The Salt Lake Tribune ran a story focusing on some rulings in that state that essentially gave homes back to borrowers because nobody could figure out who owned them or who had the right to foreclose.
A Utah court case in which the owner of a Draper townhouse got clear title to the property, even though he still owed $132,000 on it, raises new legal and financial questions about a property-records database created by mortgage bankers.
The award of a title free of liens means that whoever owns the promissory note on the Draper property — likely a group of faraway investors — no longer has the right to foreclose to collect on a delinquent loan. Indeed, the townhouse owner has sold the property and kept the money. Those who own the promissory note probably don’t even know what occurred.
Decisions such as the one 3rd District Judge Glen Iwasaki handed down in the Draper case could have a big impact as the state wends its way through hundreds of lawsuits involving foreclosures, loans on properties for more than they’re worth and predatory lending practices that led Utahns to lose their homes as the real-estate bubble burst.
This is all tied up with MERS, the online database that has stood in for the land records system in as many as 60% of the mortgages in America over the past decade or so. As we’ve seen, MERS is essentially a way for the largest banks to avoid recording fees, by naming them as the mortgagee on the original record and then transferring the mortgage and the note through their database. The problem is that MERS is named as an owner on loans in which it has no financial interest, and the judicial system doesn’t yet know how to manage that. This has confused the hell out of title insurance companies, who cannot determine who holds the note or even who can collect payments on it. As a result, in this case, the courts and the title company failed to figure any of that out, so they gave title back to the homeowner.
The attorney for the man in Draper, Utah, says he has won two other cases this way, and another attorney in Utah got a default judgment giving title to borrowers who owed $417,000 on a home.
The owners of the note could always go back and try to recoup this money, but as Christopher Peterson of the University of Utah says in the article, MERS calls into question their ability to succeed:
Under laws adopted by all 50 states, the owner of a “negotiable instrument” such as a promissory note must be in physical possession of the document, said Peterson. Otherwise it would be like someone trying to cash a photocopy of a check instead of the actual check.
“One cannot be a holder of a note unless one is in physical possession of that note,” he said.
But Peterson said evidence is coming out in courts that shows the actual promissory notes or mortgages signed by buyers were not transferred as the notes made their way into the mortgage-backed securities investment pools.
That could mean in these cases that no one is in a position to try to collect because the actual notes are lost or destroyed, potentially making some promissory notes investors think they hold worthless.
This is essentially the nightmare scenario for the banks. These initial judgments have the effect of turning mortgage backed securities into non mortgage backed securities. If the note never transferred to the mortgage pools, then the investors and their loan servicers cannot foreclose and cannot collect payments. In response, the investors will surely try to put back the securities, which are essentially worthless at that point, on the banks from which they purchased them. And that’s when these enormous losses in the mortgage market go back to the banks. They don’t have enough money to deal with the repurchases.
There’s a case in the Utah Supreme Court right now that would set a precedent disallowing MERS the right to foreclose on any property in the state. Similar lawsuits are working through other state courts. They don’t all have to be successful to essentially invalidate huge numbers of mortgage contracts. If this is not systemic risk, nothing is.
Mike Shedlock calls this a travesty of justice. According to him, the investor gets screwed out of $417,000, in the above case, and a family who “deserved” to lose their house got it free and clear.
This gets the case entirely backwards. When the homeowners signed the mortgage contract, they didn’t request that the bank transfer it multiple times improperly and then throw it into a legal gray area where nobody could determine proper ownership. They did not request that the banks involved use a private database of questionable legal standing instead of the land recording system that worked for hundreds of years. The banks made this mess. The homeowners may be profiting from the consequences (or maybe not; we don’t know the facts of the case), but those consequences came from the actions of the banks. The investors now have every right and responsibility to invalidate the securities. If the law worked as it should, the responsible party for this colossal fuck-up would pay the price.




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The revelations just keep coming:
No. 2 bank overcharged troops on mortgages
NBC News exclusive: JPMorgan Chase also improperly foreclosed on homes
LINK.
In a country operating under the rule of law, this mortgage/MERS mess would be a no brainer. In our plutocracy however, Congress will pass and the President will sign a law either empowering MERS retroactively or for payment from the Treasury of banskers debts. Too big to fail.
