Our Financial Infrastructure in Tatters: Announcing New Series on the Foreclosure Crisis
Monday, 11/15/2010 - 5:38 pm by Mike Konczal | 2 Comments
Robo-signers. Moratoriums. Botched documents. In the midst of a complicated and crooked mess, New Deal 2.0 is asking leading thinkers and activists to help navigate the maze of the foreclosure crisis. Our new “Foreclosure 411” series will focus on the values inherent in explaining why we should care and what the crisis means to all of us. Mike Konczal introduces the series.
Why, with so many problems in the world, should you care about the current foreclosure crisis? Isn’t this just a problem on the fringe, a case of deadbeats not paying their bills?
I wish it was that simple. However, this crisis is a complete breakdown in the infrastructure that handles the most important financial asset for a majority of Americans, and one of the primary means by which intergenerational mobility occurs.
The foreclosure crisis sits at the heart of each of the crises that are destroying our economy. There’s a massive amount of bad debt and over-leverage as we emerge from a burst credit bubble. There’s the broken financial system that was created in the past two decades, rife with incentives to rip off both investors and borrowers in order for middle-men to profit. There’s the macroeconomic crises of deflation and mass unemployment, which are devastating households trying to survive. And finally, there’s the tepid response from the Obama administration, embracing the idea that the problem would go away by now with a growing economy. This plan hasn’t worked and there isn’t any plan B in place.
These aren’t new problems. We’ve known about them for a while now, and we are living out the consequences. In light of the likelihood of continuing unemployment and a lost decade for America, New Deal 2.0 has reached out to a variety of writers to look at the foreclosure crisis and its causes, problems and solutions.
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The financial system’s ultimate goal should be to mediate the transferring of funds from borrowers to savers. Starting in the early 1980s, the private mortgage securitization system was supposed to bring the best in deregulation to this market. Private servicers could manage assets better with tax-free protection, the ratings agencies could dynamically assess credit risk, and the wonders of a deregulated financial market and a financialized economy would get credit exactly where it needed to go.
This has not happened. But beyond puffing up a credit bubble in housing, it has destroyed our ability to move on afterward, to dig out of the collapse. Bad investments happen all the time. People buy at the wrong time, get in over their heads, etc. The question is: what railings are around the system? In the private system, those railings are the servicers. For the public, it is our bankruptcy courts and property record systems. Both are being corrupted by this foreclosure crisis.
This alone is reason enough to be worried. All it takes is a random problem in our servicer system to get the average homeowner into trouble. This isn’t about deadbeats or responsibility. All this system does is make it profitable to be a big bank (profitable as long as it doesn’t have to record its losses). However, we don’t want a financial system with only this objective — we want a financial system that finds investment opportunities, provides contracts that are valid and well-informed, that makes sure property rights that involve debt and uncertainty are maintained properly, and that the borrowing and lending markets are as complete as they can be without being exploitative. This series will show you how that has failed.
Mike Konczal is a Fellow at the Roosevelt Institute.
BR: That is not remotely what is going on with MERS. There is no parallel between the sharing of an asset between family members, and a fraudulent scheme designed to rip off filing fees from local towns, hide ownership of loans, and deceive the public thru an extra-legal technique that undermines 100s of years of property law.
It may only be Tuesday, but we have a winner for the dumbest comment of the week.
zell Says:
November 16th, 2010 at 4:37 pm
FIFO: Felonies in; felonies out. The R.E. bubble was fostered by widespread deceit that has been ignored. It’s no surprise to see the same on the flip side.
Niskyboy Says:
November 16th, 2010 at 4:51 pm
Hilarious.
Lugnut Says:
November 16th, 2010 at 5:03 pm
Barry,
You’ve hit upon a key topic that I took notice (at least with this particular issue) from day 1, and its one that drives me nuckin futz. Namely the absolute reluctance, if not outright refusal of the mainstream print and television media to characterize or hint that this situation is anything other than a mere ‘mistake’ that will cleaned up with some 409 and a paper towel, and we’ll all move happily on from there. That fact that its a persistant story, and not some one night mention little blurb, makes it all the more obvious and disquieting.
What is it? Is it because they hadn’t done enough primary investigative journalism to feel comfortable in classifying it as fraud? Do they just not understand the nuances of the laws, paperwork, and complex relationships enough to not want to make an error in judgement in branding it fraud? Do the senior editors say “Lets wait till the Justice Department indicts them so we don’t have to make that judgement ourselves”? Or are there merely in the tank for the firms that devote a good chunk of their advertising dollars to their particular news organization, and/or are frequent guests?
Whatever it is, I think it comes down to a total lack of balls, ethics, and conviction of purpose. They all guilty of it. Repeatedly. And quite franky it makes me sick. Its a Rorschach test for their continued Darwinistic self destruction of credibility.
Tarkus Says:
November 16th, 2010 at 5:14 pm
Yes – everyone notices how the discussion of fraud when applied to financial companies is always handled with kiddie-glove euphemisms.
It’s tiring, and the more they do it, the more you notice it.
Fraud is rewitten using “mistakes”, “errors”, “oversights”, “incompetence” (until it is pay/bonus time), “didn’t see it coming”, etc, etc.
WSJ and the rest are cowering, not reporting.
Andy T Says:
November 16th, 2010 at 5:33 pm
Curmudgeon–
You seem to have some knowledge on these type of matters and have an opinion that dissents from the “mob.”
Thanks for the commentary on these matters.
It’s a refreshing change of pace from almost every other comment I see here at TBP.
yoganmahew Says:
November 16th, 2010 at 5:37 pm
That would be a syntactical error. If they had spelled it wrong, it would be a grammar error…
obsvr-1 Says:
November 16th, 2010 at 7:56 pm
@ndy T Says (and Curmudgeon):
Curmudgeon–
You seem to have some knowledge on these type of matters and have an opinion that dissents from the “mob.”
Thanks for the commentary on these matters.
It’s a refreshing change of pace from almost every other comment I see here at TBP.
—- Reply
go watch the entire Senate Committee Banking, Housing and Urban Affairs hearing today on “Mortgage Services and Forclosure Processes”
http://www.c-spanvideo.org/program/296595-1
The problem is much bigger that a technical issue of paperwork or process — amongst the criminal activities are fraud and unethical behavior throughout the servicer and banking industry which is magnifying the problem. Fraudclosure is just light that is illuminating a problem that is large enough for the Cong. Oversight Panel (COP) and the Senate Committee to call on the Financial Stability Oversight Committee to investigate systemic risk concerns.
http://www.marketwatch.com/story/dodd-robo-signing-the-tip-of-the-iceberg-2010-11-16?dist=afterbell
http://www.marketwatch.com/story/watchdog-calls-for-second-round-of-stress-tests-2010-11-16?dist=afterbell
And no, people who owe on their mortgage owe on their mortgage — arguing whether someone should get a free house because of a procedural problem is not the center of the issue (they shouldn’t). Questioning why nobody is going to jail for breaking, ignoring or circumventing the laws which is creating systemic risk (AGAIN) is a valid. The banks are in deep do-do and bail-outs are not on the menu this time around … a test of the FinReg resolution clauses may be in the near future.
RW Says:
November 16th, 2010 at 8:11 pm
@Curmudgeon
“…whether a third-party’s (the borrower) agreement to abide by assignments outside of the public records is enforceable against the borrower through a designated agent for doing so (Mers).”
Seems reasonable but it appears that the structure and function of MERS itself has become the problem, not so?
That is, the principle of MERS is not the problem — it does appear to be a legal entity even though it is essentially just a database, a filing cabinet, with no officers or employees — and all parties to the loan agreed to it as a nexus even though agency can clearly not be implemented directly by MERS.
But then the integrity of MERS as that which establishes connection between buyer and seller(s), a nexus, becomes crucial so if suspicions arise that the filing cabinet is ‘damaged’ or otherwise unreliable — if it is not possible to go into the MERS database and pull up complete, accurate records with confirmable authenticity via accessible originals — then how is valid agency to be recreated?
