Small dollar fund supports struggling homeowners

In March of 2020, the federal government issued foreclosure and eviction moratoriums, orders that helped secure housing for renters and homeowners alike during the COVID-19 pandemic. While these policies prevented millions of residents from losing their homes, they expired during the summer and fall of 2021, threatening the housing stability of millions of renters and homeowners who were still behind on bill payments. Community members facing eviction in Baltimore turned to agencies like St. Ambrose for help.

As the pandemic unfolded, our attorneys observed that the forbearances and deferments that lenders offered were helpful stopgaps but they were not permanent solutions and have the potential to create longer-term problems.

Homeowners like Lynne Frankel felt the impacts of this process acutely. Ms. Frankel attempted to work with her lender on her own to resolve her mortgage default and avoid foreclosure. For two years, she struggled to make payments that were double her normal amount, and ultimately could not sustain them. “I felt set up for failure and let down,” said Ms. Frankel, “because they literally said I could afford the payment without a modification.”

This led Ms. Frankel to St. Ambrose. She worked with attorney Owen Jarvis, who helped her secure approval on a loan modification, which would resolve the mortgage default and give her affordable monthly payments. Payments on the new modification were set to begin in a month, and things were looking up; Ms. Frankel was going to save her home from foreclosure once she finalized the modification by making her first payment.

But then disaster struck. In the month before her first payment came due, Ms. Frankel’s sister passed away. She had to fly out of state to help make arrangements and provide care for her nieces. The financial aspect was difficult, but emotionally, Ms. Frankel was dealing with an even greater weight.

“This was a very sad time for our family, coupled with the stressful burden of fighting foreclosure for a second time,” she said. At this point, she had already tried everything to make her finances work. “I had to get a second job again, which caused medical issues, so I had to quit that second job.”

However, just as things seemed dark, St. Ambrose was able to provide a bit of light. Through the SHOW Fund, St. Ambrose was able to pay money directly to Ms. Frankel’s lender to help her afford her other expenses. Upon first hearing that this was possible, she was brought to tears.

“I received assistance with a partial payment of my mortgage so that I could pay for my flight to Wisconsin in support of my nieces and their mother, who was using at-home hospice care due to cancer,” she said. “Owen Jarvis helped stay on top of my lender and helped get my home loan modification approved with an affordable payment.”

Since then, Ms. Frankel’s situation continues to improve. The home she had lived in for 13 years was able to avoid foreclosure.

While the impact of the pandemic will continue to be felt for months and years to come, St. Ambrose will remain an innovative and steadfast resource and navigator for those in need.

Summer at St. Ambrose: Sustaining Community Connections

For a few days during the week, I work at St. Ambrose. In the morning and evening as I walk to and from the revitalized row houses that are St. Ambrose, I am most often greeted by someone who is going to work, returning home, or unwinding on their front porch. This exchange brings to mind an image of affability that seems to be a remnant of my parents’ generation.

I am always surprised when I talk to my peers, who should feel that life is at its peak, that they truly feel lonely and disconnected. It is the irony of my generation, that with more means of communication than any previous generation, we are lacking an intrinsic sense of connection. As I simultaneously visualize these two generational images – neighbors greeting one another from their porches, verses individuals posting updates of their locations and activities on the internet – it seems clear that the significance of verbal communication and face-to-face connection is eroding. With this erosion of face-to-face interaction and connection is a loss of community.

During the past couple of weeks, I attended several St. Ambrose events. One weekend, I went to St. Ambrose’s picnic at Herring Run Park, which celebrated the revitalization of 137 homes in the Belair-Edison neighborhood. St. Ambrose homeowners and community members in the Belair-Edison area, as well as St. Ambrose staff were able to eat, dance, and socialize. Last week, I joined numerous community development organizations in saying goodbye to the Baltimore Neighborhood Collaborative (BNC), and reflecting on the work the organization completed in revitalizing and recreating neighborhoods to be safe, livable, cared for, and attractive.

These events are significant because they exemplify the building of community. The idea of community is a feeling of fellowship with others as a result of sharing common attitudes, interests, and goals. I am convinced that fellowship is a product of personal interaction, and that these celebrations of accomplishments encourage fellowship by recognizing the fulfillment of shared goals.

