Tuesday, April 15, 2014

FHA Under Pressure to Bring Back Individual "Spot Loans" for Condominium Units.

There is finally some good news for condominium unit owners who’ve been frustrated by the FHA’s prohibition on “spot loans” in developments that haven’t obtained certification. Pressure from real estate advocacy groups is causing the FHA to seriously consider relaxing the ban and bring back spot loans.

 Ken Harney, a nationally renowned author and expert on real estate and mortgage finance, wrote in a recent column on April 8, 2014 that "Officials are mum on the details and timing, but they confirmed to me on Friday that reviving this key financing option is now under active study. The main reason: FHA is under growing political and trade group pressure — NAR and the Community Associations Institute especially — to do so."

Why is this important? A significant number of condo association boards have either chosen not to apply to FHA for approval of the entire development, or are unable to do so because their associations don't meet the standards or they feel they can't afford the cost of hiring an attorney or other professional to assist them. Under current rules, without FHA certification of the project as a whole – based on evaluations of the association’s financial accounts, reserves, insurance, renter-to-owner ratio and a long list of other factors – no unit in the development is eligible for an FHA mortgage.

This concept particularly affects moderate income, first-time and minority buyers -- and its ironic, considering that the name of the agency has "Fair Housing" in it.

If a condo association does not have pre-approval from the FHA, existing unit owners who want to obtain a reverse mortgage to tap their equity cannot qualify. Harney commented, "The FHA’s home equity conversion mortgage (HECM) program dominates the reverse mortgage field and accounts for an estimated 90 to 95 percent of all volume. Without access to FHA, seniors who live in a non-certified condo project are cut off from a major potential source of needed cash to pay bills and support their retirement years."

The inability to obtain spot loans has a direct affect on the selling prices of condos. I have had several clients selling condo units who lost money when the only buyers interested only qualified for low down payment FHA financing -- and their condo association was not approved. One egregious example is a client who was the executor of his father's estate. His Dad had died owning a condo unit. The family sunk thousands into fixing the unit up to sell, and then discovered the association was not FHA approved. Because of so many foreclosures and abandoned units, the association complained that they weren't even sure they could gather a quorum for a meeting to seek FHA approval -- and the financial health of the association would probably result in the FHA application being rejected. The client was forced to lower the price so cash buyers might be interested -- selling for a price that was both well below market rates and failed to recoup the repair investment.

Why did the FHA ban spot loans in the first place? From 1996 to 2010, these kinds of loans were permitted in condo projects, but did not have adequate management, monitoring and quality control measures in place. Eric Boucher, an FHA condo approvals specialist with ReadySetLoan Condo Team LLC in South Windsor, Conn., says the inevitable result was that some developers and loan officers took advantage and obtained FHA-insured loans on units in projects that did not meet even minimal standards. Sometimes the loans were secured by structures that didn’t even qualify as legal dwelling units -- for example, a motel in Florida that was converted to a condominium received FHA spot loans on every unit the building, even though not one had a kitchen.

But because FHA lacked the administrative capacity to carefully review and process loan package submissions and track spot loan endorsements project by project, the loans were all approved. In addition, the FHA recognized that many condo associations used concepts such as the right of first refusal and board approval of transfers to discriminate against potential buyers. When the FHA retooled its condo oversight in 2010, it instituted a much more rigorous certification process to identify eligible developments to prevent fraud, abuse, and discrimination, and totally banned spot loans.

The new certification process has plenty of controversy of its own, and thousands of condo boards have declined to apply. However, FHA officials claim they now have much better oversight and management controls in place. They also note that in any resumption of spot loans, much stricter standards would be in place for a unit to qualify, along with much more intensive monitoring. An attendee at a recent FHA-sponsored private roundtable for condo professionals quoted a senior official say saying that any new version “won’t be your father’s spot loan program.”

What does this mean? If spot loans are brought back, they certainly won't be as easy to get as they were prior to 2010. Non-certified projects will probably get the same level of rigorous review that certified projects do. Approvals will be slow, and the costs will be higher. But to have this option back opens a door to condo owners, lenders, and real estate professionals that has been closed for years. And it may be the only hope for the revitalization of the condominium market in the metro Chicago area, especially the south suburbs.

Wednesday, March 26, 2014

The Death and Potential Revival of the Illinois Eavesdropping Law

On March 20, 2014, the Illinois Supreme Court, in two companion cases (People v. Melongo, 2014 IL 114852, and People v. Clark, 2104 115776) declared the State's Eavesdropping statute unconstitutional.

This was big news.  The Eavesdropping statue had come under criticism for being used to target citizens who tried to expose corruption and incompetency in law enforcement and judicial officials, and I believe the Court's decision to invalidate the law was both wise and sound.  But I believe the essence of what the Eavesdropping law in Illinois was meant to protect might be lost in all the hoopla over its application to the unauthorized recording of police or governmental activity.

