For Immediate Release

SECRETARY BRUNNER OUTLINES TWO LINES OF ATTACK IN FIGHTING HIGH OHIO FORECLOSURE RATES

COLUMBUS, Ohio – Ohio Secretary of State Jennifer Brunner, Ohio’s chief elections officer and the state officer responsible for licensing notary publics, today issued a directive to boards of elections that foreclosures cannot be used without further investigation to disqualify voters and revealed that she has referred specific instances of notary abuse occurring at Chase Home Mortgage in Columbus and by the Mortgage Electronic Registration Systems, Inc. (MERS) to a federal prosecutor for investigation.

DIRECTIVE ON VOTERS FACING FORECLOSURES: Secretary Brunner, in Directive 2010-66, instructed Ohio’s 88 county boards of elections that they may not cancel an Ohioan’s voter registration based solely on the fact that the person is involved in the foreclosure process.  The filing of a foreclosure action does not affect a voter’s right to vote until there is a final judgment entry, including the passage of at least 30 days from the date of the entry because of the right of appeal, and verification that the person no longer resides at the property. Ohio continues to experience high residential foreclosure rates.

Those who lose their homes because of foreclosure may wait until Election Day to update their address. Boards are instructed in the directive how to help voters displaced because of foreclosure, based on whether they move (1) within the same precinct, (2) within the same county but to a different precinct, or (3) to a different county in Ohio.  Voters facing foreclosure may use their current location of residence as their residence for the purposes of voting.

REFERRAL OF CHASE HOME MORTGAGE AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. TO FEDERAL PROSECUTOR: Secretary Brunner, in two letters dated Aug. 11, 2010 and Sept. 1, 2010, referred matters of alleged notary abuse in thousands of home mortgage foreclosures by Chase Home Mortgage and the Mortgage Electronic Registration Systems, Inc. to U.S. District Attorney Steven Dettelbach in Cleveland. Citing two depositions, (one & two) of Chase employee Beth Cottrell, taken in Columbus in May of 2010, and a deposition of MERS Secretary and Treasurer, William Hultman taken in New Jersey in April of 2010.  These depositions contain sworn testimony that at Chase Home Mortgage, 18,000 documents per month are executed and notarized per month by eight people, with admissions that:

1. it is the notary and not the document signer who gives an oath who fills in numbers in the affidavits used in court ordered foreclosures,
2. no oath is administered for the signing of each document,
3. notarized documents are not verified by the person signing and giving oath that they have personal knowledge of the contents of the documents, but rather, signers are relying on verification by others,
4. documents are signed in bulk and notarized in bulk separately,
5. notaries know this at the time they notarize documents in this process.

The MERS deposition of William Hultman demonstrates that after corporate status changes occurred for MERS, new designations of authority were not executed, leaving one or more individuals for the former MERS corporation continuing to delegate authority on behalf of the new corporation without authorization by the new corporation.

According to its website: “MERS was created by the mortgage banking industry to streamline the mortgage process by using electronic commerce to eliminate paper…MERS acts as nominee in the county land records for the lender and servicer. Any loan registered on the MERS® System is inoculated against future assignments because MERS remains the nominal mortgagee no matter how many times servicing is traded. MERS as original mortgagee (MOM) is approved by Fannie Mae, Freddie Mac, Ginnie Mae, FHA and VA, California and Utah Housing Finance Agencies, as well as all of the major Wall Street rating agencies.”
MERS was created by the mortgage lending industry to:

1. eliminate frequent re-recording of liens,
2. avoid paying county recorder fees and other local taxes as mortgage loans are assigned as backing or securitization for derivatives trading by banks and other financial institutions,
3. monitor and facilitate the transfer of original mortgage notes in the trading of mortgage-backed securities,
4. foreclose on mortgage notes for unnamed note holders, even though it is not the real financial party in interest and does not hold the original note for the mortgage.

Currently, over half of all new residential mortgage loans in the U.S. are registered with MERS and recorded in county recording offices in MERS’ name, reducing transparency, leaving consumers unable to determine who actually holds the note on their homes.

