eroding trust -- and ending the recovery

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25/10/10 12:50 PMThe Foreclosure Crisis: Eroding Trust -- and Ending the Recovery? - DailyFinance

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The Foreclosure Crisis: Eroding

Trust -- and Ending the

Recovery?

By CHARLES HUGH SMITH Posted 11:01 AM 10/11/10 Economy,Investing, Real EstateCommentsPrint Text Size AAA

Though just about everyone has heardabout the scandal over "robo-signing" offoreclosure documents, the issues are socomplex that what's at stake isn't alwaysclear. After reading dozens of newsaccounts, editorials and the most widely followed financial blogs, I'veassembled a basic account of the scandal -- and outlined five of its

potential implications.

1.That homeowners who failed to pay their mortgages will losetheir homes through the foreclosure process is not the primary issue.What's at stake is due process of law.

2.The issue isn't just about a minor "technical procedure," as thebanks and mortgage-servicing industry are claiming. Boiled down to itsessence, the problem is simple: If an individual citizen did what thebanking/mortgage-service industry has done, that is, forge signaturesand ignore procedures designed to protect property rights, then thedocuments would be rejected and the individual would be accused offraud or embezzlement.

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Yet, when banks and mortgage servicers break these same laws, it getsbrushed aside as a trivial "oops, we forgot to dot the i" technicality. Thisflouting of the law by politically powerful banks undermines one of thekey tenets of the American way, which is that we're all equal before thelaw.

The systemic flouting of the law that has been uncovered points to adisturbing conclusion: Two systems of law are operating in our nation,

one for "the little guy" and one for banks and mortgage servicers.

Accounts of abuse, ignoringprocedural law and grossincompetence are now legion.For instance, one Floridahomeowner who didn't even havea mortgage was foreclosed byBank of America (BAC). Onlyafter a local newspaper beganinvestigating the case did the

bank move to sort out what couldbe viewed as an illegal "taking"of real property.

In another case, Deutsche BankNational Trust filed to foreclose

even though it had sold the mortgage to Goldman Sachs, meaning it hadno legal right to foreclose. One judge found that roughly half (46 out of104) of the foreclosure motions filed in his court were so full of errorsthat he refused to approve them.

Many commentators have already dismantled the bank/mortgageservicers' claims that the legal issues are all just trivial technicalities . It'shardly trivial that documents filed in court are the foundation of ourlegal system. A signed affidavit is legally equivalent to providing livetestimony in court. If an affidavit is untrue, that's the same as lying incourt, which is a crime called perjury.

Yet the current system is filled with "robo-signers" who electronicallysigned up to 10,000 foreclosure filing a month, making a legal claim oftheir accuracy. Furthermore, though attorneys are prohibited frommaking a material misrepresentation to the court, it's clear that suchmisrepresentations of fact (such as who actually owns the mortgage) are

widespread in foreclosure proceedings.

3. The system ofslicing up mortgages into pieces and then bundling

the pieces into securities is structurally flawed.

In essence, the widespread "packaging" of hundreds of mortgages intomortgage-backed securities (MBS) marketed by Wall Street investmentbanks has bypassed the property rights laws that underpin ownershipand transfer of home loans and deeds.

In the pre-MBS days, a bank would originate a home mortgage and then

hold the loan as an asset, collecting the interest and principal paymentsfrom the homeowner. But Wall Street banks divided the payments thatgo toward interest and loan principal into "tranches," or slices, which
http://www.ritholtz.com/blog/2010/10/foreclosure-fraud-reveals-structural-legal-crisis/http://www.washingtonpost.com/wp-dyn/content/article/2010/09/22/AR2010092206146.htmlhttp://www.ritholtz.com/blog/2010/10/foreclosure-fraud-reveals-structural-legal-crisis/http://www.washingtonpost.com/wp-dyn/content/article/2010/09/22/AR2010092206146.htmlhttp://www.nakedcapitalism.com/2010/10/debunking-banks-procedural-problems-defense-on-the-foreclosure-crisis.htmlhttp://www.dailyfinance.com/quotes/bank-of-america-corporation/bac/nyshttp://www.bloomberg.com/news/2010-10-08/man-who-had-no-mortgage-faced-foreclosure-anyway-ann-woolner.htmlhttp://aolmoney.adsonar.com/admin/advertisers/indexPl.jsp


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were assembled by risk and rate of return into pools of mortgages thatwere then sold as a single security.

