So we now have the complaint in Massachusetts Attorney General Martha Coakley’s lawsuit against five big banks for foreclosure fraud, the first lawsuit to directly target banks for robo-signing (Catherine Cortez Masto in Nevada went after some low-level employees of document processing company LPS, but hasn’t worked her way up to the banks yet).
Simply put, Coakley seeks penalties for “unfair and deceptive practices” in violation of state consumer protection laws, in particular the Massachusetts Consumer Protection Act. The top list of complaints tells the story:
1. Engaging in unfair and deceptive foreclosure practices by conducting foreclosures when the defendants lacked the right to do so and misrepresenting to homeowners their roles as mortgagees or as the holders of the mortgages;
2. Engaging in false documentation practices to facilitate their foreclosure practices;
3. Deceiving homeowners in the course of servicing mortgage loans by misrepresenting to borrowers regarding its loan modification programs, acting deceptively in implementing loan modifications and deceiving borrowers regarding foreclosure proceedings; and
4. Failing to comply with Massachusetts’ registration statute.
That’s a pretty clear rendering of what went on. Notice that she tags robo-signing and document fraud (in #2) as a facilitator for the main crime, which is to foreclose on borrowers without the legal standing to do so. To prove this, Coakley cites the Ibanez decision, and the upholding of it recently in Belivacqua, which clearly states that, under Massachusetts law, “any effort to foreclose by a party lacking jurisdiction and authority to carry out a foreclosure under the relevant statutes is void.” The layman’s term for that is “stealing homes.” Coakley is accusing banks of stealing homes. They didn’t have the proper proof of ownership to take control of the homes in a foreclosure, and they did it anyway, by forging documents and committing fraud upon state courts.
Then there’s this ancillary point about mortgage servicing abuse, kind of a separate claim against the banks but one that fits well. Because the argument here is that the servicers have lied to borrowers about loan modification programs, deceptively strung them out and then engaged in foreclosures instead of granting the modifications. We know that servicers have a financial incentive to foreclose over modifying, regardless of the extreme disincentive from the standpoint of the general economy or the investors the servicers are supposed to work for. The one fly in the ointment here is that nobody can prove ownership of the underlying loan. But this ruins the servicer’s ingenious plan to force people into foreclosure rather than modifying their loans! So that’s where the document fraud comes in.
“Failing to comply with Massachusetts’ registration statute” refers to the MERS, and the (in Coakley’s eyes) unlawful system of private mortgage registration and transfer. The complaint mentions that MERS’ creation was a scheme to avoid county recording fees on mortgage transfers, and that “defendants ignored long-standing and well-established statutory requirements intended to protect property titles and their owners through the land title registration system. Their failure to follow these procedures solely to avoid paying registration fees — and without regard to the impact on the integrity of either the land title registration system or Massachusetts consumers — is unfair and deceptive.”
So this is a lawsuit against MERS as well as against the banks for foreclosure fraud. It includes elements of all the fraud and abuse we’ve seen from the industry throughout the past several years.
The lawsuit is very readable. It provides illustrative examples of homes illegally foreclosed on, of homeowners abused by the system. The claims for relief begin on page 54. Coakley asks for $5,000 per violation, and considering the breadth of the lawsuit, those violations could add up. Every illegal transfer under MERS, for example, is one violation. There are additional fees and claims of restitution sought, as well as this:
Requiring each of the Bank Defendants to take all actions necessary to cure defects in title resulting from its initiation of foreclosure proceedings on mortgages secured by land within the Commonwealth where (i) it was not the holder of such mortgages or (ii) it published notices that failed to accurately identify the present holder of the mortgage; and
Requiring the defendants to take all action necessary to cure defects in title resulting from their failure to register all assignments or transfers of beneficial interests in mortgages secured by registered land in the Commonwealth.
This is a big deal. In some cases there isn’t really a way to cure title: the true ownership of the property has become confused, or the statute of limitations on fixing the securitization has run out. The only way I can see where satisfaction could be reached is on a new mortgage, with the expectation of a mass principal write-down or some other accommodation, that cures title. In her press conference (which I wasn’t able to see), Coakley said that she was moving forward because the banks were proving unwilling to deliver any benefits to homeowners in the global settlement. They wanted too much liability release and wanted to deliver too little in return.
