“MERS has jeopardized the clear title of every Texas homeowner with a mortgage and has cheated Texas counties out of millions of dollars in property recording fees,”
– County Attorney Vince Ryan
My San Antonio-
Bexar County is poised to challenge a private mortgage-tracking system that officials claim has cost it millions of dollars in filing fees.
The district attorney’s office will ask the Commissioners Court at its Nov. 1 meeting for the go-ahead to hire a law firm to sue Mortgage Electronic Registration Systems Inc., which claims to hold title to some 60 million loans around the country.
PMI Group Inc., the mortgage insurer that was ordered in August to stop writing policies, said a unit that sells such coverage was seized by Arizona authorities and will pay out claims at 50 percent starting tomorrow.
The Arizona insurance regulator has full possession, management and control of the unit, PMI Group said in a statement on its website. Bill Horning, a spokesman for PMI, didn’t respond to a message seeking comment.
The Federal Reserve Board made history Friday by invoking special powers to shut down a Colorado bank, stepping into a role normally reserved for state regulators.
The central bank appointed the Federal Deposit Insurance Corp. the receiver for the $1.38 billion-asset Community Banks of Colorado in Greenwood. The FDIC then sold the bank’s operations to Bank Midwest NA in Kansas City, Mo.
People NEED JOBS ..!! I don’t care if you refi or reduce the mortgage 50%… “people” need jobs.
Do all the math you want and all these mortgages will head back into default. Is anyone paying close attention to the economy? Just because AG’s have security and banker back ups, there are millions who can barely put food on the table. So this refinance plan WILL NOT WORK for all!
Again, if anyone does this… you will create new paper to correct any issues that may exist with the original paper trail.
It’s a trap and no wonder this world is failing.
LA Times-
California is reemerging as a central focus for state attorneys general hoping to reach a nationwide wrongful-foreclosure settlement with major banks, even though the Golden State walked away from talks three weeks ago.
Iowa Atty. Gen. Tom Miller, who is leading the negotiations on behalf of the states and federal agencies, met with representatives of the nation’s five largest mortgage servicers in Washington on Friday to discuss details of a new plan aimed at enticing California back into the fold.
What are your true feelings about America and its dream of home ownership? Do you believe it will survive the economic meltdown? Do you think most people will keep paying their mortgages and not walk out on their homes?
NY MAG-
If so, you might want to join me in buying mortgage-backed securities, commonly lumped into that odious investment category known as “toxic assets.” Years ago, on Wall Street, I helped create these securities with computer software (which I described in “My Manhattan Project”). Now, I farm oysters out in Long Island. But like a lot of people, I’m always on the lookout for a good investment opportunity. And for a few months now, I’ve been thinking that the economic panic has been overblown and that, if you look carefully, bargains can be found in toxic waste.
I’m hardly the only one—with the hand-holding of the Treasury Department, two large companies have recently started buying them as part of the once-ballyhooed …
“You put chicken into the grinder”—he laughed with that infectious Wall Street black humor—“and out comes sirloin.”
🙂
NY MAG-
I wanted a piece of that. But first, I kept a promise to my wife—that if she recovered, we would backpack around the world.
Returning to New York a year later, I had an interview at Shearson Lehman’s mortgage-research department. Again, I sought advice from Professor Gesiak. I drove to his apartment in Greenpoint and confessed to him that I had never studied finance, and I had only taken one course in computers. Over the kitchen table, while his wife minded the toddlers, he gave me a quick tutorial on the “present value of future cash flows.” It was only freshman calculus, after all.
Out the back window, clotheslines on pulleys ran across the courtyard to adjoining apartments, like a scene from The Honeymooners. Once I demonstrated that I understood how to discount a cash flow, Leszek brought out the hard stuff. Over glasses of vodka chased by raw garlic and butter on rye, he recounted how he had black-marketed goods in communist Poland. Halfway through the bottle, he claimed that the Polish zloty had been on the vodka standard—that is, the conversion ratio of zlotys to dollars on the black market was always the same as the price, in zlotys, of a half-liter of vodka.
Heading back to Manhattan that night, I smashed my car on the ramp up to the BQE. But the good news was that I got the job. I was in the mortgage-packaging business.
HOUSTON – It was a simpler time when Edward Mahar bought his home in 1980. He has lived there ever since in southwest Houston.
“It was procedurally easy and we had a Realtor involved and basically the process was getting bank approval to buy the property,” says Mahar.
There were no mortgage swaps or complex transactions in the financial market that could leave your head spinning as is the case currently. For years, he knew exactly who held the note on his property.
“Since two years ago, everything is complicated,” says Mahar.
The Bar alleged in a complaint that Stern willfully ignored a request in February by the 5th DCA to produce documents in a lawsuit between SunTrust Bank and Mortgage Electronic Registration Systems. Stern had been listed as counsel for SunTrust.
Funny thing because FHFA and other have found this firm to be the highlight of their investigations.
The key paragraph in Manhattan federal judge William Pauley III‘s 21-page ruling Wednesday in Bank of America’s proposed $8.5 billion settlement with Countrywide mortgage-backed-securities investors is the last one.
“The settlement agreement at issue here implicates core federal interests in the integrity of nationally chartered banks and the vitality of the national securities markets,” Pauley wrote. “A controversy touching on these paramount federal interests should proceed in federal court.”
Southern Essex District Register of Deeds John O’Brien today is calling for a temporary halt on all foreclosures on Massachusetts homeowners until there is time to sort through the complex issues, including the fraudulent documents that have been recorded in people’s chains of title. In addition, O’Brien has cautioned people that they should think twice before buying a foreclosed property in light of the recent Massachusetts Supreme Judicial Court Decision in Bevilacqua v. Rodriquez.
Although O’Brien commended the Supreme Court and Judge Long for its sound decision in the Bevilacqua Case, he recommends that any lender, servicer or foreclosure law firm be required to attest in an affidavit, under the pains and penalties of perjury, that all the paperwork involved in a foreclosure has been reviewed by someone in authority at the bank with knowledge of the transaction and that the paperwork is correct, truthful and valid. He believes that lenders should also have to prove, through a forensic audit, that they actually own the note and mortgage upon which they are foreclosing upon.
