Banks Seeking to Foreclose Face More Questions About Legal Standing
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As we’ve noted, banks seeking to enforce foreclosures must demonstrate that they have proper documentation proving their right to enforce a foreclosure—meaning they have the legal standing to enforce the foreclosure either as the holder of the note or as an agent acting on behalf of the holder.
In bankruptcy court, this hasn’t always been easy for the banks. Over the weekend, a piece by Gretchen Morgenson of the New York Times noted that the United States Trustee Program—a Justice Department unit tasked with overseeing bankruptcy courts—has ramped up its scrutiny of banks’ foreclosure processes and is forcing banks to prove that they have the right to enforce foreclosures.
Morgenson points out two cases in federal bankruptcy court in Atlanta in which a U.S. trustee stepped in and asked bankruptcy judges to deny requests from Wells Fargo and Chase to allow them to proceed with foreclosure. In both cases, Walton filed motions saying that the bank had “failed to allege sufficient facts from which the Court can conclude that it is in fact the authorized agent” of the note holder.
Issues of a note’s proper transfer and the bank’s right to enforce a foreclosure were also raised when a U.S. bankruptcy judge earlier this month rejected an attempt by Bank of America to foreclose on a New Jersey homeowner. According to a piece in Bloomberg today, the judge ruled that the bank had failed to properly transfer the note to its true owner and therefore did not have legal standing to enforce the foreclosure.
As part of that case, Bank of America employee Linda DeMartini testified [PDF] that it was standard practice for Countrywide—which was acquired by Bank of America—to sell mortgage loans without physically transferring the note to the new owner.
Countrywide “transferred the ownership, not the physical documents,” DeMartini testified, noting that the practice was “normal” for the company. The judge, in her ruling [PDF], wrote that “the fact that the owner of the note, the Bank of New York, never had possession of the note, is fatal to its enforcement," calling into question whether other cases that were similarly handled could face similar challenges.
An attorney working on behalf of the bank told Bloomberg that DeMartini had been wrong about the company’s practice:
It was the policy of Countrywide Financial Corp., acquired by Bank of America in July 2008, to deliver notes as called for in its securitization contracts, according to Larry Platt, an attorney at K&L Gates LLP in Washington designated by the bank to answer questions about the case.
“This particular employee was mistaken in what she said,” Platt said in a telephone interview.
While judges and trustees may have caught a few of such cases and tried to stop them, foreclosures without proof of standing may be surprisingly common.
University of Iowa law professor Katherine Porter analyzed bankruptcy mortgage claims in 2007 and found that about 40 percent of the time, banks didn’t provide the proper paperwork—specifically, the note—to enforce a mortgage claim and collect the debt.
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34 comments
acmodspecialists
Nov. 30, 2010, 3:13 p.m.
This could be god, If the banks are force to go by the rule of law and finally make it not so easy for them to Foreclose or FRAUD-CLOSE on somebody’s home, then finally they may be willing to modify a loan, because finally it may be wiser for them or the incentives may be tipping on the side of the homeowner, Lets take in to an account that a foreclose does not only affects the homeowner it affects, their street, their community, their city, and ultimately the economy, not to mention that is been documented now that in the communities were the foreclosures are higher, the crime rate is higher, that is why keeping people in their home with affordable payments makes sense for everybody, except the banks because as it is now it is very easy for them to foreclose + the profits they make by foreclosing when they collect insurance they bought (AIG) and the extra the 200K-300K they make in cash when they sale the house , As it is now now when the Banks can’t foreclose then the will FRAUD-CLOSE
This has to be Fix
acmodspecialists
Nov. 30, 2010, 3:14 p.m.
This could be good, If the banks are force to go by the rule of law and finally make it not so easy for them to Foreclose or FRAUD-CLOSE on somebody’s home, then finally they may be willing to modify a loan, because finally it may be wiser for them or the incentives may be tipping on the side of the homeowner, Lets take in to an account that a foreclose does not only affects the homeowner it affects, their street, their community, their city, and ultimately the economy, not to mention that is been documented now that in the communities were the foreclosures are higher, the crime rate is higher, that is why keeping people in their home with affordable payments makes sense for everybody, except the banks because as it is now it is very easy for them to foreclose + the profits they make by foreclosing when they collect insurance they bought (AIG) and the extra the 200K-300K they make in cash when they sale the house , As it is now now when the Banks can’t foreclose then the will FRAUD-CLOSE
This has to be Fix
Starry
Nov. 30, 2010, 3:27 p.m.
Love the deafening silence from the “deadbeats are trying to steal houses” crowd.
And from those who tried to sell the banks’ public relations “message” that the fc mess was just a tiff about paperwork and signatures.
Great to see this item, heartening.
Ya, Bank of America: payback’s a witch.