The St. Ambrose Legal Department is partnering with Community Law In Action (CLIA), an organization that works with youth to build them into leaders who will help transform their own communities. St. Ambrose attorneys are participating in the Corporate Mentoring program of CLIA. In this program, high school juniors and seniors are involved in many activities, one of which involves site visits to a Baltimore office, once a month. During these Mentor Days, students work on advocacy projects under the supervision of an attorney, participate in conversations with speakers about college, careers, and the legal profession, have mentoring sessions to work on SATs and college applications, and visit Annapolis.

In partnering with CLIA, St. Ambrose is continuing its mission of community development by engaging with a generation of young community members. The attorneys and students interact in a space that reconciles the goals and attitudes of both an older and younger generation. Gaining experience, attending college, and participating in community advocacy is part of individual and community development in the present, but CLIA is also involved in preserving the importance of face-to-face communication, interaction, and connection.

Phillip Westry, an attorney at St. Ambrose and a past director of the CLIA Youth Connection Program, describes the significance of mentoring as, “filling in a gap”. Phillip explains that students are able to gain the information and experience needed to more firmly establish their own educational and career goals. The personal connection and interaction that is also a part of mentoring, founds a base of support, encouragement, and connection, allowing young people to explore with confidence. As CLIA exemplifies, connection and community need not erode with every passing generation, if today’s community leaders and builders continue to include an ideal of affability within and among generations and people.

St. Ambrose Takes legal services into the community

Originally Posted in The Daily Record

Joe Surkiewicz
The legal program at St. Ambrose Housing Aid Center isn’t waiting for clients to find its midtown Baltimore office. Instead, the nonprofit is going into the community to solve civil legal problems before they escalate – and with a permanent, brick-and-mortar presence.

Earlier this month, St. Ambrose opened a walk0in clinic at 108 E. 25th St., where people with civil legal problems can get a free 30-minute consultation with a lawyer.

“You can’t sit in an office and wait for low-income people to find you,” said Jeanette Cole, St. Ambrose’s director of legal services. “They face too many hurdles, like transportation or child care. If you don’t get to them, the problems don’t get better. You must address the legal issues early on.”

Since its founding in 1968, St. Ambrose has helped more than 100,000 families with their housing needs, including counseling for first-time home buyers, a home sharing service, rental services, and a home redevelopment program that renovates vacant houses.

Foreclosure services and the legal program counsel people who can’t pay their mortgage and provide direct representation to people in default and facing foreclosure. Increasingly, the legal staff is engaging clients with legal problems that aren’t directly related to housing – but can ultimately lead to economic instability.

The key, Cole said, is getting to them early.

“What we’re seeing is that people get in denial, they get overwhelmed and deny there’s a problem,” she said. “If they knew there’s someone they can ask for help, it can prevent a problem form turning into a disaster.”

One example is payday loans.

“We try to get to them before it turns into a problem,” Cole said. “We try to firm up their financial stability so that their housing remains stable. We meet with them informally or we schedule appointments.”

The new clinic, which will formally open next month with Mayor Stephanie Rawlings-Blake in attendance, is open Monday, Wednesday and Friday from 10 a.m. to 2 p.m.

“I hired an administrative assistant and a community liaison who also works for Councilman Nick Mosby,” Cole said. “He goes to community meetings and is really good at speaking and getting the word out…He’s a live presence in the community.”
Now that the office is staffed and operating, the next step is to meet with churches and schools where St. Ambrose staff can make presentations.

“We go where the clients are,” Cole added. “Although we’re citywide, we’re focused on the neighborhood near our office to help people access legal services. We take it to the and help them with their problems. It’s to help families and the neighborhood.”

Many people who come to St. Ambrose for housing counseling also have legal problems that need to be addressed. “By assisting with whatever needs to be done, we get to them as soon as we can,” Cole said. “It ultimately helps children, families and the neighborhood.”

Schools are also a source of potential clients.

“We’re contacting counselors to see what issues they’re seeing with the children,” Cole said. “We hope to meet with parents before or after school. We’ve prepared lots of educational brochures and show them how to use the People’s Law Library and our online intake.”

With a legal staff of just three lawyers, St. Ambrose is limited in the amount of direct representation it can provide. “We can’t represent everyone,” Cole noted. “We try to identify real problems. We can do something to help them a lot of the time, and then offer education, referrals and advice.”

The legal program will continue its collaboration with the University of Maryland Carey School of Law in providing low-cost legal help to people in the community.