The Bevilacqua Decision makes it clear that a lender must own the mortgage before it may foreclose. “As I have said all along, had Bank of America, J.P. Morgan Chase, Wells Fargo and others followed the law and played by the same rules as everyone else, maybe our economy would not be in this crisis today. There is a good reason that we have registries of deeds in this country. It is so that every document that pertains to a parcel of real property is recorded in a public registry, so that anyone, at any time, may view their chain of title.”
“Since the property involved in the Bevilacqua Case is in Haverhill, which is a part of my district, I have reached out to our mortgage fraud and forensic analyst, Marie McDonnell of McDonnell Property Analytics. Ms. McDonnell has certified to me that there are at least three missing assignments in the Bevilacqua chain of title, and that the one assignment which was recorded on the property is fraudulent. This clearly demonstrates the damage to a chain of title when assignments are not timely filed or not filed at all.” said O’Brien.
In calling for a halt on foreclosures, O’Brien said, “This will send a clear message that Massachusetts will not tolerate the practice of using fraudulent documents to put someone out on the street. This is something that we do not do in America. We all have to remember that foreclosures are not good for anyone; they hurt families, neighborhoods, property values and therefore communities as a whole. These big banks have played fast and loose with peoples property rights, and now courts in Massachusetts and other states are standing up and saying that what they have done is wrong. Fraudulent documents are and always should be unacceptable and never be recorded in a registry of deeds. If the average person recorded a fraudulent document and then attempted to present it to a court of law as evidence, they would be prosecuted. So it begs the question, why are the captains of the bank industry and Wall Street being treated differently? Let me make it clear that this fraudulent activity is being done by major lenders, not our local community banks. I think that the lesson here is if anyone is currently looking for a mortgage, they should be dealing with their local hometown banks who have always played by the rules.” O’Brien continued, “Perhaps if people stop buying these foreclosed properties, which in most cases sell for less than what the original homeowner owed the lender, than maybe the banks will rethink their position and do the right thing, namely begin working with homeowners to create a new payment plan that will keep people in their homes.”
In an attempt to provide people with more assistance, O’Brien is now offering any homeowner in his district who has a document in their chain of title signed by a known robo-signer, an affidavit signed by him as Register of Deeds attesting to the presence of that signature which has been recorded at his Registry. For those homeowners that are currently being foreclosed upon, this affidavit may be presented to their attorney, the lender or the court to show that their chain of title has been corrupted. For those who are not in foreclosure, the affidavit may be presented to their current lender to show that a robo-signed document has in fact been recorded in their chain of title and be part of a request to investigate how this happened and what the lender is going to do to correct it.
Homeowners may check to see if there is a known robo-signer in their chain of title by visiting his website www.salemdeeds.com or by calling his Customer Service Department at 978-542-1704.
AG Coakley Issues Statement on the SJC Decision in Bevilacqua v. Rodriguez
BOSTON – A decision by the Massachusetts Supreme Judicial Court (SJC) today in Bevilacqua v. Rodriguez, reaffirmed that a mortgage holder must have both “jurisdiction and authority” –a valid assignment of mortgage – in order to foreclose on a property.Attorney General Martha Coakley issued the following statement:
“This case is just one example of a much larger problem. In the rush to foreclose, the banks’ reckless origination and foreclosure practices have created a domino effect that has harmed Massachusetts homeowners as well as third-party purchasers who purchased properties after foreclosure.
This is yet another clear demonstration that the only way we are going to restore a healthy economy is to address the foreclosure crisis and hold the banks accountable for their actions.”
BACKGROUND:
This case determined that because U.S. Bank did not hold a valid assignment of the mortgage at the time it initiated foreclosure proceedings, it failed to acquire title. As a result, not only did U.S. Bank foreclose without legal authority to do so, but its failure means that it was unable to transfer clear title to Mr. Bevilacqua.
As the SJC recently observed in U.S. Bank, N.A. v. Ibanez, many investors in the secondary mortgage market ignored longstanding requirements of Massachusetts law concerning when and how a mortgage holder may exercise its right to foreclose, resulting in numerous invalid foreclosures.
Mr. Bevilacqua was a third-party purchaser of property that was foreclosed upon by U.S. Bank prior to the Land Court’s initial decision in Ibanez. Mr. Rodriguez is the prior mortgagor. Because U.S. Bank did not hold a valid assignment prior to commencing foreclosure proceedings the foreclosure was deemed invalid. U.S. Bank foreclosed without legal authority and was unable to transfer clean title to Mr. Bevilacqua.
Bevilacqua brought an action under the so-called “try title” statute because the Ibanez decision had clouded Bevilaqua’s claim to the property. It allows the holder of a clouded title to initiate an action to clear title without waiting for adverse claimants to sue first. The try title process provides that if adequate notice is issued and an adverse claimant fails to respond then the petitioner may obtain an order barring that claimant from ever challenging the petitioner’s right to title.
The Land Court denied Bevilacqua’s petition, ruling that one seeking to use the try title process must have at least a plausible claim to the title. The Court ruled that Bevilacqua has no such claim to title where he acquired a deed following an invalid foreclosure. The Land Court held that Bevilacqua acquired whatever it was that U.S. Bank had to sell as of the foreclosure. Because, per Ibanez, at the time of the foreclosure, the bank held nothing, Bevilacqua acquired nothing and had no standing as a result.
Today, the SJC affirmed the Land Court decision and reaffirmed the essential holdings of Ibanez: that the mortgage holder must have a valid assignment of mortgage in order to foreclose on a property. The Court also held that one cannot use the try title process to extinguish the right of redemption – a mortgagee can only foreclose by strict adherence to the statutory processes for foreclosure by exercising the power of sale or foreclosure by entry.
The Attorney General’s Office filed an amicus brief in this case in April 2011 and presented oral arguments before the SJC on May 2, 2011.
