I think you published the first part two days ago. This is his second piece on the subject.
More on Why the PIMCO, BlackRock, Freddie, NY Fed Letter to Countrywide on Putbacks Is Way Overhyped
I still laying odds on the perp walk.
rktbrkr Says:
October 21st, 2010 at 5:02 pm
How could Donovan say foreclosure problems weren’t systemic and then admit to Jim Lehrer that they didn’t know the extent of the problems yet? Not very truthy.
I really have a hard time seeing how the mortgage issue will be a big deal in non-judicial foreclosure states.
In judicial foreclosure states the homeowner has to actively defend themselves unless the courts start becoming activist.
Both require en-masse participatation by the homeowners in bringing or responding to a lawsuit AND for the servicers processes to be so messed up they can’t ever produce the note.
I can see it happening in the margins, but not en-masse. And thus it will be a relative non-event as far as keeping people who aren’t paying their mortgages in their homes. It will be an event played out over a very long time between bondholders, servicers and originators and it will cost billions over many years. But in the end it’s sort of a “meh” event in my view. The processes will be fixed and some additional losses not currently reserved for will be taken, spread out over time.
I do see a change watching RE listings in my local area, in the last few days I can tell a lot of short sales that had been stalled have been noted that they are getting responses from the bank. So at least over the short term the banks are shifting resources into that department.
Why should I waste my beautiful mind on something like this? It will all be taken care of after the election in the Homeland Property Title Rectification and Forward Looking Respect for Law Act of 2010.
Mark E Hoffer Says:
October 21st, 2010 at 5:57 pm
the utter (f******) Bilge that passes for the MSM is enough to give one Zebra Mussels..
These guys are not much better than the others in the limelight.
Mark E Hoffer Says:
October 21st, 2010 at 6:04 pm
Roger,
no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …
suspiciously similar to http://search.yippy.com/search?input-form=clusty-simple&v%3Asources=webplus&v%3Aproject=clusty&query=the+passing+of+the+Federal+Reserve+Act+of+1913
“DENMARK, Maine (NEWS CENTER) — An attorney from Portland is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.
Thomas Cox volunteers at Pine Tree Legal, giving free legal advice to people facing foreclosure. While reviewing Nicole Bradbury of Denmark’s foreclosure documents, he realized they were signed by someone with the title “limited signing officer,” meaning the person’s only job was to sign the papers. Cox arranged a deposition with the signer, and he admitted to signing hundreds of foreclosure documents without ever reading them. Now the nation’s attorneys general are investigating. Banks have responded, saying that the problems are technical, and the facts in all of these cases are true. Cox says that answer is unacceptable.
“The message that the industry’s putting out that these are just technical mistakes are a real red herring to the fact that they grossly abused the American judicial system by presenting many, many thousands of false affidavits to courts all over the country that judges believed to be true and entered judgements, taking away homes based upon them” Cox told NEWS CENTER.
Cox says Nicole Bradbury is still living in her house. GMAC filed a motion to dismiss her foreclosure to fix the problems and start the process over again. An attorney representing GMAC and Fannie Mae, the mortgage company that owns Bradbury’s loan, declined to comment because the foreclosure case is still pending.”
mote Says:
October 21st, 2010 at 6:30 pm
From “A question of property rights,” excerpted quotefest follows.
Objects in the rear view mirror:
Banks “have essentially sidestepped 400 years of property law in the United States,” said Rebel Cole, a professor of finance and real estate at DePaul University. “There are so many questionable aspects to this thing it’s scary.”
Nothing but Blue Skies:
Joseph Mason, a finance professor at Louisiana State University, said concerns about proper foreclosure documentation were overblown. At the end of the day, he said, even if the banks botched the paperwork, homeowners who didn’t make their mortgage payments still needed to be held accountable.
Houston, we have a problem:
Some analysts are not sure that banks can proceed so freely. Katherine Porter, a visiting law professor at Harvard University and an expert on consumer credit law, said that lenders were wrong to minimize problems with the legal documentation.
Tax man’s whatif:
Robert Willens, a tax expert, said documentation issues had created potentially severe tax problems for investors in mortgage securities and “there is enough of a question here that the courts might well have to resolve the issue.”
Now investors who bought mortgage trusts – investment vehicles composed of mortgages – are wondering if the loans inside them were recorded properly. If not, the tax advantages of the trusts could be wiped out, leaving mortgage securities investors with significant tax bills.
Guantanamo Bay revisited:
Lenders and their representatives have sought to minimize the significance of robo-signing and, while acknowledging legal lapses in how they documented loans, have argued that foreclosures should proceed anyway. After all, the lenders say, the homeowners owe the money.
But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.”
” Regulator Says Fannie, Freddie Cost at Mercy of Economy.. To be filed under Duh! ”
I keep coming back to this droll of a subject for your wit BR. Your youthful character is evident in your exuberance and cultural relevance. If your a Dad, I bet your a good one and know your children well, if not you will be.
Swarm The Banks Says:
October 21st, 2010 at 7:03 pm
Forcing people to fall behind on their mortgages before being eligible for HAMP, even though this triggers parallel foreclosure and hastens the loss of the property is beyond a smoking gun, it’s a stinking gun because it’s been going on for a year and a half now.
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
“Let’s hope there’s a better explanation than “we have created [our biggest banks], and we’re sort of past that point, and I think that in some sense, the genie’s out of the bottle.”
ACS Says:
October 21st, 2010 at 7:05 pm
Every time a bank is shut down, a law school should be shut as well.
Vilgrad Says:
October 21st, 2010 at 7:52 pm
Gonzalo Lira, who’s post was stolen by David Kotok as his own. Real lowlife move.
Barry, what became of Parts 3-5 in the series “Forclosure Fraud for Dummies”?
dss Says:
October 21st, 2010 at 8:32 pm
@ACS,
Great observation.
Ltdata Says:
October 21st, 2010 at 8:59 pm
File this under Law of unintended results: Quite frankly, even if a megabank, etc. does not know their exposure – their auditor WILL find some way to sample the mess, quantify it for the financials, and bill, bill, bill. If they thought shoddy was cheap, wait til they get the audit bill.
Roger Bigod Says:
October 21st, 2010 at 9:30 pm
Mark E Hoffer
“no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …”
Oh, yes. Afterward, the Preznit will get that serious, stern look and point the finger at the GOP for killing the option of public, non-electronic property records. Especially since he fought for the option it so fiercely. At least there will be a special approproation to help the county clerk’s offices pay for shredding and burning all the backward-looking paper records.
The Curmudgeon Says:
October 21st, 2010 at 9:47 pm
“But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.” ”
~The good associate professor of law is surely aware that liberty interests enjoy far greater protections under the constititution than do property interests. Due process for the denial of property interests (think Kelo, e.g.) is far less stringent than due process for the denial of liberty interests (think Miranda and its progeny). I doubt anyone will seriously attempt to formulate an exclusionary rule for mortgage foreclosures, where the failure to submit a properly attested affidavit means the mortgage company is barred from admitting into evidence the promissory note. But that’s the reasonable view. And these are markedly unreasonable times. So, who knows?
franklin411 Says:
October 21st, 2010 at 9:52 pm
This is what happens to bad little Democrats who actually propose making Wall Street pay for the mess it created:
Wealthy financier is mysterious funder of ads attacking DeFazio
Robert Mercer, the co-CEO of one of the world’s largest hedge funds, is the mysterious donor who has been paying for $300,000 of attack ads aimed at Rep. Peter DeFazio, D-Ore.
Not a big deal? it is already a big deal and I suspect (because NOBODY knows for sure) it may get a great deal bigger. Remember when Ben Stein told us on national TV that the sub-prime mortgae “event” would blow over?
S Brennan Says:
October 21st, 2010 at 10:16 pm
Off topic, but food for thought…read it through, the punches get thrown at the end.
I’ve been reading a lot of the blogging on the foreclosure mess. Every time I think I understand it fully something else comes up that makes me wonder if I do. Some of the reports make it sound like the whole idea of of MBS tranches is inherently illegal. Let me explain.
Take this excerpt from http://www.huffingtonpost.com/ellen-brown/foreclosuregate_b_752788.html
“The top tranche is triple A because it includes the mortgages that did NOT default; but no one could know which those were until the defaults occurred, when the defaulting mortgages got assigned to the lower tranches and foreclosure went forward. That could explain why the mortgages could not be assigned to the proper group of investors immediately: the homes only fell into their designated tranches when they went into default.”
So this sound to me like there would be no legal way to do tranches. Or at least no way to do it without breaking the chain of title or violating tax laws. The note must be in legal limbo until you know what tranche it goes in. And assigning it to the trust after the default will always be against REMIC tax rules.
Am I understanding this POV correctly? Was there some legal way these tranches could have been done?
VennData Says:
October 21st, 2010 at 10:53 pm
I wonder what the GOP media machine, Fox news and the World-Wide Chamber of Commerce would say if instead of a moratorium on foreclosures …
…say they had a moratorium on… uh… I dunno… say on oil drilling or something. I wonder if they would be so blasé about that? It would be interesting to know. Anyone have any idea?
The Curmudgeon Says:
October 21st, 2010 at 11:02 pm
I thought all hedge fund managers were dem’s?!? didn’t they line Obama’s pockets in 2008? What, they’re just whores like the rest of ‘em, licking their finger and pointing it in the air to see which way the political wind is blowing?
