Don't buy investor-government scheme - SFGate: Mortgage Resolution Partners brass argue that the power of eminent domain is well established, as long as local governments can point to a solid public use - in this case, preventing foreclosures.
Cornell law Professor Robert Hockett agrees. In the infamous 2005 Kelo decision, the U.S. Supreme Court ruled that local governments could seize private property for other private entities if there is a public purpose. In that case, New London, Conn., took the waterfront home of Susette Kelo as part of a redevelopment project anchored around Pfizer Inc.
Dana Berliner, an attorney for the Institute of Justice, which represented Kelo, said she believes the California Supreme Court would overturn any law allowing governments to seize mortgages because "it's a scheme by one group of securities investors to steal a bunch of money from another group of securities investors."
But what if Berliner is wrong?
"In California, there'll be very little that (governments) can't do," she said. "It would mean that eminent domain can be used to take from one group of people and give to another group of people to make a profit."
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This novel use of eminent domain (previously blogged here by the perfessor and myself) will certainly generate litigation testing its limits as well as legislation to bar it if ultimately employed. From a practical standpoint, it's far from clear local governments using their powers of condemnation to cram down overmortaged properties will really solve their fiscal woes. They have no control over the price of real estate and continued real estate deflation could undermine any perceived benefit.
There's a cynical adage that states, "privatize the gains, socialize the losses." This tactic is the epitome of that.
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