With the mortgages divided into pieces that were then bundled intosecurities that were bought and sold numerous times, the ownership ofthe underlying mortgage and home often became muddled. This is howtwo different companies can end up filing foreclosure documents on thesame house.

Add in the large number of securitized home equity loans thatpiggyback on first mortgages and derivative securities such ascollateralized debt obligations (CDOs), and you get a nightmarishmishmash of "senior tranches" and multiple claims on the sameproperty.

Stripped of complexity, the issue is straightforward: Every time thesesecurities changed hands, the various claims on the underlying houseshould have been transferred as well. In many cases, they weren't. Insome cases, foreclosures have been allowed even when the original

mortgage has been lost.

If you don't need the original document to take someone's home, thenexactly what rule of law is at work in America?

4. The nation's system for recording mortgages is woefully

inadequate to the task of tracking home loans that have been sliced anddiced into tranches and traded freely as securities.

To enable a smooth trading system of these MBS, the banking/mortgageindustry set up a privately owned loan-tracking service known as theMortgage Electronic Registration System (MERS) in 1997. The registryacts a sort of legal proxy of ownership, thereby eliminating the need torecord changes in property ownership in the traditional manner, i.e. inlocal land records.

MERS records loan assignments electronically. It doesn't own themortgages it registeres, but it's listed in public records as a nominee forthe actual owner of the loan or as the original mortgage holder.

Assigning ownership of mortgages to this registry saved the industry abundle. MERS was estimated to have saved the mortgage industry an $1billion in its first decade of existence. Some 60 million loans are

registered to MERS.

5. Outright foreclosure fraud is now systemic. This includes forgedsignatures, falsified mortgage numbers, false claims of ownership, falseclaims that the paperwork has been properly reviewed and documentfabrication.

Indeed, for a price, you can have any missing document you might needto file a foreclosure motion "recreated" or "created" out of thin air.

Now that this systemic reliance on falsified documents, forged

signatures and myriad "shortcuts" (such as not having the originalmortgage) has been revealed, several lenders have halted foreclosuresand evictions. Some have stopped proceedings in the 23 states that
http://www.washingtonpost.com/wp-dyn/content/article/2010/09/22/AR2010092206146.htmlhttp://www.nakedcapitalism.com/2010/10/4closurefraud-posts-docx-mortgage-document-fabrication-price-sheet.htmlhttp://www.nytimes.com/2009/09/27/business/27gret.html


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require a judge's approval, while others such as Bank of America havehalted foreclosures in all 50 states.

In response to a public outcry about these widespread abuses, theattorneys general of 40 states are pooling resources to investigate themortgage and foreclosure industries. One state AG has already filed suitagainst a leading mortgage servicer, alleging fraud in foreclosuresprocessed by the firm. Ohio Attorney General Richard Cordray said the

fraud was the "tip of an iceberg of industrywide abuse of the foreclosureprocess" and is asking for civil penalties of up to $25,000 for eachviolation of consumer laws.

Freezing the U.S. Real Estate Market

This systemic breakdown of the procedural laws intended to protectproperty rights may well have far-reaching consequences beyondlawsuits by public agencies and by individuals who have been harmedor defrauded.

Flawed foreclosure documents mean sales of foreclosed home are inlimbo: How can any future owner obtain title insurance when theownership of the mortgage and thus the integrity of the foreclosure itselfis in question?

If millions of foreclosed homes cannot be sold with unambiguouslyclear titles, then that will effectively freeze a significant portion of theAmerican real estate market. After all, about a third of all home salesinvolve residences in default or foreclosure.