How does that song go? “We’ve only just begun………” You ain’t seen nothing yet. Truth of the matter is all these banks are basically bankrupt. Governments around the world are keeping them afloat and pretending they still don’t have a problem, but we all know better. Lemme see now, you have deposits in your bank of let’s say 1 billion. But you owe 10 billion. Hmmmmm. How does that add up again? The amount of money the taxpayers gave these vultures, would not have even put a small dent in the money they owe so them being still alive and open for business is the biggest kabuki theater outside of Congress.
David, forgive me if you’ve answered this elsewhere, but where are the STATES and counties in this mess? They’re getting royally screwed by this tactic of the Big Banks. I’d sure think that some of them would be hot on the trail of MERS.
I also can’t WAIT for the “investors” to come after the banks and hedge funds who sold them these crap “securitized mortgages.” Unfortunately, no small number of the fleeced include pension plans, insurance companies — i.e., “small guys” whose money these folks were entrusted with.
Yes, we do need a hard look at the balance sheets of all those entities which sold securitized mortgages, and those who invested in them — including the liabilities incurred because the collateral is no good.
I wish I were an accountant. I’d trot right down to whoever is contemplating suing/overseeing these criminals and offer my expertise.
I would point out that Mike Shedlock doesn’t completely blame the homeowners for this mess. His opinion is that only 20% of the loans are in default and those are the homeowners fault for lying on their applications, falsifying income statements and the like, and that the balance of the problem is really the fault of the Fed for encouraging this sort of behavior.
I guess he missed that part where originators were submitting applications without client signatures, falsifying income statements and proofs for borrowers and more (how else do you get a no income, no money down loan approved?)just to get the paperwork out the door so they could bundle it with other similar imperfect mortgages to be sold to the investors?
He’s absolutely certain that the fraud was almost solely on the part of the borrowers despite the fact that we’ve had requirements in place since the mid-30s for things like proof of income and such that have simply been ignored by the originators. I mean, try to get an FHA loan, VA loan or Fannie Mae loan without those and see how far you get…
in order to avoid trivial cost of doing business fees the banks were either irresponsible or remiss or both
they are liable for losses if the entities that own the loan find out the banks lost ownership due to their methods of avoiding the payment of their own bills
on the other hand, if a legal notice was served and those who owned the loan did not respond for whatever reason (like they didn’t know they had the loan in the portfolio, then they pretty much abandon their property
my opinion here even though ianal
I know mortgage bankers and “lying on the loan application” was not the problem, the problem was loan officers encouraging “optimistic” answers, for instance if a person had a hobby they could “optimistically” value that property as an asset
what he meant when he said “borrowers lying on loans” was “lenders relaxing their threshold for allowing loans”
Giving new meaning to “superfund toxic clean-up.”
Thank you for the much needed schadenfreude.
not only did the banks make the mess, they asked for it, aggressively lobbied for the right to make these loans, aggressively sought the relaxation of those regulations that would have prevented it
it is entirely their doing and their fault
I never understood how the concept of MERS was supposed to work. And, it turns out, it doesn’t work!
I’m glad to see more and more courts are recognizing the basic nonsense of MERS.
Hope this continues. If it happens enough, maybe these banksters will recognize the value of working with homeowners, and not rushing to foreclose…that might actually prevent foreclosing on people who are not behind in payments, or live in a different house from the one with the delinquent loan, etc., etc., etc.
Mauimom,
I don’t know where other counties/states are, but when I tried to stir my County Clerk (pointing out that if any foreclosures were due to faulty bank practices, our county could perhaps recoup lost ‘recording fees’ (and perhaps fines and penalties????). Too much bother . . . you can call the county attorney, but still, TOO MUCH BOTHER!!! This is the response from a county official (North Florida) where our children get to share textbooks at school because there is not enough funding!
I also want to add;
people who couldn’t afford a loan were not the problem in the housing bubble
the problem were people who COULD afford the loan but realized they could borrow more then the house was worth, if the market crashed they would still have the money and could walk away from the house
there were real estate moguls who bought property after property, turning some over, refinancing others with bank granted equity on homes not worth anywhere near the money loaned against them
THOSE are the real problems not people who couldn’t afford the balloon rate when their mortgage matured
in addition
those balloon mortgages were pushed by the banks and the loan officers, the liability was shrugged off with “by then the house will be worth more and you can re-finance at a fixed rate”
If this stands Mitt just lost all the Bankers money in the Presidential race.
Anecdotally: I requested from CountryWide/Band of America evidence of who owns the note on my mortgage.
