RPA Activist Info Masthead
Issue: #121September 27, 2013
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IN THIS ISSUE
Training on Richmond Housing Issues
Mayor's Trip to Ecuador
Chevron Calling
Support BART Workers
Bates vs. N&E Residents
Legal Advice for Sustainable Economics
Solar Training Available
Building Trades Supports City on Housing
Eminent Domain Explained
Resources on Housing Fight
Join the RPA
Some History of RPA
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Progressive Office
1021 Macdonald, 510-412-2260

PASS IT ON!!  

Since we don't take corporate money,  our success depends on our ability to use "people power" to promote activities and programs in Richmond. The RPA Activist is one tool we use to put out our ideas. One simple thing that YOU can do is to forward the RPA Activist to friends and acquaintances. Thanks.

 

Train the Trainers Workshop on

Richmond CARES Program to Stop Foreclosures and Blight

 

This evening training program is for people who want to help fight the propaganda of the banks and realtors by writing letters, making calls, speaking at events and organizing others.

 

Presenters will include Amy Schur who leads the statewide campaign for ACCE, a representative of MRP, and others who are knowledgeable.

 

We will provide you with power points (bring a flashdrive if possible) and handouts. There will be plenty of opportunity for you to get your questions answered.

 

The training is by invitation.  If you are interested  call the RPA office  510-412-2260.  Leave a message, if no one is there to answer your call.

Mayor Reports on Ecuador

Gayle Ecuador Mayor Gayle McLaughlin was in Ecuador last week at the invitation of the Ecuadorian government to view the contaminated areas of the Ecuadorian Amazon Rainforest by Chevron-Texaco.   

 

We continue to stand strong for the rights of people to hold corporations responsible for the damage they do in the world.  It's true that corporations have massive power, money and influence, but all that pales when compared to the power of people when organized!  Here is her report:

   

Our trip coincided with a campaign launched by President Correa called "The Dirty Hand of Chevron" to expose the massive damage done in the Amazon Rainforest by Texaco (now Chevron).  While I had seen pictures and heard testimonies of the environmental and health damage, seeing this contamination up close made a profound impact on me. This catastrophe occurring over 26 years of Texaco's dumping crude oil and toxic wastewater into the rainforest is unconscionable. Crude oil was dumped in the rivers and streams and on the roads. 18 billion gallons of toxic wastewater was dumped into the rainforest. All this is quite extensively documented. There currently exists nearly 1,000 unlined pits with toxins seeping into the groundwater and migrating into the rainforest as we speak.   I visited one of the pits and experienced first-hand the sludge that fills these pits left by Texaco.    

 

Texaco (now Chevron) clearly disregarded the environment and simply disposed of its toxic products in the most cost-saving way.....just tossing them into the rainforest! As a result, the indigenous community who drank the water, bathed in the rivers, cooked their food and washed their clothes with the water, as well as fished from the rivers and streams, suffered monumentally and continue to suffer from cancers, birth defects and miscarriages.

 

 see Doria Robinson's blog here:  

   

John Geluardi's Berkeley Planet article here: 

Chevron's Mail Ballot Strategy 

 

Chevron Calling  

 

Chevron which is the primary funder of Moving Forward has been running a campaign to get voters to change from poll voting to voting by mail. 

 

Apparently Chevron believes that it does better with voters who vote early and who receive most of their voting information by mail where Chevron has the big advantage.

 

Following is a description of a call received by an RPA Steering Committee member [M] earlier this week. The names have been changed to protect the Chevron worker [C].

 

Call this evening from [C]" from her private cell phone.
"Calling from Richmond," asked for me by name, as a "follow-up to the vote-by-mail drive."
 