Not another cent from me. Prove your standing or step off.
Paul bp
Nov. 30, 2010, 4:03 p.m.
This should also help investors of mortgage backed securities force the sellers (banks) to take back loans. It seems that these mortgage backed securities aren’t backed by anything and are essentially a misrepresentation of securitization contracts. Let the banks eat the losses on those bonds, it’s time they are held accountable for their actions.
Mike
Nov. 30, 2010, 4:21 p.m.
The banks’ lobbyists are combing all over Capitol Hill even now, seeking to set aside all existing State statutes (and centuries of land law going back to the earliest times) in order to get a federal fix for this. First a Bailout, now a Whitewash. That’s a story that isn’t being told at all. Thank you, ProPublica, for doing all you do!
David
Nov. 30, 2010, 7:33 p.m.
This is what is so amazing to me. Check out this comment below from a report from 2004 - which was from a Senate Special Committee Hearing back in 1998 - regarding Predatory Lenders…
“As one self-confessed predatory lender described in testimony to the U.S. Senate, predatory lenders target “blue-collar workers, people who have not gone to college, older people who are on fixed incomes, non-English-speaking people and people who have significant equity in their homes.”52 Moreover, once a predatory lender has secured a victim, his goal is to keep returning in order to repeatedly flip – refinance – the victim’s loan, churning additional fees and stripping additional equity each time.53 However, once a borrower has been trapped in an equity-stripping loan, her loan-to-value ratio is likely too high to ever allow her to trade up to legitimate subprime financing.”
“Equity Predators: Stripping, Flipping and Packing Their Way to Profits: Hearing Before the Senate Special Comm. on Aging, 105th Cong. (n.p.) (1998) [hereinafter Testimony of Jim Dough] (statement of “Jim Dough,” Anonymous Employee, Finance Co.) (“[M]y perfect customer would be an uneducated widow who is on a fixed income – hopefully from her deceased husband’s pension and social security – who has her house paid off, is living off of credit cards, but having a difficult time keeping up her payments, and who must make a car payment in addition to her credit card payments.”), available at http://aging.senate.gov/ events/hr14jd.htm (Mar. 16, 1998).”
——end snip——
How is it possible then for our senators to be sitting there listening to these LENDERS/BANKERS blatantly LIE to their face?
Here’s my APPEAL to ProPublica - Would consider creating a collection of comments like those above made using various “major” media - and “especially” to include Senate & Congressional Hearings - Meetings - etc - and lay it out in a chronological format so we could copy-paste that information to our POLITICIANS & Gov Leaders letting them KNOW WIKI-Leaki- just got several MILLION PARTNERS - hence the message is to our US GOV - OPEN UP and LET US IN or WE ARE COMING IN ANYWAY..!
Maureen
Nov. 30, 2010, 8:19 p.m.
Like I always say - what goes around comes around. Bend over, Jamie Dimon. While you’re down there, give Lowman my regards. :)
JS
Nov. 30, 2010, 9:59 p.m.
Maureen,
I wholeheartedly share your sentiments, but let’s not get our hopes up prematurely.
Watch Charles Ferguson (Inside Job) on the Charlie Rose show last night.
http://www.charlierose.com/
The financial industry is still in control of the country and of Washington. To Mike’s point, above, they are working hard to put a fix on the foreclosure mess.
We can only hope that this will reach critical mass, before they find a way bury this whole mess, and along with it, all of America’s struggling homeowners.
From my personal experience, I think few Americans have the slightest clue as to the massive fraud that has been committed, and are largely unsympathetic to struggling homeowners.
Even the AGs who are depicting themselves as white knights, actually want to bury homeowners with enough equity for foreclosure’s to be profitable. See page 7 of Iowa, AG Tom Miller’s recent testimony to the Senate Committee on Banking, where he states:
“To be clear, the States do not believe that every foreclosure is a tragedy that must be avoided. To the contrary, we have consistently stated over the last three years that we are only interested in modifications where the cash flow from the modification exceeds the expected proceeds from a foreclosure sale.”
http://www.state.ia.us/government/ag/latest_news/releases/nov_2010/Miller_Senate_Banking_Committee_testimony.pdf
Somehow we need to get Americans to understand that this isn’t about deadbeat homeowner defrauding honest banks at the expensive of other hardworking Americans. ... and to understand that the country is at great risk if we continue to allow Wall Street to be in control. You can bet Wall Street is already at work on a bigger and better scam.
Keep up the good work ProPublica!
BTW ... could David LOWman possibly have a more interestng name?
ACModSpecialists
Dec. 1, 2010, 3:32 a.m.
here is something to think about..
msnbc.msn.com/id/31510813/#40422440
acmodspecialists
Dec. 1, 2010, 3:33 a.m.
http://www.msnbc.msn.com/id/31510813/#40422440
Gabor
Dec. 1, 2010, 10:39 a.m.