“We’ll continue to work with the JustAdvice program,” Cole said. “We schedule sessions twice a month at The Living Well, a storefront available for community meetings that we rent. Maryland Law students set it up. Sometimes we have 15 people with scheduled appointments.”

Law students are also the focus of new legal clerkships at St. Ambrose.

“It gives them an opportunity to work with clients and shows them the public service aspect of the profession, either so they can pursue a career or use the experience on their resume, Cole said. “It also helps the see the huge demand for pro bono.”

Joe Surkiewicz is director of communications at the Homeless Persons Representation Project in Baltimore. His email is jsurkiewicz@hprplaw.org

Backlog of Foreclosed Properties Bodes Poorly For Housing Market

A Foreclosed Property (Image Source: Huffington Post)

This week, several sources have reported new information indicating that a colossal backlog of foreclosed properties has amassed, where banks, unable to convert the repossessed homes into sales, simply hang on to them for an indefinite period, with no discernible hope that a transaction may take place.  While most Americans are keenly cognizant of the foreclosure crisis, even housing experts found themselves shocked to come across some of the newly released statistics: according to the New York Times, lenders “own more that 872,000 homes as a result of the groundswell in foreclosures, almost as twice as many as when the financial crisis began in 2007.”

In addition to demonstrating that the crisis never really ended, this figure suggests that policies aimed at prevention have not worked, and in this severe economy, middle-income families throughout the nation continue to face the constant threat of losing their most valuable asset.  In Atlanta, for instance, “lenders are repossessing eight homes for each distress home they sell,” a staggering ratio.  The ratio is six to one in Minneapolis, and in “once hot” markets like Chicago and Miami, whose real estate is among the most expensive in America, the ratio still remains about two to one.  Indeed, if banks continue to foreclose while maintaining a systematic inability to sell, this glut is sure to continue, signaling that there really may be No End in Sight.

The Times offers two reasons for the glut: “inadequate staffs” and “delays imposed by lenders because of investigations into foreclosure practices.”  While it’s difficult to comment on the former without further information, the latter cause is surprising, since such “investigations” were presumably initiated to assist foreclosure victims and therefore help families stay in their homes.  Of course, if these “investigations” were effective—assuming the term refers to an overhaul of foreclosure practices—then the end result should be a decrease in lender owned homes, not the other way around.

While the paper concedes that “the biggest reason for the backlog” is that it takes longer to sell a foreclosed property than owner-owned home, the paper goes on to suggest that slowing down the foreclosure process has contributed to this stagnant market.

In contrast to this suggestion, home owners require a more drastic overhaul of foreclosure practices, not less.  The writer seems to miss the point that stymieing the process often diverts foreclosure altogether, benefiting the home owner and the bank alike.  Indeed, the Times would serve the public by presenting this backlog in a much more nuanced fashion.  While the investigations may slow down sales in the short term, they serve a larger purpose of ensuring that faulty practices that should never have taken place began to finally desist.  Moreover, while the policies encouraging the investigations have too often fallen short, they are nevertheless crucially important.  It’s easy for both parties to scapegoat government programs like HAMP, but to really curtail the rise of lender owned homes, the government must strengthen aid programs, ensuring that that enforcement mechanisms exist and that homeowners have the ability to access the services of HAMP and similar programs in an efficient and understandable context.

In short, while this problem is enormous, the first step to mitigating it is to prevent foreclosure altogether, and for that, we require more government programs and yes, more investigations into unfortunate practices (take, for example, the Washington Post columnist Dana Millibank, whose home was mistakenly foreclosed upon.  And as Paul Krugman points out, there’s no reason to think that this is an exception).

Unfortunately, all indications suggest that this won’t happen.  Proposed cuts in HUD have already taken place, and, coupled with a federal government obsessed with spending cuts, this could only mean one thing: less foreclosure prevention help, the return of unethical lending practices, and no solution to growing stock of foreclosed homes that no one is willing to buy

Mediation Nightmares

U.S. Treasury Secretary Timothy Geithner, speaking about the Home Affordable Modification Program

A few days back, on her popular Real Estate Wonk blog, Baltimore Sun housing commentator Jamie Smith Hopkins provides an excerpt from a letter, written by Baltimore resident Michael F. Malloy, that describes a frustrating mortgage mediation experience.  Molloy posits that “nothing has changed,” as banks continue to take advantage of home owners with predatory loan products and exorbitant fees.  Here, one of our Foreclosure Prevention Counselors, Bryan Sheldon, has put forth a response to Mr. Molloy’s letter. –Harsha Sekar

Michael F. Molloy’s letter does a fine job of illustrating issues faced by homeowners who are in default or who are struggling to make their mortgage payments.  It’s not that there aren’t programs available to assist most homeowners.  The problem is that servicers and investors have no real need to follow program guidelines or assist borrowers in default.  The primary program available to the average homeowner is the Home Affordable Modification Program, or “HAMP.”

