The coronavirus has wreaked havoc on Americans’ health as well as the health of our economy over the past several months. The real estate industry is certainly no exception. Due to challenges and unpredictability ahead, combined with record unemployment and cost-cutting layoffs, many Americans have put their plans to purchase a home on hold.
At the pandemic’s onset, new home sale listings dropped by as much as 70 percent in some markets but the April numbers suggested some recovery was underway. Web traffic to real estate portals like Zillow plunged by almost 40 percent. Further, nearly 4 million homeowners are in the midst of forbearance plans – delaying payments on their mortgages – making up almost 8 percent of all mortgages.
While challenges presented by the coronavirus introduce uncertainty, a competitive real estate market and an environment that rewards fair competition and promotes collaboration within the industry will help foster a faster recovery.
Today, key industry partnerships and collaborations between mortgage service providers or banks, fintech and realtech developers offer products and services that bridge the gap between the huge swaths of available data and informed consumer decision-making. These innovations empower home buyers or sellers to make more informed decisions, at a time when few can afford to spend more or sell for less than they should based on constantly fluctuating home markets. A prime example is how Amrock, one of the nation’s leading title insurance, property valuations, and settlement services providers, has focused on developing innovative solutions, such as their eClosing platform, to improve the real estate experience for all parties involved. Because of the rapidly evolving and highly dynamic nature of the industry, partnerships have become key to finding innovative ways to use data to provide the best product for consumers.
Regrettably, such ingenuity and the necessary B2B collaboration faces challenges that predate the current pandemic raddled housing markets. The real estate industry and those who rely on it all pay the price for the increasing onslaught of litigation abuses by the hands of legal profiteers seeking to exploit our courts and our industries for financial gain.
Fortunately, on June 3, the Texas 4th Court of Appeals issued a decision offering hope that the trend of increasing abusive litigation, particularly that within the real estate industry, may not be so inevitable.
This ruling marks a milestone for homeowners who pay title insurance, which protects both real estate owners and lenders against loss or damage occurring from liens (mortgage loans, home equity lines of credit, easements), encumbrances, or defects in the title or actual ownership of a property. Critically, title insurance offers buyers and sellers the assurance they need to buy, sell, and reinvest, all critical components of a recovery.
The Texas 4th Court of Appeals follows a March 2018 decision by a Bexar County, TX, jury who awarded HouseCanary, a software developer, nearly three-quarters of a billion dollars after mistakenly believing Amrock allegedly stole their trade secrets. In truth, Amrock had hired HouseCanary on a $5 million contract to develop an automated valuation model (AVM) mobile application for use by appraisers in the field – a key development in streamlining the real estate buying/selling process. AVMs are formulas that are used to appraise real estate property based on key variables like historical price data, tax assessments, sales history and past lending transactions. However, after HouseCanary had failed to deliver a functional application after more than a year and no clear progress, Amrock sued for breach of contract, and built their own AVM for appraiser use.
The facts of that case – and the weakening standard of what makes up a trade secret – painted a distressing picture for the future of American innovation.
In an effort to cover their inability to develop the application they were hired to produce, HouseCanary countersued – alleging Amrock had stolen their trade secrets and used proprietary information in the development of their own AVM. After ignoring key facts and employing several faulty legal arguments and highly questionable calculations, HouseCanary was able to convince the jury that Amrock had misappropriated their trade secrets – and that such information was valued at $235 million dollars – more than 100 times HouseCanary’s total revenues for all product sales during the period in question.
Beside the fact that the ruling was 150 times the value of the initial $5 million contract, there is another piece of fundamental misinformation the entire ruling hinges on: HouseCanary had no trade secrets or any proprietary information – hence their inability to produce the mobile AVM application Amrock contracted them to create.
This was confirmed by four HouseCanary executives-turned-whistleblowers, who, alarmed by the massive damages figure, testified that “there was never a working version of the App,” and that HouseCanary had deceived Amrock by “representing that the App was more functional than it actually was.” In a then-anonymous email to Amrock CEO Jeff Eisenshtadt, former HouseCanary Director of Appraiser Experience Anthony Roveda wrote “housecanary never had any proprietary anything…”
The original 2018 decision, as it stood before June 3, established a dangerous precedent for the future regarding what was classified as protectable “trade secrets,” which deterred innovation and the partnerships needed to provide the best product for consumers.
As the nation emerges from the coronavirus pandemic, the government – from policymakers to judges – have a duty to provide stability, create meaningful policy, uphold our justice system, and provide clarity where needed. The Texas appeals court decision to overturn Amrock v. HouseCanary sent a loud and clear message that this kind of frivolous litigation has no place in our courts – providing a reassuring and much-needed signal to innovators and developers that collaboration remains welcome here in the United States.