GeorgeBurnsWasRight Says:
October 21st, 2010 at 11:06 pm
There was a report on NPR today of yet another part of the foreclosure mess. In Florida they have something called the “Rocket Docket”, courts that handle 200 foreclosures a day. The judges admit they don’t have time to either look at the documents or listen to arguments. So you can imagine the level of “justice” being dispensed.
call me ahab Says:
October 21st, 2010 at 11:16 pm
GeorgeBurns-
and we care why? the people that aren’t paying should stay? what’s your point exactly (as if anyone cares)
VennData-
one trick pony with nothing to say (over and over and over again)-
Strange that those of the opinion that this situation will have a limited and manageable but perhaps costly resolution, seem to completely discount the criminality of what has taken place. Is the idea that this industry is immune from prosecution a given? If it is, we’re more screwed than I thought, and y’all know how screwed I think we are.
i was just reading farmera1′s reference to the baseline scenario’s treatment (great blog) of the this subject…
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
While I would join many other investors in the n/a mbs mkt in celebration if a significant amount of loans out of these deals were put back to the issuers, the reality is that the big originators/issuers/banks have the upper hand here. They will drag this fight out on a loan by loan basis. I don’t care how big you are (ny fed, pimco, blackrock, etc.), the diligence expense is prohibitive. You have to understand how time intensive a project like this would be.
BofA seems like it is in serious trouble, and they will probably settle for some huge amount of money, but the idea of fighting them loan by loan is not remotely feasible. What gets missed in this discussion is that money managers, hedge funds, insurance companies, etc should have done more diligence at before purchasing said security. While the big IBs certainly ran with market, buyers had access to the loan tapes. They had the prospectus. And they got greedy and it all fell apart. It’s a disgrace that that the big $mm are not on media trial right next to the head of GS. The “buy” side is just as much to blame as the big IBs. But that wont happen. Such is life.
Effective Demand Says:
October 22nd, 2010 at 12:22 am
Been going around looking at the RE investor boards, none of the trustee sale buyers are having trouble getting title insurance…
Despite escalating outrage over rampant foreclosure fraud, the Federal Reserve now appears ready to eviscerate a key mortgage regulation in an effort to spare banks the losses from their own wrongdoing. Even as bank executives preposterously claim to have wronged nobody in the foreclosure process, they're pushing hard to unwind the only serious federal rule that protects borrowers from predatory loans and improper foreclosures. As if the last decade of abuse wasn't bad enough, banks are once again mobilizing to screw borrowers in the pursuit of epic bonuses. And once again, it appears that the Federal Reserve has become an accomplice to this nationwide mortgage scam.
Today, top mortgage officers from the nation's largest banks are telling the Senate Banking Committee that they aren't kicking the wrong people out of their homes. This is simply false. Problems at mortgage servicers have been going on for years, long before banks got into trouble for illegally robo-signing foreclosure documents. People are kicked out of their homes without cause in the United States every day. If the top executives at America's largest banks don't know this fact, they lack the competence needed to run their organizations.
Law firms that work with troubled borrowers are jam-packed with horror stories about foreclosures caused entirely by banks, not borrowers. Families who never miss a payment come home to an eviction notice, or a thug breaking down their door.
But it's even more common for borrowers to find themselves in trouble because their bank engaged in blatantly predatory lending. There is only one serious federal remedy for predatory lending, and the Fed is now knowingly trying to gut that remedy in order to help banks avoid losses from their own fraud. The remedy is called rescission, and it works like this:
If a bank failed to make key consumer protection disclosures about a mortgage, the borrower can demand that all of the interest and closing costs on the loan be refunded. Equally important, the bank must also stop all foreclosure proceedings and give up its right to foreclose. Once the bank gives up its right to foreclose, the full amount of the mortgage, minus interest and closing costs, becomes due. This isn't a free lunch for the borrower, especially when the value of her home has declined dramatically, but it's better than nothing, and it does impose real costs on banks.
For this process to function at all, it is absolutely critical that the bank be barred from foreclosing before the borrower has to pay off the remainder of the loan. A borrower can easily owe hundreds of thousands of dollars after winning a rescission. Few victims of predatory lending actually have that kind of money on hand.
This is the whole point of rescission, and it's been on the books since the Truth in Lending Act was passed in 1968. Without it, the consumer protections detailed by that law have no teeth. A bank is barred from engaging in predatory lending, but if it does it anyway, it faces no serious punishment.
Rescission, in other words, is the only federal legal device keeping banks in check on predatory lending (as the last decade proves, it's nowhere near enough). Predatory lending is really bad. If banks engage in it, they should face dramatic consequences. They don't get to foreclose and they give up all of the profit they expected to score from the predatory loan. If the borrower doesn't have all of the money on hand to pay off what's left, the bank has to deal with this money coming in over time.
The bank lobby and the Fed are now trying to completely gut the substance of this regulation. The Fed has just proposed a new rule that would reverse the order of payments and the right to foreclose under rescission. Under the new rule, a bank that has engaged in predatory lending does not have to give up its right to foreclose until after the borrower has paid off the full remaining balance of the loan.
Under the Fed's proposal, if you're the victim of illegal predatory lending, the bank will still get to foreclose on you unless you pony up hundreds of thousands of dollars all at once. And you'll have to pony up what the bank says you owe, which may be very different from what you actually owe. That eliminates the usefulness of rescission, making the new rule a bailout for predators.
The Fed knowsfull well thatit's gutting the law here. The Board of Governors and their staff have met with key consumer lawyers no less than three times about this exact rule proposal, and the Fed is going ahead with it anyway.
Here's what's really going on. The largest banks don't have enough capital to weather a bad housing market. And any process that sheds light on the documentation procedures at mortgage servicers will expose the big banks to investor lawsuits. But investors can't sue without those documents. Rescission judgments create a paper trail for illegal loans. In addition to creating immediate losses for banks, rescission documents that banks sold illegal loans, giving investors who bought mortgage-backed securities ammunition for well-founded lawsuits. Those lawsuits, in turn, could sink some of the biggest names on Wall Street, something the Fed has been trying to prevent at all costs since 2008.
How close to the edge are the banks? Many mortgages that they account for as profitable assets are actually huge losses. The most obvious example of this insanity involves second lien mortgages. There are lots of kinds of second liens loans, but the important thing to remember is that they're the first asset to be wiped out when housing prices decline. Right now, they're in big trouble.
The second-lien holdings of Citigroup, Wells Fargo, Bank of America and JPMorgan Chase are about equal to their total capital. If you wipeout second liens, these banks are done. Right now the banks are accounting for these second liens as if they were worth nearly 100 percent of their original value—even though these loans only trade at only about one-quarter of that value. If banks take the market's value of just one class of assets, they're gone.
This class of assets goes completely under if banks have to own up to the current foreclosure fraud mess. The only real way to fix the documentation fraud problems is a nationwide program reducing the amounts that borrowers owe on their mortgages to current home values. Doing that forces the banks to acknowledge that their second lien mortgages are, in fact, worthless.
So the big banks and their protectors at the Fed are launching a two-pronged strategy. First, they're trying to prevent investors from obtaining the loan documents that will fuel well-justified lawsuits. Second, they're trying to give banks even greater control over the foreclosure process, in order to allow banks to continue to game accounting rules. This is a premeditated strategy to save banks from losses created by their own fraudulent, predatory behavior. It has no place on the books of the Fed, particularly after the central bank's total failure to prevent the mortgage abuses of the past decade.
It's not too late for the Fed to turn back. It can, in fact, abandon this bailout, and leave consumer protection issues to the new Consumer Financial Protection Bureau, which is designed to handle exactly this sort of issue, for exactly this reason.
I think you published the first part two days ago. This is his second piece on the subject.
More on Why the PIMCO, BlackRock, Freddie, NY Fed Letter to Countrywide on Putbacks Is Way Overhyped
I still laying odds on the perp walk.
rktbrkr Says:
October 21st, 2010 at 5:02 pm
How could Donovan say foreclosure problems weren’t systemic and then admit to Jim Lehrer that they didn’t know the extent of the problems yet? Not very truthy.
I really have a hard time seeing how the mortgage issue will be a big deal in non-judicial foreclosure states.
In judicial foreclosure states the homeowner has to actively defend themselves unless the courts start becoming activist.
Both require en-masse participatation by the homeowners in bringing or responding to a lawsuit AND for the servicers processes to be so messed up they can’t ever produce the note.
I can see it happening in the margins, but not en-masse. And thus it will be a relative non-event as far as keeping people who aren’t paying their mortgages in their homes. It will be an event played out over a very long time between bondholders, servicers and originators and it will cost billions over many years. But in the end it’s sort of a “meh” event in my view. The processes will be fixed and some additional losses not currently reserved for will be taken, spread out over time.
I do see a change watching RE listings in my local area, in the last few days I can tell a lot of short sales that had been stalled have been noted that they are getting responses from the bank. So at least over the short term the banks are shifting resources into that department.
Why should I waste my beautiful mind on something like this? It will all be taken care of after the election in the Homeland Property Title Rectification and Forward Looking Respect for Law Act of 2010.
Mark E Hoffer Says:
October 21st, 2010 at 5:57 pm
the utter (f******) Bilge that passes for the MSM is enough to give one Zebra Mussels..
These guys are not much better than the others in the limelight.
