Bank of New York Mellon v. City of Richmond, California et al
Filing
61
Declaration of Brian Hershman in Support of 60 Declaration in Support, of Motion for Rule 11 Sanctions, Exhibit H, Part 1 of 2 filed byU.S. Bank National Association. (Attachments: # 1 Exhibit H, Part 2 of 2, # 2 Exhibit I, Part 1 of 2, # 3 Exhibit I, Part 2 of 2, # 4 Exhibit J, # 5 Exhibit K, # 6 Exhibit L)(Related document(s) 60 ) (Hershman, Brian) (Filed on 11/22/2013)
Exhibit I
CITY MANAGER'S OFFICE
July 31, 2013
General Counsel
US Bank
One Federal Street, Third Floor
Boston, MA 02110
Dear Sir or Madam:
This letter is being forwarded to you as the Trustee of the mortgage loans in the private securitization
trust(s) listed in Attachment A. The Cit y of Richmond ("City"), has been investigating the acquisition of
mortgage loans from the trust(s) as part of a public program to modify underwater mortgage loans to
reduce principal and avoid foreclosures. The City is experiencing an historic home mortgage crisis that is
harming the community in many ways, including: unprecedented rates of default and foreclosure; the
loss of jobs, homeowner equity, family wealth and shelter; reduct ions in income, consumer demand,
investment, property values, and tax revenues; and an increase in va ndalism, abandoned homes and
other decay that harm t he economy and the quality of life for residents.
By way of this letter, the City hereby offers to acquire all rights to the mortgage loans listed in
Attachment A (the "loans"). If you do not believe that you are the correct party to consider this offer,
please notify me immediately of the party that you believe is the correct party to consider t his offer.
The City had the loans appraised on June 30, 2013 to determine their fa ir market value. Mortgage
Industry Advisory Corporation conduct ed the appraisal.
Based on the appraisal, the City hereby offers to purchase the Loans (free and clear of any
encumbrances to title or other interests that the City, in its discretion, deems unacceptable) for the fair
market value determined by t he appraisal, w hich Is set out in Attachment B (the "Purchase Price"). The
Purchase Price is t he full amount believed by t he City t o be just compensation for the Loans and is not
less than the appraisal of the fair market va lue of the Loans.
The basis for this offer is set forth in Attachment B, which summarizes the basis for the appraisal and is
mad e a part of t his offer by reference. The Purchase Price amount is for all owners of any interest in the
Loans, and division of th is amount among parties that have an interest in the Loans will be your
responsibility.
This offer is subject to the approval of the City's City Council, including fina l cond itions that the City
Council requ ires as part of its program.
If you certify that you are the owner of t he Loans wit h the authority to convey them to the City, and
wish to obtain your own independent appraisal of the Loans, t he City may be willing to provide
reasonable reimbursement. Please contact me if you are interested in discussing this issue.
If the offer price is acceptable to you, please so indicate to the undersigned, in writing. This matter will
then be presented to t he City Council, which has final ratification authority. Upon City Council approval,
the City will prepare and forward to you a proposed agreement to acquire the Loans.
lffor any reason you are not satisfied with this offer of just compensation, and have relevant
information you would like the City to consider, please contact the undersigned. In addition, you
450 Civic Center Plaza, Richmond, CA 94804-1630
Telephone: (510) 620-6512 Fax: (51 0) 620-6542 www. ci. richmond .ca. us
should be aware that, in the event that negotiations fail to result in agreement, and the City decides to
proceed with the acquisition of the Loans through eminent domain, the owner will have the right to
have the amount of just compensation to be paid by the City for the Loans fixed by a court of law.
Please be advised that, in such event, the terms of this offer and the contents of this letter may be
excluded from consideration as an offer of settlement, under California Evidence Code sections 1152,
1154, or other applicable provisions of law.
Included with this letter is a pamphlet describing the em inent domain process in California. This
pamphlet is provided for informational purposes only and should not be construed as legal advice .
Some parts of the pamphlet are addressed to the acquisition of real property and may not be applicable
to the present situation.
I hope that this offer meets with your approval and that it can serve as the basis for a quick and mutually
beneficial transaction. I look forward to hearing from you after you have had the opportunity to review
it. Again, if you are not t he correct party with which to negotiate for the acquisition of the Loans,
please let me know immediately. In any event, please provide a response no later than August 13, 2013.
Thank you for your cooperation.
The mortgage loans listed in Attachment A are a subset of t he mortgage loans the City is interested
in acquiring. The full list of mortgage loans t he City is interested in acquiring at the present time is
provided in Attachment C. The City is making offers to acquire groups of loans based on the
Trustee/Servicer information available to the City. If you are the party with authority to consider an
offer to purchase any of the other mortgage loans listed in Attachment C and have not received a letter
from the City offering to purchase the loans, please let me know immediately.