If a nexus between lenders (independent of their number or intra-agency agreements) and the third party cannot be established who then has standing to enforce a lien against the third party? It would seem that all agreements essentially become putative.
Jim67545 Says:
November 16th, 2010 at 8:23 pm
Curmudgeon is entirely correct, based on my decent knowledge in the field. I would focus attention on whether the homeowner is actually delinquent, how far, whether they had tried to work out the situation in some way, whether they were ignored, whether they received due process, etc. Failures by the lenders in these areas should be punished. Otherwise, there is nothing nefarious about MERS, it is not some fraudulent conspiracy and the thought that it is a conspiracy to defraud title offices of recording costs is equally laughable. Yes, it no doubt has that intended effect but the task of tracking the recording of interests in mortgages every time they change hands would make the entire system unworkable.
We have a housing financing market that is nearly totally constipated. Add into the mix a profound uncertainty over the legal standing that a mortgage holder may have and the few who might invest in this asset will run away – as will the 35% of the purchasers who are buying foreclosed properties. That direction leads to the government being the mortgage financier of only resort for as far as we can see. And, we should all know who puts up the $$ to make that happen. And, with foreclosed property sales dropping we would have a serious slowdown in absorption of foreclosed properties and farther price weaknesses (, losses to individuals and lenders, etc.)
Collapse the current housing finance market and we are all back into 3 or 5 year ARMs. Kiss your 30 year fixed goodbye. That would seriously impact affordability not to mention the entire real estate industry not, need I point out, at the best of times. So, I suggest that most of those above look before they leap. This has to be worked out.
Fred C Dobbs Says:
November 16th, 2010 at 8:46 pm
Let’s see if I understand what people are arguing about. 1) a bank makes a loan to someone, 2) the borrower secures the borrower promise to repay with a mortgage on the borrower’s residence, 3) the borrower fails or refuses to repay the loan, breaking his promise, 4) lender resorts to the security the borrower gave to secure his loan, that is, the bank initiates foreclosure, 5) borrower finds some defects in the loan or foreclosure paperwork and goes to a lawyer, 6) the lawyer tells the borrower it is cheaper to hire the lawyer to defeat foreclosure than for the borrower to keep his promise to repay, 7) the lawyer tells the court to rule the lender may not foreclose because ___(fill in the reason)_____, 8) the judge rules in favor of the borrower, 9) the lender now has an unsecured loan, for there can be no doubt that the borrower got the money and has not paid it back, (10) the borrower sells his mortgage-free residence, 11) borrower moves to another state taking his money with him, or otherwise makes him or his money unavailable to lender, 12) lender charges off the loan as uncollectible and takes a loss, the amount being equal to the unpaid loan balance plus accrued interest and costs. The bank lent the money in good faith, even though its processors may have made documentary mistakes, and likewise began foreclosure in good faith, even though it may have made documentary mistakes. Lender, in bad faith, fails or refuses to repay loan.
Now, who thinks the poor, little down-trodden borrower deserves to keep the money, at the same time f___ his fellow members of society? Banks function as financial intermediaries for the benefit of all. Weakening a bank, giving a portion of its net worth to a bad faith borrower, weakens us all. The supply of lendable funds is reduced, and the demand causes the cost to rise.
Harry Lime Says:
November 16th, 2010 at 8:55 pm
Classic, classic stuff. This reminds me that there is a God. Whether there is Justice or not is still to be determined.
DeDude Says:
November 16th, 2010 at 9:12 pm
Cynic;
You are not cynical enough. The reason treasuries are up is that somebody is about to sell a lot of treasuries to the Fed. Got to get those prices jammed up so you can sell at a profit.
LoveFreedomTruth.com Says:
November 16th, 2010 at 9:31 pm
This Presidential veto override attempt should fix things
Veto Override Attempt
H.R. 3808:
to require any Federal or State court to recognize any notarization made by a notary public licensed by a State other than the State where the court is located when such notarization occurs in or affects interstate commerce.
http://market-ticker.org/akcs-www?post=172452
I suggest everyone follows the market tickers advice. Fast
hammerandtong2001 Says:
November 16th, 2010 at 9:49 pm
****It doesn’t matter when mortgage assignments and endorsements are recorded because the existence of the pooling and service agreement and purchase sale agreement is proof in itself that the loan was conveyed, said Stephen Ornstein, a partner in the Washington office of SNR Denton, a law firm that represents loan servicers and lenders.
“If the assignment is missing, you can create it by having the old assignee reassign it to you,” Ornstein said.****
I’ve heard this argument before, and none of the five experts who advise New York state on trust matters (and virtually all mortgage securitizations use New York trusts) accept that point of view. New York trusts can accept assets only as stipulated in their governing agreement. The pooling and servicing agreement made very specific provisions as to how the notes (the borrower IOUs) were to be endorsed and further required that the process be completed by specific dates, typically no later than 90 days after the trust was closed, with only very limited exceptions. And the trustee, on behalf of the trust, was required to provide multiple certifications that all these steps had been taken.
Let’s put it another way: the industry position is that the underlying contract, the pooling and servicing agreement, can just be ignored if the industry screws up on a grand enough scale. Would any servicer tolerate this argument if someone, say Treasury, tried to cut their fees? Funny how the “sanctity of contract” argument is nowhere to be found when adherence to contracts might crimp industry profits.
AND…
“SIFMA rejects sweeping claims that fundamental flaws regarding the transfer and ownership of mortgage loans are endemic to secondary markets and mortgage securitization, and believes that such concerns are exaggerated and without merit. While each situation may have variations, SIFMA believes that the customary practices utilized in secondary markets to convey ownership of mortgage loans from originators to other parties, and into securitization trusts, are sound and in accordance with generally applicable legal principles.”
The use of “sweeping claims” implies that the critics have no evidence for their views, when borrower attorneys all over the US report widespread errors. A group of nearly 100 attorneys who work with bankruptcy lawyer Max Gardner have reported that in their collective experience, they have yet to find a single note that was conveyed correctly in accordance with the requirements of the pooling and servicing agreement. Other investigations show widespread problems. As much as SIFMA tries to dismiss the use of the word “endemic”, all they offer is bluster, when the evidence on the ground to the contrary is extensive.
And you have to love this part: “customary practices…are sound and in accordance with generally applicable legal principles.” This is simple an effort to divert attention from the fact that the contracts that the industry itself devised were often ignored. So a more accurate rendering would be “We did what was convenient instead of what we agreed to do, and if you pretend we didn’t have to satisfy a lot of complicated legal requirements to meet all the objectives of all the parties, we can find a way to justify what we did.”
It’s all here:
http://www.nakedcapitalism.com/2010/11/more-mortgage-securitization-industry-propaganda-via-new-york-times-sifma.html
And I’m the “dumbass”?
Breaking the law to enforce a contract, no matter the material weight of breach on the offending parties’ side, is still breaking the law.
There it is.
.
Bill W Says:
November 16th, 2010 at 10:10 pm
b_thunder,
I agree with that sentiment. This could become an opportunity for Obama to reform the system the way it needs to be reformed. By letting the stupid and the greedy reap what they’ve sowed.
The political opportunity for him is to steal some of the T-Party’s anti-establishment thunder.
The Curmudgeon Says:
November 16th, 2010 at 10:29 pm
@hammerandtong2001:
Mortgage assignments between mortgagees, whether or not they are recorded in the public records, are enforceable as between each other, according to whatever contract they have entered regarding the assignments.
When borrowers signed the mortgages with the Mers as the nominee, they explicitly agreed, pursuant to the terms of the mortgage, that Mers had all the rights and obligations of the actual lender, so far as they are concerned, and that assignments could be made to other lenders in Mers which would not affect their relationship with Mers as the nominee agent for whatever lender made the assignment and to whom it was made.