A few email discussions of the FL AG’s office that show what went on behind closed doors. Go thru them and thanks to Foreclosure Hamlet for these gems.
Me thinks this just sunk the Foreclosure Fraud Settlement ship!
California is trying to determine whether BofA and its Countrywide Financial subsidiary sold investments backed by risky mortgages to investors in California under false pretenses, a source says.
Oh Hella Yeah…they did & They everyone knows this!
La Times-
Investigators with the state attorney general’s office have subpoenaed Bank of America Corp. in connection with the sale and marketing of troubled mortgage-backed securities to California investors, according to a person familiar with the probe.
The state is trying to determine whether the bank and its Countrywide Financial subsidiary sold investments backed by risky mortgages to institutional and private investors in California under false pretenses, according to the person, who was not authorized to speak publicly and requested confidentiality.
In essence, the ruling upheld that those who had purchased foreclosure properties that had been illegally foreclosed upon (which is virtually all foreclosure sales in the last five years), did not in fact have title to those properties.
Given the fact that more than two-thirds of all real estate transactions in the last five years have also been foreclosed properties, this creates a small problem.
The Massachusetts SJC is one of the most respected high courts in the country, other supreme courts look to these decisions for guidance, and would find it difficult to rule any other way in their own states. It is a precedent. It’s an important precedent.
Here are the key components of the Bevilacqua case:
1. In holding that Bevilacqua could not make “something from nothing” (bring an action or even have standing to bring an action, when he had a title worth nothing) the lower land court applied and upheld long-standing principles of conveyance.
2. A foreclosure conducted by a non-mortgagee (which includes basically all of them over the last five years, including the landmark Ibanez case) is wholly void and passes no title to a subsequent transferee (purchasers of foreclosures will be especially pleased to learn of this)
3. Where (as in Bevilacqua) a non-mortgagee records a post-foreclosure assignment, any subsequent transferee has record notice that the foreclosure is simply void.
4. A wholly void foreclosure deed passes no title even to a supposed “bona fide purchaser”
5. The Grantee of an invalid (wholly void) foreclosure deed does not have record title, nor does any person claiming under a wholly void deed, and the decision of the lower land court properly dismissed Bevilacqua’s petition.
6. The land court correctly reasoned that the remedy available to Bevilacqua was not against the wrongly foreclosed homeowner but rather against the wrongly foreclosing bank and/or perhaps the servicer (depending on who actually conducted the foreclosure)
When thinking about the implications of Bevilacqua – the importance of point six cannot be overstated.
The re-foreclosure suggestion is not valid
Re-foreclosing on these properties in not likely as has been suggested by bank layers in light of the Bevilacqua ruling. We aren’t talking about Donald Trump here and we have a funny feeling he won’t be affected either. Mostly it’s guys like Bevilacqua who bought single or multi units, in the “hundreds of thousands” range. It seem unlikely that the majority of these folks would have the capital to eat their existing loses, re-foreclose at great expense, and on top of all of that come out as the highest bidder on the very property they formerly thought was their own. In many cases, as was the case in Bevilacqua, the original purchaser of the foreclosure may have already resold the property and moved on, thus leaving in their wake an even more serious problem; the likelihood of a property owner, who had nothing directly to do with a foreclosure, but is left with all the fallout of a post-Bevilacqua world.
Perhaps some enterprising young American will come up with some unscripted video series called “foreclosures gone wild”, that features foreclosure buyers spontaneously revealing the anatomy of their profane foreclosure deals in front of smart phones recording in HD video – some direct marketing firm could then make it available on some late night infomercial app where it will get billions of downloads on Ipads. We think this highly original (never before seen) business idea should be promptly explored. Surely there will be high demand coming from iPad owners in small Scandinavian countries where connoisseurs of vintage 2000-2006 MBS products reside in high concentrations.
All fun aside, re-bidding on these properties in a post-re-foreclosure scenario would be done in what is soon to be a new inflationary environment (most originally bid in a deflationary environment for housing), thus making the “re-foreclosure” blank threat all the more unconvincing and unlikely.
However, it should be easy enough for investors similarly situated to Bevilacqua to simply hire fee contingent attorneys who can promptly sue the banks and servicers for conveying fraudulent deeds – that seems like a much easier and logical proposition. When the potentially millions of lawsuits are added to the complaints filed by investors in MBS, we think the banks will finally be revealed as wholly insolvent. The only other way it could happen faster, is if the average American home owner, realizing he may never obtain clear title to his home (short of an indemnity from his bank), finally stops making his monthly payments on his invalid note (which completely lacks a valid security instrument). In this way, the existing insolvency of banks would be recognized in a matter of days rather than months or years.
The act of denial does not actually alter reality
Ostriches are said to have discovered this the hard way. On November 12th, 2010 in our article “Tattoos, Pyramid Schemes and Social Justice” we advocated that home owners, with securitized mortgages, regardless of their ability to pay, consider suspending their mortgage payments, and place those funds into a private escrow account instead. We wrote:
“Radical though it may seem, we believe the only way to stop the chaos of fraud and the breakdown of the rule of law in our courts, and most importantly to ensure that we ourselves are not participants in the fraud, is for homeowners who can afford their mortgage to stop paying it…”
The article goes on to say:
“For example, what is easier; to scorn those who are being foreclosed on because they can no longer afford their mortgage or to accept the possibility that our entire financial, and maybe justice system might be badly corrupted? Across all spectrums of crime, victims are often blamed, just ask attorneys who represent rape victims. This phenomenon is by no means unique to mortgage fraud, or those who have been raped by the institutions who carry out this trade. It has been made to appear as if those who have fallen on hard times are a matter of “incidental” inequalities in an otherwise procedurally just system. However, it is precisely the opposite which is true. Our financial institutions have created deliberate inequalities, through the use of procedurally unjust systems.”
We pointed out that suspending such payment might be done for the following reasons, which in light of the recent Bevilacqua decision, and the pending Eaton Decision, are increasingly being proven correct:
“1. They are not sure where or if their payments are going to the true note holder.