Mark E Hoffer Says:
October 21st, 2010 at 6:04 pm
Roger,
no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …
suspiciously similar to http://search.yippy.com/search?input-form=clusty-simple&v%3Asources=webplus&v%3Aproject=clusty&query=the+passing+of+the+Federal+Reserve+Act+of+1913
“DENMARK, Maine (NEWS CENTER) — An attorney from Portland is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.
Thomas Cox volunteers at Pine Tree Legal, giving free legal advice to people facing foreclosure. While reviewing Nicole Bradbury of Denmark’s foreclosure documents, he realized they were signed by someone with the title “limited signing officer,” meaning the person’s only job was to sign the papers. Cox arranged a deposition with the signer, and he admitted to signing hundreds of foreclosure documents without ever reading them. Now the nation’s attorneys general are investigating. Banks have responded, saying that the problems are technical, and the facts in all of these cases are true. Cox says that answer is unacceptable.
“The message that the industry’s putting out that these are just technical mistakes are a real red herring to the fact that they grossly abused the American judicial system by presenting many, many thousands of false affidavits to courts all over the country that judges believed to be true and entered judgements, taking away homes based upon them” Cox told NEWS CENTER.
Cox says Nicole Bradbury is still living in her house. GMAC filed a motion to dismiss her foreclosure to fix the problems and start the process over again. An attorney representing GMAC and Fannie Mae, the mortgage company that owns Bradbury’s loan, declined to comment because the foreclosure case is still pending.”
mote Says:
October 21st, 2010 at 6:30 pm
From “A question of property rights,” excerpted quotefest follows.
Objects in the rear view mirror:
Banks “have essentially sidestepped 400 years of property law in the United States,” said Rebel Cole, a professor of finance and real estate at DePaul University. “There are so many questionable aspects to this thing it’s scary.”
Nothing but Blue Skies:
Joseph Mason, a finance professor at Louisiana State University, said concerns about proper foreclosure documentation were overblown. At the end of the day, he said, even if the banks botched the paperwork, homeowners who didn’t make their mortgage payments still needed to be held accountable.
Houston, we have a problem:
Some analysts are not sure that banks can proceed so freely. Katherine Porter, a visiting law professor at Harvard University and an expert on consumer credit law, said that lenders were wrong to minimize problems with the legal documentation.
Tax man’s whatif:
Robert Willens, a tax expert, said documentation issues had created potentially severe tax problems for investors in mortgage securities and “there is enough of a question here that the courts might well have to resolve the issue.”
Now investors who bought mortgage trusts – investment vehicles composed of mortgages – are wondering if the loans inside them were recorded properly. If not, the tax advantages of the trusts could be wiped out, leaving mortgage securities investors with significant tax bills.
Guantanamo Bay revisited:
Lenders and their representatives have sought to minimize the significance of robo-signing and, while acknowledging legal lapses in how they documented loans, have argued that foreclosures should proceed anyway. After all, the lenders say, the homeowners owe the money.
But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.”
” Regulator Says Fannie, Freddie Cost at Mercy of Economy.. To be filed under Duh! ”
I keep coming back to this droll of a subject for your wit BR. Your youthful character is evident in your exuberance and cultural relevance. If your a Dad, I bet your a good one and know your children well, if not you will be.
Swarm The Banks Says:
October 21st, 2010 at 7:03 pm
Forcing people to fall behind on their mortgages before being eligible for HAMP, even though this triggers parallel foreclosure and hastens the loss of the property is beyond a smoking gun, it’s a stinking gun because it’s been going on for a year and a half now.
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
“Let’s hope there’s a better explanation than “we have created [our biggest banks], and we’re sort of past that point, and I think that in some sense, the genie’s out of the bottle.”
ACS Says:
October 21st, 2010 at 7:05 pm
Every time a bank is shut down, a law school should be shut as well.
Vilgrad Says:
October 21st, 2010 at 7:52 pm
Gonzalo Lira, who’s post was stolen by David Kotok as his own. Real lowlife move.
Barry, what became of Parts 3-5 in the series “Forclosure Fraud for Dummies”?
dss Says:
October 21st, 2010 at 8:32 pm
@ACS,
Great observation.
Ltdata Says:
October 21st, 2010 at 8:59 pm
File this under Law of unintended results: Quite frankly, even if a megabank, etc. does not know their exposure – their auditor WILL find some way to sample the mess, quantify it for the financials, and bill, bill, bill. If they thought shoddy was cheap, wait til they get the audit bill.
Roger Bigod Says:
October 21st, 2010 at 9:30 pm
Mark E Hoffer
“no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …”
Oh, yes. Afterward, the Preznit will get that serious, stern look and point the finger at the GOP for killing the option of public, non-electronic property records. Especially since he fought for the option it so fiercely. At least there will be a special approproation to help the county clerk’s offices pay for shredding and burning all the backward-looking paper records.
The Curmudgeon Says:
October 21st, 2010 at 9:47 pm
“But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.” ”
~The good associate professor of law is surely aware that liberty interests enjoy far greater protections under the constititution than do property interests. Due process for the denial of property interests (think Kelo, e.g.) is far less stringent than due process for the denial of liberty interests (think Miranda and its progeny). I doubt anyone will seriously attempt to formulate an exclusionary rule for mortgage foreclosures, where the failure to submit a properly attested affidavit means the mortgage company is barred from admitting into evidence the promissory note. But that’s the reasonable view. And these are markedly unreasonable times. So, who knows?
franklin411 Says:
October 21st, 2010 at 9:52 pm
This is what happens to bad little Democrats who actually propose making Wall Street pay for the mess it created:
Wealthy financier is mysterious funder of ads attacking DeFazio
Robert Mercer, the co-CEO of one of the world’s largest hedge funds, is the mysterious donor who has been paying for $300,000 of attack ads aimed at Rep. Peter DeFazio, D-Ore.
Not a big deal? it is already a big deal and I suspect (because NOBODY knows for sure) it may get a great deal bigger. Remember when Ben Stein told us on national TV that the sub-prime mortgae “event” would blow over?
S Brennan Says:
October 21st, 2010 at 10:16 pm
Off topic, but food for thought…read it through, the punches get thrown at the end.
I’ve been reading a lot of the blogging on the foreclosure mess. Every time I think I understand it fully something else comes up that makes me wonder if I do. Some of the reports make it sound like the whole idea of of MBS tranches is inherently illegal. Let me explain.
Take this excerpt from http://www.huffingtonpost.com/ellen-brown/foreclosuregate_b_752788.html
“The top tranche is triple A because it includes the mortgages that did NOT default; but no one could know which those were until the defaults occurred, when the defaulting mortgages got assigned to the lower tranches and foreclosure went forward. That could explain why the mortgages could not be assigned to the proper group of investors immediately: the homes only fell into their designated tranches when they went into default.”
So this sound to me like there would be no legal way to do tranches. Or at least no way to do it without breaking the chain of title or violating tax laws. The note must be in legal limbo until you know what tranche it goes in. And assigning it to the trust after the default will always be against REMIC tax rules.
Am I understanding this POV correctly? Was there some legal way these tranches could have been done?
VennData Says:
October 21st, 2010 at 10:53 pm
I wonder what the GOP media machine, Fox news and the World-Wide Chamber of Commerce would say if instead of a moratorium on foreclosures …
…say they had a moratorium on… uh… I dunno… say on oil drilling or something. I wonder if they would be so blasé about that? It would be interesting to know. Anyone have any idea?
The Curmudgeon Says:
October 21st, 2010 at 11:02 pm
I thought all hedge fund managers were dem’s?!? didn’t they line Obama’s pockets in 2008? What, they’re just whores like the rest of ‘em, licking their finger and pointing it in the air to see which way the political wind is blowing?
GeorgeBurnsWasRight Says:
October 21st, 2010 at 11:06 pm
There was a report on NPR today of yet another part of the foreclosure mess. In Florida they have something called the “Rocket Docket”, courts that handle 200 foreclosures a day. The judges admit they don’t have time to either look at the documents or listen to arguments. So you can imagine the level of “justice” being dispensed.
call me ahab Says:
October 21st, 2010 at 11:16 pm
GeorgeBurns-
and we care why? the people that aren’t paying should stay? what’s your point exactly (as if anyone cares)
VennData-
one trick pony with nothing to say (over and over and over again)-
Strange that those of the opinion that this situation will have a limited and manageable but perhaps costly resolution, seem to completely discount the criminality of what has taken place. Is the idea that this industry is immune from prosecution a given? If it is, we’re more screwed than I thought, and y’all know how screwed I think we are.
i was just reading farmera1′s reference to the baseline scenario’s treatment (great blog) of the this subject…
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
While I would join many other investors in the n/a mbs mkt in celebration if a significant amount of loans out of these deals were put back to the issuers, the reality is that the big originators/issuers/banks have the upper hand here. They will drag this fight out on a loan by loan basis. I don’t care how big you are (ny fed, pimco, blackrock, etc.), the diligence expense is prohibitive. You have to understand how time intensive a project like this would be.
BofA seems like it is in serious trouble, and they will probably settle for some huge amount of money, but the idea of fighting them loan by loan is not remotely feasible. What gets missed in this discussion is that money managers, hedge funds, insurance companies, etc should have done more diligence at before purchasing said security. While the big IBs certainly ran with market, buyers had access to the loan tapes. They had the prospectus. And they got greedy and it all fell apart. It’s a disgrace that that the big $mm are not on media trial right next to the head of GS. The “buy” side is just as much to blame as the big IBs. But that wont happen. Such is life.