Mers has been operating without objection in all fifty states for over a decade now, and only became an issue when a few clever lawyers and populist nutcase attorneys general decided that the system might serve as a good whipping boy for all these poor folks losing their homes that incidentally also serve on jury pools and vote in attorneys general elections.
If there was this terrible objection to the practices of Mers before, then why did the populists wait ’til now to present them? Same’s true of foreclosure affidavits in Florida and elsewhere. The structure of the foreclosure law in Florida made foreclosure mills a practical necessity if there were to be any Fannie Mae/Freddie Mac mortgages let in the state, and so foreclosure mills and robo-signers have been around a lot longer in Florida, and fully well-known by everyone, including preening attorneys general, than the financial crisis.
You seem to claim laws were broken to enforce a contract amongst the mortgagees? That isn’t really the issue here. If they breached their contract with each other, that’s not breaking a public law.
The issue here is whether a procedural misstep in foreclosure should yield a free house. I stand by my assertion that allowing such a thing would do great violence to the rule of law, far greater than simply requiring a correction to the procedure.
I won’t call you a dumbass again, but you’ve still not got the facts straight. It is not “breaking the law” that every assignment between mortgagees is not recorded. It is simply choosing, amongst themselves, to operate a supplementary assignment system.
and this:
“BR: That is not remotely what is going on with MERS. There is no parallel between the sharing of an asset between family members, and a fraudulent scheme designed to rip off filing fees from local towns, hide ownership of loans, and deceive the public thru an extra-legal technique that undermines 100s of years of property law.”
What, pray tell, is fraudulent about Mers? The borrowers agreed to Mers as the nominee lender at closing. There is no attempt to hide ownership of loans, it is simply a means of expediting the loan to the investor. Who owns the mortgage matters not a whit to the borrower–he is to pay whomever he is told to pay–and the ability to assign the loan is also agreed to by the borrower at closing. How, exactly, does Mers undermine hundreds of years of property law? There has never been a requirement as between the parties to a real property interest that the conveyance be recorded in the public records to make it enforceable as between the parties. I really don’ t get this outrage. Mers has been around a long time, and greatly facilitated the mortgage securitization process. Does it have flaws? Sure. Are mistakes occasionally made between the lenders within Mers as to who owns the loan or the servicing rights? Sure. But those sorts of things are rare and hardly rise to the level of criminality.
Mbuna Says:
November 16th, 2010 at 10:36 pm
Barry, get ready to hire those ninjas…. http://market-ticker.org/akcs-www?post=172452
as early as tomorrow!
Effective Demand Says:
November 16th, 2010 at 10:38 pm
Notice the number of cases that support MERS:
http://en.wikipedia.org/wiki/MERS#Litigation_and_major_legal_decisions
MERS seems to be losing some small cases which of course gets lots of press and winning the big cases, which doesn’t get any press. Nobody wants to hear that it’s actually legal and that they won’t actually get that house they overpaid for for free.
bergsten Says:
November 16th, 2010 at 10:39 pm
@Fred C — I can explain what people are arguing about, thought it might be simpler all round for you to just look at all that’s been written and reported on the subject to date.
I can explain why people are arguing — because people will argue about anything.
I can explain what I am worried about:
1. I take out a mortgage. 2. I dutifully pay my mortgage month after month until it’s paid off. 3. I ask the bank for the paperwork to show I no longer have a mortgage and own the property free and clear. 4. The bank tells me to pound salt as they weren’t the holders of the note. 5. The (lack of) precedent thanks to “nobody caring” about a few shortcuts and paperwork errors, causes the courts to tell me to pound salt too.
Finally, I can explain what I’m mad about, though to do so, I am forced to invoke that conversation-stopping bit of history that starts with “H,” done by those who start with “N.”
Millions of people were eventually tortured and killed because (effectively) nobody complained as each individual indignity, infraction, policy, procedure, eviction, curfew, restriction, graffiti, insult, violence, theft, discrimination, law, and on and on were each excused as being non-material.
Everybody asked “how can this happen?” and say “it can’t happen here.”
Well, it happens one small step at a time, and it sure can happen here.
All you have to do is marginalize the rule of law.
Still want to blame the whole thing on “deadbeats”?
LoveFreedomTruth.com Says:
November 17th, 2010 at 12:35 am
Presidential Veto Override Attempt
H.R. 3808:
to require any Federal or State court to recognize any notarization made by a notary public licensed by a State other than the State where the court is located when such notarization occurs in or affects interstate commerce.
http://market-ticker.org/akcs-www?post=172452
I suggest everyone follows the market tickers advice. Fast
JerseyCynic Says:
November 17th, 2010 at 4:17 am
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7691500/Cyber-attack-could-fell-US-within-15-minutes.html
JerseyCynic Says:
November 17th, 2010 at 4:20 am
http://ca.reuters.com/article/technologyNews/idCATRE6AF4UX20101116
So gates says there is a huge future threat and a considerable current threat…
I say perfect timing to pull the plug and make all this bad bad go away
JerseyCynic Says:
November 17th, 2010 at 4:57 am
http://ca.reuters.com/article/technologyNews/idCATRE6AF4UX20101116
gates yesterday on cyber attack:
“I think there is a huge future threat. And there is a considerable current threat,” Gates told The Wall Street Journal CEO Council. “And that’s just the reality that we all face.”
PULL THE PLUG
what a perfect way to make all this bad bad go away!
Mr. Ritholtz — maybe you can get that team of Ninjas to install a few dead drops around the area so we can keep in touch…
http://deaddrops.com/
Fred C Dobbs Says:
November 17th, 2010 at 2:17 pm
I apologize to Bergsten unreservedly, if he thinks I or anyone else wants “… to blame the whole thing on ‘deadbeats’”. They are mostly victims that should not have been lent to, in the first place.
For myself, I agree that laws should be enforced, that when they are not enforced they marginalize law, and those who break the laws should not be excused because their ‘crime’ is non-material. And, I will go forward, and agree that in the case of documenting the making and transfer of residential loans, those humans that actually broke the law should pay fines and suffer imprisonment, every last one, even if they number in the tens of thousands. But, if we ignore them, and look at the abstract institutional entity, the lender, punishing the lender is misplaced. In the first place, you cannot imprison a bank, an inanimate mental construction, you can only fine them. And if you do, the human employees and agents of the institution who actually broke the law, will not suffer, only shareholders and society will suffer.
As for you pounding salt, with all respect, I believe your fears are misplaced. If whoever you have been paying your loan fails to issue you a ‘deed of reconveyence’ to clear your title, you have your cancelled checks showing you have paid, and, if you misplace them, you can get copies, as all checks cleared since the ’70s are copied front and back by the bank and retained. If you show your last monthly loan statement that you received and your check showing payment to a Judge, he will order the loan paid, and you can record this and clear your title. And, he will no doubt fine the entity who failed to issue your deed of reconveyence, together with costs of suit and attorney fees. You will find most States have had, since the 1930s, such laws incentivizing institutions to play fair or else.
As for ‘H…’ and “N…” I assume you meant no reference to me personally, but, if I am mistaken, please let me know.
bergsten Says:
November 17th, 2010 at 2:53 pm
@Fred C. (2:17pm) — Absolutely no reference to you personally, my apologies if this wasn’t entirely clear. For that matter, the entire diatribe (written after a long day including many hours in god awful traffic), was directed at the issue (and its potential consequences), not at any TBP participant. Never at any TBP participant.
I’ve recommended for over a year now that anyone so concerned should go down to their local Country Recorder to ensure that their home paperwork is “in order.” Which I’ve done. Of course, even so, they may only be “in order” at that particular point in time…
So, this isn’t over any particular personal concern. But the more serious concern is that all of this finagling could set a precedent for having no recourse in the case of an error, intended or otherwise.
If you (all) don’t believe this can happen, try calling anyone’s customer support.
dss Says:
November 17th, 2010 at 3:13 pm
@bergsten,
“All you have to do is marginalize the rule of law.