C:   I'm a volunteer with Moving Forward, wanted to make sure we send you the vote-by-mail materials.
M:  Oh, you're a volunteer? You don't get paid??
C: Yes I'm a volunteer.
M:  Where in Richmond are you calling from?
C:  Our office in Pt. Richmond.
M:  What is the phone number for the office?
C:  It's where my boss works.
M:  Your boss?   Who funds Moving Forward?
C:  Chevron
M: And they're not paying you?? [with a friendly laugh]  They're so rich!
C:  (laughing)  I know.
M:  No, really, they don't pay you at all??
C:  Well, they pay us a little, but our shirts have "Volunteer" printed on them, so that's what we tell people.
M:  Well, I'm glad they pay you -- they have so much money.
C:  I know!
M:  [in a nice way] -- C, you sound like a decent person -- do you really live in Richmond?
C:  Yes, in North Richmond my whole life.
M:  Then you know firsthand what kind of company Chevron is.  You know about the horrible pollution and the asthma problems our kids have...
C:  I know!  My mom's had to call them so many times because the air is so bad.
M:  Then why are you helping Chevron? They want to manipulate our elections to put their candidates in place. These calls you're making are to help Chevron buy the next election...
C: [thoughtful, not at all defensive...]  I know, but someone said to make change, you have to work from the inside.  Lots of people I talk to are giving me a bad time about Chevron.
M:  C, I wish you well, and I so hope you'll have a change of heart and work with us in the community to make Chevron accountable.
C:  OK, you take care.
 
This was a cordial, friendly exchange.  Clearly she needs the money.

Support BART workers

 

As we approach the October 10th deadline, many BART passengers are justifiably concerned about the chaos that will result if service is stopped. While the public clearly does not want to see service stopped, we have to ask who is responsible for the failure of negotiations. 

 

The BART board and mainstream media are spreading the word that the Board has been compromising while the unions have been intransigent. The reality is something quite different. BART clearly planned for a strike when they paid $400,000 for chief negotiator, Thomas Hoch, with a record of union busting and forcing strikers as the way to defeat unions. (See East Bay Express story here

 

BART workers took a wage freeze four years ago to help out BART. In these contract negotiations the BART proposal has been to cut worker wages/benefits when inflation is figured in. (See East Bay Express explanation here.)

 

 

Skinner Supporting BART Workers Because the jobs are unionized and it is difficult to outsource them, BART workers get good wages and benefits. They are not excessive--in the $20.00 to $30.00/hour range. These set the bar for the wages and working conditions of others in the Bay Area, particularly public employees. If management is successful in lowering the wages and benefits for workers with strong unions it will intensify the downward spiral for all working people in the community.

 

BART workers are seeking support. They have an adopt-a-station program to leaflet BART passengers before the strike. They are asking supporters to go to community meetings, council meetings and call attention to the workers side of this story. They are planning a big community support march on October 8 at 5pm starting at Frank Ogawa Plaza in Oakland.  If you are interested in participating in any of these please email the RPA newsletter and we will pass it on to ATU1555 and SEIU 1021 the two major unions representing BART workers.  

 

See ATU 1555 We Make BART Work website

 

See SEIU 1021website  

Debating City Policy on  "Eminent Domain"
Nat Bates Exchange with N&E residents


Here is an exchange between Nat Bates and residents on the N&E Yahoo Group:


From: Nat Bates TO: N&E Yahoo Group

This City of Richmond eminent domain is only getting worse. Attached is a very well written letter responding to the city manager and directed to the council by HSBC Bank, USA regarding their position on the eminent domain situation. They also include some of their actions being taken to assist homeowners with their underwater loans. Please also review below a report by Moody's Investors Service, a reputable Investment company who states due to the eminent domain situation, Richmond residents should expect higher interest rates and reduced mortgages availability for future home loans. Also, in the coming months, expect Richmond to be labeled a "toxic" investment community and will see a potential loss in value of their homes.

Our finance director Mr. Jim Goins, expect an increase in the interest rate for the 34 million dollars revenue bonds that go on the market next month. Several weeks ago prior to the eminent domain issue, the city were looking at a 3-4% interest rate with a saving of some 4 million dollars from our current 5.3% rate.

The question voters and property owners should be directing in large numbers and with a strong voice to the majority of the council, McLaughlin, Butt, Beckles, Myrick and city manager Lindsay and city attorney Goodmiller, just how long they intend to hold this city hostage with four votes when everyone recognize it requires a super majority of five votes to execute any eminent domain of property??There is simply no intelligence being applied to continue this charade at the expense of home owners.

