About Me 0011: foreclosure law

*BANKS LOSE PIVOTAL FORECLOSURE CASE IN MASSACHUSETTS HIGH COURT
*MASSACHUSETTS TOP COURT DECIDES CLOSELY WATCHED IBANEZ CASE
*MASSACHUSETTS DECISION MAY AFFECT FORECLOSURE-CRISIS CASES

Here is why this is relevant:

This was an Amicus Curiae brief (friend of the court) filed by the Massachusetts Attorney General Martha Coakley. (see attached)

Page 10:
“Plaintiffs’ claims that the Land Court’s ruling will cause widespread confusion or significant cost to innocent parties are greatly exaggerated, and such reasoning does not warrant ignoring the plain requirements of the law designed to protect Massachusetts consumers. Indeed, it is the foreclosing entities themselves who will bear the greatest cost of clearing titled from their invalid foreclosures.   Having profited greatly from practices regarding the assignment and securitization of mortgages not grounded in the law, it is reasonable for them to bear the cost of failing to ensure that such practices conformed to Massachusetts law.”

Page 4-5:
“Rose Mortgage was the original lender for the Ibanez mortgage and Option One Mortgage Corporation was the original lender for the LaRace mortgage. Rose endorsed the Ibanez note and property assigned the mortgage to Option One. Option One then executed an endorsement of both promissory notes in blank, making each “payable to bearer” and negotiated by transfer alone until specifically endorsed.” In both cases, Option One also executed an assignment of the mortgage in blank (i.e. without a specified assignee). These blank assignments were never recorded and were not legally recordable because they failed to identify the assignee [cites state law].”

“After Option One sold the Ibanez mortgage to Lehman Brothers. Lehman Brothers then sold the mortgage, together with hundreds of other loans, to Structured Asset Securities Corporation (“SASC”). SASC then sold these loans to the Structured Asset Securities Corporation Mortgage Loan Trust 2006-Z, of which plaintiff U.S. Bank National Association (“U.S. Bank”) was the Trustee. All off the supporting documents concerning the Ibanez mortgage were placed into a “collateral file” and presumably were transferred between the entities listed above as each transaction was completed. This collateral file contained the original promissory note, the Rose Mortgage endorsement of the promissory note to Option One, Option One’s blank endorsement of the promissory note, the mortgage issued to Rose Mortgage Inc., the assignment of the mortgage from Rose to Option One and Option One’s blank mortgage assignment”

[Goes through similar for the LaRace mortgage]

Page 8:
“The Land Court was correct to invalidate the foreclosure on two distinct grounds. First, the plaintiffs lacked the legal authority to conduct the foreclosures because they were not among the parties authorized to do so under either the statutory power of sale or under G.L.c. 244 §14. Second, even if the plaintiffs had the legal authority to foreclose (which they did not) the foreclosures would still have been invalid because the notices issued by the plaintiffs failed to name the present holder of the mortgage as required under G.L. c. 244 §14. To foreclose on a mortgage securing property in the Commonwealth, one must be the holder of the mortgage. To be the holder of the mortgage, one must be the original mortgagee or be the assignee under a valid assignment of the mortgage. It is not sufficient to possess the mortgagor’s promissory note. The Land court correctly held that the plaintiffs, U.S. Bank and Wells Fargo were not holders of the Ibanez and LaRace mortgages at the time of the foreclosure because they were not assignees of valid assignments of the mortgages. Without valid assignments, the plaintiffs lacked the legal authority to foreclose the mortgages. This, without more, is sufficient grounds on which to invalidate the foreclosures and the Land Court was correct to do so.”

Page 10:
“Plaintiffs’ claims that the Land Court’s ruling will cause widespread confusion or significant cost to innocent parties are greatly exaggerated, and such reasoning does not warrant ignoring the plain requirements of the law designed to protect Massachusetts consumers. Indeed, it is the foreclosing entities themselves who will bear the greatest cost of clearing titled from their invalid foreclosures.   Having profited greatly from practices regarding the assignment and securitization of mortgages not grounded in the law, it is reasonable for them to bear the cost of failing to ensure that such practices conformed to Massachusetts law.”

Page 11:
“Plaintiffs had no legal authority to foreclose because they were not the original mortgagees, were not authorized by the power of sale, and because they lacked valid assignments of the Ibanez and LaRace mortgages.”

Page 12:
“Plaintiffs are not the mortgagees of the Ibanez or LaRace loans.”

Page 16:
“Neither plaintiff was authorized by the power of sale in the respective mortgages.”

Page 17:
“The assorted securitization documents do not establish or compromise valid assignments.”
Plaintiffs contend that various securitization documents constructively assigned to them the Ibanez and LaRace mortgages. Specifically, the plaintiffs contend that the Ibanez mortgage was assigned to U.S. Bank by way of a Trust Agreement that is not part of the record, but is purportedly evidenced by a Private Placement Memorandum. They contend that Wells Fargo received the LaRace mortgage via a Purchase and Sale Agreement. In each case, plaintiffs’ argument is without merit.”