This is how you drive a bargain. If the other side refuses to go along with demands, you use the tools at your disposal. You do the investigation and you sue the pants of the offending party. You don’t go into an investigation by leaping right to the settlement. You carry out a credible threat. Maybe Coakley wasn’t a great Senate candidate. But she’s a damn sight better negotiator than anyone on the AG settlement. And that’s because she displays a responsibility to homeowners in her state and not bankers. The AG settlement is a sham, and if it wasn’t, every AG in the country would be doing this to secure the maximum benefit for homeowners as a result of their being abused in a criminal enterprise. This is a telling statement from a JP Morgan Chase spokesman:
“We are disappointed that Massachusetts would take this action now when negotiations are ongoing with the attorneys general and the federal government on a broader settlement that could bring immediate relief to Massachusetts borrowers rather than years of contested legal proceedings,” a spokesman from JP Morgan Chase tells CNBC.
Shorter version: “We really like how the AGs are trying to give us immunity. Coakley should try that.”




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foreclosing on the foreclosers?
If they can not prove who owns the loan, then how can they modify the loan? If the owner signs a new document for different loan terms, how do they or a future court know which are the preeminent terms? Is it the new loan, signed with an unverifiable servicer/owner, or the original loan which can not be documented? Maybe this is another reason that they are not modifying loans, they can’t?
For those interested: video is now available of AG Coakley’s press conference today. Thanks!
“Every illegal transfer under MERS, for example, is one violation.”
Considering that MERS did not enter or log every single transfer, how is she going to know how many violations exist for each loan?
Thank you! I’ve been saying this exact thing for over a year now with no one willing to answer that question.
This is all true. There is still a contract with a homeowner for a set amount of debt, however, and even with the broken chain of title, it’s unsecured debt on the part of the homeowner. As part of a summary judgement, there could be a ruling for what is called in legal terms an “equitable mortgage,” where the debt is extinguished and the title restored with a new loan at the market rate. And the judge would have a lot of discretion in that ruling to set the terms for the loan. We’re in pretty uncharted territory with all of this but I could see that being an ultimate result.
You go girl!!!!!!
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What????
Coakley, Smokely. Her 15 minutes of waiting to be bought off.
Yay!!! This is exactly what I’ve been waiting for, ever since Cynthia Kouril (God bless her, and I hope I spelled her name right) brought these issues to our attention right here, so long ago. It’s been a long wait, but this could be the thing that blows the pants off the highest levels of the oligarchy’s power structure. This shit runs deep, and wide, and nasty. That’s why the PTB have been trying sooooo hard to bury it.
Thanks for the info and she better hurry because she won’t win her next election just too much $$$$$$$$$$$$$$$$$ and then there’s the feds protection racket for the
elitecriminal class.Sorry if it has been answered already, but does Elizabeth Warren have a position on this?
Maybe she should run for POTUS. I’d love to see a kick ass- take names woman at the helm.
Coakley, allegedly a D who couldn’t even win a senate seat in MA that used to be “occupied” by a Kennedy. Why should she have any creds?
Masto’s prosecutions are criminal, not civil, and who can say if she continues with a grand jury?
Lousy campaigner, good AG?
Do you have any evidence that she is good at anything?
I’m open to your hypothesis.
It sounds tedious, though unavoidable.
One can only wonder how many homeowners in the state might be affected. It would certainly not be just the most obvious, those facing foreclosure. Others current in their payments who decide to sell and move could be stopped in their tracks by a buyer’s attorney applying new levels of title scrutiny to protect the purchaser/client. A defect would be uncovered then which might not have been noticed in times past?
It’ll become a new cottage industry for the lawyers here, who are already pretty well off. Will the state need to legislate liability for title defects on the banks, if that isn’t already on the books?
Asking for evidence. Have you no shame?
I bet she always did her homework for school and got good grades. Also complimented her women teachers, their hair, new outfits, and cute collar pins.
Well, joeblue, if you want such a woman, as well as one who has also built up the currency of TRUST, then you’d be far better off with Jane Hamsher, Marcy Wheeler, or eCAHN … among quite a few others …
Frankly, why would ANY one want another politician, of whatever “stripe” or tripe to have “power” after what most of us have seen and experienced for more years than we may happily care to remember?
If Coakley actually proves to be of value as an Attorney General, then leave her to that role until her term expires and then she can return to “civilian” life.
This “business” of career politicians is the bane of actual democracy and creates a political class, of which the media is a part, which has, generally, no genuine connection to “the people” and which owes it allegience (and existence) to money (or those who have “money”, whether human beings or corporate “persons”).
DW
Nothing beyond DD’s optimistic take, i.e., her staring down the global settlement and going at them. It would seem to be a favorable development in the 99 vs. 1%.