Feel free to pass this along to your friends and neighbor
Nat Bates

Responses
Let's get this straight:   HSBC Bank which recently was fined 1.9 Billion dollars for laundering Mexican drug cartel cash is lecturing the Richmond City Council on its inability to make loan modifications because they are hiding behind CDO's and MBS regulations they helped create? Nonsense.  

Worse, Moody's who is threatening to lower the city's bond ratings, is the very same 'handmaiden' of the banks and investment firms that allowed triple AAA ratings to exist right up to the days prior to the crash of all those toxic assets in 2008.   I, for one, don't suffer threats well from sources of power that have no moral standing. Whatever Richmond does against these powerful organized crime entities will be settled in the courts long before we suffer the consequences of their extortion threats. Any damage they inflict in the meantime, will be addressed in another 1.9 Billion lawsuit we could very well win. How much are they paying YOU, Mr. Bates, to be the "Chicken Little" of Richmond?  
Brian Lewis


All good points. And there is also this, that Mr. Bates and for that matter all of the City Council members should consider. Regardless of your view about the use of eminent domain the City Council should *unanimously* stand up for and defend the citizens of Richmond against all of these veiled threats from banks, rating agencies, agencies of the Federal Government (i.e. FHA), and anyone else who threatens to cut off funding for mortgages, municipal bonds, or any financing public or private. As an elected official I think you have a duty to defend and protect the city and its residents even if you disagree with the eminent domain strategy. Repeating and supporting these 'threats' of financial harm to Richmond and its residents should not be tolerated, yet it sounds to me like some on the Council actually support them! If that is indeed the case they may find that come election time they will not have the support of the citizens of Richmond. Why should we back those Council members if they haven't got our backs?
Dave S

Resilient Communities Legal Cafe  

 

Every fourth Monday of the month , the Sustainable Economies Law Center will host our Resilient Communities Legal Cafe in downtown Richmond at the Joy Cafe (1400 MacDonald Ave., 94801).

 

At the Legal Cafe, attorneys provide Legal Advice and Resources for Small Businesses, Cooperatives, Nonprofits, Social Enterprises, and much more. The Resilient Communities Legal Cafe provides first-come, first-serve, pay-it-forward legal advice to individuals and organizations looking to create more just and resilient local economies. The Legal Cafe is 1/3 living classroom with facilitated discussions and teach-ins, 1/3 legal advice, and 1/3 community building. For more information, please visit our website at www.theselc.org/cafe.  

 

Sustainable Economies Law Center 

436 14th St. Suite 1120,  Oakland, CA 94612

Direct: 562.234.0817 | SELC: 760.569.6782

 

Applications by October 1
Accepting Applications for Fall Solar Training

Solar Richmond will be holding a training course on Solar Photo-Voltaic  Installation this October. Members of the class will learn advanced skills in solar panel installation that Bay Area solar companies expect, while working with Solar Richmond's staffing agency to secure job opportunities in the solar industry. Top graduates of the program will have the opportunity to
join Pamoja Energy Solutions, Solar Richmond's cooperative solar company.
Questions? Call(510) 253-2212, or email michael@solarrichmond.org. 

 
Building Trades Supports Richmond Action Against Foreclosure

In a letter dated August 1, the Contra Costa Building Trades Council sent a letter to Mayor McLaughlin  commending her and the Council "for becoming the first city in the nation to use eminent domain to stop foreclosures."

"Many of the Richmond residents were steered into predatory loans which are generally the most unfavorable to borrowers and they have been struggling to stay in their homes.  Keeping Richmond residents in their homes is needed to fight blight and keep the community intact.

" This is not only beneficial for the homeowners who are our members but also a benefit for the entire community.  We commend you for approaching this problem in a new and creative way."
Excellent Washington Post Article Explains Many of the Technical Issues

Is Richmond's mortgage seizure scheme even legal?