2. They no longer know who the true note holder is.
3. They have a legitimate concern that they may not be able to ever obtain clear title and/or title insurance (in the event of a sale) given what we now know about improperly conveyed titles and the illegitimacy of “MERS”.
4. They do not want to be an unwitting or passive participant in fraud.
5. They care about America, want our culture to be healed and recognize the dignity of every human being.”
Long before the Ibanez decision was handed down we wrote the following (taken from the same article):
“If these legitimate reasons are the cause to suspend mortgage payments, then what attack on these “non-co-operators” character can be levelled? In these cases, Judge’s will have to allow for proper civil procedure to take place in order for the legitimate inquiries of concerned Americans to come to light. Since banks virtually never produce adequate documentation (which appears to be by design), chances are things will escalate.”
We went on to discuss the unique risks of apathy and denial in the following:
“…Americans have a duty to ask critical questions about the operations of their financial institutions, and if evidence has been presented that a deal was made, but not everyone was playing by the rules, than those deals need to be looked at again. It is not good enough any longer to say, if it doesn’t affect “me” than, I’m not getting involved. We have a duty to one another as Americans, and more importantly as human beings, to care about truth and justice. What’s more, apathy, so long as we are not affected, is a short lived consolation. Ultimately, this crisis will affect everyone sooner or later.”
Certainly when the SJC handed down their opinion affirming Bevilacqua, perhaps hundreds of thousands, and ultimately millions of people who previously thought they were not affected, were suddenly well, affected. That is because there has been about six million foreclosures since the current economic crisis began, and those foreclosures may have resulted in many more interested parties, as was the case in Bevilacqua, who sold the subject property to four new owners, thus multiplying the number of parties involved, and ultimately the number of legal actions which could be brought. It is not hard to see where six million voided foreclosures might well result in new lawsuits in excess of that number – and if the courts advice is taken, these complaints would be directed, and properly so, at banks and servicers.
In the Ibanez article, which was written in January of this year we wrote the following:
“If you live in Massachusetts and your mortgage has been securitized, or if you have purchased a foreclosure property, we think it would be wise to consider suspending your mortgage payments if you haven’t already.”
We believe these particular words have become incredibly relevant given the implications of Bevilacqua.
Finally, In our article “On the ethics of mortgage loan default” we tried to cover any outstanding inhibitions homeowners might have about the advice we were giving.
A few phone calls opens a whole new world
We decided to call a few title insurance companies to get their “take” on it all. We made the mistake of identifying ourselves as “bloggers” in the first phone call – that call may well have set a new land speed record for the fastest time from answering to hanging up. Thinking there might be a smarter approach, we decided to identify ourselves as homeowners (equally true) on the next call – the results were a little better, but only slightly.
The underwriters and title examiners we spoke to kept asking if we were attorneys, or if we represented the home owner as “council”. We thought this was curious because we kept pointing out that we were ourselves just homeowners. Then it hit us, they have never actually spoken to a real, live, breathing customer on the policy origination side, they had only ever spoken to lawyer-brokers. We thought; what an interesting confluence of incentives this must create, and why is the buyer of the policy necessarily so far removed from the seller?
Follow the money trail – that’s what they say. Looking for answers, follow the money trail. What is the one piece of the equation upon which all else hinges? It’s not the lawyers, it’s not the judiciary, the answer lies in the investment banks – but they must first pass through the gatekeepers of real estate; title insurance companies. To understand the problem does require some understand of law, but really mostly it’s an understanding of finance and of business that is required above all else. Money in this case, cannot pass from bank depositor, to banker, to bank borrower in real estate transactions without the all-important “title insurance policy”.
So maybe there will be a happy ending after all, for once upon a time didn’t the likes of AIG insure a whole lot of CDS’s for Goldman Sachs who was then paid 100 cents on the dollar (in a 43 cents on the dollar world)? That worked out well – just think of the benefits of insurance – AIG is still around, Goldman’s stock price went on to quadruple in the following 18 months. The cost was relatively low, and mostly out of sight – voluntary shareholders in AIG were emancipated from their money-investment in AIG stock, and were swiftly replaced with involuntary shareholders – also known as; tax payers. It’s the bankrupt companies definition of “preferred” shareholder – although it veers slightly from the traditional one.
So does it matter what lawyers, bankers, bloggers and judges think? This is America and America is all about business, and in this case, business cannot be transacted without title insurance companies, and the good thing about insurances companies is they have actuaries, and actuaries calculate risk, this is especially important since the banking community has proven that they either cannot calculate risk or are not interested in doing so. Actuaries are not exciting people, they are number crunchers, they don’t do bridge jumping and they would never take inordinate risk, right?
The insurance business is interesting, even if their actuaries aren’t’. That’s because it’s really not about making money off writing policies, anyone who knows the insurance business (or has read a 10Q, an annual report or listened to a conference call of one) knows that insurance companies make their money from investing the “float“, that is to say the funds held in trust between the time policy revenue is paid in, and the time claims are paid out. It’s a good business, in fact it is so good – almost everyone wants in. this business has become so robust that it even supports its own cottage industry in off-shore jurisdictions where the return on the “float” can even go untaxed – or did you think those insurance executives jets just happened to have Bermuda, The British Virgin Islands, and the Caymans stuck in their GPS just because those places have nice beaches? Although we concede they also have very nice beaches.
Needless to say it’s an even better business, when you almost never have to pay out on a policy. Title insurance is unique in that way. Even the SJC conceded in Bevilacqua that this sort of “Try Title” action had not been presented before the SJC in over a hundred years. In fact, business is so good, that there is really no entry on the Profit and Loss statement of these firms for marketing expense – when was the last time you saw a TV ad, or an AD on the Internet for a title insurance company which had a better product at a better price? There is no Geico Gecko for the title insurance business. For that matter, don’t hold your breath on finding a deal on title insurance through Groupon either.