Effective Demand Says:
October 22nd, 2010 at 12:22 am
Been going around looking at the RE investor boards, none of the trustee sale buyers are having trouble getting title insurance…
Despite escalating outrage over rampant foreclosure fraud, the Federal Reserve now appears ready to eviscerate a key mortgage regulation in an effort to spare banks the losses from their own wrongdoing. Even as bank executives preposterously claim to have wronged nobody in the foreclosure process, they're pushing hard to unwind the only serious federal rule that protects borrowers from predatory loans and improper foreclosures. As if the last decade of abuse wasn't bad enough, banks are once again mobilizing to screw borrowers in the pursuit of epic bonuses. And once again, it appears that the Federal Reserve has become an accomplice to this nationwide mortgage scam.
Today, top mortgage officers from the nation's largest banks are telling the Senate Banking Committee that they aren't kicking the wrong people out of their homes. This is simply false. Problems at mortgage servicers have been going on for years, long before banks got into trouble for illegally robo-signing foreclosure documents. People are kicked out of their homes without cause in the United States every day. If the top executives at America's largest banks don't know this fact, they lack the competence needed to run their organizations.
Law firms that work with troubled borrowers are jam-packed with horror stories about foreclosures caused entirely by banks, not borrowers. Families who never miss a payment come home to an eviction notice, or a thug breaking down their door.
But it's even more common for borrowers to find themselves in trouble because their bank engaged in blatantly predatory lending. There is only one serious federal remedy for predatory lending, and the Fed is now knowingly trying to gut that remedy in order to help banks avoid losses from their own fraud. The remedy is called rescission, and it works like this:
If a bank failed to make key consumer protection disclosures about a mortgage, the borrower can demand that all of the interest and closing costs on the loan be refunded. Equally important, the bank must also stop all foreclosure proceedings and give up its right to foreclose. Once the bank gives up its right to foreclose, the full amount of the mortgage, minus interest and closing costs, becomes due. This isn't a free lunch for the borrower, especially when the value of her home has declined dramatically, but it's better than nothing, and it does impose real costs on banks.
For this process to function at all, it is absolutely critical that the bank be barred from foreclosing before the borrower has to pay off the remainder of the loan. A borrower can easily owe hundreds of thousands of dollars after winning a rescission. Few victims of predatory lending actually have that kind of money on hand.
This is the whole point of rescission, and it's been on the books since the Truth in Lending Act was passed in 1968. Without it, the consumer protections detailed by that law have no teeth. A bank is barred from engaging in predatory lending, but if it does it anyway, it faces no serious punishment.
Rescission, in other words, is the only federal legal device keeping banks in check on predatory lending (as the last decade proves, it's nowhere near enough). Predatory lending is really bad. If banks engage in it, they should face dramatic consequences. They don't get to foreclose and they give up all of the profit they expected to score from the predatory loan. If the borrower doesn't have all of the money on hand to pay off what's left, the bank has to deal with this money coming in over time.
The bank lobby and the Fed are now trying to completely gut the substance of this regulation. The Fed has just proposed a new rule that would reverse the order of payments and the right to foreclose under rescission. Under the new rule, a bank that has engaged in predatory lending does not have to give up its right to foreclose until after the borrower has paid off the full remaining balance of the loan.
Under the Fed's proposal, if you're the victim of illegal predatory lending, the bank will still get to foreclose on you unless you pony up hundreds of thousands of dollars all at once. And you'll have to pony up what the bank says you owe, which may be very different from what you actually owe. That eliminates the usefulness of rescission, making the new rule a bailout for predators.
The Fed knowsfull well thatit's gutting the law here. The Board of Governors and their staff have met with key consumer lawyers no less than three times about this exact rule proposal, and the Fed is going ahead with it anyway.
Here's what's really going on. The largest banks don't have enough capital to weather a bad housing market. And any process that sheds light on the documentation procedures at mortgage servicers will expose the big banks to investor lawsuits. But investors can't sue without those documents. Rescission judgments create a paper trail for illegal loans. In addition to creating immediate losses for banks, rescission documents that banks sold illegal loans, giving investors who bought mortgage-backed securities ammunition for well-founded lawsuits. Those lawsuits, in turn, could sink some of the biggest names on Wall Street, something the Fed has been trying to prevent at all costs since 2008.
How close to the edge are the banks? Many mortgages that they account for as profitable assets are actually huge losses. The most obvious example of this insanity involves second lien mortgages. There are lots of kinds of second liens loans, but the important thing to remember is that they're the first asset to be wiped out when housing prices decline. Right now, they're in big trouble.
The second-lien holdings of Citigroup, Wells Fargo, Bank of America and JPMorgan Chase are about equal to their total capital. If you wipeout second liens, these banks are done. Right now the banks are accounting for these second liens as if they were worth nearly 100 percent of their original value—even though these loans only trade at only about one-quarter of that value. If banks take the market's value of just one class of assets, they're gone.
This class of assets goes completely under if banks have to own up to the current foreclosure fraud mess. The only real way to fix the documentation fraud problems is a nationwide program reducing the amounts that borrowers owe on their mortgages to current home values. Doing that forces the banks to acknowledge that their second lien mortgages are, in fact, worthless.
So the big banks and their protectors at the Fed are launching a two-pronged strategy. First, they're trying to prevent investors from obtaining the loan documents that will fuel well-justified lawsuits. Second, they're trying to give banks even greater control over the foreclosure process, in order to allow banks to continue to game accounting rules. This is a premeditated strategy to save banks from losses created by their own fraudulent, predatory behavior. It has no place on the books of the Fed, particularly after the central bank's total failure to prevent the mortgage abuses of the past decade.
It's not too late for the Fed to turn back. It can, in fact, abandon this bailout, and leave consumer protection issues to the new Consumer Financial Protection Bureau, which is designed to handle exactly this sort of issue, for exactly this reason.
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Investors and traders in China's main financial district are talking about the following before the start of trade today: The State Information Center projects that China's fourth-quarter consumer price index will increase by 3.8%, ...
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Investors and traders in China's main financial district are talking about the following before the start of trade today: The State Information Center projects that China's fourth-quarter consumer price index will increase by 3.8%, ...
1 Tweets that mention Police News at Steven Landsburg | The Big Questions: Tackling the Problems of Philosophy with Ideas from Mathematics, Economics, and Physics -- Topsy.com. Pingback on Nov 19th, 2010 at 3:23 am ...
Investors and traders in China's main financial district are talking about the following before the start of trade today: The State Information Center projects that China's fourth-quarter consumer price index will increase by 3.8%, ...
1 Tweets that mention Police News at Steven Landsburg | The Big Questions: Tackling the Problems of Philosophy with Ideas from Mathematics, Economics, and Physics -- Topsy.com. Pingback on Nov 19th, 2010 at 3:23 am ...
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1 Tweets that mention Police News at Steven Landsburg | The Big Questions: Tackling the Problems of Philosophy with Ideas from Mathematics, Economics, and Physics -- Topsy.com. Pingback on Nov 19th, 2010 at 3:23 am ...
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FOX News covers politics on America's Election Headquarters. FOX News political coverage on elections, races, foreign policy, candidates, and national security.
Doesn't Rockefeller have a ton of money with which to develop his own network news operation if he wishes? Why doesn't he deploy his own capital and take the risk associated with free enterprise activities if he believes it is warranted ...
News Corp Logo Reuters is reporting that News Corp, the world's third-largest media conglomerate, has confirmed they will be releasing a news publication developed specifically for tablet computers like the iPad. "It's a tablet-only ...
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Robert M Says:
October 21st, 2010 at 4:53 pm
I think you published the first part two days ago. This is his second piece on the subject.
More on Why the PIMCO, BlackRock, Freddie, NY Fed Letter to Countrywide on Putbacks Is Way Overhyped
I still laying odds on the perp walk.
rktbrkr Says:
October 21st, 2010 at 5:02 pm
How could Donovan say foreclosure problems weren’t systemic and then admit to Jim Lehrer that they didn’t know the extent of the problems yet? Not very truthy.
Soylent Green Is People Says:
October 21st, 2010 at 5:03 pm
This was an interesting read:
http://www.reuters.com/article/idUSTRE69J6F520101020
Effective Demand Says:
October 21st, 2010 at 5:05 pm
I really have a hard time seeing how the mortgage issue will be a big deal in non-judicial foreclosure states.
In judicial foreclosure states the homeowner has to actively defend themselves unless the courts start becoming activist.
Both require en-masse participatation by the homeowners in bringing or responding to a lawsuit AND for the servicers processes to be so messed up they can’t ever produce the note.
I can see it happening in the margins, but not en-masse. And thus it will be a relative non-event as far as keeping people who aren’t paying their mortgages in their homes. It will be an event played out over a very long time between bondholders, servicers and originators and it will cost billions over many years. But in the end it’s sort of a “meh” event in my view. The processes will be fixed and some additional losses not currently reserved for will be taken, spread out over time.
I do see a change watching RE listings in my local area, in the last few days I can tell a lot of short sales that had been stalled have been noted that they are getting responses from the bank. So at least over the short term the banks are shifting resources into that department.
AHodge Says:
October 21st, 2010 at 5:16 pm
i cut the money shot from this FT earlier
http://ftalphaville.ft.com/blog/2010/10/21/378606/sarbanes-oxley-meets-servicer-execs/
Roger Bigod Says:
October 21st, 2010 at 5:56 pm
Why should I waste my beautiful mind on something like this? It will all be taken care of after the election in the Homeland Property Title Rectification and Forward Looking Respect for Law Act of 2010.