Mike here is a video how hard banks and their lobbyist are working to set aside the current law.
But we have Marcy Kaptur who fight for the little people. Greate video.
http://www.msnbc.msn.com/id/31510813/#40342863
AdriAnne
Dec. 1, 2010, 12:25 p.m.
I can only hope this will help increase the loan modifications. Because with unemployment benefits coming to an soon this could start another cycle of this mess. 1. No unemployment benefits
2. Still no jobs to be had
3. Holidays looming and quite depressing
4. Winter which is so bad in Chicago.
Hard to sleep at night for me!!
Maureen
Dec. 1, 2010, 3:19 p.m.
JS - I know it’s too soon to celebrate, but at least it sounds like things are moving in the right direction. LOW-man - I know, right? There are SO many jokes there, but being a mom, a school teacher and somewhat of a lady (when it’s necessary), I’ll restrain myself - for now. :)
Pam
Dec. 1, 2010, 5:22 p.m.
Does the question then become “We can not do mods because we don’t own the note or the deed or both so we can not make any changes to the original terms of the loan? The biggest problem I see is the break in the chain of title. No one knows where it lies. The future of these properties (and there are many) having or being able to get good title is questionable at best and even a successful mod may end up being a money pit for the owner and a money maker for the bank who really has no right to the monies rec’d. I do think the banks should take it in the shorts though. They created this mess with the helping hands of the Federal government.
Maureen
Dec. 1, 2010, 6:27 p.m.
So, here’s my burning question: in one breath, Chase claims Ginnie Mae is the investor for my FHA loan and that’s why there are so many delays (22 months worth of delays to be exact). In the next breath, Chase sends me a response to my QWR stating, n writing, “JP Morgan Chase is the investor for this loan.”
According to Ginnie Mae’s website AND the person I spoke with at FHA/HUD in DC yesterday, Ginnie securitizes loans, not invests in them. Banks are NOT investors in FHA loans because they are NOT a government entity, SO, how can Chase blame Ginnie? Hmmmmmm…..
Nissim Sasson
Dec. 1, 2010, 10:05 p.m.
AdriAne You can thank the Rich Republicans for you 4 points
. No unemployment benefits
2. Still no jobs to be had
3. Holidays looming and quite depressing
4. Winter which is so bad in Chicago.
But they don’t seem to care about giving 700 Billion in Taxes to the Millionaires
Talking about REVERSE ROBIN HOOD thats a good name to call the Republicans
Nissim Sasson
Dec. 1, 2010, 10:09 p.m.
Maureen, I have and answer for you THEY LIED ! no surprise there
Maureen
Dec. 1, 2010, 10:42 p.m.
Nissam - no kidding. Like Chase lying comes as a surprise? Not. However, they lied IN WRITING and made the mistake (for which I’m grateful) of sending it to me. :) Once again, what goes around comes around.
Jean
Dec. 1, 2010, 10:44 p.m.
Maureen, I think you once said we have the same scenarios. My servicer is Chase, and have been told that Wells Fargo is the investor. (my original loan was Wamu, taken over by Chase when Wamu failed)
However, recently the recorded document I received stated that the undersigned (Chase) assigned to Wells Fargo, as Trustee for Freddie Mac Securities. Then the local rep told me a couple weeks ago Freddie Mac actually owns it. Today, he reverted back to no, Wells Fargo owns it. Honestly, I don’t think even they know at this point! They postponed my foreclosure sale date and I have the QWR letter in the pipeline awaiting answers (due very soon), but NOTHING is happening with my modification. It is feast or famine in my house with the documentation requests, letters, etc. It is almost scary it’s been so quiet…
I am also hoping that the hearings, etc. are putting a little pressure on the banks, and I’m right there with you awaiting that gratification when Jamie Dimon finally gets his bendover moment! Though, I am not waiting with baited breath…. I was more than disappointed at the lackluster grilling of the banksters during the hearings. Why weren’t there more victims there sharing their stories? Whenever Low Man or the BofA woman started reciting how hard they are working on behalf of the homeowners, I wanted to gag. The committee seemed to lap up those responses as though they were actually true!
I feel like I’m living in some alternate reality these days…this is NOT the America I grew up in!
Gabor
Dec. 2, 2010, 12:31 a.m.
Shela Bair did not find anything wrong in foreclosure paractices?
Dec 1st 2010 hearing. Just in case if you missed it.
http://banking.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=ea6d7672-f492-4b1f-be71-b0b658b48bef
Gabor
Dec. 2, 2010, 12:39 a.m.
Mortgage Services and Foreclosure Practices Hearing on Dec. 1st 2010.
http://www.c-spanvideo.org/program/MortgageSer
Sarah
Dec. 2, 2010, 4:43 a.m.