This piqued our interest. We were so drawn to the prospect that the answers to a multi-trillion dollar question may lie in this little known, little observed, obscure industry that we decided to pick up the phone and call a few title examiners, underwriters and brokers. What we learned was nothing short of fascinating. First they all clammed up and didn’t want to talk SJC cases. Second, they affirmed, after a bit of cajoling, that they will write a policy if any servicer gives them a “pay off” letter – we’re talking a one page letter from one perfect stranger to another – insuring ownership in hundreds of thousands if not millions of dollars in real property (per transaction), and of course trillions at the nation level. This one pager could then be recorded at any local registry with precisely zero oversight.
In a world where you can’t take hair conditioner on to a flight (even in all your barefoot glory), it turns out anybody can record title to a property worth large sums with absolutely no oversight or security checks. Frankly, we’re beginning to feel like we’ve been in the wrong business all these years.
When pressed on the Eaton case, and the fact, that servicers cannot actually discharge anything (as Green Tree Servicing, LLC admitted in the uber-important Eaton case), certainly not the debt, most hung up the phone quickly – although we were exceedingly polite, professional and even gentle in our approach. These conversations, where something like being in the twilight zone. Just when we thought we had contemplated the last layer of the onion, we couldn’t believe it, with just a few phone calls, the matrix of lies came streaming down before our face yet again, like vertical lines of green computer code – apparently the underwrites took the wrong pill.
How hard would it be for the title examiners and underwriters to simply go deeper than one page, or contemplate the importance of the decisions coming out of the land court and the SJC?
The failure to perform risk assessment in the insurance underwriting business really means a lapse in fiduciary responsibility. The Absence of fiduciary responsibility means the possibility of shareholder class action lawsuits.
Conflict of Interest? You think?
So if the insurance business isn’t about making money on writing policies (predicated on sound actuarial work), and if an insurance company can even lose money on underwriting as many often do, and still make a profit by investing “the float”, then there may be an incentive to write policies, that reflect less than prudent risk management – that is to say losses on the underwriting side of the business would be made up on the investment side. As long as this is successful, shares in these companies can be sold to investors. The best investors are large funds like mutual funds because they buy in large junks of shares, are run by investment managers who are generally not very shrewd, and they hold long enough for insiders to sell. Large mutual funds are also the ideal investors because they have a steady stream of cash from IRA’s and 401k’s. IRA’s and 401k’s are steady sources of cash to mutual funds because most of those folks who were wise enough to envision saving, were also determined to buy and own a home (rather than rent one), thinking (perhaps wrongly), that it represented a sound investment. In this way, the loop from policy purchaser, to indirect title insurance company shareholder is complete. It’s almost like a double tax on the unsuspecting home purchaser, which is subtle and goes almost entirely undetected. That’s is why most homeowners have no clue who their title insurance company is, but can tell you in half a second who insures their car, their health care, or their home.
So what sort of investments are the investment managers at insurance companies making? Well, we know the insurance culture isn’t fond of extreme sports, and as it turns out their not very enterprising when it comes to their investments either – let’s just say their passive, they like fixed income, you know, a few muni’s, maybe some treasuries, but above all, they like commercial bonds for their fixed income (and perceived safety), especially those which are derived from Residential Mortgage Backed Securities, or RMBS’s. The feeders of these funds – the mortgage origination and securitization industry, is none other than their very own customers – think of it as one big happy love triangle, or if you happen to live in Utah and prefer their par lance “plural marriage”. The title insurance companies, the mortgage origination and securitization industry and policy purchasers are like sister wives. Of course the husbands in these relationships of Asymmetrical Power, are the alchemists of the modern era, they are the engineers of derivatives, and they hide behind curtains in tall shiny buildings in an emerald city called wall street, turning their Copper into Gold. For more on this activity, it might be worth reading the article “Three Card Monte and other efficient ways of parting with your money“
Historically, title insurance companies almost never pay out. When was the last time you heard of a title insurance policy actually being used? Over the decades, it was nothing more than a simple entry on the closing HUD statement when real estate was bought or sold. Homeowners didn’t’ “shop” the policy, and they had no idea that when it showed up on their closing statement, that their lawyer was also a broker for the title insurance company, collecting some 70% of the premium – if they knew that, than they would know that their attorney might also have a conflict of interest when he oversaw / received the title exam, and the selection of the policy. Finding a defect or cloud on title in this circumstance meant no policy and therefore no commission – so the closing attorney’s themselves were incentivized not to scrutinize too much – and why was this agency relationship never revealed? Isn’t that in direct opposition to consumer protection laws?
So why were those underwriters so quick to get off the phone, as soon as we “dug a little deeper” into their criteria? Well, it’s because their options don’t look too good – in fact there are only two:
a) Acknowledge that the titles to 60 mln. plus homes are badly clouded and not insurable. In which case the entire operation of writing policies, taking in premiums, investing the float in MBS’s, so that mutual funds can take in funds from various and sundry retirement accounts of home owners and buy your stock suddenly stops.
b) Pretend like your not aware of the problem and deny or use the more complex version “deny, deny, deny”. In this operation, business can continue, at least for a while – although when the final reckoning comes, the problems will be many orders of magnitude larger.
We believe plan “B” has been the modus operandi of the industry for sometime now. However, like all parties, and indeed everything which has a beginning, this too must come to an end.
Title insurance underwriters and drug addicts; just likes peas in a pod
Why is the role of insurance companies in all of this not more closely examined? If it was an addiction we were speaking of (and maybe it is), we could think of the insurers as the “enablers”, and as any good interventionist, support group, or sponsor will tell you, the enabler is as much of an addict as the addict themselves.
But what is the addiction? In a way it’s money, but in another way it’s something more than that. It’s really power. Money of course, is power, because at the end of the day, its really a redemption slip on society, and when you possess many of these tiny slips of paper, you effectively have much you can ask of the society around you – and that is power. The Alchemist-Engineers know this, so the jig in title insurance is really no different than the funny business that took place during the “Golden Age” of loan origination – they both follow what we might call the “the Mozilo principle”.