Fannie Mae has been pulling foreclosed homes off the market, scotchingsigned deals and removing properties from inventory of unsold homes.Homeowners already in the foreclosure process are now wondering ifthe foreclosure-fraud debacle can delay or even cancel their impendingeviction.

Indeed, the widespread fraud and blatant flouting of the law bypolitically powerful lenders is eroding many Americans' belief in thefairness of the financial and legal systems. As a result, some are askingwhy they should continue following the rules when lenders andmortgage servicers evade and abuse the law with impunity.

How Does the U.S. Solve Its Real Estate Crisis?

Stories about middle-class homeowners ensnared in what's either fraudor misrepresentation, depending on one's interpretation, now include atroubling subtext: Some of these once rock-solid citizens are refusing tocomply with the demands of lenders.

Some high-visibility commentators are characterizing the foreclosureand MBS debacle as "the biggest fraud in the history of the capitalmarkets." Hyperbole, or simply the truth few dare to state?

While that can be debated, what cannot be debated is the massive loss

of trust in the foundations of property rights and rule of law that hasoccurred. Also not debatable is the impact this loss of trust is having onthe housing market, large sections of which are effectively locked.
http://voices.washingtonpost.com/ezra-klein/2010/10/this_is_the_biggest_fraud_in_t.htmlhttp://www.zerohedge.com/article/guest-post-coming-middle-class-anarchyhttp://online.wsj.com/article/SB10001424052748704029304575526182962738098.htmlhttp://www.nytimes.com/2010/10/08/business/08frozen.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2010/10/06/AR2010100607555.htmlhttp://www.bloomberg.com/news/2010-10-08/attorneys-general-in-40-states-said-to-join-on-foreclosures.htmlhttp://www.dailyfinance.com/story/bank-of-america-to-halt-foreclosures-nationwide/19666671/


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If distressed mortgages cannot be foreclosed and impaired debts can't beliquidated via auctions or sales on the open market, then how does theU.S. unburden itself of the overhang of housing supply and uncollectiblemortgages? It cannot do so with this cloud hanging over the housingand mortgage markets. That will have serious consequences for banksthat aren't collecting mortgage payments, for servicers facing massivelawsuits and, eventually, for the value of housing in a market stuffed

with a "shadow inventory" of distressed or defaulted homes that can't besold.

Could the foreclosure mess end up stalling the economic recovery?Perhaps the answer can be found by rephrasing the question: How canan economy be healthy if its mortgage, banking and housing markets arein a state of profound financial and legal disruption?

Tagged:economic crisis, economic recovery, foreclosure crisis,foreclosure fraud, Foreclosures, MBS, MERS, mortgage backedsecurities, mortgage defaults, mortgage fraud, mortgage servicers

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Charles Hugh Smith

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Charles Hugh Smith has been an independent journalist for 22 years.His weblog, www.oftwominds.com, draws two million visits a year withunique analyses of global finance, stocks and political economy. He haswritten six novels and Weblogs & New Media: Marketing in Crisis and

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Regina 12:57 AM Oct 13, 2010

OK... So they can't find the paper on my mortgage, to prove they (the "bank")have a lien on my property. They want to forclose, but can't since they don'thave the "papers" Does that mean I wont have to pay the "service company"anymore, and I can spend that money I was paying the "service" company tobuy stuff to get the economy going again. Sounds like a good stimuluspackage to me.

knute9 7:09 PM Oct 12, 2010

I wonder if the Second American Revolution is going to be like the Frenchand Russian.

commonsenseleft 10:47 AM Oct 12, 2010

To anyone who has had exposure to civil court processes, this crisis shouldcome as no surprise. Swearing out false affidavits is SOP in highly contestedcivil cases. Why? There is no penalty for lying (nobody is ever charged withperjury), but if the court believes the liar there is everything to be gained,and, of course, justice loses -- just as in this crisis. As always, it's all about

the money. Is it any wonder Americans don't trust institutions anymore?

