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Banks Face New Rules on Foreclosures from Skeptical State Judges

Banks, claiming they've improved their foreclosure processes, have been refiling their cases in court. But in a few states, judges have been skeptical.

As banks resume foreclosures and claim to have added safeguards to their processes, it’s been left up to state court judges to decide whether they buy what the banks are saying.

Many judges haven’t.

The Washington Post, for instance, spoke with some judges in New York who estimated that they're dismissing about 20 to 50 percent of foreclosure cases due to documentation flaws. The state’s chief judge issued a new rule last month requiring lawyers handling foreclosures to verify that all documents in the proceeding are accurate—and lawyers filing bad documents could face “penalties of perjury.”

The Wall Street Journal noted this week that across the country, other state courts have also tried to enforce some measure of quality control:

The Maryland appeals court's new policy permits judges to require lawyers to testify to the validity of the underlying affidavit in a foreclosure case. Judges also can order notaries public to appear in court or appoint special masters to review foreclosure documentation.

Ohio's Cuyahoga County Court of Common Pleas said last week it would give servicers and lenders 30 days to ensure that they have filed proper paperwork—or else their cases will be dismissed. The court, which covers Cleveland, also said judges will require lawyers in residential foreclosure cases to file affidavits swearing that they have taken "reasonable steps" to verify the accuracy of documents filed to the court.

In Florida, the Journal noted, a judge has been forcing lawyers to defend the fees that law firms charged to homeowners—and in one case found that a firm had signed off on $1,630 in fees when the number should have been $175.

But even within a state, judges’ positions vary. In the same state, one foreclosure defense attorney complained to the Post that “the banks themselves have slowed down, but not the judges. ... They are the robo-signers.” (That’s also the sentiment in a piece published in this week’s Rolling Stone about judges who preside over what are called “rocket dockets.”) Here’s more from the Post:

In a cramped, makeshift courtroom, Broward County Judge Victor Tobin was signing off on uncontested foreclosure cases as fast as a clerk could keep them coming, only a few seconds per file.

"Batter up," he said as he finished one stack and eyed the next. With scores of cases remaining on the day's "rocket docket" earlier this week and tens of thousands more awaiting judgment in this courthouse, there was little time to pause.

On the other side of the state, in a Sarasota County courtroom, another judge on a recent day was taking a dramatically different tack. Impatient with attorneys for lenders trying to seize hundreds of homes, fed up with their sloppy paperwork and errant practices, Judge Harry Rapkin dismissed 61 foreclosure cases in that single day - a quarter of those awaiting his approval. While the plaintiffs could re-file, it would mean hefty fees and significant delay.

Outside of the courts, other efforts to hold the banks accountable are ongoing. Iowa’s Attorney General, who’s leading a 50-state foreclosure probe, told Bloomberg this week that the investigation is “on a fast track.” He hinted that any agreement with the banks would require that they put more resources to servicing and improve loan modification procedures.

The Senate Banking Committee also announced the first congressional hearing focused on the foreclosure scandal. Bank of America and JPMorgan Chase officials are scheduled to testify at the hearing, scheduled for next Thursday.

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