Still want to blame the whole thing on “deadbeats”?
Well said!
dss Says:
November 17th, 2010 at 3:24 pm
The initial laws that were broken may be minor or inconsequential, like driving 30 in a 25 mile an hour zone, but it doesn’t matter how minor or inconsequential the law that was broken when it can kill a family of five. Then a minor traffic infractions suddenly becomes vehicular manslaughter.
It is very revealing when the rule of law is treated by some as a matter of inconvenience, when the standard should be what were the end results when the laws were broken?
Like a credit card company skimming a penny off on each transaction, (so inconsequential and petty, no real harm was done, why bother to worry about it?) and ends up stealing millions of dollars stolen from it’s customers.
Would we prosecute either case?
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Our Financial Infrastructure in Tatters: Announcing New Series on the Foreclosure Crisis
Monday, 11/15/2010 - 5:38 pm by Mike Konczal | 2 Comments
Robo-signers. Moratoriums. Botched documents. In the midst of a complicated and crooked mess, New Deal 2.0 is asking leading thinkers and activists to help navigate the maze of the foreclosure crisis. Our new “Foreclosure 411” series will focus on the values inherent in explaining why we should care and what the crisis means to all of us. Mike Konczal introduces the series.
Why, with so many problems in the world, should you care about the current foreclosure crisis? Isn’t this just a problem on the fringe, a case of deadbeats not paying their bills?
I wish it was that simple. However, this crisis is a complete breakdown in the infrastructure that handles the most important financial asset for a majority of Americans, and one of the primary means by which intergenerational mobility occurs.
The foreclosure crisis sits at the heart of each of the crises that are destroying our economy. There’s a massive amount of bad debt and over-leverage as we emerge from a burst credit bubble. There’s the broken financial system that was created in the past two decades, rife with incentives to rip off both investors and borrowers in order for middle-men to profit. There’s the macroeconomic crises of deflation and mass unemployment, which are devastating households trying to survive. And finally, there’s the tepid response from the Obama administration, embracing the idea that the problem would go away by now with a growing economy. This plan hasn’t worked and there isn’t any plan B in place.
These aren’t new problems. We’ve known about them for a while now, and we are living out the consequences. In light of the likelihood of continuing unemployment and a lost decade for America, New Deal 2.0 has reached out to a variety of writers to look at the foreclosure crisis and its causes, problems and solutions.
Sign up for weekly ND20 highlights, mind-blowing stats, event alerts, and reading/film/music recs.
The financial system’s ultimate goal should be to mediate the transferring of funds from borrowers to savers. Starting in the early 1980s, the private mortgage securitization system was supposed to bring the best in deregulation to this market. Private servicers could manage assets better with tax-free protection, the ratings agencies could dynamically assess credit risk, and the wonders of a deregulated financial market and a financialized economy would get credit exactly where it needed to go.
This has not happened. But beyond puffing up a credit bubble in housing, it has destroyed our ability to move on afterward, to dig out of the collapse. Bad investments happen all the time. People buy at the wrong time, get in over their heads, etc. The question is: what railings are around the system? In the private system, those railings are the servicers. For the public, it is our bankruptcy courts and property record systems. Both are being corrupted by this foreclosure crisis.
This alone is reason enough to be worried. All it takes is a random problem in our servicer system to get the average homeowner into trouble. This isn’t about deadbeats or responsibility. All this system does is make it profitable to be a big bank (profitable as long as it doesn’t have to record its losses). However, we don’t want a financial system with only this objective — we want a financial system that finds investment opportunities, provides contracts that are valid and well-informed, that makes sure property rights that involve debt and uncertainty are maintained properly, and that the borrowing and lending markets are as complete as they can be without being exploitative. This series will show you how that has failed.
Mike Konczal is a Fellow at the Roosevelt Institute.
BR: That is not remotely what is going on with MERS. There is no parallel between the sharing of an asset between family members, and a fraudulent scheme designed to rip off filing fees from local towns, hide ownership of loans, and deceive the public thru an extra-legal technique that undermines 100s of years of property law.
It may only be Tuesday, but we have a winner for the dumbest comment of the week.
zell Says:
November 16th, 2010 at 4:37 pm
FIFO: Felonies in; felonies out. The R.E. bubble was fostered by widespread deceit that has been ignored. It’s no surprise to see the same on the flip side.
Niskyboy Says:
November 16th, 2010 at 4:51 pm
Hilarious.
Lugnut Says:
November 16th, 2010 at 5:03 pm
Barry,
You’ve hit upon a key topic that I took notice (at least with this particular issue) from day 1, and its one that drives me nuckin futz. Namely the absolute reluctance, if not outright refusal of the mainstream print and television media to characterize or hint that this situation is anything other than a mere ‘mistake’ that will cleaned up with some 409 and a paper towel, and we’ll all move happily on from there. That fact that its a persistant story, and not some one night mention little blurb, makes it all the more obvious and disquieting.
What is it? Is it because they hadn’t done enough primary investigative journalism to feel comfortable in classifying it as fraud? Do they just not understand the nuances of the laws, paperwork, and complex relationships enough to not want to make an error in judgement in branding it fraud? Do the senior editors say “Lets wait till the Justice Department indicts them so we don’t have to make that judgement ourselves”? Or are there merely in the tank for the firms that devote a good chunk of their advertising dollars to their particular news organization, and/or are frequent guests?
Whatever it is, I think it comes down to a total lack of balls, ethics, and conviction of purpose. They all guilty of it. Repeatedly. And quite franky it makes me sick. Its a Rorschach test for their continued Darwinistic self destruction of credibility.
Tarkus Says:
November 16th, 2010 at 5:14 pm
Yes – everyone notices how the discussion of fraud when applied to financial companies is always handled with kiddie-glove euphemisms.
It’s tiring, and the more they do it, the more you notice it.
Fraud is rewitten using “mistakes”, “errors”, “oversights”, “incompetence” (until it is pay/bonus time), “didn’t see it coming”, etc, etc.
WSJ and the rest are cowering, not reporting.
Andy T Says:
November 16th, 2010 at 5:33 pm
Curmudgeon–
You seem to have some knowledge on these type of matters and have an opinion that dissents from the “mob.”
Thanks for the commentary on these matters.
It’s a refreshing change of pace from almost every other comment I see here at TBP.
yoganmahew Says:
November 16th, 2010 at 5:37 pm
That would be a syntactical error. If they had spelled it wrong, it would be a grammar error…
obsvr-1 Says:
November 16th, 2010 at 7:56 pm
@ndy T Says (and Curmudgeon):
Curmudgeon–
You seem to have some knowledge on these type of matters and have an opinion that dissents from the “mob.”
Thanks for the commentary on these matters.
It’s a refreshing change of pace from almost every other comment I see here at TBP.
—- Reply
go watch the entire Senate Committee Banking, Housing and Urban Affairs hearing today on “Mortgage Services and Forclosure Processes”
http://www.c-spanvideo.org/program/296595-1
The problem is much bigger that a technical issue of paperwork or process — amongst the criminal activities are fraud and unethical behavior throughout the servicer and banking industry which is magnifying the problem. Fraudclosure is just light that is illuminating a problem that is large enough for the Cong. Oversight Panel (COP) and the Senate Committee to call on the Financial Stability Oversight Committee to investigate systemic risk concerns.
http://www.marketwatch.com/story/dodd-robo-signing-the-tip-of-the-iceberg-2010-11-16?dist=afterbell
http://www.marketwatch.com/story/watchdog-calls-for-second-round-of-stress-tests-2010-11-16?dist=afterbell
And no, people who owe on their mortgage owe on their mortgage — arguing whether someone should get a free house because of a procedural problem is not the center of the issue (they shouldn’t). Questioning why nobody is going to jail for breaking, ignoring or circumventing the laws which is creating systemic risk (AGAIN) is a valid. The banks are in deep do-do and bail-outs are not on the menu this time around … a test of the FinReg resolution clauses may be in the near future.