Michael Sanders 10:39 AM Oct 12, 2010

I'm no attorney, but rather a former-IT/Telecom Specialist. If I had a messlike this one, I'd restore back to some relatively stable point, say epoch 2000,then work forward, slowly and carefully closing out the dead accounts andbalancing the books. Another alternative would be to move forward, insuringthat the system is fixed, never allowing this to ever happen, again. Kickingsomeone out of their home is always more expensive in the long run, in

terms of trust, confidence and destroyed relationships. It may seem thatrepo'ing a house is a good thing, but it can become a liability to the companyand to social order.

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glasses60 10:38 AM Oct 12, 2010

The issuing bank should not be allowed to sll a mortgage unless the bank isin trouble. No bank should give a mortgage to anyone who has poor credit.Homeowners have to be able to pay their property taxes, heat, insurance,

maintenance as well as their mortgage. Homeownership is not for everyone,contrary to the socialistic agenda of this administration.

Ann 1:27 PM Oct 14, 2010

Reality check please. "This administration" didn't do this. It was doneduring the unregulated "Bush administration". This is just the"administration" that is being blamed for the mess.

jkennedy806 9:29 AM Oct 12, 2010

There is alot wrong with the banking picture. This crisis has proven thatbanks just can't be trusted anymore, nor Wall Street, nor Washington.Everyone is suffering from this, I have a loan that was transferred. If you arein foreclosure ask the bank about deed in lieu, if the nice bank tells you wedon't do deed in lieu it's because your title is screwed up. right from the getgo Money Management International, a useless waste of taxpayer money,told me don't go for deed in lieu. That was last year, so the smucks inWashington knew that this was going on all along. NO MORE MERS, IF YOUARE GOING TO TRANSFER THE LOAN file it in the deed office and payyour filing fee. If not it's garbage. If your loan is not in proper filing order, youwin.

khod3 9:26 AM Oct 12, 2010

The problem is the bankers run this country as they are the private Fed/IRSscam and control all the money, credit, stock market, interest rates, thereforeEVERYTHING! Congres and the president and even the Supreme Court haveno power over them. Bankers don't care about human beings as they are acost, a liablity on their balance sheets. Useful as cannon fodder, labor bottsor consumer botts but to be paid as little as possible and fleeced for anythingthey might try and save. Only way I know is to play the dollar oil relationshipas oil backs the dollar(paper oil is sold for) When oil is going up stocksglobally tend to track and when the price of oil goes down? The dollar's valuegoes up! Simple. Gold is real money and you might want to buy on dips andalso silver and good dividend paying stocks in solid businesses like utilities,MLP pipelines, water, tele-communications or offshore oil drilling, closed endfunds, Canadian oil trusts, etc. TLT is good when the dollar is rising and youuse charts of oil and USO is a good proxy for that. Use the cheapest brokersand trade that oil price. John D. Rockefeller's ghost with JP Morgan downroasting weenies in Hell.

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9/13



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I know NO One wants to here this.. But the fact is this... Americans need aSECOND CHANCE. The credit system needs to change. There arenumerous people who really CAN afford a new home... but their credit istarnished due to unforseen circumstances. Currently our sytem lumps all intoone catagory... PAID and UNPAID /late. There needs to be catagories for theREASONS WHY.... Placing those who wilfully default into lower credit scoresand those with accidents/injuries into a higher credit score.... The economywill NEVER RECOVER under our current and UNJUST credit system.

ssyankeeclipper 6:49 AM Oct 12, 2010

i heard on our local news that a new developement was being started withalmost 300 new homes in a not to shabby area of the county and this is bigexciting news for the area that will promote hundreds of new families etc etcmy question is are they giving these new homes away? if not who do theythink is buying them ? another senseless bogus story.. not to mention every1/8 of a mile is 1 or more homes for sale..who do they think they're kidding?

ssyankeeclipper 6:42 AM Oct 12, 2010

i wasn't aware of the"recovery" what recovery and where?

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eroding trust -- and ending the recovery

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