I received this earlier last week from our good friend, Mac Maclure with an update on the how the definition of a phrase could be having a large impact on the current liquidation crisis:
Dear Members of the Faculty:
During this historic week in America as we experience another peaceful transition of power in our nation’s Capitol, your CCIM Management Team is approaching 2009 with a new outlook, new resolutions, and a fair amount of cautious optimism. While we have watched Wall Street and auto industry executives go before the U.S. Congress asking for bailouts, the commercial real estate industry continues to suffer from its own crisis. A vital CCIM member benefit is the Institute’s role as a legislative advocate for the commercial real estate industry. Through our affiliation with NAR and our partnership with IREM, we are part of a team that constantly monitors legislative and regulatory developments to shape the direction of today’s policy issues. In that role, the Institute must offer not only opinions but solutions to the current economic environment. This email addresses our approach to solving a number of the economic issues. While I recognize it is lengthy, I feel it is important that each of you have detailed information.
Chief Executive Officer Jonathan Salk and I went to Washington, D.C., in December to attend the NAR economic stimulus work group, which included representatives from various commercial real estate organizations. Prior to this meeting, the CCIM and IREM legislative committees were asked what a second economic stimulus package should include to stabilize commercial real estate markets. Both of our organizations felt that based on our member’s input, our legislative staff should develop a list of eight solutions, which are attached, that supported our stimulus provisions recommendations. The full Financial Crisis Background Paper is also attached. As a result, the NAR economic work group adopted six of the solutions as its platform, which are summarized in the attached Economic Stimulus Proposal.
However, as we all know the real benefit of our organization is the ability of our members to interact with Congress one on one in the district that elects them. For years our strength has always been in our grass roots involvement on a day to day basis. Therefore, I would like to give you a personal briefing of one of the major issues in our solutions fact sheet that should be addressed with each Congressman on a one on one basis by our members. The issue is called “Mark to Market” rules that were enacted after Enron in an attempt to eliminate potential problems in the accounting industry. Many people are running around Washington talking about “Mark to Market”, but few of them actually understand what they are talking about. Therefore, as Paul Harvey used to say, here is the rest of the story.
The Financial Accounting Standards Board has enacted a rule forwarded to the Securities and Exchange Commission called “FAS157 – Mark to Market”, which is used to determine the fair value for all CMBS programs as well as commercial real estate properties that are held in publicly traded vehicles. Each year under Federal Guidelines, auditors have got to, by Federal law, mark all publicly traded vehicles to market. Under the rules that the auditors work with, “FAS 157” fair value says the auditor must mark to market the new value of the asset every year on the balance sheet of the companies. Under the rules, the accountant must use three levels to mark to market: level 1 active trading market, level 2 observable market data, and level 3 auditor discretion or discounted cash flow. Just like the commercial real estate appraisal business, level 1 would imply the auditor must find comparables which, in a market like today, are really non-existent. Level 2 represents observable market data which, in today’s market, we have very little or no trading of Commercial Mortgage Backed Securities. Level 3 is the use of Discounted Cash Flow Analysis which is what we taught the RTC, FDIC, GAO, and all the other government agencies in 1987-1900 to use. In practice, accountants want to be told which one of these to use or they want to be given the flexibility to use the one that fits the situation clearly. Under the current rules, accountants are having a real problem getting to level 3 because of the wording “auditor discretion.” In my discussion with the head of one of the largest accounting and audit firms in the United States today, he said the word “auditor discretion” is the kiss of death for discounted cash flow because no auditor will jump that hurdle. Instead, they would rather deeply discount the value of the asset because there are no comparables or market data that subject themselves to the potential scrutiny of an Enron-type investigation. However, if those two words were eliminated, they would be free to use any of the three methods to underwrite value.
On January 13, NAR President Charles McMillan delivered testimony before the House of Representatives’ Committee on Financial Services and communicated these positions. Also on the 13th, the CCIM Institute cosigned letters, which are attached, to Representative Barney Frank and Senator Chris Dodd, that support a commercial-focused lending facility. Congressman Frank, chair of the U.S. House Committee on Financial Services, has introduced H.R. 384, which supports stabilizing and providing liquidity to the credit markets, including mortgage-backed securities.
This is just the start of this issue in Congress and we will be pursuing other opportunities with NAR and other coalition partners. We will also be flexible to consider issues that may not be part of our stimulus proposal. These difficult times present an opportunity for CCIMs to make our collective voice heard in the new administration. Join us on April 22 in Washington, D.C. for our annual Capitol Hill Visit Day and meet with your members of Congress. Go to http://www.ccim.com/members/govaffairs/capitol_hill.html for details and to register. As always, the CCIM Institute is very focused on advocacy efforts on behalf of this industry, and we need and appreciate your help to reinforce these messages with your own elected representatives.
If you have any questions or would like additional information regarding these efforts, please contact CCIM’s legislative staff at email@example.com.
Charles A. McClure, CCIM, CRE
2009 President – CCIM Institute
Chairman – McClure Partners
P.O. Box 802047
Dallas, Texas 75380-2047
Todd Clarke @ February 2, 2009