I don’t mean to be ignorant (but such is my life ;) ), but what is the QWR referred to in the post from Jean?
I have gotten the same “who owns the note” runaround from my servicer, Wells Fargo. Evidently Freddie Mac owns my loan as well, and, according to Wells Fargo loan mod. specialists, they won’t allow the loan to be modified nor will I qualify for HAMP. Sale date is 01/05/2011. What do I do with the little time I have left?
JS
Dec. 2, 2010, Noon
Reported in today’s WSJ, the first signs that the banks will work out a deal rather than face appropriate criminal actions for their fraudulent behavior regarding CDO’s.
“Banks in Talks to End Bond Probe”:
http://online.wsj.com/article/SB10001424052748704594804575649170454587534.html?mod=WSJ_hp_LEFTWhatsNewsCollection
Roy
Dec. 2, 2010, 12:59 p.m.
Sarah-QWR stands for “qualified written request”. It is a letter you can send to your servicer requesting “specific” info concerning your mortgage. I believe there is a form letter on HUD.gov site.
At this point if you know Freddie Mac owns your loan I would contact them. Also the HAMP hotline # might be helpful. I also have a Treasury # which will take you to hotline via prompts-866-939-4469.
Do not take what the banks tell you as the truth. Please get busy as your time looks limited, but not without hope. You cannot be foreclosed on while seeking or in a gov. mod program. If you need further help I know of an honest and trustworthy person who might help. Good luck and may GOD bless!
Roy
Dec. 2, 2010, 1:16 p.m.
TARP was just a drop in the bucket for the banking institutions. The ‘back-door bailouts’ from the Fed were close to $3 trillion from Dec. 2007 through July 2010 (but to be fair other corporations were involved).
Excellent article yesterday in AlterNet by Zach Carter “Yes Megan, Bankers Break the Law”.
And these guys still refuse to modify loans via HAMP that meet all the criteria necessary. They have shown me to be incompetent and dishonest thieves. For these actions they are rewarded?
Slowly but surely America is going to Hell in a handbasket due to the greed of these banks. GOD help us!
Nissim Sasson
Dec. 2, 2010, 5:17 p.m.
Grabor, Are you kidding me? everybody should bombard Shela Bair with their complaints if she still thinks that there is anything wrong in foreclosure practices! Does anybody knows were to send complaints to her? everybody should do it !
Gabor
Dec. 2, 2010, 9:22 p.m.
Nissim Sasson I agree 1000%. Shila Bair probably got greased from the banksters. So all those robosigning acts are what? I just don’t understand this government. Do you?????????????
Nissim Sasson
Dec. 2, 2010, 10:56 p.m.
No my friend i don’t, But I think that the goverment believes that people are not aware or are probably to busy watching Dancing with the Stars, The problem is, that I’m afraid they could be right
Maureen
Dec. 3, 2010, 9:30 a.m.
http://www.fdic.gov/about/contact/ask/contactinformation.html
FDIC Website above. Here are some email addresses:
.(JavaScript must be enabled to view this email address)
FDIC
E-2022
3501 Fairfax Drive
Arlington, VA 22226
.(JavaScript must be enabled to view this email address)
Office of Insp. Gen.
3501 Fairfax Dr.
Rm # VA-D9069
Arlington, VA 22226
There’s also an online complaint form to be filed. BOMBARD THEM!!
Maureen
Dec. 3, 2010, 9:30 a.m.
http://www.fdic.gov/about/contact/ask/contactinformation.html
Maureen
Dec. 3, 2010, 9:31 a.m.
Go to the FDIC website.
Maureen
Dec. 3, 2010, 10:43 a.m.
http://www.boston.com/business/articles/2010/12/03/bair_says_lenders_need_to_fix_flaws/
Here’s a link to what Sheila Bair stated. She DOES see problems and clearly states they need to be fixed by lenders. The “not a problem” statement was regarding WikiLeaks, NOT forclosures.
Maureen
Dec. 3, 2010, 10:55 a.m.
The online form takes 5 minutes to complete. I’m also sending emails directly to the addresses I listed above AND calling Sheila Bair this afternoon.
The more the merrier!
Karen McCants
Dec. 3, 2010, 12:18 p.m.
I AM ORGANIZING A MASS PROTEST WITH FULL MEDIA COVERAGE AT ONE WEST BANK—- THIS MONTH (DEC.)—-HEADQUARTERS IN PASADENA, CALIFORNIA WITH REGARDS TO THEIR FRAUDULENT TREATMENT OF PEOPLE TRYING TO GET A LOAN MODIFICATION—-PLEASE JOIN ME—- MY EMAIL—- .(JavaScript must be enabled to view this email address)