In a letter to the Financial Stability Oversight Council, the board made up of chief regulators of the financial industry, Rep. Alan Grayson has called for a national moratorium on all foreclosures because of the systemic risk of fraudulent practices.

Grayson has essentially taken this up a notch, beyond the documentation problems that were the source of the anguish over the now-vetoed HR3808. He thinks, as I do, that the documentation fraud covers a much larger fraud, rooted in the securitization of mortgages and the improper processes in which that slicing and dicing played out. This has confused the chain of ownership of the titles of the properties, throwing into question not just foreclosures but the mortgage-backed securities behind them, which represents trillions of dollars. So there’s more than enough reason for the FSOC to step in.

Yves Smith, who has done excellent work on this, reacts:

Although the data points we have seen so far could be considered anecdotal, we have evidence that strongly suggests that major RMBS originators, the investment bank packagers, and the bank trustees failed to convey the notes (the borrower IOU, which is critical to having the legal standing to foreclose in 45 states) to the RMBS trusts starting in 2005, perhaps even earlier. And comments from industry insiders suggest this problem is pervasive.

That puts a cloud over the entire US RMBS market, the biggest asset class in the world. This paper was sold as secured; the ability to offset the cost of borrower defaults by seizing and selling his house is critical to the value of the instruments. And if no assets were conveyed to a particular trust by closing, an even uglier possibility exists: under New York law, which was elected by RMBS as governing law for the trust, it would be considered to be “unfunded”, which means it does not exist.

Where do we go from here? Smith reasons that Congress could somehow pass a law to indemnify the banks, but there would be a lot of state and federal statutes bumping up against one another. Or, the government could move to massively refinance or otherwise encourage the modification of all mortgages owned by Fannie and Freddie, effectively all mortgages. That could also be the outcome of settlements from class action or Attorney General lawsuits, where the banks would move to cut their losses. Or, the banks can resist, the attorneys can carp at one another, and the problem doesn’t get resolved.

Grayson sees a way out. He believes that the amount of MBS makes foreclosure fraud a dead-solid systemic risk, which should prompt action from the FSOC. I’ll bet they never expected to have to make such a decision so quickly. Here’s the remedy that Grayson seeks:

I write to encourage the FSOC to appoint an emergency task force on foreclosure fraud as a potential systemic risk. I am also writing to ask the members of the FSOC to use their regulatory authority to impose a foreclosure moratorium on all mortgages originated and securitized between 2005-2008, until this task force is able to understand and mitigate the systemic risk posed by the foreclosure fraud crisis [...]

The liability here for the major banks is potentially enormous, and can lead to a systemic risk. Fortunately, the Dodd-Frank financial reform legislation includes a resolution process for these banks. More importantly, these foreclosures are devastating neighborhoods, families, and cities all over the country. Each foreclosure costs tens of thousands of dollars to a municipality, lowers property values, and makes bank failures more likely.

Grayson is being very canny here, and he happens to be absolutely right. This is the next wave of the financial crisis, playing out in slow motion, and either the banks get away with perpetrating fraud on homeowners, or they eat most of the downside. Dodd-Frank’s resolution authority and systemic risk council was supposedly designed to meet such a test. So, meet it.

The letter was addressed to the current members of the FSOC, made up of the Treasury Secretary (who leads it), the heads of the Federal Reserve, CFTC, SEC, FDIC, OCC, FHA and the NCUA. I linked to it, but it’s also available below.

October 7, 2010

Dear Secretary Geithner and members of the Financial Stability Oversight Council (FSOC),

The FSOC is tasked with ensuring the financial stability of the United States, which includes identifying and addressing possible systemic risks. There is a well-documented wave of foreclosure fraud sweeping the country that presents such a risk. Bank of America and JP Morgan Chase have both suspended foreclosures in 23 states where that fraud could be uncovered and stopped by the courts. Connecticut has suspended foreclosures.

I write to encourage the FSOC to appoint an emergency task force on foreclosure fraud as a potential systemic risk. I am also writing to ask the members of the FSOC to use their regulatory authority to impose a foreclosure moratorium on all mortgages originated and securitized between 2005-2008, until this task force is able to understand and mitigate the systemic risk posed by the foreclosure fraud crisis.

So far, banks are claiming that the many forged documents uncovered by courts and attorneys represent a simple ‘technical problem’ with foreclosure processes. This is not true. What is happening is fraud to cover up fraud.

The mortgage lending boom saw the proliferation of predatory lending and mortgage fraud, what the FBI called at the time ‘an epidemic of mortgage fraud.’ Much of this was lender-induced.

When lenders – many of whom are now out of business – originally lent money to borrowers, they often did so knowing that the terms of the loans could not possibly be honored. They sought fees, not repayment. These lenders put people in predatory loans, they induced massive amounts of fraud, and Wall Street banks misrepresented these loans to investors when they moved through the securitization chain. They were stealing money from investors, and from homeowners.

Obviously these originators and servicers didn’t keep good records of who owed what to whom because the point was never about getting paid back, it was about moving as much loan volume as possible as quickly and as cheaply as possible. The banks didn’t keep good records, and there is good reason to believe in many if not virtually all cases during this period, failed to transfer the notes, which is the borrower IOUs in accordance with the requirements of their own pooling and servicing agreements. As a result, the notes may be put out of eligibility for the trust under New York law, which governs these securitizations. Potential cures for the note may, according to certain legal experts, be contrary to IRS rules governing REMICs. As a result, loan servicers and trusts simply lack standing to foreclose. The remedy has been foreclosure fraud, including the widespread fabrication of documents.

There are now trillions of dollars of securitizations of these loans in the hands of investors. The trusts holding these loans are in a legal gray area, as the mortgage titles were never officially transferred to the trusts. The result of this is foreclosure fraud on a massive scale, including foreclosures on people without mortgages or who are on time with their payments.

The liability here for the major banks is potentially enormous, and can lead to a systemic risk. Fortunately, the Dodd-Frank financial reform legislation includes a resolution process for these banks. More importantly, these foreclosures are devastating neighborhoods, families, and cities all over the country. Each foreclosure costs tens of thousands of dollars to a municipality, lowers property values, and makes bank failures more likely.

I appreciate your willingness to assess possible systemic risks to the country, and would again encourage you to suspend foreclosures until this problem is understood and its ramifications dealt with.