Assuming that the letter writer’s relative is still employed, requested assistance in a timely manner, and has a mortgage serviced by a company who is participating in HAMP, the mediation session probably shouldn’t have even occurred.  Even though the Home Affordable Modification Program has helped over 600,000 Americans receive permanent modifications to their mortgages, many more may have been helped if mortgage servicers did not routinely and blatantly ignore HAMP guidelines.  For one thing, no foreclosure action is supposed to be commenced while a borrower is in review for HAMP or alternative assistance.

If someone is in the process of applying for a modification and their servicer asks for a document that seems irrelevant or ridiculous, it probably is.  Bank of America routinely asks for utility bills.  Wells Fargo requires borrowers to submit a separate hardship letter and financial worksheet, despite the fact that both are included on the required Request for Modification and Affidavit (RMA).  Chase asks borrowers to provide a written statement that they do not have to pay Homeowner’s Association fees.  This is despite the fact that the borrower must list any Homeowner’s Association fees that they may have on the RMA or risk perjury.  Mortgage servicers have institutionalized dilatory and onerous documentation requirements despite the fact they directly contradict HAMP guidelines.

The basic problem with the available government programs is that they have been implemented in the grossly deficient regulatory system which contributed to the foreclosure crisis in the first place.  Fannie Mae is the HAMP program administrator, and Freddie Mac is the compliance officer.  Mortgage servicers can “shop around” between other regulatory bodies such as the Office of Thrift Supervision and the Office of the Comptroller of the Currency, and the tangled web of oversight authority produces an environment in which no one really has the capability to reign in a still largely out of control industry.

Mortgage servicers are businesses like any other.  The bottom line is their primary concern, and it often does cost servicers more money to modify mortgages than to foreclose, write off their losses, and see if they’ll be sued by investors or the government later.  The regulatory system needs to be overhauled so that mortgage servicers face substantial risk if they refuse to comply with program guidelines.  Until the financial incentive to modify a non-performing mortgage into a successful transaction for both the consumer and the servicer is greater than the servicer’s incentive to foreclose and cut its losses, I believe we will continue to hear stories similar to this one.

To see a copy of the regulations that mortgage servicers are supposed to be following, click here.

Bryan Sheldon
Foreclosure Prevention Counselor
St. Ambrose Housing Aid Center, Inc.
Baltimore, MD

Attorneys General Present Demands for Overhaul of Foreclosure Processes

Elizabeth Warren, Head of the New Consumer Financial Protection Bureau, Which will Administer Overhaul of Foreclosure Processes (Image Source: New York Times)

As a follow up to our last post about the state of New York’s new proposal to provide counsel to all residents undergoing foreclosure, today, we present another innovative new proposal that could further bolster the position of homeowners during this critical time.  The New York Times recently reported that many state attorneys generals have presented a list of demands calling for new regulation that would prohibit banks from beginning the foreclosure process while the borrower is simultaneously working out a mortgage modification.

The term “mortgage modification” appears to be one of art.  Since the article is unclear, I suppose this could include anything from taking out a second mortgage to pay for college tuition or a healthcare expense to proactively seeking a large-scale overhaul intended to stave off foreclosure.  In either case, it seems unfair, on its face, for banks to initiate foreclosures while a modification is actively underway, as this not only stymies the modification process but also creates confusion about the bank’s ultimate aim—to foreclose or to work with the borrower?

The demands take place in a highly politicized context, as housing advocates continue to express dismay over the “robo-signing” scandals, where, in an attempt to ensure that the foreclosure process was moving forward without delays, lawyers and other banks signed thousands of documents without thoroughly reviewing them, leading to embarrassing mistakes.