The Illinois General Assembly enacted the eavesdropping law in 1961.   The statute originally criminalized the use of an eavesdropping device to hear or record any oral communication without “the consent of any party thereto.”  The original statute also provided a civil remedy. It also provided that evidence obtained in violation of the statute is not admissible in a criminal or civil trial.  In 1976, the legislature amended the statute to require the consent of all parties to the communication.  

The 1976 amendment was applauded as giving great strength to personal privacy -- even in a situation with multiple parties, a conversation could not be recorded without everyone's consent.  This was a much more stringent standard than the Federal law (passed in 1967) which only required the consent of one party to the conversation.  Plus, as technology began to advance, the law's limiting language which focused on "oral communications" made the growing ubiquity of video recording appear to be a loophole.  Indeed, this was the beginning of the problem.  If I brought a video camera to my son's little league game, I could record the images and broadcast them without anyone's consent.  But according to the express language of the law, I could not include the audio portion of the recording without the consent of everyone in attendance. 

The conflict between the stricter State law and the Federal standards began to come out in Federal Court -- and the Federal Courts simply ignored the Illinois standard.   Then, in 1986, the Illinois Supreme Court weighed in on the eavesdropping law for the first time.  In People v. Beardsley, 155 Ill. 2d 47 (1986), the Court determined whether an unauthorized recording of a conversation between two police officers constituted a violation of the act.  In Beardsley, the defendant had been arrested and placed in the back seat of a squad car.  The two officers who arrested him rode in the front seat.  The defendant had a tape recorder, and recorded the discussions between the two policemen.  The officers claimed they did not know of or authorize the recording, although they knew the defendant possessed a tape recorder.   In looking at the argument, however, the Court simply made some obvious and logical conclusions: In this instance, the person making the recording was a party to the conversation; the recording party could not be prohibited from repeating what he was told by the other participants in the conversation. The Court determined thatwhen a party to a conversation makes a recording of the conversation the recording is simply a means of preserving an accurate record of what was said. Despite the language of the Eavesdropping statute, the court found there is no eavesdropping in that situation because the people being recorded had no expectation of privacy in what they told the person who recorded the conversation. The Court found the police had no legitimate expectation of privacy with respect to their conversation because they had held the conversation in the presence of the defendant.  In effect, neither party needed to give consent if the conversing parties did not have an expectation of privacy.  

The Beardsley case was hot off the presses while I was in law school, and sparked a lot of inspired debate.  Many of us 1L's and 2L's argued that the plain language of the statute required everybody's consent to the conversation, so that is how it should be interpreted.  Others argued that in the context of other areas of the law -- defamation, common law privacy, and attorney client privilege, for example -- the expectation of privacy analysis was always a turning point in determining whether something was meant to be made public.  There was a basic logic to the Beardsley conclusion.  If I say something inflammatory as a speaker in front of an auditorium full of people, and someone surreptitiously records what I said, I am hard pressed to argue that fits into the concept of "Eavesdropping."  

But there are times when a conversation between two or more people could be conducted in a manner that invokes the expectation of privacy.  For example, in the early 1990s, I represented a commodities trader who had been accused of churning his clients' accounts -- that is, his clients accused him of buying and selling solely for the purpose of collecting commissions, while doing little to benefit the client's bottom line.  Part of the evidence presented against the trader were recordings of telephone conversations between the trader and one of his clients which were made without the trader's knowledge.  My client was concerned that the client's sole purpose in making the calls was to try and entrap him, so he wanted the tapes suppressed.  I was able to convince the opposing counsel to agree to not use the tapes by arguing the concept of "expectation of privacy" in a private telephone conversation and the potential of filing a civil action to enforce the eavesdropping act.

In a situation like I just described, the conclusion that all you need is one party's consent to record the conversation seems to run contrary to the broad interpretation the Courts were giving to Beardsley.  Yet, in People v. Herrington, 163 Ill. 2d 507 (1994), the Court took Beardsley a step further, and clarified that no expectation of privacy existed if one of the parties to the conversation was the recording party, allowing any person to secretly record a conversation as long as they were a participant.