RW Says:
November 16th, 2010 at 8:11 pm
@Curmudgeon
“…whether a third-party’s (the borrower) agreement to abide by assignments outside of the public records is enforceable against the borrower through a designated agent for doing so (Mers).”
Seems reasonable but it appears that the structure and function of MERS itself has become the problem, not so?
That is, the principle of MERS is not the problem — it does appear to be a legal entity even though it is essentially just a database, a filing cabinet, with no officers or employees — and all parties to the loan agreed to it as a nexus even though agency can clearly not be implemented directly by MERS.
But then the integrity of MERS as that which establishes connection between buyer and seller(s), a nexus, becomes crucial so if suspicions arise that the filing cabinet is ‘damaged’ or otherwise unreliable — if it is not possible to go into the MERS database and pull up complete, accurate records with confirmable authenticity via accessible originals — then how is valid agency to be recreated?
If a nexus between lenders (independent of their number or intra-agency agreements) and the third party cannot be established who then has standing to enforce a lien against the third party? It would seem that all agreements essentially become putative.
Jim67545 Says:
November 16th, 2010 at 8:23 pm
Curmudgeon is entirely correct, based on my decent knowledge in the field. I would focus attention on whether the homeowner is actually delinquent, how far, whether they had tried to work out the situation in some way, whether they were ignored, whether they received due process, etc. Failures by the lenders in these areas should be punished. Otherwise, there is nothing nefarious about MERS, it is not some fraudulent conspiracy and the thought that it is a conspiracy to defraud title offices of recording costs is equally laughable. Yes, it no doubt has that intended effect but the task of tracking the recording of interests in mortgages every time they change hands would make the entire system unworkable.
We have a housing financing market that is nearly totally constipated. Add into the mix a profound uncertainty over the legal standing that a mortgage holder may have and the few who might invest in this asset will run away – as will the 35% of the purchasers who are buying foreclosed properties. That direction leads to the government being the mortgage financier of only resort for as far as we can see. And, we should all know who puts up the $$ to make that happen. And, with foreclosed property sales dropping we would have a serious slowdown in absorption of foreclosed properties and farther price weaknesses (, losses to individuals and lenders, etc.)
Collapse the current housing finance market and we are all back into 3 or 5 year ARMs. Kiss your 30 year fixed goodbye. That would seriously impact affordability not to mention the entire real estate industry not, need I point out, at the best of times. So, I suggest that most of those above look before they leap. This has to be worked out.
Fred C Dobbs Says:
November 16th, 2010 at 8:46 pm
Let’s see if I understand what people are arguing about. 1) a bank makes a loan to someone, 2) the borrower secures the borrower promise to repay with a mortgage on the borrower’s residence, 3) the borrower fails or refuses to repay the loan, breaking his promise, 4) lender resorts to the security the borrower gave to secure his loan, that is, the bank initiates foreclosure, 5) borrower finds some defects in the loan or foreclosure paperwork and goes to a lawyer, 6) the lawyer tells the borrower it is cheaper to hire the lawyer to defeat foreclosure than for the borrower to keep his promise to repay, 7) the lawyer tells the court to rule the lender may not foreclose because ___(fill in the reason)_____, 8) the judge rules in favor of the borrower, 9) the lender now has an unsecured loan, for there can be no doubt that the borrower got the money and has not paid it back, (10) the borrower sells his mortgage-free residence, 11) borrower moves to another state taking his money with him, or otherwise makes him or his money unavailable to lender, 12) lender charges off the loan as uncollectible and takes a loss, the amount being equal to the unpaid loan balance plus accrued interest and costs. The bank lent the money in good faith, even though its processors may have made documentary mistakes, and likewise began foreclosure in good faith, even though it may have made documentary mistakes. Lender, in bad faith, fails or refuses to repay loan.
Now, who thinks the poor, little down-trodden borrower deserves to keep the money, at the same time f___ his fellow members of society? Banks function as financial intermediaries for the benefit of all. Weakening a bank, giving a portion of its net worth to a bad faith borrower, weakens us all. The supply of lendable funds is reduced, and the demand causes the cost to rise.
Harry Lime Says:
November 16th, 2010 at 8:55 pm
Classic, classic stuff. This reminds me that there is a God. Whether there is Justice or not is still to be determined.
DeDude Says:
November 16th, 2010 at 9:12 pm
Cynic;
You are not cynical enough. The reason treasuries are up is that somebody is about to sell a lot of treasuries to the Fed. Got to get those prices jammed up so you can sell at a profit.
LoveFreedomTruth.com Says:
November 16th, 2010 at 9:31 pm
This Presidential veto override attempt should fix things
Veto Override Attempt
H.R. 3808:
to require any Federal or State court to recognize any notarization made by a notary public licensed by a State other than the State where the court is located when such notarization occurs in or affects interstate commerce.
http://market-ticker.org/akcs-www?post=172452
I suggest everyone follows the market tickers advice. Fast
hammerandtong2001 Says:
November 16th, 2010 at 9:49 pm
****It doesn’t matter when mortgage assignments and endorsements are recorded because the existence of the pooling and service agreement and purchase sale agreement is proof in itself that the loan was conveyed, said Stephen Ornstein, a partner in the Washington office of SNR Denton, a law firm that represents loan servicers and lenders.
“If the assignment is missing, you can create it by having the old assignee reassign it to you,” Ornstein said.****
I’ve heard this argument before, and none of the five experts who advise New York state on trust matters (and virtually all mortgage securitizations use New York trusts) accept that point of view. New York trusts can accept assets only as stipulated in their governing agreement. The pooling and servicing agreement made very specific provisions as to how the notes (the borrower IOUs) were to be endorsed and further required that the process be completed by specific dates, typically no later than 90 days after the trust was closed, with only very limited exceptions. And the trustee, on behalf of the trust, was required to provide multiple certifications that all these steps had been taken.
Let’s put it another way: the industry position is that the underlying contract, the pooling and servicing agreement, can just be ignored if the industry screws up on a grand enough scale. Would any servicer tolerate this argument if someone, say Treasury, tried to cut their fees? Funny how the “sanctity of contract” argument is nowhere to be found when adherence to contracts might crimp industry profits.
AND…
“SIFMA rejects sweeping claims that fundamental flaws regarding the transfer and ownership of mortgage loans are endemic to secondary markets and mortgage securitization, and believes that such concerns are exaggerated and without merit. While each situation may have variations, SIFMA believes that the customary practices utilized in secondary markets to convey ownership of mortgage loans from originators to other parties, and into securitization trusts, are sound and in accordance with generally applicable legal principles.”
The use of “sweeping claims” implies that the critics have no evidence for their views, when borrower attorneys all over the US report widespread errors. A group of nearly 100 attorneys who work with bankruptcy lawyer Max Gardner have reported that in their collective experience, they have yet to find a single note that was conveyed correctly in accordance with the requirements of the pooling and servicing agreement. Other investigations show widespread problems. As much as SIFMA tries to dismiss the use of the word “endemic”, all they offer is bluster, when the evidence on the ground to the contrary is extensive.
And you have to love this part: “customary practices…are sound and in accordance with generally applicable legal principles.” This is simple an effort to divert attention from the fact that the contracts that the industry itself devised were often ignored. So a more accurate rendering would be “We did what was convenient instead of what we agreed to do, and if you pretend we didn’t have to satisfy a lot of complicated legal requirements to meet all the objectives of all the parties, we can find a way to justify what we did.”
It’s all here:
http://www.nakedcapitalism.com/2010/11/more-mortgage-securitization-industry-propaganda-via-new-york-times-sifma.html
And I’m the “dumbass”?
Breaking the law to enforce a contract, no matter the material weight of breach on the offending parties’ side, is still breaking the law.
There it is.
.