Sincerely,
City of Richmond
by/J~rr/'
Wi~liamvA. ~indsay
City Manager
Attachments and Enclosure
EMINENT DOMAIN - Information Pamphlet
I.
Introduction
Eminent domain is the power of the government to purchase private property for a
"public use" so long as the property owner is paid "just compensation. " Whenever
possible, the City of Richmond ui es to avoid use of the eminent domain power,
exercisi ng it only when it is necessary for a public project. The decision to acquire
private propetty for a public project is made by the City of Richmond only after a
thorough review of the project, which often includes public healings.
This pamphlet provides general information about the eminent domain process and the
rights of the property owner in that process. 1
•
What is a "public use" ?
A "public use" is a use that confers public benefits, like the provision of public
services or the promotion of public health, safety, and welfare. Public uses include a
wide variety of projects such as street improvements, construction of water pipelines
or storage facilities, consb.uction of civic buildings, redevelopment of blighted areas,
and levee improvements to increase flood protection. Some public uses are for
private entities, such as universities, hospitals and public utilities, which serve the
public.
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What is 11 just compensation "?
Just compensation is the fair market value of the propetty being acquired by the
government. The state law definition of fair market value is "the highest plice on the
date of valuation that woul d be agreed to by a seller, being wilU11g to sell but under no
pruticular or urgent necessity for so doing, nor obliged to sell, and a buyer, being
ready, willing, and able to buy but under no particuJar necessity for so doing, each
dealing with the other with full knowledge of all the uses and purposes for which the
property is reasonably adaptable and available ."
U.
T he Eminent Domain Process and the ProJJerty O wner's Rights
The eminent domain process begins with a public use project. When selecting a
project location, the goal is to render the greatest public good and the least private
1
This pamphlet reflects the current law as of January 1, 2008. However, the information in
this pamphlet is not, nor should it be coliStrued as, legal advice. Additionally, some
sections of this pmophlet are applicable only to the acquisition of real property and may not
be applicable in other situations. You should consult with qualified legal counsel regarding
your specific situation rather than r elying on this pamphlet as legal advice. The statements
in this pa mphlet are a general s ummat·y of the eminent domain process and are not binding
on the City of Richmond.
- 1-
IDJttry or inconvenience. If it is determined that all or a pmtion of your property may
be necessary for a public use project, the City of Richmond will begil1 the appraisal
process to determine the property's fair mm·ket value.
•
How is the fair market value of my pa·ope..ty determined?
The City of Richmond will retain an appraiser to appraise yom property. In the case
of real property, the appraiser will invite you to accompany bim or her during an
inspection of your property. You may give the appraiser any information about
improvements and any special features that you believe may affect the value of yom
property. It is in your best interest to provide the appraiser with aU the useful
inf01mation you can in order to ensure that nothing of value will be overlooked. If
you are unable to meet with the appraiser, you may wish to have a person who is
familiar with yom property meet with the appraiser instead.
After the inspection, the appraiser will complete an appraisal that will include the
appraiser's determination of your property's fair market value and the information
upon which the fair market value is based. The appraiser will provide the City of
Richmond with the appraisal. The City of Richmond will then make a written offer to
purchase the property. The offer will also include a summary of the ap praisal. The
offer will be for no less than the amount of the appraisal.
•
What factors does the appraiser consider in determining fair market value?
Each parcel of real property is different and, therefore, no single f01mula can be used
to appraise all properties. Among the factors an appraiser typically considers in
estimating fair market value are:
o The location of the property;
o T he age and condition of improvements on the property;
o How the property has been used;
o Whether there are any lease agreements relating to the property;
o Whether there are any environmental issues, such as contaminated soil;
o Applicable C
tlll'ent and potential future zoning and land use requirements;
o How the propetty compares with similar prope1ties in the area that have
been sold recently;
o How much it would cost to reproduce the buildings and other structures,
less any depreciation; and
o How much rental income the property produces, or could produce if put to
its highest and best use.
If the property to be appraised is not real property, the appraiser would consider
factors commonly considered in determining the market value of that type of
property .
•
Will I receive a copy of the appraisal?
-2 -
The City of Richmond will provide you with its pmchase offer, a summary of the
appraiser's opinion, and the basis for the City of Richmond's offer. Among other
things, the offer letter will include:
o A general statement of the City of Richmond's proposed use for the
property;
o An accurate description of the prope1ty to be acquired;
o A list of the improvements covered by the offer;
o The amount of the offer; and
o The amount considered to be just compensation for each improvement
which is owned by a tenant and the basis for determining that amount.
However, the City of Richmond is only re quired to show you a copy of the full
appraisal if your prope1ty is an owner -occupied residential property with four or
fewer residential units. O therwise, the City of Richmond may, but is not required, to
disclose its full appraisal during negotiations (tho ugh different disclosure
requirement<; apply duJing the litigation process if the issue of faiJ· market value goes
to court).
•
Can I have my own appr aisal done?