By Mike Konczal, Updated: September 21, 2013

The possibility of using eminent domain to reduce underwater mortgage debt in the city of Richmond California survived several tough challenges a week ago. As Lydia DePillis reported, the City Council decided to go ahead with the process after a long hearing that could have possibly derailed it. Meanwhile an attempt by Wells Fargo and Deutsche Bank to have the action shut down even before it properly started was tossed out by a U.S. District Court (Judge: "Isn't this, as we say in the trade, a no-brainer?").

 

The arguments will now proceed to the two parts of eminent domain law: demonstrating public purpose for the takings and offering fair-value. Since this is the furthest an eminent domain case has made it, it might be useful to step back and walk through the arguments. If the case succeeds, it is likely other cities, which have been hesitant, will consider going forward.

What is going on in Richmond? 

Richmond, California is one of the hardest hit cities in the housing collapse. The median sale price of housing fell from about $450,000 in January 2006 to $220,000 today. Roughly 51 percent of mortgages are underwater, and the average underwater homeowner owes 45 percent more than their home is worth. 16 percent of homeowners with a mortgage have suffered a foreclosure.

Richmond has proceeded by offering to purchase 624 mortgages held in private-label securities, offering a price as determined by an independent appraisal. The offer explained that they would attempt to negotiate first, but if they failed they would use their eminent domain powers.

However, in a technique argued since the beginning of the crisis by Cornell law professor Robert Hockett, rather than use eminent domain on the house itself, the city would seize the mortgage. A private investment company, Mortgage Resolution Partners (MRP), would in turn write down the mortgage amount to something closer to the current value. They would collect a profit and refinance the loan. The homeowner would be less likely to default with a lower loan amount, or would be able to sell without a short-sale, leaving him or her with more money to spend locally.

So wait, the city wants to use eminent domain on mortgages? I thought you could only use eminent domain on, like, actual property and things.

Interestingly enough, that is not the case. The issue here is whether or not a property that is "intangible" can be taken under eminent domain. And it can.

The very first time the Supreme Court heard a case on eminent domain, in fact, had to do with a state taking an intangible form of property. In the 1848 case West River Bridge Company v. Dix, the state of Vermont used its eminent domain powers to take a franchise contract. The Court argued that the distinction between "property which is corporeal" or tangible and property that is intangible, like the franchise under question, "has no foundation in reason." They were "aware of nothing peculiar to a franchise which can class it higher, or render it more sacred, than other property."

Since then, eminent domain cases have come up in everything from sports franchises to stocks, and every time the fact that the property in question wasn't a physical thing didn't matter for the case.

So what problems do the banks have with it?

Here's where it gets interesting. The banks are arguing that it is in fact against the Constitution to use eminent domain on these mortgages in question, as well as that it doesn't serve the public purpose and there is no fair-value offer that would make the plan workable.

Wait, so it is illegal to use eminent domain on mortgages?

The banks are arguing that there's something specific to the nature of securitized mortgages that have been financially engineered into bonds and eminent domain that goes beyond previous cases.

 

Their first, and main, argument, is that the mortgages don't actually exist in Richmond. And since Richmond can only use eminent domain for these within its territory, if the mortgages aren't there it is a problem. The banks argue that the mortgages, because of their slice-and-diced nature, exist legally somewhere other than Richmond. (Given the notorious document fraud in the financial industry when it comes to these mortgage bonds, it's likely the financial industry also doesn't know where the mortgages are, but that's another issue.)

The courts use a variety of tests to figure out where intangible property resides, and it can in turn reside in several different places for different legal purposes.  Richmond argues that when considering where an intangible property resides, the mortgages are incurred by Richmond residents and secured by property in Richmond, and there's extensive case law that this is the important distinction that should be used for eminent domain purposes.

The banks are also arguing that this is a state trying to set interstate commerce for the nationwide housing market, and is thus illegal under a "dormant commerce clause." The banks also argue that it would violate the Contracts Clause of the Constitution, because the debts of local citizens would be forgiven at the expense of creditors.

However, the Supreme Court has consistently argued that eminent domain supersedes the Contracts Clause. And there's nothing in this process that would discriminate against out-of-state creditors versus in-state. (Indeed, the creditors who would face writedowns could be in the same state.)