Howls of protest followed from those who felt the Eavesdropping statute had been made a nullity. In the wake of these two decisions, the Illinois General Assembly amended and strengthened the statute by making it applicable to any oral communication “regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” This amendment clearly sought to overrule the Illinois Supreme Court decisions that effectively narrowed the statute. Now, it was clear that all parties needed to give consent before any recording could take place.
However, while most citizens were prohibited from recording conversations without every participant's consent, the statute made exceptions for the police to make records in specific situations as part of their law enforcement duties without anyone's consent.  The statute allowed for the police to have the discretion to record an array of encounters which some courts refer to as “enforcement stops” without the consent of the other parties involved. Enforcement stops include “traffic stops,” “motorist assists,” “pedestrian stops,” and “requests for identification.”  Meanwhile, a subsequent amendment to the Act provided that an individual who, in violating the eavesdropping statute,  records an oral conversation of a police officer or certain other public officials in the performance of their official duties commits a class one felony -- which could get a violator up to 15 years in prison and a $250,000 fine.

In addition, another amendment to the Eavesdropping statute attempted to modernize the offense, adding "electronic communication" to the scope of the law.  While this eliminated the audio/video anachronism, the amendment was only applied to the criminal violations of the act.  Thus, there was no civil liability for a video recording or snooping in someone's e-mail.

In the latest cases, the Court obviously had problems with the application of the law.  The Court determined that the statute was vague, too restrictive, and "makes innocent conduct subject to prosecution."  The court went was also critical of the statute not requiring any "culpable mental state: (meaning you didn't have to intend to violate the law) and  that it violated substantive due process under both the United States and Illinois constitutions.

I believe the court made the right decision in striking down the law.  Clearly, the application of the law “burdens substantially more speech than is necessary to serve a legitimate interest in protecting conversational privacy.”  The Court noted that  “The statute criminalizes the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others. None of these examples implicate privacy interests, yet the statute makes it a felony to record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute’s scope is simply too broad.

I also believe the history of the use of the statute by prosecutors to inhibit the use of recordings to investigate police misconduct or judicial/governmental incompetence -- and nothing else -- also indicates that conversational privacy really isn't at the heart of its enforcement.  And the punishment doesn't fit the crime.  The defendant in the Melongo case spent over a year in prison for recording and publishing on the internet three telephone conversations with a county court official.  The prosecution made no consideration for whether there was an actual violation of privacy, or if confidential information was disclosed.  Just the fact the recording had been made was enough to subject the defendant to conviction.  Perhaps the Melongo defendant should have been punished for violating the law -- but this is where the concept of a civil remedy or a requirement for a culpable mental state/intent needs to be considered.  Then again, we are talking about a public official -- where the expectation of privacy is certainly different than the case I cited earlier, between a private businessman and his customer. 

Clearly, the Illinois Eavesdropping law was a mess in the way it was written, and even a bigger mess in enforcement.

But I offer a word of caution.  I believe the analysis of the Beardsley case was on the right track.

I feel the need to continue the protection of conversational privacy by requiring all parties to a conversation need to consent to the recording.  But if the language of a replacement statute was clearer regarding some of these problem areas, the statute would be enforceable and fair.

For example, the statute should have a requirement of "reasonable expectation of privacy."  This would take away liability for recording my son's little league game, or the speech at the political rally.  It would also make a closer call for things like my client, the commodities trader. It is arguable that I do have a reasonable expectation of privacy in a telephone conversation with a single person, or in an e-mail exchange with that person.  The same might even be true in a situation involving family situations -- divorce cases, for example.  Should a divorcing spouse be allowed to surreptitiously record telephone conversations, or secretly videotape an in-home confrontation, and use the recordings against the other in court?

I think specifically exempting public officials, except in instances where there would be an obviously  reasonable expectation of privacy, would be proper.  We shouldn't let the police, court officials, or public transit officials off the hook when illegal behavior is caught on video, and use a law that was meant as a shield to protect against privacy intrusion and turn it into a sword to criminalize non-criminal conduct and put people in jail for what amounts to at best a minor civil violation.

In the end, its the civil remedy that needs more emphasis.  Back in the early 1990s, when I was defending the commodities trader case, I went to the State's Attorney's office to see if there was a chance of bringing criminal charges for violating the Act.  They laughed.  Not to mock me, but to simply say that they had a lot better things to do with their resources.  Besides, what I wanted was to exclude the recordings from evidence, not put the other party in jail.  An emphasis on civil remedies, with a wide panoply of choices, would make the Eavesdropping prohibitions more useful, and yield fair results.  For example, the prohibition of using the recordings against the non-consenting party may be enough.  The requirement that the recordings be destroyed may be enough.  The requirement that publication of the recordings cease may be enough.  Sending the Merengo defendant to jail for over a year for publishing three telephone conversations with a court official, where we don't even know if the conversations really portrayed that official in a bad light or went beyond the auspices of her official duties, just seems wrong.  A lesser penalty, arising in civil law, would have been much more appropriate.

While we all might applaud the death of the Illinois Eavesdropping Act, for all its faults, I do fear for the void it leaves.  We need a re-write of the statute designed to truly protect private communications.   It's certainly doable.  And I hope it happens soon.