Yes. You may decide to obtain your own appraisal of the property in negotiating the
fair market value with the City of Richmond. For real property, at the time of making
its initial offer to you , the City of Richmond will offer to reim burse you the
reasonable costs, not to exceed $5,000, of a n independent appraisal of your property.
To be eligible for reimbursement, the independent appraisal must be conducted by an
appraiser licensed by the State O ffice of Real Estate Appraisers.
•
W hat advantages are there in selling my prope•·ty to the City of Richmond?
A real estate transaction with the City of Richmond is typically handled in the same
way as the sale of private property. However, there may be a financial advantage to
selling to the City of R ichmond .
o
You will not be required to pay for real estate commissions, title costs,
preparation of documents, title policy or recording fees required in closing
the sale. The City of Richmond will pay all these costs .
o Although the C ity of Richmond cannot give you tax advice or direction,
you might also be eligible for certain property and income tax advantages.
You should check w ith the Internal Revenue Service (IRS) for details or
consult your personal tax advisor.
•
If only a portion of my prope1 is taken, will I be pa id for the loss to my
·ty
r emaining property?
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In general, when o nly a part of yom property is needed, every reasonable e ffort is
made to e nsure you do not suffer a financial loss to the "remainder" property . T he
City of Richmond will pay you the fair market value of the property being taken as
well as compensation for any loss in value to your remaining property that is not
offset by the benefits conferred by the project. The compensation for the loss in value
to your remaining property is often refened to as "severance damages."
Also, if any remaining part is of such a size, shape, or condition as to be of little
marke t value, the City of Richmond will offer to acquire that remaining part (or
re tru1ant) from you , if you so desire.
•
WiJII be compensated for loss of goodwill to my business?
If you are the owner of a business that is conducted on the prope1ty being acquired,
you may have a right to compensation for lost business goodwill if the loss is caused
by the acquisition of the prope1t y. "Goodwill" consists of the benefits that accrue to a
business as a resu lt o f its loca tion , reputation for dependability, skill or quality, and
any other circumstances resulting in probable retention of old or acquisition of new
patronage.
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What will ha t>pen to the loan on my (U'O(>erty?
Where the City of Richmond is acquiring the e ntire property, generally the
compensation payable to the owner is flrst used to satisfy outstanding loans or liens as
in a typica l real estate transaction. Where less than the e ntire propetty is being
acquired , whether outstanding loans or liens ate paid fi'om the compensation wilt
depend o n the patticular facts and circumsta nces .
•
Do I have to sell at the price offered?
No. If you a nd the City of R ichmond are unable to reach an agreeme nt on a mutually
satisfactory price, you are not obligated to sign a n offer to sell or enter into a purchase
agreement.
•
H I agr ee to accept the City of Richmond 's offer, how soon will I be paid?
If you reach a voluntary agreement to sell your propctty or an interest in the propetty
to the C ity of Richmond , payment will be made at a mutually acceptable time.
Generally, this s ho uld be possible within 30 to 60 days after a purchase/sale contract
is signed by all parties.
•
What happens if we are unable to r each an agt·eement on the property's fair
market value?
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The City of Richmond, to the greatest extent practicable, will make every reasonable
effmt to acquire your property by negotiated purchase. If, however, the negotiations
are unsuccessfu l, the City of Richmond may either ftle an eminent domain action in a
court located within the same county whe re your prope1ty is located or it may decide
to abandon its intention to acquire the propetty. If the City of Richmond abandons its
intention to acquire, it will promptly notify you.
If the City of Richmond proceeds with eminent domain, the fu·st step is for City of
R ichmond staff to request authmity fi'om the City Council to file a condemnation
action. T he approval from the City Council is ca!Jed a "Resolution of Necessity ." In
considering whether condemnation is necessary, the City Council must dete1mine
whether the public interest and necessity require the project, whether the project is
planned or located in the manner that will be most compatible with the greatest public
good and the least ptivate injury, and whether yolU' property is necessary for the
project. You will be given notice and an opportunity to appear before the City
Council when it considers whether to adopt the Resolution of Necessity. You may
want to call an attorney or contact an attorney refetTal service right away. You or
your representatives can raise any objections to the R esolution of Necessity and the
condemnation either orally before the City Council or in Wliting to the City Council.
If the City Council adopts the Resolution of Necessity, the City of R ichmond can file
a complaint in court to acquire title to the prope1t y upon payme nt of the propetty's
fair market value. The City of Richmond is the plaintiff. Anyone with a legal interest
in the propetty, generally determined from a title rep01t on the property (including
tenants or m01tgage holders), are named as defendants. Often, the City of Richmond
will also deposit the amount the City of Richmond beUeves is the "probable amount
of compe nsation" with the State Treasurer where the complaint is filed. A deposit
must be made if the City of Richmond is seeking to acquire possession of the
propetty before agreement is reached on the fa ir market value.
•
Can the City of Richmond acquke possession of my pa·operty before the
property's fair marl
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