The demands also mark an expansion of power for the government’s newly created Consumer Financial Protection Bureau (which would administer the changes), headed by prominent Harvard law professor and securities industry expert, Elizabeth Warren.  While Warren is yet to gain any kind of (usually requisite) congressional confirmation, she has already received notoriety, as banks regard her as a tough, no-nonsense regulator eager to re-stack the cards against them.  The government, along with consumers, has expressed considerable confidence in her ability to be a strictly enforce the law and therefore provide a divergence from the past.  This package, with Warren as its public image, has backing from the Departments of Treasury, Justice, HUD, and the Federal Trade Commission.

While the proposal marks a shift from ongoing practices, the economic effects are unclear.  Banks argue that the package serves as a merely a “band-aid,” since in the long term, many of these borrowers cannot afford their homes, period.  Moreover, the package may enable many of the more than 2 million delinquent properties to reenter the market, which would further depress home values and, by extension, private wealth and equity.

From our perspective, while the foreclosure crisis has resulted in economic pain for many, our low-income clients have shouldered perhaps the greatest burden.  In addition to the broad economic effects, our clients have had to face the human consequences of having to move out of their homes and onto the streets. Delaying foreclosure proceedings would provide many of our clients  the possibility of turning over their homes to the market and making a capital gain, perhaps even  retaining some equity.  Furthermore, it would provide a means for low-income citizens to wait out the recession until the job market revives and affordable housing becomes a palpable reality.

Innovative, New Public Policies that Work to Protect Homeowners

Map of Foreclosures in Baltimore, 2006-2007 (Source: NPR)

For low and middle-income Americans, the last few weeks have been gloomy, especially given that more states have jumped onto the anti-collective bargaining bandwagon initiated by Governor Scott Walker of Wisconsin, whose vision may preclude many from gaining access to affordable housing.  Amidst this climate, the foreclosure crisis continues to ravage communities, as thousands of vacant properties remain in Baltimore alone.

Here, however, we present two potentially innovative new policy proposals that have surfaced in recent weeks, both of which could indeed encourage access to affordable housing.  The first is the New York’s proposal to provide an attorney to each of the state’s 80,000 foreclosure victims.  While the right of a criminal defendant to retain a lawyer has remained an integral part of the American legal fabric for decades, The Empire State’s idea would (perhaps) mark the first time in history where defendants in civil matters can gain access to counsel, free of charge.

Interestingly, this idea didn’t originate from the state’s legislature; rather, New York’s Chief Judge, Jonathan Lippman, was behind the proposal.  To back up this idea, legally speaking, Judge Lippman cited the landmark 1963 Supreme Court decision, Gideon v. Wainwright, which held that states are obligated to provide counsel to all criminal defendants.  Lippman said that this was the right moment to extend this provision, reasoning that “today it is an equally obvious truth that people in civil cases dealing with the necessities of life can’t get a fair day in court without a lawyer.”

The proposal makes sense for a number of reasons.  For one, as the Times points out, because of the recent revelations that several of the country’s most prominent banks had used “improper” methods to accelerate the foreclosure process, the court have increasingly become a the pivotal battle field for the fight between victims and banks.  Access to counsel, even if it’s minimal, could make a tremendous difference for foreclosed families, as “simply responding to a foreclosure notice in court” could delay the process for months.  Furthermore, the idea would certainly enhance courtroom efficiency, as lawyers would be able to both advocate and settle on behalf of clients, making sure that cases move through the courts during this overburdened time.

The Times doesn’t mention the more far-reaching effects of this proposal.  By keeping families in their homes—potentially for years after the initial notice of foreclosure—they continue to pay their utilities bills, maintain their yards, make necessary fix-ups, and so forth.  This would increase property values throughout neighborhoods, delivering more wealth and spending power to nearby families, which would help strengthen the economy.  The idea, in this sense, serves to bolster the work of Max Rameau and Take Back the Land, the subject of our last post.  It would also facilitate Mayor Rawlings-Blake’s strategy “Code Enforcement” strategy to curtail blight, which was mentioned at the city’s recent Vacants to Values Summit.  (And by the way, it would also, I suppose, help alleviate the crumbling legal industry).

The idea is expensive: Judge Lippman has asked the legislature for (an additional) $100 million that could be distributed to legal aid groups and other non-profits, and in a political climate obsessed with savings, his request is no sure bet.  However, given the severe economic effects of letting vacant homes stand—something Baltimore, over the last several decades, has had to learn the hard way—that money should be perceived as an investment with the potential for enormous returns.