How could we look at the addicts without looking at the enablers? Where are the insurance regulators? We marveled at the discovery that there may well exist an entire insurance industry that is predicated upon the complete lack of any sort of actuary role in it’s calculation of risk, or oversight in it’s conduct of business, an entire sub-species of the insurance animal where policy payouts are unheard of. In such an industry it’s easy to imagine that there would be total lethargy, apathy, and greed and accordingly there is.
Further to this point, it’s important to note that Bevilacqua did not just turn up yesterday, he turned up five years ago – his case was never really a true legal question, it was always a business question. It seems more business is conducted inside a court room than in marketplaces nowadays – we wonder what the chinese must be thinking of the efficiency of this model.
It could all come tumbling down suddenly
The banks settlement negotiations with the 50 states AG has focused on refinancing as a solution; why? Because refinancing ratifies, and puts good paper over bad fraudulent paper. As pointed out in “On the ethics of mortgage loan default” – that’s a bad deal for homeowners. Taking an asset with bad pricing, and which had a commensurate and corrupt security interest, and improving and perfecting the security through “refinancing”, but leaving the bad pricing in place (which is a direct derivative of fraud) is not a good deal for the homeowner. For a modest decrease in the monthly mortgage payment, the homeowner pays the price of somebody else’s fraud (although he may not know it).
Further it may be a mistake to speak of buyers of these foreclosure properties as “innocent third parties” as the banks suddenly (at least since Bevilacqua emerged) are fond of doing. Is this characterization really accurate? We know that about two-thirds of real estate transactions over the years have been foreclosure properties; we also know that a good deal of those transactions were cash deals. Does that sound like “the Joneses” to you?
The buyer of a foreclosure is somewhat more enterprising than his average home buying family man cousin who buys a home because he happens to like it. The buyer of a foreclosure is by definition more of an investor than someone merely looking for shelter. This is especially true in the case at hand – Bevilacqua – who was a developer, and who turned the subject property into four separate units with four separate buyers – probably at a profit to himself, but at great harm to the buyers. In this way, the banks fraud is magnified, through the buyers of foreclosures who are more often than not, enterprising, investment minded persons, with the ability to move at greater speed than the average homesteader.
Of course nearly all home buyers are functioning in some way as investors, in so far as the overwhelming majority are purchasing the largest investment of their life. So the buyer must do proper due diligence, regardless of their place on the investor spectrum. Where there is a failure to do even basic due diligence, there is at least some accountability. However, it is not as great as the accountability of the title insurers, or the bank-sellers, who maintain superior knowledge about the “back-room dealings” of these transactions.
We only point this out so that prospective buyers of foreclosures (and also all homeowners) will pause for a moment and consider the possibilities that Bevilacqua gives rise to. The buyers of foreclosures at least are not entirely innocent as has been suggested by an industry which seeks to persuade a panel of judges and deflect away from itself the possibility of legal reprisals. Why else would the American Land title Association, and the Mortgage Bankers Associations along with their TBL’s (Tall Building Lawyers), spend the time, energy and resources to file lengthy Amici Curiae briefs in Bevilacqua? It was a like a free legal defense for a small-potatoes property developer that no one had ever heard of.
It’s worth contemplating before making out that next mortgage payment. Maybe “home ownership” in the very near future simply means staying right where your at – or in the spirit of the protesters which has gripped our world – “occupying” the house your already in.
Can a valid policy be written on securitized mortgage loans in light of Bevilacqua? Without the enablers, no transactions would or could ever get done. Without policies getting written, no real estate would be transacted, and yet another Pyramid would come tumbling down.
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About Gregory M. Lemelson
Author –Amvona.comblog. Entrepreneur. Find joy in teaching and writing. Founded companies in retail, real estate and Internet technology.
The report by the non-partisan research arm of Congress did not name but unambiguously described several individual cases involving Fed directors that created the appearance of a conflict of interest, including:
Stephen Friedman In 2008, the New York Fed approved an application from Goldman Sachs to become a bank holding company giving it access to cheap Fed loans. During the same period, Friedman, chairman of the New York Fed, sat on the Goldman Sachs board of directors and owned Goldman stock, something the Fed’s rules prohibited. He received a waiver in late 2008 that was not made public. After Friedman received the waiver, he continued to purchase stock in Goldman from November 2008 through January of 2009 unbeknownst to the Fed, according to the GAO.
Jeffrey Immelt The Federal Reserve Bank of New York consulted with General Electric on the creation of the Commercial Paper Funding Facility. The Fed later provided $16 billion in financing for GE under the emergency lending program while Immelt, GE’s CEO, served as a director on the board of the Federal Reserve Bank of New York.
Jamie Dimon The CEO of JP Morgan Chase served on the board of the Federal Reserve Bank of New York at the same time that his bank received emergency loans from the Fed and was used by the Fed as a clearing bank for the Fed’s emergency lending programs. In 2008, the Fed provided JP Morgan Chase with $29 billion in financing to acquire Bear Stearns.At the time, Dimon persuaded the Fed to provide JP Morgan Chase with an 18-month exemption from risk-based leverage and capital requirements. He also convinced the Fed to take risky mortgage-related assets off of Bear Stearns balance sheet before JP Morgan Chase acquired this troubled investment bank.
Bob Ivry, Hugh Son and Christine Harper have written an article that needs to be read by everyone interested in the financial crisis. The article (available here) is entitled: BofA Said to Split Regulators Over Moving Merrill Derivatives to Bank Unit. The thrust of their story is that Bank of America’s holding company, BAC, has directed the transfer of a large number of troubled financial derivatives from its Merrill Lynch subsidiary to the federally insured bank Bank of America (BofA). The story reports that the Federal Reserve supported the transfer and the Federal Deposit Insurance Corporation (FDIC) opposed it. Yves Smith of Naked Capitalism has written an appropriately blistering attack on this outrageous action, which puts the public at substantially increased risk of loss.
I write to add some context, point out additional areas of inappropriate actions, and add a regulatory perspective gained from dealing with analogous efforts by holding companies to foist dangerous affiliate transactions on insured depositories. I’ll begin by adding some historical context to explain how B of A got into this maze of affiliate conflicts.