Bill W Says:
November 16th, 2010 at 10:10 pm
b_thunder,
I agree with that sentiment. This could become an opportunity for Obama to reform the system the way it needs to be reformed. By letting the stupid and the greedy reap what they’ve sowed.
The political opportunity for him is to steal some of the T-Party’s anti-establishment thunder.
The Curmudgeon Says:
November 16th, 2010 at 10:29 pm
@hammerandtong2001:
Mortgage assignments between mortgagees, whether or not they are recorded in the public records, are enforceable as between each other, according to whatever contract they have entered regarding the assignments.
When borrowers signed the mortgages with the Mers as the nominee, they explicitly agreed, pursuant to the terms of the mortgage, that Mers had all the rights and obligations of the actual lender, so far as they are concerned, and that assignments could be made to other lenders in Mers which would not affect their relationship with Mers as the nominee agent for whatever lender made the assignment and to whom it was made.
Mers has been operating without objection in all fifty states for over a decade now, and only became an issue when a few clever lawyers and populist nutcase attorneys general decided that the system might serve as a good whipping boy for all these poor folks losing their homes that incidentally also serve on jury pools and vote in attorneys general elections.
If there was this terrible objection to the practices of Mers before, then why did the populists wait ’til now to present them? Same’s true of foreclosure affidavits in Florida and elsewhere. The structure of the foreclosure law in Florida made foreclosure mills a practical necessity if there were to be any Fannie Mae/Freddie Mac mortgages let in the state, and so foreclosure mills and robo-signers have been around a lot longer in Florida, and fully well-known by everyone, including preening attorneys general, than the financial crisis.
You seem to claim laws were broken to enforce a contract amongst the mortgagees? That isn’t really the issue here. If they breached their contract with each other, that’s not breaking a public law.
The issue here is whether a procedural misstep in foreclosure should yield a free house. I stand by my assertion that allowing such a thing would do great violence to the rule of law, far greater than simply requiring a correction to the procedure.
I won’t call you a dumbass again, but you’ve still not got the facts straight. It is not “breaking the law” that every assignment between mortgagees is not recorded. It is simply choosing, amongst themselves, to operate a supplementary assignment system.
and this:
“BR: That is not remotely what is going on with MERS. There is no parallel between the sharing of an asset between family members, and a fraudulent scheme designed to rip off filing fees from local towns, hide ownership of loans, and deceive the public thru an extra-legal technique that undermines 100s of years of property law.”
What, pray tell, is fraudulent about Mers? The borrowers agreed to Mers as the nominee lender at closing. There is no attempt to hide ownership of loans, it is simply a means of expediting the loan to the investor. Who owns the mortgage matters not a whit to the borrower–he is to pay whomever he is told to pay–and the ability to assign the loan is also agreed to by the borrower at closing. How, exactly, does Mers undermine hundreds of years of property law? There has never been a requirement as between the parties to a real property interest that the conveyance be recorded in the public records to make it enforceable as between the parties. I really don’ t get this outrage. Mers has been around a long time, and greatly facilitated the mortgage securitization process. Does it have flaws? Sure. Are mistakes occasionally made between the lenders within Mers as to who owns the loan or the servicing rights? Sure. But those sorts of things are rare and hardly rise to the level of criminality.
Mbuna Says:
November 16th, 2010 at 10:36 pm
Barry, get ready to hire those ninjas…. http://market-ticker.org/akcs-www?post=172452
as early as tomorrow!
Effective Demand Says:
November 16th, 2010 at 10:38 pm
Notice the number of cases that support MERS:
http://en.wikipedia.org/wiki/MERS#Litigation_and_major_legal_decisions
MERS seems to be losing some small cases which of course gets lots of press and winning the big cases, which doesn’t get any press. Nobody wants to hear that it’s actually legal and that they won’t actually get that house they overpaid for for free.
bergsten Says:
November 16th, 2010 at 10:39 pm
@Fred C — I can explain what people are arguing about, thought it might be simpler all round for you to just look at all that’s been written and reported on the subject to date.
I can explain why people are arguing — because people will argue about anything.
I can explain what I am worried about:
1. I take out a mortgage. 2. I dutifully pay my mortgage month after month until it’s paid off. 3. I ask the bank for the paperwork to show I no longer have a mortgage and own the property free and clear. 4. The bank tells me to pound salt as they weren’t the holders of the note. 5. The (lack of) precedent thanks to “nobody caring” about a few shortcuts and paperwork errors, causes the courts to tell me to pound salt too.
Finally, I can explain what I’m mad about, though to do so, I am forced to invoke that conversation-stopping bit of history that starts with “H,” done by those who start with “N.”
Millions of people were eventually tortured and killed because (effectively) nobody complained as each individual indignity, infraction, policy, procedure, eviction, curfew, restriction, graffiti, insult, violence, theft, discrimination, law, and on and on were each excused as being non-material.
Everybody asked “how can this happen?” and say “it can’t happen here.”
Well, it happens one small step at a time, and it sure can happen here.
All you have to do is marginalize the rule of law.
Still want to blame the whole thing on “deadbeats”?
LoveFreedomTruth.com Says:
November 17th, 2010 at 12:35 am
Presidential Veto Override Attempt
H.R. 3808:
to require any Federal or State court to recognize any notarization made by a notary public licensed by a State other than the State where the court is located when such notarization occurs in or affects interstate commerce.
http://market-ticker.org/akcs-www?post=172452
I suggest everyone follows the market tickers advice. Fast
JerseyCynic Says:
November 17th, 2010 at 4:17 am
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7691500/Cyber-attack-could-fell-US-within-15-minutes.html
JerseyCynic Says:
November 17th, 2010 at 4:20 am
http://ca.reuters.com/article/technologyNews/idCATRE6AF4UX20101116
So gates says there is a huge future threat and a considerable current threat…
I say perfect timing to pull the plug and make all this bad bad go away
JerseyCynic Says:
November 17th, 2010 at 4:57 am
http://ca.reuters.com/article/technologyNews/idCATRE6AF4UX20101116
gates yesterday on cyber attack:
“I think there is a huge future threat. And there is a considerable current threat,” Gates told The Wall Street Journal CEO Council. “And that’s just the reality that we all face.”
PULL THE PLUG
what a perfect way to make all this bad bad go away!
Mr. Ritholtz — maybe you can get that team of Ninjas to install a few dead drops around the area so we can keep in touch…
http://deaddrops.com/
Fred C Dobbs Says:
November 17th, 2010 at 2:17 pm
I apologize to Bergsten unreservedly, if he thinks I or anyone else wants “… to blame the whole thing on ‘deadbeats’”. They are mostly victims that should not have been lent to, in the first place.
For myself, I agree that laws should be enforced, that when they are not enforced they marginalize law, and those who break the laws should not be excused because their ‘crime’ is non-material. And, I will go forward, and agree that in the case of documenting the making and transfer of residential loans, those humans that actually broke the law should pay fines and suffer imprisonment, every last one, even if they number in the tens of thousands. But, if we ignore them, and look at the abstract institutional entity, the lender, punishing the lender is misplaced. In the first place, you cannot imprison a bank, an inanimate mental construction, you can only fine them. And if you do, the human employees and agents of the institution who actually broke the law, will not suffer, only shareholders and society will suffer.
As for you pounding salt, with all respect, I believe your fears are misplaced. If whoever you have been paying your loan fails to issue you a ‘deed of reconveyence’ to clear your title, you have your cancelled checks showing you have paid, and, if you misplace them, you can get copies, as all checks cleared since the ’70s are copied front and back by the bank and retained. If you show your last monthly loan statement that you received and your check showing payment to a Judge, he will order the loan paid, and you can record this and clear your title. And, he will no doubt fine the entity who failed to issue your deed of reconveyence, together with costs of suit and attorney fees. You will find most States have had, since the 1930s, such laws incentivizing institutions to play fair or else.