It should be noted that Maryland has already taken an important step in the right direction: Last Summer, Governor O’Malley signed the a promising foreclosure mediation bill, giving Maryland families the right to undergo mediation with lenders before they face eviction.  Hopefully, Maryland will follow in the footsteps of New York, by taking the additional measure of ensuring legal services.

Here at St. Ambrose, we take pride in the fact that we retain a skilled and dedicated group of legal services professionals, who have help countless Baltimore families stave off foreclosure and retain their homes.  I hope that other members of the judiciary, as well as legislators around the country, will follow Judge Lippman’s lead and adopt the notion that adequate housing is a “necessity of life,” and that indigent foreclosure victims deserve representation.

On Thursday, I will discuss the new mortgage modification demands sought by states attorneys general.

Taking a Turn to the Big Easy: A Conversation with Housing Expert David Marcello

Professor and Policymaker David Marcello (Image Source: Tulane Law School)

Today’s post will mark the the first interview of Talk to St Ambrose’s “Talking with the Experts” series. Professor David Marcello, a prominent policymaker and civic leader in New Orleans, has kindly responded to my questions about housing policy issues.  In addition to his academic duties at Tulane, Professor Marcello’s experience in New Orleans includes serving as the statewide coordinator of the Conservation Coalition–the first statewide environmental lobby in Louisiana.  He also headed the state’s first public interest law firm, The Louisiana Center for the Public Interest.  He has advised and served under several New Orleans mayors, including as Executive Counsel to Mayor Ernest N. “Dutch” Morial, the city’s first African-American mayor.  Under Mayor Marc Morial, Professor Marcello successfully chaired the city’s Charter Revision Advisory Committee, which resulted in the first complete revision of the city’s home rule charter.  Recently, Professor Marcello co-chaired Mayor Mitch Landrieu’s Blight Transition Task Force.

This post contains the first half of our interview.  The second half will appear tomorrow.

Harsha Sekar: The issue of housing in New Orleans has been deeply affected by Hurricane Katrina, whose impact has posed enormous challenges in providing affordable housing for low and middle-income people and delivering adequate housing for displaced residents, most of whom fall into the former category. What strategies have you advocated with the  goal of providing affordable housing for low-income citizens?  How can other mid-sized cities, like Baltimore, learn from the dilemma that New Orleans continues to face after Katrina?

David Marcello: Five years after Katrina, New Orleans finds itself facing significantly different housing needs from those that prevailed in the immediate aftermath of the storm, but our housing finance incentives are still structured in such a way as to favor the same types of housing development that they were promoting five years ago.

After Katrina, large numbers of people sought to return to a city where vast numbers of housing units were no longer in service due to flooding. Considering the severe housing shortage that existed at the time, there was some logic in structuring housing finance incentives to foster large new multiunit apartment complexes that could quickly accommodate the needs of tens of thousands of displaced residents who urgently wanted to return to the city.

Now, in the wake of 2010 census results, we recognize that New Orleans is going to be a much smaller city—currently, about two-thirds the size that it was before Katrina. Moreover, our formerly displaced residents are no longer planning by the thousands for their imminent return to the city; many have taken up residence in other cities and have no plans to return to New Orleans. The post-Katrina “flood” of residents back into the city has slowed to a “trickle,” and that change should change our focus from large-scale development to small-scale rehabilitation of housing.

New Orleans was already an overbuilt city pre-Katrina, having reached its peak population of roughly 650,000 residents during the 1960s. By the year 2000, only approximately 485,000 residents remained to occupy a housing stock that had been built four decades earlier to accommodate more than 150,000 people who were no longer living in the city. Now we’ve lost almost another 150,000, so the disparity been “houses built” and “people to live in them” is even greater. Katrina destroyed many thousands of housing units in New Orleans and severely damaged many thousands more, but even with that loss, much remains in the built housing environment that can be rehabilitated to accommodate New Orleans’ 21st Century housing needs. That’s where our housing finance incentives should be directed currently—toward rehabilitation of existing housing, not new construction of residential mega-plexes.