The Rs have no shame for their bad behavior. Don’t know why I should have any for mine.
Wow. I always did my homework (except for that VN war project in the early 60s when I couldn’t make heads or tails out of what was happening from newspaper articles) and got good grades. But I never thought to compliment my teachers (almost all of whom were female) on their appearances. Now you tell me.
Until they start sending some of these corporate crooks to jail nothing will change.
It appears to me that she is taking action and not talking out of her ass is what attracted me to her, that’s all I’m saying. Sure I’ll vote for Jane if she runs for something. I’d like to skip the B.S. too and head straight to revolution but that ain’t happening.
This is surely positive news and I hope it spreads rapidly and vociferously across this country.
But, we also know the reality, the banks will keep it in the courts for years and get away with much of what they want.
We need to help the Attorneys General & staff of lawyers in any way we can. If a group can get organized with follow-up on specific people who are falling threw the cracks that are not listed by this Attorneys General. Create signs and photographs of people being displaced, those human dimensions to display before a judge, it will make the process go faster and the judge and jury can be convinced how illegal these banks have acted.
We need all the help on a national level, just like collecting the signatures for ousting our present Govenor of WI.
If a corporation does it, it’s not a crime.
The only crooks who get sent to jail as those who defraud rich people, like Madoff.
(Every time I type his name, I have to giggle. He didn’t quite Makeoff did he.)
That actually happened to my wife and I in the late 80s. After a number of transfers a mortgage servicer folded abruptly and the mortgage was not correctly transferred to the company that took over. This wasn’t discovered till we decided to refinance a couple of years later to take advantage of a big drop in rates.
Fortunately there was still a paper trail – it still took us a couple of grand to get the paperwork fixed. FYI – Title Insurance didn’t cover it – we were out of pocket.
That was close to 20 years ago – bet it would be a LOT more expensive now, particularly if MERS had actually lost the paper trail and then the bank forged documents. I suspect there’s a large number of quietly ticking titles waiting to blow up on whoever buys a foreclosed house where MERS was involved.
BC corps are SUPERPEOPLE!
Looked her up on wiki (for what that is worth) she seems a mixed bag. hard to tell what she stands for?
I’d be curious if anyone can cite any cases where title insurance actually, well, um, ya know, paid.
As I’ve typed often, insurance is the ultimate moral hazard biz. Collect premiums, pay no claims.
I know nothing about title insurance, but it seems to operate in the penumbra, which makes me suspect that it gets away with everything.
Anyone who knows about title insurance, chime in. Seems like an opportune moment. What are the company names? What are their P/Es? Has anyone examined their income statements?
Hard to tell what a pol stands for??!! Seems like a high recommendation for a pol in this day & age.
Usual conclusion is that pol stands for corp donors, so not knowing what she stands for is a definite step above that.
Curious now she has filed this, could she not go for an injunction to stop banks foreclosing where they are unable to show clear title?
No, if the mortgage holder can’t show they attained the mortgage correctly, it’s also unclear who the homeowner should pay. If the mortgage holder attempts to foreclose without proper posession of the mortgage, that’s a form of theft – there’s a damn good reason why the requirements for transfer of mortgage liens were so stringent – before the banks and MERS decided it was “too much trouble”.
I would suggest that OWS is evidence that a revolution in understanding IS happening … and many of us have been encouraging that understanding for half a century, consider that the accelerating rate of understanding may well become the essential foundation for meaningful change.
THIS time, the revolution, unlike the last “American Revolution”, must include all of “the people” … and despite what some may imagine, continuing to support the old, failed “system” will not result in necessary change … but only, painfully and destructively, delay the inevitable.
What exists will crumble under its own weight of intentional and deliberate failure … and the PTB and their Masters, are playing a “end game” … having NO clue what to “do” but to rachet up the violence, the insanity, and the vile inhumanity.
That is how I see “things”.
YMMV.
DW
Title Insurance really only covers the initial transfer on the loan origination (at least in our case – which happened to be in MA). It didn’t cover subsequent transfers of the lien between servicers.
True, but I think it has always been that way. It is just more obvious now because msm no longer controls all the information.
meanwhile in france sarkozy just gave speech, saying we might have to give up a little, itzy, tiny, wee bit of our sovereignty for the greater good. All part of the plan put in place a long time ago.
I’ve never bothered with title insurance. Is it a one-time fee you pay at initial closing? Was it a significant or trivial sum? (If you don’t mind answering my stupid Qs, I’d appreciate it.)
Sark, Savior of Europe. (And Libya.)