One never knows what courts will do, but in general the argument that this is illegal because of something to do with the mortgages themselves doesn't seem that strong. Hence the real fighting over public purpose and valuation.

So that leaves public purpose and costs. What is the public purpose of this program?

This is what will be argued next in Richmond. It is very likely Richmond will argue that preventing blight is a major, legitimate public purpose, and the courts agree. Abandoned homes result in increased crime and significant public costs, in addition to destabilizing neighborhoods. According to the Richmond city manager, William Lindsay, the city had to haul 295 tons of trash off of private property, most of it from vacant homes in 2010 alone. And that says nothing of the police and fire services that have had to dedicate resources away from regular crimes to deal with vacant homes.

The banks argue that the loans are performing (more on their argument about this in a minute), and as such don't serve a public purpose. But there's also a public purpose in solving problems in the coordination of mortgage servicers to writedown and deal with failing mortgages. There's also the public purpose of allowing people to move as well as refinance allowing for the movement of individuals as well as the ability to refinance. These are all legitimate purposes of eminent domain; indeed one such Supreme Court case from the 1980s found that "reduc[ing] the concentration of land ownership" is a legitimate public purpose for eminent domain.

What's this about coordination?

There's been a lot of development in the argument that the middlemen in mortgage servicing have both significant conflicts of interest as well as are underinvested to handle these issues. As Adam Levitin and Tara Twomey argue, servicers "do not have a meaningful stake in the loan's performance," and their business structure "encourage servicers to underinvest in default management capabilities, leaving them with limited ability to mitigate losses."

Their incentives don't match those of the investors they are supposed to work for. They are make more money dragging out mortgage issues, while padding their costs along the way. And they are "incentivized to favor modifications that reduce interest rates rather than reduce principal, even if that raises the likelihood of redefault."

One function of regulation is to coordinate the actions of many different parties into productive paths -- think of traffic laws. Coordinating creditors and investors is usually the function of the bankruptcy code, but bankruptcy isn't applicable for home mortgages. However eminent domain is often used for this purpose of coordinating and forcing a sale, and it can do the same here in breaking coordination problems among the many different, broken parts of the mortgage chain.

Ok, so the real fight is probably about valuation. Is this a highway robbery issue?

As a reminder of process, the courts will have to agree that any price paid is an actual fair-value price. "It is a legal requirement that fair value is paid," Robert Hockett told me. "The courts are going to do their duties, and hear arguments under an adversarial system. This isn't a new issue. Across a range of legal issues, including eminent domain, the courts have to figure out the legal value of something. Both sides will offer valuations, and bring experts to explain different methodologies under cross-examination. The court itself may impanel their own witness. And they'll ultimately decide what fair value is."

The banks argue that the only way to make this work is to pay far below what would have been given in a fair negotiation. Richmond, in turn, argues that their offers were generated by appraisers that the financial industry itself uses. Indeed, Richmond doesn't "make offers" -- it instead hires independent appraisers who come up with the valuations that were proposed.

Now the fight will continue to what methods those appraisers use, and that is likely where the court fight will settle. One way to evaluate these mortgages would be to compare them to bonds of mortgages containing similar instruments and see what discount is used. Given the still high levels of foreclosures, this would generate a significant discount. This is a common technique to evaluate risk and valuations when markets aren't available, say for understanding the credit risk of a brand new company, as they aren't in high foreclosure areas.

The banks also argue that the fact that a majority of homeowners are current on their loans means that they aren't relevant to either public purpose or subject to a steep discount. But, in a high-risk zone with unemployment still high, current mortgages can easily fall apart. There's also an argument that if you only picked mortgages that were failing, you'd encourage a kind of moral hazard that could amplify the very problem the city is trying to stop. Regardless, the valuation in eminent domain is a matter for the courts to ultimately decide, hearing from independent appraisers and experts.

Will this collapse the Richmond housing market?