I was assured during a phone call that Bank of America never sold its notes. Then I got a form letter saying that they were “in the process of obtaining the documentation and information necessary to address” my questions and concerns. They would provide a more complete response within twenty (20) business days. That was addressed on November 29, 2010. Nary another word since.
they seem to get promoted up when they fail though
it’s a republican thing
Wowow.
This is really important and I don’t see Congress being able to go back and fix this retroactively now. See, the problem with FISA was they went back and ‘fixed’ it before any of the cases (which they were able to control with state secrets arguments) could be resolved in favor of the rule of law!
The plutocracy doesn’t have the same control over the mortgage mess, so cases are being addressed at the state level ‘already’ without benefit of the delays and secrecy that we saw with FISA.
They may try to bail the banks out but that will only heighten the debate about bailouts (for whom?) and deficit reduction (by whom?) which will advance our arguments rather than cancelling them!
Besides … let the banks re-allocate their obscene bonuses if this is such a problem for them … there’s money and profits there. Cost of “doing business” …
Exactly! MERS doesn’t work!
And that is the answer of course: work it out with the owners so a fair return on the mortgage is provided to everyone. The banks CAN save themselves if they so choose …
Go Dearie! Brava!
It’s almost too easy when you can actually catch ‘em, huh.
It’s amazing these crooks can’t even follow their own rules they pushed so hard to have put in place. The government needs to step in and clean house before they can flee with their “golden parachutes” ….(yea right like that will happen). It high time the common man is able to use the laws to his advantage instead of getting screwed by them. Just think of the stimulus affect of having everybody own their homes free and clear.
There is justice in America after all! In Utah no less.
It’s trivial, but multiply it by hundreds of thousands of transactions and you start to get big money. Plus, they projected those fees into the future, and no doubt booked the capitalized value as income (just like ENRON did). This nickle-and-diming is one of many outcomes of the general trend towards greater aggregation of financial power and the ability to capitalize every penny of gain, and to throw the risk of that capitalization on to unsuspecting parties.
Agreed, no one told/ordered the Lenders to forgo due diligence. The lenders chose this course, in order to generate larger short term profits.
MERS works fine as an offensive weapon: it forecloses just fine on delinquent mortgagors. Defensively, though, it seems to have serious problems. (and virtually all of the big anti-MERS rulings, from the various b’cy cases to the Kansas SC case, have been *defensive*, where someone had to provide notice and didn’t bother to give notice to MERS)
If they forewent the fees, then they never booked them as revenue.
I made the same request (at the behest of and using a form letter from SEIU) to my lender (WF) on 11/22/10. The supposed 20-biz-day legal deadline for them to acknowledge my request has come and gone with no word, and the 60-day deadline by which they “must try to resolve the issue” is fast approaching.
IIRC, there was just a ruling or court decision or something holding that the banks have to reply to those requests even if it’s not in a format that the banks like (some bank got a request and said “this isn’t a *real* request, so we’re not going to acknowledge it.”). Let me know if you want me to dig that up.
I read a story, can’t find it now, that one person requesting such information had their credit rating damaged by the Mortgage Bank, B of A, who claimed a “dispute.” The person had never been in arrears or late with a payment…credit rating was dropped 40 pts. The Banks extract revenge for asserting your rights.
One reason Beltway Villagers agree that the federal government’s entirely manageable deficit (undoing Bush’s tax cuts would render it harmless over several years) is the worst threat to America evah is that they must know the banks will come crawling for another bailout – legal or financial – quite soon and that they will be powerless to Just Say No.
I agree with your analysis. This mess is entirely owing to the banks intentional, planful, knowing conduct. (I would love to see the series of legal opinions that told the designers of MERS it would have none of these problems.) They should pay the price, as should, in part, investors, not the USG or homeowners.
An obvious though too rational – in fact, an oddly now outside the box – response would be for banks to attempt to avoid foreclosures by renegotiating loans and agreeing to write downs that enabled borrowers to repay the bulk of what they owed; that allowed them to stay in their homes, to keep themselves and the communities they comprise whole and optimistic; allowing them to manage or grow out of our current economic debacle, much of which also is owing to the machinations of the financial system.
Instead, Timmeh Geithner will once again be dispatched to the banksters to ask them what they want, which Mr. Obama and this Congress will readily and greedily hand them over.
It’s not personal, it’s strictly business.
Seems like I read that too, wouldn’t mind seeing it again if you can easily fish it out.