Mark E Hoffer Says:
October 21st, 2010 at 5:57 pm
the utter (f******) Bilge that passes for the MSM is enough to give one Zebra Mussels..
http://search.yippy.com/search?input-form=clusty-simple&v%3Asources=webplus&v%3Aproject=clusty&query=Zebra+Mussels
tyaresun Says:
October 21st, 2010 at 6:02 pm
Consumer complaints about Provident and Associates:
http://www.consumeraffairs.com/finance/provident_funding_associates.html
These guys are not much better than the others in the limelight.
Mark E Hoffer Says:
October 21st, 2010 at 6:04 pm
Roger,
no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …
suspiciously similar to http://search.yippy.com/search?input-form=clusty-simple&v%3Asources=webplus&v%3Aproject=clusty&query=the+passing+of+the+Federal+Reserve+Act+of+1913
‘all clouds’-link
http://search.yippy.com/search?v%3aproject=clusty&v%3afile=viv_7jKTyb&sec=1287698174&v%3astate=%28root-0-999%29%7croot&v%3aframe=tree&
mavenwatch Says:
October 21st, 2010 at 6:28 pm
“An attorney from Portland is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.”
http://www.wcsh6.com/news/story.aspx?storyid=133138&catid=2
watch video to right from link above
“DENMARK, Maine (NEWS CENTER) — An attorney from Portland is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.
Thomas Cox volunteers at Pine Tree Legal, giving free legal advice to people facing foreclosure. While reviewing Nicole Bradbury of Denmark’s foreclosure documents, he realized they were signed by someone with the title “limited signing officer,” meaning the person’s only job was to sign the papers. Cox arranged a deposition with the signer, and he admitted to signing hundreds of foreclosure documents without ever reading them. Now the nation’s attorneys general are investigating. Banks have responded, saying that the problems are technical, and the facts in all of these cases are true. Cox says that answer is unacceptable.
“The message that the industry’s putting out that these are just technical mistakes are a real red herring to the fact that they grossly abused the American judicial system by presenting many, many thousands of false affidavits to courts all over the country that judges believed to be true and entered judgements, taking away homes based upon them” Cox told NEWS CENTER.
Cox says Nicole Bradbury is still living in her house. GMAC filed a motion to dismiss her foreclosure to fix the problems and start the process over again. An attorney representing GMAC and Fannie Mae, the mortgage company that owns Bradbury’s loan, declined to comment because the foreclosure case is still pending.”
mote Says:
October 21st, 2010 at 6:30 pm
From “A question of property rights,” excerpted quotefest follows.
Objects in the rear view mirror:
Banks “have essentially sidestepped 400 years of property law in the United States,” said Rebel Cole, a professor of finance and real estate at DePaul University. “There are so many questionable aspects to this thing it’s scary.”
Nothing but Blue Skies:
Joseph Mason, a finance professor at Louisiana State University, said concerns about proper foreclosure documentation were overblown. At the end of the day, he said, even if the banks botched the paperwork, homeowners who didn’t make their mortgage payments still needed to be held accountable.
Houston, we have a problem:
Some analysts are not sure that banks can proceed so freely. Katherine Porter, a visiting law professor at Harvard University and an expert on consumer credit law, said that lenders were wrong to minimize problems with the legal documentation.
Tax man’s whatif:
Robert Willens, a tax expert, said documentation issues had created potentially severe tax problems for investors in mortgage securities and “there is enough of a question here that the courts might well have to resolve the issue.”
Now investors who bought mortgage trusts – investment vehicles composed of mortgages – are wondering if the loans inside them were recorded properly. If not, the tax advantages of the trusts could be wiped out, leaving mortgage securities investors with significant tax bills.
Guantanamo Bay revisited:
Lenders and their representatives have sought to minimize the significance of robo-signing and, while acknowledging legal lapses in how they documented loans, have argued that foreclosures should proceed anyway. After all, the lenders say, the homeowners owe the money.
But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.”
http://www.chron.com/disp/story.mpl/business/7256693.html
Maseratij Says:
October 21st, 2010 at 6:38 pm
” Regulator Says Fannie, Freddie Cost at Mercy of Economy.. To be filed under Duh! ”
I keep coming back to this droll of a subject for your wit BR. Your youthful character is evident in your exuberance and cultural relevance. If your a Dad, I bet your a good one and know your children well, if not you will be.
Swarm The Banks Says:
October 21st, 2010 at 7:03 pm
Forcing people to fall behind on their mortgages before being eligible for HAMP, even though this triggers parallel foreclosure and hastens the loss of the property is beyond a smoking gun, it’s a stinking gun because it’s been going on for a year and a half now.
http://www.parallelforeclosure.com
farmera1 Says:
October 21st, 2010 at 7:04 pm
And from the Baseline Scenario we have this:
http://baselinescenario.com/2010/10/16/once-more-into-the-breach/#more-8112
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
“Let’s hope there’s a better explanation than “we have created [our biggest banks], and we’re sort of past that point, and I think that in some sense, the genie’s out of the bottle.”
ACS Says:
October 21st, 2010 at 7:05 pm
Every time a bank is shut down, a law school should be shut as well.
Vilgrad Says:
October 21st, 2010 at 7:52 pm
Gonzalo Lira, who’s post was stolen by David Kotok as his own. Real lowlife move.
http://gonzalolira.blogspot.com/2010/10/mulligan-mortgagesthe-banks-only-way.html
philipat Says:
October 21st, 2010 at 8:31 pm
Barry, what became of Parts 3-5 in the series “Forclosure Fraud for Dummies”?
dss Says:
October 21st, 2010 at 8:32 pm
@ACS,
Great observation.
Ltdata Says:
October 21st, 2010 at 8:59 pm
File this under Law of unintended results: Quite frankly, even if a megabank, etc. does not know their exposure – their auditor WILL find some way to sample the mess, quantify it for the financials, and bill, bill, bill. If they thought shoddy was cheap, wait til they get the audit bill.
Roger Bigod Says:
October 21st, 2010 at 9:30 pm
Mark E Hoffer
“no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …”
Oh, yes. Afterward, the Preznit will get that serious, stern look and point the finger at the GOP for killing the option of public, non-electronic property records. Especially since he fought for the option it so fiercely. At least there will be a special approproation to help the county clerk’s offices pay for shredding and burning all the backward-looking paper records.
The Curmudgeon Says:
October 21st, 2010 at 9:47 pm
“But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.” ”
~The good associate professor of law is surely aware that liberty interests enjoy far greater protections under the constititution than do property interests. Due process for the denial of property interests (think Kelo, e.g.) is far less stringent than due process for the denial of liberty interests (think Miranda and its progeny). I doubt anyone will seriously attempt to formulate an exclusionary rule for mortgage foreclosures, where the failure to submit a properly attested affidavit means the mortgage company is barred from admitting into evidence the promissory note. But that’s the reasonable view. And these are markedly unreasonable times. So, who knows?
franklin411 Says:
October 21st, 2010 at 9:52 pm
This is what happens to bad little Democrats who actually propose making Wall Street pay for the mess it created:
Wealthy financier is mysterious funder of ads attacking DeFazio
Robert Mercer, the co-CEO of one of the world’s largest hedge funds, is the mysterious donor who has been paying for $300,000 of attack ads aimed at Rep. Peter DeFazio, D-Ore.
http://blog.oregonlive.com/mapesonpolitics/2010/10/wealthy_financier_is_mysteriou.html
victor Says:
October 21st, 2010 at 9:53 pm
To Effective Demand,
Not a big deal? it is already a big deal and I suspect (because NOBODY knows for sure) it may get a great deal bigger. Remember when Ben Stein told us on national TV that the sub-prime mortgae “event” would blow over?
S Brennan Says:
October 21st, 2010 at 10:16 pm
Off topic, but food for thought…read it through, the punches get thrown at the end.
http://www.bloomberg.com/news/2010-10-21/google-2-4-rate-shows-how-60-billion-u-s-revenue-lost-to-tax-loopholes.html
einniv Says:
October 21st, 2010 at 10:37 pm
I’ve been reading a lot of the blogging on the foreclosure mess. Every time I think I understand it fully something else comes up that makes me wonder if I do. Some of the reports make it sound like the whole idea of of MBS tranches is inherently illegal. Let me explain.
Take this excerpt from http://www.huffingtonpost.com/ellen-brown/foreclosuregate_b_752788.html
“The top tranche is triple A because it includes the mortgages that did NOT default; but no one could know which those were until the defaults occurred, when the defaulting mortgages got assigned to the lower tranches and foreclosure went forward. That could explain why the mortgages could not be assigned to the proper group of investors immediately: the homes only fell into their designated tranches when they went into default.”
So this sound to me like there would be no legal way to do tranches. Or at least no way to do it without breaking the chain of title or violating tax laws. The note must be in legal limbo until you know what tranche it goes in. And assigning it to the trust after the default will always be against REMIC tax rules.
Am I understanding this POV correctly? Was there some legal way these tranches could have been done?
VennData Says:
October 21st, 2010 at 10:53 pm
I wonder what the GOP media machine, Fox news and the World-Wide Chamber of Commerce would say if instead of a moratorium on foreclosures …
…say they had a moratorium on… uh… I dunno… say on oil drilling or something. I wonder if they would be so blasé about that? It would be interesting to know. Anyone have any idea?