The biggest remaining worry is whether or not this will permanently harm the ability of people in Richmond to get new mortgages. One of the main arguments from the banks is that the housing market is recovering at a rapid clip, and if this process scares off lenders then it could both hurt all future homeowners and the fragile recovery.

It's early to tell whether or not this would be an issue, and if so how big it would be. As Peter Dreier, a professor at Occidental College and an expert on housing policy, argued in the Richmond case, stabilizing the mortgage market is far more important in making credit widely accessible. Banks always, as a rule, threaten on this front on all consumer related issues, yet with a stable mortgage market Richmond would make a reasonable investment opportunity.

At the end of the day, isn't eminent domain shady?

Eminent domain gets a well-deserved negative rap for its role in so-called urban renewal projects, and many other instances of the state taking from the poor or even average citizens to give to the rich and developers. Just listen to Fugazi.

However, there's an important role for eminent domain in forcing coordination among many different agents who, for a variety of institutional and legal reasons, find it hard to coordinate among themselves. The story about how mortgage originators abused their responsibility in originating mortgages, at the expense of both investors and borrowers, is well-understood. But what is equally well-documented but less understood is that what is going on in the foreclosure process is the mirror image of that same thing. Fundamentally, these problems are the type eminent domain can solve.

Meanwhile, some seven years since the housing market collapsed, the country is still fundamentally dealing with the same issues. The federal government and the administration had multiple attempts to address these issues since the beginning of the bailouts, and they have either failed or ignored them. It is entirely appropriate that local government take the steps they need to in order to address their housing market if they can make the case to their constituents and to the courts that the situation is this desperate. Because for many people, including the residents of Richmond, California, it is.

The Washington Post Company

Washington Post Article  

 

Resources

Get your questions answered.    Check out 

  

http://www.richmondcares.com/    

 

 http://www.saverichmondhomes.org/   

 

 

KQED Forum  8/8  with  

  •  David Wert, public information officer for San Bernardino County
  • Jeff Wright, independent real estate broker with Wright Realtors and former president of the West Contra Costa Association of Realtors in Richmond
  • Robert Hockett, professor of law at Cornell University and one of the originators of the eminent domain plan
  • Steven Gluckstern, chairman of Mortgage Resolution Partner     
http://www.kqed.org/a/forum/R201308080900

 Emily Badger in The Atlantic Cities on "Why Wall Street is Very Very Angry" http://m.theatlanticcities.com/housing/2013/09/why-wall-street-very-very-angry-richmond-california-today/6858/  

Josh Harkinson  on "
Why a Small California City Could Be Wall Street's Worst Nightmare" in Mother Jones  http://www.motherjones.com/mojo/2013/09/richmond-eminent-domain-wall-street-nightmare?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed%3A+Motherjones%2Fmojoblog+%28MotherJones.com+|+MoJoBlog%29  

This is an extensive interview on PBS of Mayor McLaughlin and others.

http://www.dailykos.com/story/2013/09/20/1240246/-PBS-Newshour-Richmond-CA-Government-Uses-Eminent-Domain-to-Solve-Its-Foreclosure-Crisis#

 

 

Use of Eminent Domain to grab land for the Keystone XL pipieline

http://stateimpact.npr.org/texas/2012/09/28/eminent-domain-casts-its-long-shadow-over-the-texas-legislature/


 

 

Stand Up Against the Banks and the Corporations Who Gang Up on Richmond

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Some History and Understanding of the RPA
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RPA Activist Info

is for Richmond community members who want to be active in taking on the problems of the environment, racism, joblessness, housing, and crime to create a healthy Richmond. We believe that community involvement means more than voting every two years. It means regular communication with the candidates we elect, letting them know our issues and positions, supporting them as they try to take our issues forward. It means we attend meetings, use email, phone our neighbors, or go on marches building an organized movement to create real change.

Comments and columns are welcome. Articles and columns are the views of the author, unsigned text  the views of the editor, Mike Parker, and not necessarily those of the RPA. Send photos, articles, and comments to  RPAactivist@gmail.com or call  510-595-4661. Longer articles of analysis and archives of past newsletters can be found on our website.