Oct. 19 (Bloomberg) — Citigroup Inc. has agreed to pay close to $300 million to resolve U.S. Securities and Exchange Commission claims that it misled investors about a financial product linked to risky mortgages, according to a person with direct knowledge of the matter.
The settlement is subject to approval by the SEC commissioners, who were scheduled to vote on it today, the person said, declining to be identified because the matter isn’t public. One Citigroup executive and an employee from another firm involved in the deal are also named in the SEC’s claims, according to the person.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0804-10T3
AURORA LOAN SERVICES, LLC, Plaintiff-Respondent,
v.
BERNICE TOLEDO, Defendant-Appellant,
and
MR. TOLEDO, Husband of BERNICE TOLEDO, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., As Nominee For LEHMAN BROTHERS BANK FSB; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., As Nominee For AURORA LOAN SERVICES LLC, Defendants. _________________________________________________________
Submitted September 26, 2011 – Decided October 18, 2011
Before Judges Alvarez and Skillman.
On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. F-10005-09.
Kenneth C. Marano, attorney for appellant.
Victoria E. Edwards (Akerman Senterfitt), attorney for respondent.
PER CURIAM
Defendant appeals from an order entered on August 31, 2010, which granted a summary judgment in this mortgage foreclosure action declaring that defendant’s answer “sets forth no genuine issue as to any material fact challenged and that [plaintiff] is entitled to a judgment as a matter of law.” There is no indication in the record before us that plaintiff ever secured a final judgment of foreclosure. Therefore, the appeal appears interlocutory. See Wells Fargo Bank, N.A. v. Garner, 416 N.J. Super. 520, 523-24 (App. Div. 2010). However, because defendant did not move to dismiss on that basis and the appeal has been pending for a substantial period of time, we grant leave to appeal as within time and address the merits. See R. 2:4- 4(b)(2).
The record before us is rather sparse and disjointed. However, the following facts may be gleaned from that record. Defendant owns a home in the Borough of Prospect Park. On July 24, 2006, defendant executed two promissory notes payable to Lehman Brothers Bank, the first for $320,000, which was payable on August 1, 2036, and the second for $60,000, which was payable on August 1, 2021. Both notes were secured by mortgages on defendant’s home.
On September 1, 2006, plaintiff began servicing the notes on behalf of Lehman.
Sometime in 2008, defendant went into default in the payment of her obligations under the notes.
On January 30, 2009, plaintiff purportedly obtained an assignment of the $320,000 note from Lehman and the mortgage securing that note.1 This assignment was signed by a person named Joann Rein, with the title of Vice-President of Mortgage Electronic Systems, Inc. (MERS). MERS was described in the assignment document as a “nominee for Lehman Brothers Bank.”
This document is discussed in greater detail later in the opinion.
On February 23, 2009, plaintiff filed this mortgage foreclosure action. The parties subsequently engaged in negotiations to resolve the matter. Those negotiations were unsuccessful and are not relevant to our disposition of this appeal.
Plaintiff filed a motion for summary judgment to strike defendant’s answer on the ground there was no contested issue of fact material to plaintiff’s right to foreclose upon defendant’s property. In support of this motion, plaintiff relied primarily on an affidavit by Laura McCann, one of its vice-presidents, and exhibits attached to that affidavit, which are discussed later in this opinion. Defendant submitted an answering certification.
After hearing oral argument, the trial court issued a brief written opinion and order granting plaintiff’s motion. This appeal followed.
To have standing to foreclose a mortgage, a party generally must “own or control the underlying debt.” Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011) (quoting Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010)). If the debt is evidenced by a negotiable instrument, such as the promissory notes executed by defendant, the determination whether a party owns or controls the underlying debt “is governed by Article III of the Uniform Commercial Code (UCC), N.J.S.A. 12:3-101 to -605, in particular N.J.S.A. 12A:3-301.” Ibid. Under this section of the UCC, the only parties entitled to enforce a negotiable instrument are “[1] the holder of the instrument, [2] a nonholder in possession of the instrument who has the rights of the holder, or [3] a person not in possession of the instrument who is entitled to enforce the instrument pursuant to [N.J.S.A.] 12A-3-309 or subsection d. of [N.J.S.A.] 12A:3-418.” N.J.S.A. 12A:3-301 (brackets added).
In this case, it is clear for the same reasons as in Ford, 418 N.J. Super. at 598, that plaintiff is neither a “holder” of the promissory notes executed by defendant nor a “person not in possession” of those notes who is entitled to enforce them pursuant to N.J.S.A. 12A:3-309 or N.J.S.A. 12A:3-418(d).
Therefore, as in Ford, plaintiff’s right to foreclose upon the mortgages defendant executed to secure those notes depends upon whether plaintiff established that it is “a nonholder in possession of the instrument[s] who has the rights of a holder.” N.J.S.A. 12A:3-301; see Ford, supra, 418 N.J. Super. at 498-99.
To establish its right to foreclose upon the mortgage defendant executed to secure her $320,000 note to Lehman, plaintiff relied upon an affidavit by Laura McCann, a vicepresident of plaintiff. McCann’s affidavit states that she has “custody and control of the business records of [plaintiff] as they relate to [defendant’s] loans.” Regarding each of the copies of defendant’s notes and mortgages attached to her certifications, McCann asserts that it is a “true and correct copy.” However, McCann does not state that she personally confirmed that those attachments were copies of originals in plaintiff’s files.
McCann’s affidavit also has attached a copy of a document that purports to be a “Corporate Assignment of Mortgage” from MERS, as Lehman’s nominee, to plaintiff. Again, McCann’s affidavit asserts that this document “is a true and correct copy of the instrument assigning the Mortgage and Note to [plaintiff],” but does not state that she personally confirmed that it was a copy of the original.