As for ‘H…’ and “N…” I assume you meant no reference to me personally, but, if I am mistaken, please let me know.
bergsten Says:
November 17th, 2010 at 2:53 pm
@Fred C. (2:17pm) — Absolutely no reference to you personally, my apologies if this wasn’t entirely clear. For that matter, the entire diatribe (written after a long day including many hours in god awful traffic), was directed at the issue (and its potential consequences), not at any TBP participant. Never at any TBP participant.
I’ve recommended for over a year now that anyone so concerned should go down to their local Country Recorder to ensure that their home paperwork is “in order.” Which I’ve done. Of course, even so, they may only be “in order” at that particular point in time…
So, this isn’t over any particular personal concern. But the more serious concern is that all of this finagling could set a precedent for having no recourse in the case of an error, intended or otherwise.
If you (all) don’t believe this can happen, try calling anyone’s customer support.
dss Says:
November 17th, 2010 at 3:13 pm
@bergsten,
“All you have to do is marginalize the rule of law.
Still want to blame the whole thing on “deadbeats”?
Well said!
dss Says:
November 17th, 2010 at 3:24 pm
The initial laws that were broken may be minor or inconsequential, like driving 30 in a 25 mile an hour zone, but it doesn’t matter how minor or inconsequential the law that was broken when it can kill a family of five. Then a minor traffic infractions suddenly becomes vehicular manslaughter.
It is very revealing when the rule of law is treated by some as a matter of inconvenience, when the standard should be what were the end results when the laws were broken?
Like a credit card company skimming a penny off on each transaction, (so inconsequential and petty, no real harm was done, why bother to worry about it?) and ends up stealing millions of dollars stolen from it’s customers.
Would we prosecute either case?
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<b>News</b> Corp's Two Newspaper Tablet Projects are Back on Track
After stories that Rupert Murdoch had binned his adventurous newspaper app project, his son James has said Project Alesia is going ahead, whether other newspapers want their content aggregated or not.
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Senator Rockefeller Wants FCC To 'End' Fox <b>News</b>, MSNBC
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benchcraft company scam
<b>News</b> Corp's Two Newspaper Tablet Projects are Back on Track
After stories that Rupert Murdoch had binned his adventurous newspaper app project, his son James has said Project Alesia is going ahead, whether other newspapers want their content aggregated or not.
The Newsonomics of <b>news</b> anywhere » Nieman Journalism Lab
News Anywhere, or unified news, or All-Access, whatever we want to call it, demands the singular focus, product development and messaging that Netflix, HBO, Comcast, and Facebook are bringing to it. Those are all skills that have been ...
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Our Financial Infrastructure in Tatters: Announcing New Series on the Foreclosure Crisis
Monday, 11/15/2010 - 5:38 pm by Mike Konczal | 2 Comments
Robo-signers. Moratoriums. Botched documents. In the midst of a complicated and crooked mess, New Deal 2.0 is asking leading thinkers and activists to help navigate the maze of the foreclosure crisis. Our new “Foreclosure 411” series will focus on the values inherent in explaining why we should care and what the crisis means to all of us. Mike Konczal introduces the series.
Why, with so many problems in the world, should you care about the current foreclosure crisis? Isn’t this just a problem on the fringe, a case of deadbeats not paying their bills?
I wish it was that simple. However, this crisis is a complete breakdown in the infrastructure that handles the most important financial asset for a majority of Americans, and one of the primary means by which intergenerational mobility occurs.
The foreclosure crisis sits at the heart of each of the crises that are destroying our economy. There’s a massive amount of bad debt and over-leverage as we emerge from a burst credit bubble. There’s the broken financial system that was created in the past two decades, rife with incentives to rip off both investors and borrowers in order for middle-men to profit. There’s the macroeconomic crises of deflation and mass unemployment, which are devastating households trying to survive. And finally, there’s the tepid response from the Obama administration, embracing the idea that the problem would go away by now with a growing economy. This plan hasn’t worked and there isn’t any plan B in place.
These aren’t new problems. We’ve known about them for a while now, and we are living out the consequences. In light of the likelihood of continuing unemployment and a lost decade for America, New Deal 2.0 has reached out to a variety of writers to look at the foreclosure crisis and its causes, problems and solutions.
Sign up for weekly ND20 highlights, mind-blowing stats, event alerts, and reading/film/music recs.
The financial system’s ultimate goal should be to mediate the transferring of funds from borrowers to savers. Starting in the early 1980s, the private mortgage securitization system was supposed to bring the best in deregulation to this market. Private servicers could manage assets better with tax-free protection, the ratings agencies could dynamically assess credit risk, and the wonders of a deregulated financial market and a financialized economy would get credit exactly where it needed to go.
This has not happened. But beyond puffing up a credit bubble in housing, it has destroyed our ability to move on afterward, to dig out of the collapse. Bad investments happen all the time. People buy at the wrong time, get in over their heads, etc. The question is: what railings are around the system? In the private system, those railings are the servicers. For the public, it is our bankruptcy courts and property record systems. Both are being corrupted by this foreclosure crisis.
This alone is reason enough to be worried. All it takes is a random problem in our servicer system to get the average homeowner into trouble. This isn’t about deadbeats or responsibility. All this system does is make it profitable to be a big bank (profitable as long as it doesn’t have to record its losses). However, we don’t want a financial system with only this objective — we want a financial system that finds investment opportunities, provides contracts that are valid and well-informed, that makes sure property rights that involve debt and uncertainty are maintained properly, and that the borrowing and lending markets are as complete as they can be without being exploitative. This series will show you how that has failed.
Mike Konczal is a Fellow at the Roosevelt Institute.
BR: That is not remotely what is going on with MERS. There is no parallel between the sharing of an asset between family members, and a fraudulent scheme designed to rip off filing fees from local towns, hide ownership of loans, and deceive the public thru an extra-legal technique that undermines 100s of years of property law.
It may only be Tuesday, but we have a winner for the dumbest comment of the week.
zell Says:
November 16th, 2010 at 4:37 pm
FIFO: Felonies in; felonies out. The R.E. bubble was fostered by widespread deceit that has been ignored. It’s no surprise to see the same on the flip side.
Niskyboy Says:
November 16th, 2010 at 4:51 pm
Hilarious.
Lugnut Says:
November 16th, 2010 at 5:03 pm
Barry,
You’ve hit upon a key topic that I took notice (at least with this particular issue) from day 1, and its one that drives me nuckin futz. Namely the absolute reluctance, if not outright refusal of the mainstream print and television media to characterize or hint that this situation is anything other than a mere ‘mistake’ that will cleaned up with some 409 and a paper towel, and we’ll all move happily on from there. That fact that its a persistant story, and not some one night mention little blurb, makes it all the more obvious and disquieting.
What is it? Is it because they hadn’t done enough primary investigative journalism to feel comfortable in classifying it as fraud? Do they just not understand the nuances of the laws, paperwork, and complex relationships enough to not want to make an error in judgement in branding it fraud? Do the senior editors say “Lets wait till the Justice Department indicts them so we don’t have to make that judgement ourselves”? Or are there merely in the tank for the firms that devote a good chunk of their advertising dollars to their particular news organization, and/or are frequent guests?
Whatever it is, I think it comes down to a total lack of balls, ethics, and conviction of purpose. They all guilty of it. Repeatedly. And quite franky it makes me sick. Its a Rorschach test for their continued Darwinistic self destruction of credibility.
Tarkus Says:
November 16th, 2010 at 5:14 pm
Yes – everyone notices how the discussion of fraud when applied to financial companies is always handled with kiddie-glove euphemisms.
It’s tiring, and the more they do it, the more you notice it.
Fraud is rewitten using “mistakes”, “errors”, “oversights”, “incompetence” (until it is pay/bonus time), “didn’t see it coming”, etc, etc.
WSJ and the rest are cowering, not reporting.
Andy T Says:
November 16th, 2010 at 5:33 pm
Curmudgeon–
You seem to have some knowledge on these type of matters and have an opinion that dissents from the “mob.”
Thanks for the commentary on these matters.