The LaRace Securitization Documents
As the Land Court found, the LaRaces gave a mortgage to Option One when the loan was initially made. Thereafter, Option One executed an assignment of the mortgage “in blank,” i.e., without naming the party to whom the mortgage was to be assigned. As detailed above and by the Land Court, this “assignment in blank” was ineffective to transfer any interest in the mortgage.   Wells Fargo contends that the LaRace mortgage was assigned to it by the Pooling and Servicing Agreement it entered into with Asset Backed Funding Corporation (“ABFC”). This agreement purports to transfer and assign all of the rights of ABFC to Wells Fargo. However, there is nothing the record that ABFC had any interest in the LaRace mortgage. Thus, even if the language in the Pooling and Servicing agreement was sufficient to transfer all of ABFC’s interests in the LaRace mortgage, the assignment would be ineffective because ABFC had no interest in the LaRace mortgage to transfer.”

Page 20:
“Not only did plaintiff’s lack legal authority to foreclose, but the foreclosures are invalid because the notices published prior to foreclosure are fatally deficient.”
-    G.L. c 244, §14 requires that the notice identify the “present holder” of the mortgage
-    Plaintiffs’ false identification of themselves as the “present holders” in their foreclosure notices renders the notices fatally deficient
-    Plaintiffs’ argument that they held the mortgages notwithstanding the lack of valid, written assignments as of the date of the foreclosures is unsupported by law.

Page 27:
“There are no grounds on which to limit the Land Court’s decision to future cases”
-    Plaintiffs request that if the Land Court’s decision is upheld, this Court limit its application only to future foreclosures. This argument is without any basis in law and should be rejected.”
-    Notwithstanding the “industry practice” of subprime lenders and other who created mortgage backed securities, the statutory requirements at issue int his case are long –settled.

Peculiarly (and I’ll have to admit I’m among the guilty), a state-wide halt of foreclosures by a Bank of America unit in Nevada earlier in the week attracted remarkably little notice. The number of foreclosures in involved is meaningful, over 8000. The reason may seem somewhat technical, and presumably would not apply to other BofA units, namely, that the entity, ReconTrust Co, is operating without a proper business license. But then it gets interesting.

First, we get Bank of America’s position, per the Las Vegas Review Journal(hat tip ForeclosureFraud):

In a statement, Bank of America said: “ReconTrust previously faced a nearly identical order in Utah, and it recently prevailed in challenging that order in federal court. Until the current situation is resolved, ReconTrust intends to comply with the order.”

However, the judge believes ReconTrust’s problems may go much deeper than licensing:

In the order, however, the judge said there is a “substantial likelihood that (North) will establish that ReconTrust does not have any contractual privities with respect to the contract between (North) and the other defendants regarding the promissory note and deed of trust.”

The Washington Post (hat tip Lisa Epstein) has taken note of the case, and cites sections of Bank of America’s court filing seeking to reverse the foreclosure freeze, which will otherwise remain in effect until at least February 28, the date of the next court hearing. Perhaps I am reading too much into the language of the pleading, but the tone strikes me as a tad desperate:

In a court filing Wednesday obtained by the Las Vegas Sun, Bank of America says that Bank of America and ReconTrust are in compliance with Nevada foreclosure laws and that the borrower’s case will ultimately fail.

The bank also argues that the harm the injunction “caused to the public interest is overwhelming,” and quotes U.S. Treasury Secretary Timothy Geithner to support its case.

“Treasury Secretary Tim Geithner opined that ceasing the foreclosure process is `very damaging’ and harms the public as communities are forced to live longer with empty homes, there is increased downward pressure on home prices and increasing blight,” the bank said. “The order also harms those subject to the foreclosure process because those individuals, especially those in mediation trying to stay in their homes, are now forced into a state of limbo for an unspecified duration.”

I have a sneaking suspicion that the views of Timothy Geithner don’t carry much weight in the Nevada judicial system.

Why the anxious tone? A couple of factors may be at work. First, recall how hard the banks fought the idea of a broad-based foreclosure freeze when the robo-signing scandal first came to light. And there are reasons why a blanket freeze is problematic, particularly if it extends to non-securitized loans (there are borrowers who want to get out from under a house they recognize they can no longer afford; a freeze can leave them on the hook). But at the same time, the banks have generally overstated the downside because the implications for them are unfavorable. And perhaps most important, an action like a wide-ranging halt is a reminder that banks are, or at least can be, subject to judicial orders, something they appear to have forgotten in recent years.

The second issue, is that Mr. Market has woken up to the fact that the Charlotte bank is particularly exposed to litigation risk. We were very critical of BofA’s purchase of Countrywide. As we said in January 2008:

Even with the reduction in the effective cost of buying Countrywide, Bank of America will come to regret this deal. Countrywide is an organization that has made an art form of just barely staying on the right side of the law, and even then screws up. There is certain to be more dirt, and therefore legal liabilty, that hasn’t yet risen to the surface. Furthermore, it is well nigh impossible to impose procedures and standards on rogue cultures. Look what happened to Bank of America when it purchased US Trust, a company that had a great franchise but one in which the account managers had more autonomy (and incurred more customer-related expenses) than Bank of America’s officers did. BofA succeeded in driving away the many of the best account officers, who took customers with them.

Now the cultural challenges of integrating a Countrywide are very different than dealing with a US Trust, but consider: US Trust was a highly valuable franchise in an area the North Carolina bank said was a priority, and they screwed it up just about every way they could. And US Trust was a much smaller organization too, so the acquisition should have been easier to manage.

BofA stock was off sharply early this week over worries about litigation risk, and those concerns were further stoked by an American Banker report that banks are slowing foreclosures in non-judicial states.

In other words, Bank of America would like to keep bad news about foreclosures to a bare minimum, but those pesky judges appear not to have gotten the memo.

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About Me 0011

Thursday, February 17, 2011

foreclosure law

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