Amazing how it’s worked out so well for him & Merk. /s
Photograph of person being displaced;
http://www.bagnewsnotes.com/2009/02/the-great-unraveling/
Thanks. How humiliating and depressing that must have been for her and her family.
Replicated tens of thousands of times over — while the POTUS praised the crooks.
He is a bad man.
Back in MA 20 years ago it was around $150, IIRC. It was $451 on the refi we did late this summer (got the docs right here in the cabinet next to me)- and the Lender paid the cost. (Yeah, yeah – probably snuck something in somewhere else – but they were nicely subtle about it – and the reduction in interest rates and the payment was toothsome.)
First time that’s happened, I think. Hmmm – I wonder what events would have made the lender actually insist on buying the Title Insurance themselves. Since they were the same folks we did the last refi with and I was planning to forgo on this round since the mortgage had stayed put (unusual), I suspect at least some mortgage issuers are hearing the ticking and putting in some firewalls even if it does cost them a bit.
Oops – forgot to address part of your initial question – yes, one time fee at initial closing.
I don’t think that scenario would necessarily require a foreclosure in the mix. Anytime the deed doesn’t reflect what it should would raise a red flag, especially nowadays.
There must be a lot like that.
Your situation could have been a lot worse, where a desperate owner/seller unable to reconstruct the chain chose strategic default instead.
~
that established the public protectors as – AG MA, AZ, DE, NY, MN – and in CA the question has yet to be answered if the AG CA is a public servant or a politician who can be bought off.
folks, what is happening here is one of the biggest ‘get outta jail for free’ collusive pay-offs in US history. FDL readers who live in any of the remaining 44 states – please consider calling your state AG and asking very simply and directly : “Do you favor protecting the bankers from legal action or protecting the interests of the citizens?” and then advising them that you will not vote for them if they choose the bankers over the people…a very simple question and a very simple statement.
The Obama justice department is currently working with banker friendly AGs to browbeat the other states to accept a pay-off from the banks to give them immunity from prosecution for the myriad crimes that they have committed that have been effectively and voluminously documented.
If you are concerned that America’s system of justice has become 2 tiered – where rich and powerful criminals never get indicted or imprisoned, but common citizens are aggressively attacked and prosecuted for simply attempting to excersize their constitutional rights, I implore you to contact your AGO and demand investigations, indictments and jail time for the class of financial criminals who have taken over the country.
The bank’s insistence on buying the title insurance may have had to do with standardization for a subsequent portfolio. On the other hand perhaps if the borrower were charged for the insurance then the borrower could then choose among all two or three of the insurers. There was an article in Forbes about this a few years ago, with info which is probably defunct now.
Also the bank may have had a contract with a certain insurance company, which provided a big discount. There may have been kickbacks, etc.
Also, your mortgage “staying put”. . . sounds like a home equity product. I have one of those myself, as the first mortgage. It can’t be sold.
You’ve got to be kidding. Jane Hamsher, Marcy Wheeler, and e-cahn?
Among others …
Very serious, karenb, such human beings, as these three are, all of whom do the serious investigation and act from principle are, PRECISELY, what this society needs; citizens who are able to understand what is necessary to humanity and then who dare, as we have witnessed, to STAND, steadfast, for what is necessary, needful, just, and honestly proper.
As, I am certain, you will agree?
DW
Hi, DW. We seem to be missing each other a lot lately. Well, at least, I’m missing you. ;-) Hope you’ve been spending your time productively, amigo.
Tick, tick, tick …
Nope, we had both a HELOC and a mortgage with the same lender. (I’m well aware ofthe differences, maa872 – been using HELOCs since the 80s – very nice to have if you are careful.) They kept both.
In fact, at the time we previously refinanced (and we were able to simply continue the HELOC since we were also refinancing with the same lender), the interest rate on the HELOC was so ridiculously low that I asked if I could simply pay the mortgage off with the HELOC.
They said “nice try, but no”. That was a miss on my part – I could have transferred almost 3/4 of my mortgage into the HELOC at about 1% (WTF!!), paid the rest of the mortgage down, etc. Ah well – I’ll know better next time.
Generally the title insurance one buys at closing (the buyer usually pays) actually protects the LENDER. If you want to protect yourself, you have to pay extra for an OWNER’S title insurance policy. In my view, all insurance has turned into legalized extortion. Oh wait. EVERYTHING has turned into legalized extortion.
Sounds nefarious! You shouldn’t have asked.