Much of New Orleans’ most historic housing was either untouched or only mildly impacted by Katrina’s flooding. There was a reason why early settlers built New Orleans on the “sliver by the river” that gives the Crescent City its nickname—because that was the high ground, less susceptible to flooding when the Mississippi River periodically overflowed its banks in the days before the Corps of Engineers built levees to protect the city from flooding. This earliest, historic housing gives the city much of its charm, attracting the visitors who fuel our tourist economy. We’ve much to gain as a city, a community, and a culture in restructuring housing finance incentives to favor rehabilitation of that historic housing stock. We’ve much to lose if incentives remain tilted in favor of multi-unit apartment complexes, because for every 100 new rental units that come on the market there’s a corresponding reduction in demand for occupancy of the older historic housing. New construction undercuts the market for rehabilitation of the city’s historic housing, and in turn threatens to undermine the unique culture that gives New Orleans its worldwide appeal.

We need to restructure residential financing incentives to favor the rehabilitation of existing housing stock.

HS: New Orleans has also been characterized as a “laboratory” for government policies that encourage NGO’s and non-profit organizations.  Indeed, the city possesses a disproportionate amount of housing non-profits that are similar in function and organization to St. Ambrose.  Have non-profits played an effective role providing equal opportunity housing for New Orleanians who need it?  What do you feel is the appropriate function for non-profits and NGOs in this endeavor.

DM: I think in New Orleans we can only talk about “government policies that encourage NGO’s and non-profit organizations” if we first introduce the conversation with the proposition that, “Power abhors a vacuum.” Nonprofits surged in New Orleans after Katrina—not because government action encouraged nonprofits and NGO’s, but because government inaction demanded it. Nonprofits had to do more because local government was doing so little and was so ineffective.

Our residents recognized that they had to look to themselves for recovery and renewal, not to City Hall. Neighborhood groups all across the city responded to that need with an unprecedented outpouring of civic activism. New Orleans also benefited hugely from the volunteer activism that poured into our community from around the country—student volunteers, faith-based organizations, philanthropic organizations, first responders—from all across America they came to our assistance, and this city still feels a deep and abiding sense of gratitude for their help.

Happily, we’ve enjoyed more vigorous and capable leadership in City Hall since the mayoral transition that took place in May 2010. But even so, there is a continuing need for nonprofits to play a role across a broad front of needs. For example, the Fair Housing Action Center has relentlessly opposed housing discrimination in the metropolitan area. The Center repeatedly hauled officials from adjacent St. Bernard Parish into federal court, pursuing a series of contempt orders in a successful multi-year battle to secure “open” housing policies. That need to fight housing discrimination continues, and it’s a task well-suited to fearlessly independent nonprofits like the Fair Housing Action Center.

HS: As a follow up to the previous question, many have argued that NGO’s have, in too many instances, served as a proxy for the government, in that they have provided a service that should be the responsibility of the government, such as encouraging equal opportunity housing and supporting diverse neighborhoods.  Indeed, many housing NGO’s are supported almost entirely with government funds. Critics suggest that the rapid growth of NGO’s in the last decade has led to the further “privatization” of government services and inefficiency.  Being a policy-maker in a city with a strong NGO presence, what do you feel about this argument?

DM: I can see where that might be a problem in some cities, but I don’t think we’ve seen that effect here. Far from serving as a “proxy” for government, our neighborhood associations have traditionally played more of an oppositional role relative to government. They contribute to a pluralistic dialogue that takes place among neighborhood residents, developers, and city government. We need to empower neighborhood associations so that they can play more of a role in that ongoing dialogue and give voice to the legitimate interests of neighborhood residents. Our recently adopted master plan calls for a structured system of public participation, and we will see such a system created within the next year. Public participation is the best antidote to an incompetent or unresponsive government. Nonprofits will always have a role to play in that context.

Tune in tomorrow the Part II of Talk to St. Ambrose’s Interview with Professor David Marcello.

Housing as a Human Right: Possibilities for Legal Advocacy

Part three of a four part series on the developing housing rights movement

Given the benefits of framing housing as a human right [discussed here], could such a right possibly be established?

Historically, the United States has been resistant to recognizing social and economic rights, including the right to housing. The timing of the Federal Housing Administration’s establishment in 1934 and the passage of the 1937 Housing Act indicates that other rationales (e.g. humanitarian, functionalist, etc.) were at the heart of previous federal policy. Later, the Housing Act of 1949 established the explicit goal of “a decent home and suitable living environment for every American family.” However, by framing the policy as a “goal,” instead of a right, humanitarian concerns were still paramount—even though the right to housing had been affirmed a year earlier in Article 25 of the 1948 Universal Declaration of Human Rights (UDHR).