The Curmudgeon Says:
October 21st, 2010 at 11:02 pm
I thought all hedge fund managers were dem’s?!? didn’t they line Obama’s pockets in 2008? What, they’re just whores like the rest of ‘em, licking their finger and pointing it in the air to see which way the political wind is blowing?
GeorgeBurnsWasRight Says:
October 21st, 2010 at 11:06 pm
There was a report on NPR today of yet another part of the foreclosure mess. In Florida they have something called the “Rocket Docket”, courts that handle 200 foreclosures a day. The judges admit they don’t have time to either look at the documents or listen to arguments. So you can imagine the level of “justice” being dispensed.
call me ahab Says:
October 21st, 2010 at 11:16 pm
GeorgeBurns-
and we care why? the people that aren’t paying should stay? what’s your point exactly (as if anyone cares)
VennData-
one trick pony with nothing to say (over and over and over again)-
push on to political blogs
S Brennan Says:
October 21st, 2010 at 11:30 pm
http://www.cleveland.com/business/index.ssf/2010/10/mortgage_foreclosure_uproar_sw.html
Petey Wheatstraw Says:
October 21st, 2010 at 11:37 pm
Strange that those of the opinion that this situation will have a limited and manageable but perhaps costly resolution, seem to completely discount the criminality of what has taken place. Is the idea that this industry is immune from prosecution a given? If it is, we’re more screwed than I thought, and y’all know how screwed I think we are.
wunsacon Says:
October 21st, 2010 at 11:38 pm
I’ve had this happen to me, too!
http://www.zerohedge.com/article/open-letter-secs-worthless-enforcement-division
jimh Says:
October 22nd, 2010 at 12:02 am
i was just reading farmera1′s reference to the baseline scenario’s treatment (great blog) of the this subject…
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
While I would join many other investors in the n/a mbs mkt in celebration if a significant amount of loans out of these deals were put back to the issuers, the reality is that the big originators/issuers/banks have the upper hand here. They will drag this fight out on a loan by loan basis. I don’t care how big you are (ny fed, pimco, blackrock, etc.), the diligence expense is prohibitive. You have to understand how time intensive a project like this would be.
BofA seems like it is in serious trouble, and they will probably settle for some huge amount of money, but the idea of fighting them loan by loan is not remotely feasible. What gets missed in this discussion is that money managers, hedge funds, insurance companies, etc should have done more diligence at before purchasing said security. While the big IBs certainly ran with market, buyers had access to the loan tapes. They had the prospectus. And they got greedy and it all fell apart. It’s a disgrace that that the big $mm are not on media trial right next to the head of GS. The “buy” side is just as much to blame as the big IBs. But that wont happen. Such is life.
Effective Demand Says:
October 22nd, 2010 at 12:22 am
Been going around looking at the RE investor boards, none of the trustee sale buyers are having trouble getting title insurance…
Despite escalating outrage over rampant foreclosure fraud, the Federal Reserve now appears ready to eviscerate a key mortgage regulation in an effort to spare banks the losses from their own wrongdoing. Even as bank executives preposterously claim to have wronged nobody in the foreclosure process, they're pushing hard to unwind the only serious federal rule that protects borrowers from predatory loans and improper foreclosures. As if the last decade of abuse wasn't bad enough, banks are once again mobilizing to screw borrowers in the pursuit of epic bonuses. And once again, it appears that the Federal Reserve has become an accomplice to this nationwide mortgage scam.
Today, top mortgage officers from the nation's largest banks are telling the Senate Banking Committee that they aren't kicking the wrong people out of their homes. This is simply false. Problems at mortgage servicers have been going on for years, long before banks got into trouble for illegally robo-signing foreclosure documents. People are kicked out of their homes without cause in the United States every day. If the top executives at America's largest banks don't know this fact, they lack the competence needed to run their organizations.
Law firms that work with troubled borrowers are jam-packed with horror stories about foreclosures caused entirely by banks, not borrowers. Families who never miss a payment come home to an eviction notice, or a thug breaking down their door.
But it's even more common for borrowers to find themselves in trouble because their bank engaged in blatantly predatory lending. There is only one serious federal remedy for predatory lending, and the Fed is now knowingly trying to gut that remedy in order to help banks avoid losses from their own fraud. The remedy is called rescission, and it works like this:
If a bank failed to make key consumer protection disclosures about a mortgage, the borrower can demand that all of the interest and closing costs on the loan be refunded. Equally important, the bank must also stop all foreclosure proceedings and give up its right to foreclose. Once the bank gives up its right to foreclose, the full amount of the mortgage, minus interest and closing costs, becomes due. This isn't a free lunch for the borrower, especially when the value of her home has declined dramatically, but it's better than nothing, and it does impose real costs on banks.
For this process to function at all, it is absolutely critical that the bank be barred from foreclosing before the borrower has to pay off the remainder of the loan. A borrower can easily owe hundreds of thousands of dollars after winning a rescission. Few victims of predatory lending actually have that kind of money on hand.
This is the whole point of rescission, and it's been on the books since the Truth in Lending Act was passed in 1968. Without it, the consumer protections detailed by that law have no teeth. A bank is barred from engaging in predatory lending, but if it does it anyway, it faces no serious punishment.
Rescission, in other words, is the only federal legal device keeping banks in check on predatory lending (as the last decade proves, it's nowhere near enough). Predatory lending is really bad. If banks engage in it, they should face dramatic consequences. They don't get to foreclose and they give up all of the profit they expected to score from the predatory loan. If the borrower doesn't have all of the money on hand to pay off what's left, the bank has to deal with this money coming in over time.
The bank lobby and the Fed are now trying to completely gut the substance of this regulation. The Fed has just proposed a new rule that would reverse the order of payments and the right to foreclose under rescission. Under the new rule, a bank that has engaged in predatory lending does not have to give up its right to foreclose until after the borrower has paid off the full remaining balance of the loan.
Under the Fed's proposal, if you're the victim of illegal predatory lending, the bank will still get to foreclose on you unless you pony up hundreds of thousands of dollars all at once. And you'll have to pony up what the bank says you owe, which may be very different from what you actually owe. That eliminates the usefulness of rescission, making the new rule a bailout for predators.
The Fed knows full well that it's gutting the law here. The Board of Governors and their staff have met with key consumer lawyers no less than three times about this exact rule proposal, and the Fed is going ahead with it anyway.
Here's what's really going on. The largest banks don't have enough capital to weather a bad housing market. And any process that sheds light on the documentation procedures at mortgage servicers will expose the big banks to investor lawsuits. But investors can't sue without those documents. Rescission judgments create a paper trail for illegal loans. In addition to creating immediate losses for banks, rescission documents that banks sold illegal loans, giving investors who bought mortgage-backed securities ammunition for well-founded lawsuits. Those lawsuits, in turn, could sink some of the biggest names on Wall Street, something the Fed has been trying to prevent at all costs since 2008.
How close to the edge are the banks? Many mortgages that they account for as profitable assets are actually huge losses. The most obvious example of this insanity involves second lien mortgages. There are lots of kinds of second liens loans, but the important thing to remember is that they're the first asset to be wiped out when housing prices decline. Right now, they're in big trouble.
The second-lien holdings of Citigroup, Wells Fargo, Bank of America and JPMorgan Chase are about equal to their total capital. If you wipeout second liens, these banks are done. Right now the banks are accounting for these second liens as if they were worth nearly 100 percent of their original value—even though these loans only trade at only about one-quarter of that value. If banks take the market's value of just one class of assets, they're gone.
This class of assets goes completely under if banks have to own up to the current foreclosure fraud mess. The only real way to fix the documentation fraud problems is a nationwide program reducing the amounts that borrowers owe on their mortgages to current home values. Doing that forces the banks to acknowledge that their second lien mortgages are, in fact, worthless.
So the big banks and their protectors at the Fed are launching a two-pronged strategy. First, they're trying to prevent investors from obtaining the loan documents that will fuel well-justified lawsuits. Second, they're trying to give banks even greater control over the foreclosure process, in order to allow banks to continue to game accounting rules. This is a premeditated strategy to save banks from losses created by their own fraudulent, predatory behavior. It has no place on the books of the Fed, particularly after the central bank's total failure to prevent the mortgage abuses of the past decade.
It's not too late for the Fed to turn back. It can, in fact, abandon this bailout, and leave consumer protection issues to the new Consumer Financial Protection Bureau, which is designed to handle exactly this sort of issue, for exactly this reason.
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49 Responses to “Mortgage Madness Linkfest”
Robert M Says:
October 21st, 2010 at 4:53 pm
I think you published the first part two days ago. This is his second piece on the subject.
More on Why the PIMCO, BlackRock, Freddie, NY Fed Letter to Countrywide on Putbacks Is Way Overhyped
I still laying odds on the perp walk.
rktbrkr Says:
October 21st, 2010 at 5:02 pm
How could Donovan say foreclosure problems weren’t systemic and then admit to Jim Lehrer that they didn’t know the extent of the problems yet? Not very truthy.
Soylent Green Is People Says:
October 21st, 2010 at 5:03 pm
This was an interesting read:
http://www.reuters.com/article/idUSTRE69J6F520101020
Effective Demand Says:
October 21st, 2010 at 5:05 pm
I really have a hard time seeing how the mortgage issue will be a big deal in non-judicial foreclosure states.
In judicial foreclosure states the homeowner has to actively defend themselves unless the courts start becoming activist.
