There is so much "disinformation" about the foreclosure crisis being propagated that it is not possible for the layman or even the "semi-versed" person to distinguish between fact and fiction. The legal issues involved, combined with the "sensationalism" of the stories, and the vocalism of the homeowner advocates, make for a breeding ground for all sorts of opportunists, AG''s included.
The AG's have taken up the legal battle only because of the 2012 elections coming up. They are all political animals that are looking towards reelection, or higher office. Much of their motivation also includes the money to be made by settlements that would go into government coffers.
Much of what has been alleged to be unlawful, is not so. MERS has agency relationships with lenders, and can execute documents legally. The assignments of MERS are lawful.
"Back-dated" assignments, as is alleged by many is simply not true. Claims are made that when the assignment is executed prior to foreclosure, it has been "back-dated" to the closing date of the Trust. This is simply a distortion of the truth, when one considers the Uniform Commercial Code, the Pooling and Servicing Agreement, and the MERS relationship. The problem is that even the lender's attorneys do not understand all the concepts and therefore, they fail in arguments before the Court, and in doing so, allows for some bad rulings from the court.
Some issues are certainly problematic. An example is that in the Judicial Foreclosure states, the person signing the Court Filing must have "personal knowledge" of the events to which he is signing for, i.e. the loan being in default. But, what is the standard for personal knowledge?
By the time the person is ready to sign the affidavit, the foreclosure status has been seen by the servicer, Trustee, and the law firm. Several people have looked at the documents related to the foreclosure. But if the person who signs for the law firm has not inspected the documents, then the foreclosure filing is fraudulent according to many.
Some courts have ruled that even viewing the servicing history on a computer screen or computer printout is not a factual basis for personal knowledge and therefore the filing is fraudulent.
The article notes that lenders have not foreclosed upon anyone but homeowners in default. (This is untrue. There have been a few recorded cases, but this is statistically miniscule, and when it happens, it is easily remedied.) This poses the question:
If a homeowner is in default, and he has not been financially harmed by the foreclosure "deficiency", then should the deficiency matter? Most courts take the viewpoint of "No Harm, No Foul". The homeowner has not paid the mortgage for several months, and therefore, making the foreclosure be redone will only benefit the homeowner by 3 months of extra time in the home without paying, and would not affect the ultimate foreclosure.
Homeowner attorneys actually sell their services by telling a homeowner that even if you do not win, we can stall the foreclosure for a year or more. (Of course, that means that the attorney is collecting monthly fees for the practice.) This is where much of the problem comes from.
You may have read about the new Foreclosure Program that the banks are implementing as a result of the OCC Consent Decree.
http://online.wsj.com/article/BT-CO-20110919-708947.htmlHere is my analysis.
The OCC and the lenders are now preparing the “Foreclosure Review” process as dictated by the OCC Consent Decree. This allows any homeowner foreclosed upon in 2009-2010 to file a complaint for unlawful foreclosure and to have it reviewed by the selected Third Party. The foreclosure of the homeowner will be done to determine if the homeowner suffered financial losses through "errors, misrepresentations and deficiencies" in the foreclosure process, and what, if any damages are warranted. Each foreclosure would need to comply with specific state and federal laws.
The program will be a complete boondoggle, a total public relations nightmare for the lenders, servicers, and the OCC. If the results of a review are provided in detail to the homeowner, then this will lead to attorneys seeking remedies through the courts, if damages are not found for a deficient foreclosure process. The complaints will be endless.
Most of the problems will come from the homeowner having a “distorted” view of what is lawful and not lawful. The distortion is based upon media reporting, internet rants and homeowner advocates and attorneys.
Homeowners will be demanding foreclosure reviews based upon MERS, securitization, proof of legal standing, “Prove the Note” scenarios, and robo-signing. They will contest Assignments off Beneficiary, and Substitutions of Trustees. Most of their “arguments” will have no legal basis, and when the foreclosure is claimed to be lawful, the homeowners will not accept the ruling. Even when there are deficiencies found, usually of which will be Assignment or Substitution issues, the final ruling will come down to how the homeowner was financially “harmed”.
“Harm” and “damages” will be the most difficult part for the homeowner to understand, if deficiencies or defects in the foreclosure process are found. What conditions must be present to show “financial harm”? A homeowner assumes that they were “harmed” by the foreclosure and that will be their claim, but therein lies the problem for the homeowner.
Almost always, a defect or deficiency in the foreclosure process can be easily corrected. If the correction had been made during the foreclosure process, it would only have delayed a foreclosure from one to four months, in most cases. If a homeowner has not made a payment in six months or longer, has the homeowner suffered any “harm”?
One could say that the homeowner might have remained in the home longer, payment free, but would this meet the standard of harm? Would the lender have an obligation to “pay damages” in the amount of “housing costs” for the months that homeowner could have remained in the home, free of charge? My opinion would be that the homeowner was not harmed by the defect.
Where harm could be alleged is if the homeowner was foreclosed upon due to a "dual track" foreclosure process. If the homeowner was in the process of attempting a loan modification and a foreclosure occurred, (dual track foreclosure) then it is possible that harm has occurred.
Many homeowners are already engaged in legal actions caused by “dual-track” foreclosures. There have been good “initial results” in some cases, and there have been “lender friendly” results in many other cases. Results depend upon the circumstances of each individual case and the documentation to support the claims.
Addressing any “dual track” claims in the review process will prove to be problematic. One consideration will be whether the borrower could actually qualify for a modification. If it was obvious that the borrower could not qualify for a reasonable loan modification, was the borrower “harmed” by the foreclosure? And, what determines a “reasonable loan modification”?
Assuming that a reasonable loan modification could be made, what would the damages be? If equity existed in the home, there may be a claim for damages in the amount of the equity. If the home was underwater, then such a claim could not exist.
If a claim was made for the loss of the home and the resulting “rental payments”, then what claim would exist for rental payments that were less than the mortgage loan payments? Add in six months or more of defaulted payments on the loan, and an argument could be made for no damages due.
Perhaps the only damage claim possible would be for the trial payments made by the homeowner while he was trying to negotiate a loan modification when the foreclosure occurred.
Finally, what about the home that has not been resold after the foreclosure? If the home is still held by the bank, then there may be a chance of unwinding the sale, but would this even be worth doing if the home is underwater? Would a homeowner even want to try and move back in? Perhaps if damages could involve a substantial principal reduction, then there might be an advantage to unwinding the foreclosure, but this should not affect that many homes.
(There will be some “legitimate” unlawful foreclosures found, but these will represent a miniscule amount of the foreclosures being reviewed. Damages on those will be easy to determine and resolve. If the homeowner is not granted “satisfaction”, then the Review & Damages can be easily contested in court.)
As you can see, the Review Program is going to create an incredible amount of controversy. Homeowners who are convinced that they have been wrongly foreclosed upon will not accept the Review Program’s conclusions. They will simply claim that it is another “cover” for the lenders.
I predict that the program will only serve to further increase the controversy involving foreclosures, and more than likely, increased litigation. The public relations aspect will be a nightmare, leading to more poor media coverage, and increased anger at the banks.