And to pajarito@28… there’s a warning to that effect (concerning the lenders f’ing with your credit rating) on the SEIU website:
http://action.seiu.org/page/speakout/wheresthenote
I’m really not concerned much about the status of my mortgage, nor with my credit rating… just wanted to hop on the bandwagon for f’ing with the bansksters with my request, notwithstanding the possibility of blowback from the PTB (sort of like an online petition).
Exactly. Nothing about this business is trivial, since only a relatively few players aggregate supposedly trivial fees into billions of dollars. The aggregate cost to the system is whopping, just as are ATM fees and CC late fees. They system is now built on such fees; they are not collateral costs, they the foundation stone of bank profits.
That’s especially true now that few lenders keep a loan to maturity to make what’s now regarded as a paltry return by charging legitimate rates of interest. Their primary business is generating these fees, then selling off the underlying assets to credulous investors as quickly as possible.
It’s Catalan v GMAC. It caught my eye because Easterbrook (an eminent jurist on the appeals court, for the benefit of others) wrote the opinion.
Excerpt:
Don’t worry…Obama and Geithner will put an end to the economic justice coming out of Utah soon enough.
muchas gracias! guess i’m not planning any legal action though.
Mish has a point, the borrower is getting a windfall because the lender screwed up. Would make more sense to treat these mortgage interests like the estate of someone who dies without heirs or a will, the property escheats to the state. The borrower can just start making payments to (or renegotiating mortgage terms with) their state government.
Economic justice is a stones throw away from social justice which if you watch glenn beck enough tips you off to the fact that economic justice will lead to stalin coming back from the dead and since he was impregnated by hitler, mao AND Obama in hell, he’ll give birth to the antichrist george soros.
On a more serious note, Geithner will convene a board of very serious people to conduct very serious business in a very serious way and will come up with a very “centrist” compromise that the very serious pundits on every serious show will call a serious bipartisanship effort, both parties will shake hands and uncork their champagne while these rulings are reversed and the laws rewritten in favor of the banks.
I disagree. The banks would just find some way to get the escheat transferred back to them, or become contract servicers for the states, or some such. Besides, for the banks, losing the property to the state is one thing, but losing it to an actual commoner, a serf? Horrors! The indignity!
You have a way with biting sarcasm, and a clear crystal ball.
Not true. The security for the note is extinguished, and so is ht ability to foreclose.
The note is still valid, but unsecured. If the note is available.
If the note is destroyed by the note holder, that action extinguished the debt, just s tearing up a check destroys the check.
I believed this too, but it must be hard (possibly impossible) because it has not happened.
Some people wish they had the ability to see the future, but I know that it is a curse.
I first noticed my power when I saw a certain republican candidate in 2000 and I said to myself, “This guy is going to **** us over.”
My power of prediction grew each time I saw a right wing politician or candidate on television and I couldn’t help but think, “He’s going to **** us over.”
My powers fully matured when I started saying “This guys about to **** us over,” when “hardcore ultra mondo mega liberals” in congress started saying they’d approach reform with “pragmatism.”
I can proudly say that my powers haven’t been wrong once, every last one of them has ****ed us over in newer and more innovative ways.
…Now if only my psychic powers would tell me which lottery numbers to pick.
“Note? We don’t need no stinkin’ note.”
Look how well that thought process worked out.
I suspect, but would love to be a fly on the Goldman boardroom wall in order to know for sure, but Wall Streeters rarely, if ever, complain when an windfall runs their way, and never, ever give it back short of figuratively armed conflict. Notions of social justice and the Protestant work ethic do not apply to them.
Moreover, the idea of having these titles escheat to the state is unworkable, never more so than in this era of GOP-driven madness about federal deficits and real state deficits that shrivel the state’s ability to open its doors, let alone operate in a rational manner.
I hope the greedy mother-fuckers choke on their worthless garbage.
In the buildup to the housing bubble, banks and mortgage companies were acting in reckless disregard for the basic principals of lending. There was rampant fraud and greed on every level. Volume, volume, volume was all that mattered and big up front loan fees. Later when everything went south, screwing the borrower was fine with the lenders because it generated more short term fees. Now, in a FEW possibly precident setting cases, the borrowers have one up on the lenders. Let’s hope these cases do set a precident that results in wide spread interest and length of time to repay modifications so that many can stay in their homes. That is the only thing that will begin restoration of the housing market and the economy. The banks have acted unbelievably callous and possibly criminal in dealing with their borrowers. It amazes me that the big banks have any customers as far as CD, savings and checking accounts and credits cards left. Why wouldn’t every American switch to a local bank or credit union where they treat you decently?