Both require en-masse participatation by the homeowners in bringing or responding to a lawsuit AND for the servicers processes to be so messed up they can’t ever produce the note.
I can see it happening in the margins, but not en-masse. And thus it will be a relative non-event as far as keeping people who aren’t paying their mortgages in their homes. It will be an event played out over a very long time between bondholders, servicers and originators and it will cost billions over many years. But in the end it’s sort of a “meh” event in my view. The processes will be fixed and some additional losses not currently reserved for will be taken, spread out over time.
I do see a change watching RE listings in my local area, in the last few days I can tell a lot of short sales that had been stalled have been noted that they are getting responses from the bank. So at least over the short term the banks are shifting resources into that department.
AHodge Says:
October 21st, 2010 at 5:16 pm
i cut the money shot from this FT earlier
http://ftalphaville.ft.com/blog/2010/10/21/378606/sarbanes-oxley-meets-servicer-execs/
Roger Bigod Says:
October 21st, 2010 at 5:56 pm
Why should I waste my beautiful mind on something like this? It will all be taken care of after the election in the Homeland Property Title Rectification and Forward Looking Respect for Law Act of 2010.
Mark E Hoffer Says:
October 21st, 2010 at 5:57 pm
the utter (f******) Bilge that passes for the MSM is enough to give one Zebra Mussels..
http://search.yippy.com/search?input-form=clusty-simple&v%3Asources=webplus&v%3Aproject=clusty&query=Zebra+Mussels
tyaresun Says:
October 21st, 2010 at 6:02 pm
Consumer complaints about Provident and Associates:
http://www.consumeraffairs.com/finance/provident_funding_associates.html
These guys are not much better than the others in the limelight.
Mark E Hoffer Says:
October 21st, 2010 at 6:04 pm
Roger,
no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …
suspiciously similar to http://search.yippy.com/search?input-form=clusty-simple&v%3Asources=webplus&v%3Aproject=clusty&query=the+passing+of+the+Federal+Reserve+Act+of+1913
‘all clouds’-link
http://search.yippy.com/search?v%3aproject=clusty&v%3afile=viv_7jKTyb&sec=1287698174&v%3astate=%28root-0-999%29%7croot&v%3aframe=tree&
mavenwatch Says:
October 21st, 2010 at 6:28 pm
“An attorney from Portland is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.”
http://www.wcsh6.com/news/story.aspx?storyid=133138&catid=2
watch video to right from link above
“DENMARK, Maine (NEWS CENTER) — An attorney from Portland is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.
Thomas Cox volunteers at Pine Tree Legal, giving free legal advice to people facing foreclosure. While reviewing Nicole Bradbury of Denmark’s foreclosure documents, he realized they were signed by someone with the title “limited signing officer,” meaning the person’s only job was to sign the papers. Cox arranged a deposition with the signer, and he admitted to signing hundreds of foreclosure documents without ever reading them. Now the nation’s attorneys general are investigating. Banks have responded, saying that the problems are technical, and the facts in all of these cases are true. Cox says that answer is unacceptable.
“The message that the industry’s putting out that these are just technical mistakes are a real red herring to the fact that they grossly abused the American judicial system by presenting many, many thousands of false affidavits to courts all over the country that judges believed to be true and entered judgements, taking away homes based upon them” Cox told NEWS CENTER.
Cox says Nicole Bradbury is still living in her house. GMAC filed a motion to dismiss her foreclosure to fix the problems and start the process over again. An attorney representing GMAC and Fannie Mae, the mortgage company that owns Bradbury’s loan, declined to comment because the foreclosure case is still pending.”
mote Says:
October 21st, 2010 at 6:30 pm
From “A question of property rights,” excerpted quotefest follows.
Objects in the rear view mirror:
Banks “have essentially sidestepped 400 years of property law in the United States,” said Rebel Cole, a professor of finance and real estate at DePaul University. “There are so many questionable aspects to this thing it’s scary.”
Nothing but Blue Skies:
Joseph Mason, a finance professor at Louisiana State University, said concerns about proper foreclosure documentation were overblown. At the end of the day, he said, even if the banks botched the paperwork, homeowners who didn’t make their mortgage payments still needed to be held accountable.
Houston, we have a problem:
Some analysts are not sure that banks can proceed so freely. Katherine Porter, a visiting law professor at Harvard University and an expert on consumer credit law, said that lenders were wrong to minimize problems with the legal documentation.
Tax man’s whatif:
Robert Willens, a tax expert, said documentation issues had created potentially severe tax problems for investors in mortgage securities and “there is enough of a question here that the courts might well have to resolve the issue.”
Now investors who bought mortgage trusts – investment vehicles composed of mortgages – are wondering if the loans inside them were recorded properly. If not, the tax advantages of the trusts could be wiped out, leaving mortgage securities investors with significant tax bills.
Guantanamo Bay revisited:
Lenders and their representatives have sought to minimize the significance of robo-signing and, while acknowledging legal lapses in how they documented loans, have argued that foreclosures should proceed anyway. After all, the lenders say, the homeowners owe the money.
But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.”
http://www.chron.com/disp/story.mpl/business/7256693.html
Maseratij Says:
October 21st, 2010 at 6:38 pm
” Regulator Says Fannie, Freddie Cost at Mercy of Economy.. To be filed under Duh! ”
I keep coming back to this droll of a subject for your wit BR. Your youthful character is evident in your exuberance and cultural relevance. If your a Dad, I bet your a good one and know your children well, if not you will be.
Swarm The Banks Says:
October 21st, 2010 at 7:03 pm
Forcing people to fall behind on their mortgages before being eligible for HAMP, even though this triggers parallel foreclosure and hastens the loss of the property is beyond a smoking gun, it’s a stinking gun because it’s been going on for a year and a half now.
http://www.parallelforeclosure.com
farmera1 Says:
October 21st, 2010 at 7:04 pm
And from the Baseline Scenario we have this:
http://baselinescenario.com/2010/10/16/once-more-into-the-breach/#more-8112
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
“Let’s hope there’s a better explanation than “we have created [our biggest banks], and we’re sort of past that point, and I think that in some sense, the genie’s out of the bottle.”
ACS Says:
October 21st, 2010 at 7:05 pm
Every time a bank is shut down, a law school should be shut as well.
Vilgrad Says:
October 21st, 2010 at 7:52 pm
Gonzalo Lira, who’s post was stolen by David Kotok as his own. Real lowlife move.
http://gonzalolira.blogspot.com/2010/10/mulligan-mortgagesthe-banks-only-way.html
philipat Says:
October 21st, 2010 at 8:31 pm
Barry, what became of Parts 3-5 in the series “Forclosure Fraud for Dummies”?
dss Says:
October 21st, 2010 at 8:32 pm
@ACS,
Great observation.
Ltdata Says:
October 21st, 2010 at 8:59 pm
File this under Law of unintended results: Quite frankly, even if a megabank, etc. does not know their exposure – their auditor WILL find some way to sample the mess, quantify it for the financials, and bill, bill, bill. If they thought shoddy was cheap, wait til they get the audit bill.
Roger Bigod Says:
October 21st, 2010 at 9:30 pm
Mark E Hoffer
“no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …”
Oh, yes. Afterward, the Preznit will get that serious, stern look and point the finger at the GOP for killing the option of public, non-electronic property records. Especially since he fought for the option it so fiercely. At least there will be a special approproation to help the county clerk’s offices pay for shredding and burning all the backward-looking paper records.
The Curmudgeon Says:
October 21st, 2010 at 9:47 pm
“But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.
“We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.” ”
~The good associate professor of law is surely aware that liberty interests enjoy far greater protections under the constititution than do property interests. Due process for the denial of property interests (think Kelo, e.g.) is far less stringent than due process for the denial of liberty interests (think Miranda and its progeny). I doubt anyone will seriously attempt to formulate an exclusionary rule for mortgage foreclosures, where the failure to submit a properly attested affidavit means the mortgage company is barred from admitting into evidence the promissory note. But that’s the reasonable view. And these are markedly unreasonable times. So, who knows?
franklin411 Says:
October 21st, 2010 at 9:52 pm
This is what happens to bad little Democrats who actually propose making Wall Street pay for the mess it created:
Wealthy financier is mysterious funder of ads attacking DeFazio
Robert Mercer, the co-CEO of one of the world’s largest hedge funds, is the mysterious donor who has been paying for $300,000 of attack ads aimed at Rep. Peter DeFazio, D-Ore.
http://blog.oregonlive.com/mapesonpolitics/2010/10/wealthy_financier_is_mysteriou.html
victor Says:
October 21st, 2010 at 9:53 pm
To Effective Demand,
Not a big deal? it is already a big deal and I suspect (because NOBODY knows for sure) it may get a great deal bigger. Remember when Ben Stein told us on national TV that the sub-prime mortgae “event” would blow over?
S Brennan Says:
October 21st, 2010 at 10:16 pm
Off topic, but food for thought…read it through, the punches get thrown at the end.
http://www.bloomberg.com/news/2010-10-21/google-2-4-rate-shows-how-60-billion-u-s-revenue-lost-to-tax-loopholes.html
einniv Says:
October 21st, 2010 at 10:37 pm
I’ve been reading a lot of the blogging on the foreclosure mess. Every time I think I understand it fully something else comes up that makes me wonder if I do. Some of the reports make it sound like the whole idea of of MBS tranches is inherently illegal. Let me explain.