Secretary Brunner made the following statement on the situation:
“Mortgage foreclosure documents must be notarized according to the law. Requiring this is not an afterthought or an exercise of form over substance—the law must be followed when taking away someone’s home, regardless of the circumstances.

For too long thousands of homes have been taken from consumers without proof that the foreclosing party actually has that right. Our courts must be cautious and require absolute adherence to the law. As the officer in Ohio who licenses notaries, I cannot stand idly by and watch financial institutions concoct a chain of title they never had by abusing the notary process.

It’s not fair to consumers or to the employees who by virtue of their jobs, are signing these documents. I urge the U.S. Department of Justice to take up this investigation with vigor and purpose to protect consumers and hold financial institutions to the standards of scrutiny and exactitude required by law, even if it means prosecuting some of our largest corporations. These apparent violations of state law point to schemes that merit federal investigation of large institution lending practices and use of the U.S. Postal Service.”

Last week, GMAC Mortgage announced it had suspended evictions and post-foreclosure closings in 23 states over concerns about employees preparing foreclosures with affidavits submitted to judges containing information they did not personally verify. Yesterday it was announced that JPMorgan Chase and Co hired external counsel to review its affidavit process based on the depositions of Beth Cottrell and is delaying approximately 56,000 current foreclosure proceedings.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

The Honorable Judge
County Court of Common Pleas

Re: Foreclosure Affidavits

Dear Judge XXXXX, I write you, and the other presiding and administrative judges of the Ohio Courts of Common Pleas, to draw your attention to an issue that may be of interest to you.

As you are aware, when a plaintiff in a foreclosure case moves for default or summary judgment, it will attach an affidavit from the lender or mortgage servicer attesting to the ownership and default status of loan. During the last week, questions have arisen about the validity of the foreclosure affidavits filed by a large servicer, GMAC Mortgage. GMAC (also operating as “Ally Financial”) issued a press release on September 20, 2010 announcing that it had directed certain of its vendors to suspend evictions and REO closings because of “a potential issue that was raised in a number of existing foreclosures challenging the internal procedure we used for executing one or more judicially required forms.”

A number of media outlets, including The Washington Post and The New York Times, reported on this statement. The news articles suggest that GMAC’s actions are related to a Florida deposition and a Maine deposition given by one of its employees, Jeffrey Stephan. Mr. Stephan signed thousands of foreclosure affidavits for GMAC, but in his depositions stated that he does not have knowledge of how the information in the affidavit is determined (Deposition of Jeffrey Stephan, June 7, 2010, p 30), does not know how the accuracy of the information is verified (Id.), does not review the exhibits attached to the affidavit (Id., p 54), does not read every paragraph of the affidavit (Id. p 61), and does not have the affidavit notarized in his presence (Id., p 56).

The depositions were not taken by my office, so I do not opine on their accuracy, but I wanted to draw your attention to this issue. At least one court has found that filing affidavits that falsely claim personal knowledge is a violation of the Ohio Consumer Sales Practices Act when filed in connection with consumer transactions. Midland Funding, LLC v. Brent, 644 F. Supp. 2d 961, 977 (N.D. Ohio, 2009).

More broadly, I urge you as administrators to share this letter with your colleagues and urge them to exercise caution when approving any foreclosure orders involving GMAC. Further, I encourage you to consider whether additional administrative procedures need to be established to protect homeowners who are facing the threat of foreclosure. Issues similar to those surrounding GMAC have arisen in Ohio. For example, my office filed an amicus brief in an appellate case where a foreclosure affidavit averred that it was executed in Florida but the jurat and notarization stated that it was executed in New Jersey. The 2nd District Court of Appeals ruled that the trial court did not abuse its discretion by striking the faulty affidavit. HSBC Bank USA v. Thompson, 2010-Ohio-4158.

Please feel free to contact me or my Consumer Protection Section Chief, Susan Choe, at 614.466.1305, if we can be of any assistance regarding this letter.

Thank you.
Sincerely,
Richard Cordray
Ohio Attorney General

CC:
Sarah Lynn, Deputy Chief Counsel, Ohio Attorney General
Susan Choe, Consumer Protection Section Chief, Ohio Attorney General

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© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.