But once you asked and didn’t like tha answer, you could still have dipped into your line for the payoff amount and simply transferred it to checking (maybe even at another bank). A few days later you could withdraw that same amount in an official bank check and pay off the mortgage.
BTW not all home equities are HELOCS. There are fixed rate HELOANS as well (I have one) which can take the first lien position and are amortized like a conventional mortgage. But due to the way a HELOAN is written and set up, a HELOAN generally cannot be sold since it’s not standardized for those portfolios.
At least that was the case until a couple of years ago. . . Even so, while you may have the same bank there all the while, the servicer might change. The bank will hire whichever servicer will lowball the fee charged to the bank for servicing. My servicer has changed twice in the past 5 years.
if mortgage is assigned from original holder to mers system and then mortgage is sold to 3rd party as part of securitation scheme, how can mers then assign mortgage to servicer who then forecloses? seems like mers must be the party to foreclose but since they have already assigned to 3rd party, they cant assign what they dont have/..does this make any sense?
it appears from recent mass cases, mers cant assign what they dont own, so all foreclosures that are generated by bogus assignments are void!
I’m 62 I know what’s gone on in the last 50 years and it’s not been a revolution that’s done alot for working people. The system is rotten, I get that but it’s not going to stop me from supporting someone that is in that system and is doing the right thing rather than sitting around in my smoking jacket spouting platitudes. If she’s doing it for show then I’ll stop supporting her.If the empire crumbles it won’t be because Coakly went after the banks.I used to belong to VVAW and protested against the war every chance I got. Did I help stop it, Doubtful. You need to get your boot off my neck I’m not the enemy.
There have been reports recently that banks are only able to get title insurance on the loan origination by offering indemnity to the insurer for any clouds on title that may appear in the future. All of this unknown to the home buyer/refinancer, of course.
We are meeting with a realtor friend next week to begin a search for our retirement home. We have already informed her that we will pay for a forensic title search of our own before closing on any property. She was quite surprised to hear this – despite having worked in realty for 15 years she seemed unaware of the devastation that banks have wrought on our property recordation system, even though the county next door is suing MERS.
When it comes time to refinance, definitely go to your local credit union. Most do not sell mortgages, ever, though it is certainly wise to verify that in person. When we finished paying off our mortgage last year, the credit union retrieved the original blue ink note from a salt mine in Kentucky, or some unlikely spot, and got it to us marked Paid in Full within two days.
We went to the credit union because, in the first seven years, our mortgage had been sold twice, both times with errors that cost me time, multiple phone calls and faxes to resolve. We didn’t want to go through that again so refinanced with old fashioned people who still know how to make money by holding onto loans. By sheer luck (and disgust with mortgage sellers who couldn’t get it right), we ended up at a stable lender who stored our note safely in the salt mine in 2000, just before securitization revved up into high gear.
If we ever need a mortgage again, it will most definitely be at the credit union, even if we have to pay a premium.
MERS, with its whopping 50 employees, doesn’t do any assignments. As the mortgage moves through multiple owners on the way to securitization, each owner is supposed to register the change in MERS. Naturally, since there are no data quality checks, no single organization responsible for ensuring that the transfers are registered in a timely manner, and no reward or penalty system in place to incent proper registration, many (most? all?) of those transfer chains have been corrupted.
But all of this is moot anyway since the entire system runs contrary to local laws and local laws determine property transfer and registration. When the banks and Frannie put MERS into place, they did it with no consideration of the fact that local laws have not changed – counties still require a paper trail of documented property tranfers. Counties still require that documentation of transfers be signed and notarized on the original notes. And counties still require that fees be paid with each transfer of ownership.
None of this has happened for mortgages that have been moved into the MERS registry – roughly 60% of all mortgages in the US. Which is why we have robo-signing, notary perjury, filing of counterfeited documents in court. Banksters aren’t providing the chain of title necessary to prove they have standing to foreclose BECAUSE THEY CAN’T. The banks themselves have corrupted the chain beyond fixing, necessitating fraud in foreclosure.
Where one could once go to the county and follow the paper trail of property transfers back 300 years, that’s impossible now: “”My office is a crime scene,” says John O’Brien, the registrar of deeds in Essex County, which is north of Boston and includes the city of Salem.”
And it ain’t just MA, it’s everywhere.
That’s correct. Mr. Bevilacqua lost the property he purchased and the hundred or so thousand dollars he invested to fix it up because he bought it from a bank which had foreclosed on the previous owner without having legal standing to do so. In other words, Mr. Bevilacqua’s property was stolen goods and, if you buy stolen goods, you can have them taken away from you by the Law.