23
$583,250 = Jan
$585,000 = 02/07
$575,000 = 02/13
$575,000 = 02/22
$575.000 = Feb
$580,000 = 03/07
$575,000 = 03/14
$567,000 = 03/20
$570,000 = 03/26
$570,000 = Mar
$553,750 = 04/08
$565,000 = 04/14
$563,000 = 04/22
$550,000 = 04/28
$555,000 = Apr

The most recent DataQuick stats from April 2008 show a $500,000 median selling price. 

The last time median home prices were this low in Orange County was March 2004.

Perhaps even more disturbing: nearly four out of every 10 homes sold in Southern California last month was a foreclosure.

 

N.Y. Times Editorial Calls for Foreclosure Prevention Legislation Before the Next Mortgage Meltdown

The New York Times entered into the politics of the foreclosure crisis with an explosive editorial today accusing the Bush administration of failing to protect the economy and instead “sowing confusion and delay” in the face of the mortgage meltdown.

Here’s what the Times said:

“The housing bust is feeding on itself: price declines provoke foreclosures, which provoke more price declines. And the problem is not limited to subprime mortgages. There is an entirely different category of risky loans whose impact has yet to be felt — loans made to creditworthy borrowers but with tricky terms and interest rates that will start climbing next year.”

“Yet the Senate Banking Committee goes on talking. It has failed as yet to produce a bill to aid borrowers at risk of foreclosure, with the panel’s ranking Republican, Richard Shelby of Alabama, raising objections. In the House, a foreclosure aid measure passed recently, but with the support of only 39 Republicans. The White House has yet to articulate a coherent way forward, sowing confusion and delay.”

“[I]f house prices fall more than expected — a peak-to-trough decline of 20 percent to 25 percent is the rough consensus, with the low point in mid-2009 — financial losses and economic pain could extend well into 2011.”

“That is because a category of risky adjustable-rate loans — dubbed Alt-A, for alternative to grade-A prime loans — is scheduled to reset to higher payments starting in 2009, with losses mounting into 2010 and 2011. Distinct from subprime loans, Alt-A loans were made to generally creditworthy borrowers, but often without verification of income or assets and on tricky terms, including the option to pay only the interest due each month. Some loans allow borrowers to pay even less than the interest due monthly, and add the unpaid portion to the loan balance. Every payment increases the amount owed.”

“In coming years, if price declines are in line with expectations, Alt-A losses are projected to total about $150 billion, an amount the financial system could probably absorb. But until investors are sure that price declines will hew to the consensus, the financial system will not regain a sure footing. And if declines are worse than expected, losses will also be worse and the turmoil in the financial system will resume.”

“There’s a way to avert that calamity. It’s called foreclosure prevention. There is no excuse for delay.”

We agree with the Times that effective foreclosure prevention legislation is long overdue.  As the Times pointed out, unless Congress acts fast, it is likely that the economic consequences of the bursting of the housing bubble will be even more serious and widespread.

Even Fed Chair Ben Bernanke — who could not be called an advocate of government intervention in the markets — has stated that “High rates of delinquency and foreclosure can have substantial spillover effects on the housing market, the financial markets, and the broader economy” and that what is at stake is not merely the homes of borrowers, but “the stability of the financial system.” 

We also can not imagine a more self-defeating political strategy than that of the Republicans who have opposed foreclosure prevention legislation. 

We’ve already written about Senator Richard Shelby’s close ties to the apartment owners industry, which has aggressively opposed federal aid to homeowners in, or near, default.

Surely, with the presidential election only months away and their party in trouble, more Republicans — including Senator McCain – should see the need for coming to terms with the economic, and political, realities of the foreclosure crisis, even if it requires ideological compromise.