After many injustices, too numerous to begin to tell, during 12 years of having my mortgage with Bank of America, the latest round of persecution began in September of last year. Once again I was informed that I needed to purchase individual flood insurance on my condo, which has a master policy. The year before I was told that they had absolutely no interest in my individual policy, they were only interested in the master policy. Reluctantly I did not purchase flood insurance that year. Needless to say, following many letters and phone calls, taking many hours of my life, as well as many hours by my insurance agency, and my daughter-in-law, during the course of which every representative presented a different opinion, yet always assured me everything was in order, I received another letter, stating they had now purchased flood insurance, as I had not contacted them, and the cost would be added to my escrow account (no escrow account ever existed) and my monthly mortgage payment would be raised. I was on my way to the airport, and called them from the car, letting them know I would not return until a month later, and would take care of this matter then. They stated they could not make any exceptions, and the insurance they had purchased for me would remain in power, and I would pay for it. I did not bother to tell them that I was already in the process of obtaining a mortgage through a local bank.
The representative stated that she was not in charge, and that she could not take any action. My friends, I have to admit that I lost it. I told her that though she may not be responsible for any of this, I knew that they were making a recording of this call, and that I demand she play it for her superiors, and their superiors, etc.
I then told her that the entire country knows that Bank of America are crooks and liars, that I hope the bank fails as rapidly as possible, and there is no bailout. I was quite emphatic that I hoped all of their executives would wind up in jail, and that there would be great pain, weeping and gnashing of teeth. I stated everybody in this country knows that they illegally repossessed homes based on fake documents signed by people who had no idea what they were doing, that they sold the same mortgages over and over, and nobody really has any idea who owns what. I may have blacked out with rage, for I am not quite sure what else I might have said. I then recommended to her that maybe she should find another job, unless she can live with working for a company that she knows to be fraudulent.
After this outburst I was convinced that I would probably be arrested upon returning to the United States from Europe. Strangely to this day nobody apparently wishes to speak to me about this phone call or anything else. I now have a mortgage with a very reputable local bank, where I am treated kindly.
Oh, I did mention to them that I know many people, and will make it my mission in life to convince all of them not to have dealings of any kind with Bank of America. I also casually mentioned that I spend a lot of time blogging.
I have just asked for a writ of permission to appeal to the TN. Supreme Court in my case, Mills v. First Horizon.
See the TN Court of Appeals decision here:
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20TNCO%2020101116517.xml&docbase=CSLWAR3-2007-CURR
I am not in default. My argument is that the MERS loan on my property is invalid. I allege that the separation of the note and deed of trust are deliberate and intentional, and through the use of MERS as a strawman lienholder, the recordation process is transformed from a public, transparent and open system to a private one, thus making the lien void as against public policy. I allege it is also void because MERS is not a true beneficiary, and for a deed of trust to be valid it must have a true beneficiary. I allege my note is lost and the lien fails for lack of an enforceable note. I allege that the noteholder is unknown, and my servicer as the agent of the noteholder, has no authority to demand payments of me without disclosing the identity of the noteholder and proof of authority to act on behalf of the noteholder, and have asked for a cease and desist order against the servicer. And many more things — including the return of my payments on my second lien note when I paid it off and was never sent the original note back.
The court of appeals held my case is not ripe because I am not in default and because no one is trying to collect against me on my paid off second mortgage lien note.
My application to the Supreme Court of TN was filed on Friday September, 11, 2011. I hope the Supreme Court will take the case because the Court of Appeals reversed/ignored existing law and because the opinion is just simply awful.
The financial regulations bill passed last year now forbids bailouts.
My application can be found here:
http://www.scribd.com/doc/47056911/MillsV-FirstHorizonSupremeCourtBriefAsFiledWithAppendix
It sounds like the notes are long gone (and since a photocopy won’t cut it, the debt as well).
A case like this also bring bankruptcy into the equation big time. If any of these homeowners file for bankruptcy, this debt now gets treated as an unsecured debt and the likelihood is that a significant portion of it will end up discharged.
Something tells me that the Bankruptcy Courts are going to end up playing a big role in the foreclosure mess before everything quiets down. Congress may have denied the Court the power to cram down a mortgage modification, but the Courts do have the authority to rule on contested claims with the added kicker that all property rights in Bankruptcy Court are decided by reference to State law. So, a challenge to whether a claim is secured or not might be a winner take all contest for the banks.