Take this excerpt from http://www.huffingtonpost.com/ellen-brown/foreclosuregate_b_752788.html
“The top tranche is triple A because it includes the mortgages that did NOT default; but no one could know which those were until the defaults occurred, when the defaulting mortgages got assigned to the lower tranches and foreclosure went forward. That could explain why the mortgages could not be assigned to the proper group of investors immediately: the homes only fell into their designated tranches when they went into default.”
So this sound to me like there would be no legal way to do tranches. Or at least no way to do it without breaking the chain of title or violating tax laws. The note must be in legal limbo until you know what tranche it goes in. And assigning it to the trust after the default will always be against REMIC tax rules.
Am I understanding this POV correctly? Was there some legal way these tranches could have been done?
VennData Says:
October 21st, 2010 at 10:53 pm
I wonder what the GOP media machine, Fox news and the World-Wide Chamber of Commerce would say if instead of a moratorium on foreclosures …
…say they had a moratorium on… uh… I dunno… say on oil drilling or something. I wonder if they would be so blasé about that? It would be interesting to know. Anyone have any idea?
The Curmudgeon Says:
October 21st, 2010 at 11:02 pm
I thought all hedge fund managers were dem’s?!? didn’t they line Obama’s pockets in 2008? What, they’re just whores like the rest of ‘em, licking their finger and pointing it in the air to see which way the political wind is blowing?
GeorgeBurnsWasRight Says:
October 21st, 2010 at 11:06 pm
There was a report on NPR today of yet another part of the foreclosure mess. In Florida they have something called the “Rocket Docket”, courts that handle 200 foreclosures a day. The judges admit they don’t have time to either look at the documents or listen to arguments. So you can imagine the level of “justice” being dispensed.
call me ahab Says:
October 21st, 2010 at 11:16 pm
GeorgeBurns-
and we care why? the people that aren’t paying should stay? what’s your point exactly (as if anyone cares)
VennData-
one trick pony with nothing to say (over and over and over again)-
push on to political blogs
S Brennan Says:
October 21st, 2010 at 11:30 pm
http://www.cleveland.com/business/index.ssf/2010/10/mortgage_foreclosure_uproar_sw.html
Petey Wheatstraw Says:
October 21st, 2010 at 11:37 pm
Strange that those of the opinion that this situation will have a limited and manageable but perhaps costly resolution, seem to completely discount the criminality of what has taken place. Is the idea that this industry is immune from prosecution a given? If it is, we’re more screwed than I thought, and y’all know how screwed I think we are.
wunsacon Says:
October 21st, 2010 at 11:38 pm
I’ve had this happen to me, too!
http://www.zerohedge.com/article/open-letter-secs-worthless-enforcement-division
jimh Says:
October 22nd, 2010 at 12:02 am
i was just reading farmera1′s reference to the baseline scenario’s treatment (great blog) of the this subject…
“The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”
While I would join many other investors in the n/a mbs mkt in celebration if a significant amount of loans out of these deals were put back to the issuers, the reality is that the big originators/issuers/banks have the upper hand here. They will drag this fight out on a loan by loan basis. I don’t care how big you are (ny fed, pimco, blackrock, etc.), the diligence expense is prohibitive. You have to understand how time intensive a project like this would be.
BofA seems like it is in serious trouble, and they will probably settle for some huge amount of money, but the idea of fighting them loan by loan is not remotely feasible. What gets missed in this discussion is that money managers, hedge funds, insurance companies, etc should have done more diligence at before purchasing said security. While the big IBs certainly ran with market, buyers had access to the loan tapes. They had the prospectus. And they got greedy and it all fell apart. It’s a disgrace that that the big $mm are not on media trial right next to the head of GS. The “buy” side is just as much to blame as the big IBs. But that wont happen. Such is life.
Effective Demand Says:
October 22nd, 2010 at 12:22 am
Been going around looking at the RE investor boards, none of the trustee sale buyers are having trouble getting title insurance…
Despite escalating outrage over rampant foreclosure fraud, the Federal Reserve now appears ready to eviscerate a key mortgage regulation in an effort to spare banks the losses from their own wrongdoing. Even as bank executives preposterously claim to have wronged nobody in the foreclosure process, they're pushing hard to unwind the only serious federal rule that protects borrowers from predatory loans and improper foreclosures. As if the last decade of abuse wasn't bad enough, banks are once again mobilizing to screw borrowers in the pursuit of epic bonuses. And once again, it appears that the Federal Reserve has become an accomplice to this nationwide mortgage scam.
Today, top mortgage officers from the nation's largest banks are telling the Senate Banking Committee that they aren't kicking the wrong people out of their homes. This is simply false. Problems at mortgage servicers have been going on for years, long before banks got into trouble for illegally robo-signing foreclosure documents. People are kicked out of their homes without cause in the United States every day. If the top executives at America's largest banks don't know this fact, they lack the competence needed to run their organizations.
Law firms that work with troubled borrowers are jam-packed with horror stories about foreclosures caused entirely by banks, not borrowers. Families who never miss a payment come home to an eviction notice, or a thug breaking down their door.
But it's even more common for borrowers to find themselves in trouble because their bank engaged in blatantly predatory lending. There is only one serious federal remedy for predatory lending, and the Fed is now knowingly trying to gut that remedy in order to help banks avoid losses from their own fraud. The remedy is called rescission, and it works like this:
If a bank failed to make key consumer protection disclosures about a mortgage, the borrower can demand that all of the interest and closing costs on the loan be refunded. Equally important, the bank must also stop all foreclosure proceedings and give up its right to foreclose. Once the bank gives up its right to foreclose, the full amount of the mortgage, minus interest and closing costs, becomes due. This isn't a free lunch for the borrower, especially when the value of her home has declined dramatically, but it's better than nothing, and it does impose real costs on banks.
For this process to function at all, it is absolutely critical that the bank be barred from foreclosing before the borrower has to pay off the remainder of the loan. A borrower can easily owe hundreds of thousands of dollars after winning a rescission. Few victims of predatory lending actually have that kind of money on hand.
This is the whole point of rescission, and it's been on the books since the Truth in Lending Act was passed in 1968. Without it, the consumer protections detailed by that law have no teeth. A bank is barred from engaging in predatory lending, but if it does it anyway, it faces no serious punishment.
Rescission, in other words, is the only federal legal device keeping banks in check on predatory lending (as the last decade proves, it's nowhere near enough). Predatory lending is really bad. If banks engage in it, they should face dramatic consequences. They don't get to foreclose and they give up all of the profit they expected to score from the predatory loan. If the borrower doesn't have all of the money on hand to pay off what's left, the bank has to deal with this money coming in over time.
The bank lobby and the Fed are now trying to completely gut the substance of this regulation. The Fed has just proposed a new rule that would reverse the order of payments and the right to foreclose under rescission. Under the new rule, a bank that has engaged in predatory lending does not have to give up its right to foreclose until after the borrower has paid off the full remaining balance of the loan.
Under the Fed's proposal, if you're the victim of illegal predatory lending, the bank will still get to foreclose on you unless you pony up hundreds of thousands of dollars all at once. And you'll have to pony up what the bank says you owe, which may be very different from what you actually owe. That eliminates the usefulness of rescission, making the new rule a bailout for predators.
The Fed knows full well that it's gutting the law here. The Board of Governors and their staff have met with key consumer lawyers no less than three times about this exact rule proposal, and the Fed is going ahead with it anyway.
Here's what's really going on. The largest banks don't have enough capital to weather a bad housing market. And any process that sheds light on the documentation procedures at mortgage servicers will expose the big banks to investor lawsuits. But investors can't sue without those documents. Rescission judgments create a paper trail for illegal loans. In addition to creating immediate losses for banks, rescission documents that banks sold illegal loans, giving investors who bought mortgage-backed securities ammunition for well-founded lawsuits. Those lawsuits, in turn, could sink some of the biggest names on Wall Street, something the Fed has been trying to prevent at all costs since 2008.
How close to the edge are the banks? Many mortgages that they account for as profitable assets are actually huge losses. The most obvious example of this insanity involves second lien mortgages. There are lots of kinds of second liens loans, but the important thing to remember is that they're the first asset to be wiped out when housing prices decline. Right now, they're in big trouble.
The second-lien holdings of Citigroup, Wells Fargo, Bank of America and JPMorgan Chase are about equal to their total capital. If you wipeout second liens, these banks are done. Right now the banks are accounting for these second liens as if they were worth nearly 100 percent of their original value—even though these loans only trade at only about one-quarter of that value. If banks take the market's value of just one class of assets, they're gone.
This class of assets goes completely under if banks have to own up to the current foreclosure fraud mess. The only real way to fix the documentation fraud problems is a nationwide program reducing the amounts that borrowers owe on their mortgages to current home values. Doing that forces the banks to acknowledge that their second lien mortgages are, in fact, worthless.
So the big banks and their protectors at the Fed are launching a two-pronged strategy. First, they're trying to prevent investors from obtaining the loan documents that will fuel well-justified lawsuits. Second, they're trying to give banks even greater control over the foreclosure process, in order to allow banks to continue to game accounting rules. This is a premeditated strategy to save banks from losses created by their own fraudulent, predatory behavior. It has no place on the books of the Fed, particularly after the central bank's total failure to prevent the mortgage abuses of the past decade.
It's not too late for the Fed to turn back. It can, in fact, abandon this bailout, and leave consumer protection issues to the new Consumer Financial Protection Bureau, which is designed to handle exactly this sort of issue, for exactly this reason.
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