A certification in support of a motion for summary judgment must be based on “personal knowledge.” Ford, supra, 418 N.J. Super. at 599 (quoting R. 1:6-6); see also Deutsche Bank Nat’l Trust Co. v. Mitchell, ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 17-19). Our Supreme Court has recently reaffirmed the need for strict compliance with this requirement in mortgage foreclosure actions by adopting, effective December 20, 2010, a new court rule which specifically states that an affidavit in support of a judgment in a mortgage foreclosure action must be “based on a personal review of business records of the plaintiff or the plaintiff’s mortgage loan servicer.” R. 4:64-2(c)(2). McCann’s affidavit does not state that she conducted such a “personal review of [plaintiff’s] business records” relating to defendant’s notes and mortgages.
Furthermore, even if plaintiff had presented adequate evidence that the purported assignment of the mortgages and notes attached to McCann’s affidavit was a copy of the original in plaintiff’s files, this would not have been sufficient to establish the effectiveness of the alleged assignment. This document was signed by a JoAnn Rein, who identifies herself as a vice-president of MERS, as nominee for Lehman Brothers, and was notarized in Nebraska. Plaintiff’s submission in support of its motion for summary judgment did not include a certification by Rein or any other representative of MERS regarding her authority to execute the assignment or the circumstances of the assignment. In the absence of such further evidence, we do not view the purported assignment of the mortgages and notes to be a self-authenticating document that can support the summary judgment in plaintiff’s favor. N.J.R.E. 901; see 2 McCormick on Evidence § 221 (6th ed. 2006).
There is an additional potential problem with this purported assignment. The assignment was not made by Lehman, as payee of the promissory notes secured by the mortgage, but rather by MERS, “as nominee for Lehman.” Although the notes and mortgages appointed MERS as Lehman’s nominee, Lehman filed a petition for bankruptcy protection in September 2008, see Andrew Ross Sorkin, Lehman Files for Bankruptcy; Merrill is Sold, N.Y. Times (Sept. 14, 2008), which was before the purported assignment of defendant’s mortgage and note on January 30, 2009.
Therefore, we question whether Lehman’s designation of MERS as its nominee remained in effect after Lehman filed its bankruptcy petition, absent ratification of that designation by the bankruptcy trustee. On remand, the trial court should address the question whether MERS was still Lehman’s nominee as of the date of its purported assignment of defendant’s note and mortgage to plaintiff.
Accordingly, we reverse the August 31, 2010 order granting plaintiff’s motion for summary judgment and remand to the trial court for further proceedings in conformity with this opinion.
Beau Biden, Attorney General for the State of Delaware, has made it his mission along to hold the banks accountable for their behavior in such a way that we can discipline and encourage our way into a system that actually resurrects a positive future for the people in this country. Here’s his interview.
It’s official now and it’s very clear that the AG’s behind this foreclosure fraud settlement are purposely doing something so insane that it does not surprise us. For example, take the Michael Hudson’s iWatch series that takes us behind the scenes of what really went down in Countrywide.
Now take a look at what Reuters is reporting the AG’s want to include in the settlement
In recent days, the state attorneys general agreed to release major banks from claims that they made legal errors when first originating the loans, such as approving loans for borrowers without verifying any income, according to two people familiar with the talks.
Is there any other reports out there of more fraudulent activity we can post so this also gets included in the settlement before it’s wrapped up in the coming few days?
Washington, DC (Oct. 18, 2011) – Today, Congressman Elijah E. Cummings, Ranking Member of the Committee on Oversight and Government Reform, responded to an announcement by the Federal Housing Finance Agency (FHFA) that it has instructed Fannie Mae and Freddie Mac to begin “transitioning away” from their use of designated foreclosure attorney networks to a system under which “mortgage servicers select qualified law firms that meet certain minimum, uniform criteria.”
“Several of these law firms were able to engage in abusive and illegal behavior that violated the rights of borrowers, in part because of deficient oversight by FHFA, Fannie Mae, and Freddie Mac,” said Cummings. “In light of the extensive problems recently documented by the FHFA Inspector General, I urged FHFA to seriously consider terminating these attorney networks, and it appears they are implementing my request.”
“I remain concerned, however, that FHFA has not provided specific details about how mortgage servicers will select and oversee law firms to ensure that abusive behavior is prevented,” added Cummings. “I will continue my oversight efforts to ensure that specific measures are in place to require mortgage servicers to properly oversee the actions of law firms conducting foreclosure proceedings, including those involving mortgages owned or backed by the government sponsored enterprises.”
On February 25, 2011, Ranking Member Cummings launched a major investigation into abuses and illegal activities by mortgage servicing companies, including wrongful foreclosures, inflated fees, and the filing of improperly executed legal documents during the foreclosure process. As part of that investigation, Cummings sent a letter asking the FHFA Inspector General to examine “widespread allegations of abuse by private attorneys and law firms hired to process foreclosures as part of the ‘Retained Attorney Network’ established by Fannie Mae.”
On September 23, 2011, the FHFA Inspector General issued a report concluding that Fannie Mae and its regulators, including FHFA, were alerted repeatedly to serious problems with the legal firms in Fannie Mae’s retained attorney network (RAN) beginning as early as 2003, but failed to take corrective action. The Inspector General reported that “FHFA did not begin to act on foreclosure abuse issues involving Fannie Mae’s RAN until mid-2010,” despite “multiple indicators of foreclosure abuse risk prior to 2010 that could have led FHFA to identify and act earlier on the issue.”
On October 3, 2011, Cummings sent a letter to FHFA Acting Director Edward DeMarco requesting additional documents and information regarding these oversight failures. Cummings requested that the agency “give serious consideration to terminating the existing Fannie Mae Retained Attorney Network program.” He also requested that “FHFA take immediate and decisive action to remedy these failures and ensure that no additional borrowers suffer similar abuses.”
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So does it matter what lawyers, bankers, bloggers and judges think? This is America and America is all about business, and in this case, business cannot be transacted without title insurance companies, and the good thing about insurances companies is they have actuaries, and actuaries calculate risk, this is especially important since the banking community has proven that they either cannot calculate risk or are not interested in doing so. Actuaries are not exciting people, they are number crunchers, they don’t do bridge jumping and they would never take inordinate risk, right?
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