Since 1948, the right to housing and other economic and social rights have been reaffirmed in numerous international instruments such as the International Convention on the Elimination of Racial Discrimination (1965), the International Covenant on Economic, Social, and Cultural Rights (1966), and the International Convention on the Elimination of Discrimination Against Women (1979). Of these, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) “contains the most legally significant foundation of the right to housing at the international level.”[1] However, on the domestic front, the ICESCR—like many international documents—was only signed by the United States (by President Carter), and not ratified by the Senate. Therefore, it is not legally binding.

However, this does not mean that international law has no relevance to current domestic efforts to establish a right to housing. As a signatory to instruments such as the International Covenant on Economic, Social, and Cultural Rights, the United States still has legal obligations. Even thought the Covenant was only signed—not ratified—the US is still required by the Vienna Convention to “refrain from acts which would defeat the object and purpose of [the] treaty.”[2] In other words, the US has negative obligations. Such obligations have relevance to many housing issues, such as refraining from implementing laws that criminalize homelessness.

Moreover, as Maria Foscarinis, et al. have written, “Courts use international human rights law as an interpretive guide, to give content to general concepts such as standards of need and due process, and in further support of analyses under domestic law.”[3] For example, federal district courts and state courts of appeal have drawn upon international law in such cases as In Re White, Boehm v. Superior Court, and Lareau v. Manson. Even the US Supreme Court has brought “international norms and practices” to bear on US law “as evidenced by Roper v. Simmons, the case striking down the execution of minors as unconstitutional.”[4]

The interdependence of rights also provides a channel for legal advocacy. Foscarinis, et al., write that:

Jurisprudence emanating from the […] International Covenant on Civil and Political Rights [which was ratified by the United States] recognizes obligations under the right to life in Article 6, as well as under guarantees of non-discrimination, to take positive measures to address poverty and homelessness.  While the latter treaty is not self-executing, it can be used as an interpretive guide in cases where domestic law is absent or ambiguous; it may also be considered customary law and thus binding with the status of federal common law.[5]

Implicit within this statement is the interdependence of rights. In the quote above, the right to life and guarantees of non-discrimination are directly related to issues of poverty and homelessness. One’s right to life, for example, is not secure if one lacks adequate shelter. And guarantees of non-discrimination are potentially violated if certain groups are disproportionately affected by a lack of housing that, in turn, undermines other rights that they hold. Thus, due to the interdependence of human rights, the US’s ratification of the International Covenant on Civil and Political rights also entails government obligations relating to social and economic rights, including housing rights.

Finally, there is movement to establish housing as a human right at both the state and local level. A number of state constitutions, for example, “contain the seeds of a right to housing,” by including language that addresses caring for the needy, providing for the poor, or protecting citizen welfare.[6] As an example of human rights advocacy at the local level, “city councils in Berkeley, Oakland, and San Francisco have passed resolutions adopting the Universal Declaration of Human Rights and the International Covenant for Economic, Social, and Cultural Rights.”[7]

Thus, there are many possible ways that international human rights norms, established in instruments such as the Universal Declaration of Human Rights, can be brought to bear on domestic legislation. The US’s negative obligations established under the Vienna Convention, the use of international law as an interpretive guide, the interdependence of rights, and legal advocacy at both the state and local level all provide avenues for realizing housing as a human right.

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I. Housing as a Human Right: Introduction

II. Why Take a Rights-Based Approach to Housing Issues?

III. Housing as a Human Right: Possibilities for Legal Advocacy

IV. Common Myths about Housing Rights

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[1] Scott Leckie. “Housing as a Human Right,” in Environment and Urbanization, October, 1989.

[2] Ibid.

[3] Maria Foscarinis, et all. “The Human Right to Housing: Making the Case in U.S. Advocacy,” in the Journal of Poverty Law and Policy. July-August, 2004.

[4] “Housing Rights for All: Promoting and Defending Housing Rights in the United States” The Centre on Housing Rights and Evictions and the National Law Center on Homelessness and Poverty. 2009

[5] Maria Foscarinis, et all. “The Human Right to Housing: Making the Case in U.S. Advocacy,” in the Journal of Poverty Law and Policy. July-August, 2004.

[6] “Housing Rights for All: Promoting and Defending Housing Rights in the United States” The Centre on Housing Rights and Evictions and the National Law Center on Homelessness and Poverty. 2009

[7] Ibid.