It’s a refreshing change of pace from almost every other comment I see here at TBP.
yoganmahew Says:
November 16th, 2010 at 5:37 pm
That would be a syntactical error. If they had spelled it wrong, it would be a grammar error…
obsvr-1 Says:
November 16th, 2010 at 7:56 pm
@ndy T Says (and Curmudgeon):
Curmudgeon–
You seem to have some knowledge on these type of matters and have an opinion that dissents from the “mob.”
Thanks for the commentary on these matters.
It’s a refreshing change of pace from almost every other comment I see here at TBP.
—- Reply
go watch the entire Senate Committee Banking, Housing and Urban Affairs hearing today on “Mortgage Services and Forclosure Processes”
http://www.c-spanvideo.org/program/296595-1
The problem is much bigger that a technical issue of paperwork or process — amongst the criminal activities are fraud and unethical behavior throughout the servicer and banking industry which is magnifying the problem. Fraudclosure is just light that is illuminating a problem that is large enough for the Cong. Oversight Panel (COP) and the Senate Committee to call on the Financial Stability Oversight Committee to investigate systemic risk concerns.
http://www.marketwatch.com/story/dodd-robo-signing-the-tip-of-the-iceberg-2010-11-16?dist=afterbell
http://www.marketwatch.com/story/watchdog-calls-for-second-round-of-stress-tests-2010-11-16?dist=afterbell
And no, people who owe on their mortgage owe on their mortgage — arguing whether someone should get a free house because of a procedural problem is not the center of the issue (they shouldn’t). Questioning why nobody is going to jail for breaking, ignoring or circumventing the laws which is creating systemic risk (AGAIN) is a valid. The banks are in deep do-do and bail-outs are not on the menu this time around … a test of the FinReg resolution clauses may be in the near future.
RW Says:
November 16th, 2010 at 8:11 pm
@Curmudgeon
“…whether a third-party’s (the borrower) agreement to abide by assignments outside of the public records is enforceable against the borrower through a designated agent for doing so (Mers).”
Seems reasonable but it appears that the structure and function of MERS itself has become the problem, not so?
That is, the principle of MERS is not the problem — it does appear to be a legal entity even though it is essentially just a database, a filing cabinet, with no officers or employees — and all parties to the loan agreed to it as a nexus even though agency can clearly not be implemented directly by MERS.
But then the integrity of MERS as that which establishes connection between buyer and seller(s), a nexus, becomes crucial so if suspicions arise that the filing cabinet is ‘damaged’ or otherwise unreliable — if it is not possible to go into the MERS database and pull up complete, accurate records with confirmable authenticity via accessible originals — then how is valid agency to be recreated?
If a nexus between lenders (independent of their number or intra-agency agreements) and the third party cannot be established who then has standing to enforce a lien against the third party? It would seem that all agreements essentially become putative.
Jim67545 Says:
November 16th, 2010 at 8:23 pm
Curmudgeon is entirely correct, based on my decent knowledge in the field. I would focus attention on whether the homeowner is actually delinquent, how far, whether they had tried to work out the situation in some way, whether they were ignored, whether they received due process, etc. Failures by the lenders in these areas should be punished. Otherwise, there is nothing nefarious about MERS, it is not some fraudulent conspiracy and the thought that it is a conspiracy to defraud title offices of recording costs is equally laughable. Yes, it no doubt has that intended effect but the task of tracking the recording of interests in mortgages every time they change hands would make the entire system unworkable.
We have a housing financing market that is nearly totally constipated. Add into the mix a profound uncertainty over the legal standing that a mortgage holder may have and the few who might invest in this asset will run away – as will the 35% of the purchasers who are buying foreclosed properties. That direction leads to the government being the mortgage financier of only resort for as far as we can see. And, we should all know who puts up the $$ to make that happen. And, with foreclosed property sales dropping we would have a serious slowdown in absorption of foreclosed properties and farther price weaknesses (, losses to individuals and lenders, etc.)
Collapse the current housing finance market and we are all back into 3 or 5 year ARMs. Kiss your 30 year fixed goodbye. That would seriously impact affordability not to mention the entire real estate industry not, need I point out, at the best of times. So, I suggest that most of those above look before they leap. This has to be worked out.
Fred C Dobbs Says:
November 16th, 2010 at 8:46 pm
Let’s see if I understand what people are arguing about. 1) a bank makes a loan to someone, 2) the borrower secures the borrower promise to repay with a mortgage on the borrower’s residence, 3) the borrower fails or refuses to repay the loan, breaking his promise, 4) lender resorts to the security the borrower gave to secure his loan, that is, the bank initiates foreclosure, 5) borrower finds some defects in the loan or foreclosure paperwork and goes to a lawyer, 6) the lawyer tells the borrower it is cheaper to hire the lawyer to defeat foreclosure than for the borrower to keep his promise to repay, 7) the lawyer tells the court to rule the lender may not foreclose because ___(fill in the reason)_____, 8) the judge rules in favor of the borrower, 9) the lender now has an unsecured loan, for there can be no doubt that the borrower got the money and has not paid it back, (10) the borrower sells his mortgage-free residence, 11) borrower moves to another state taking his money with him, or otherwise makes him or his money unavailable to lender, 12) lender charges off the loan as uncollectible and takes a loss, the amount being equal to the unpaid loan balance plus accrued interest and costs. The bank lent the money in good faith, even though its processors may have made documentary mistakes, and likewise began foreclosure in good faith, even though it may have made documentary mistakes. Lender, in bad faith, fails or refuses to repay loan.
Now, who thinks the poor, little down-trodden borrower deserves to keep the money, at the same time f___ his fellow members of society? Banks function as financial intermediaries for the benefit of all. Weakening a bank, giving a portion of its net worth to a bad faith borrower, weakens us all. The supply of lendable funds is reduced, and the demand causes the cost to rise.
Harry Lime Says:
November 16th, 2010 at 8:55 pm
Classic, classic stuff. This reminds me that there is a God. Whether there is Justice or not is still to be determined.
DeDude Says:
November 16th, 2010 at 9:12 pm
Cynic;
You are not cynical enough. The reason treasuries are up is that somebody is about to sell a lot of treasuries to the Fed. Got to get those prices jammed up so you can sell at a profit.
LoveFreedomTruth.com Says:
November 16th, 2010 at 9:31 pm
This Presidential veto override attempt should fix things
Veto Override Attempt
H.R. 3808:
to require any Federal or State court to recognize any notarization made by a notary public licensed by a State other than the State where the court is located when such notarization occurs in or affects interstate commerce.
http://market-ticker.org/akcs-www?post=172452
I suggest everyone follows the market tickers advice. Fast
hammerandtong2001 Says:
November 16th, 2010 at 9:49 pm
****It doesn’t matter when mortgage assignments and endorsements are recorded because the existence of the pooling and service agreement and purchase sale agreement is proof in itself that the loan was conveyed, said Stephen Ornstein, a partner in the Washington office of SNR Denton, a law firm that represents loan servicers and lenders.
“If the assignment is missing, you can create it by having the old assignee reassign it to you,” Ornstein said.****
I’ve heard this argument before, and none of the five experts who advise New York state on trust matters (and virtually all mortgage securitizations use New York trusts) accept that point of view. New York trusts can accept assets only as stipulated in their governing agreement. The pooling and servicing agreement made very specific provisions as to how the notes (the borrower IOUs) were to be endorsed and further required that the process be completed by specific dates, typically no later than 90 days after the trust was closed, with only very limited exceptions. And the trustee, on behalf of the trust, was required to provide multiple certifications that all these steps had been taken.
Let’s put it another way: the industry position is that the underlying contract, the pooling and servicing agreement, can just be ignored if the industry screws up on a grand enough scale. Would any servicer tolerate this argument if someone, say Treasury, tried to cut their fees? Funny how the “sanctity of contract” argument is nowhere to be found when adherence to contracts might crimp industry profits.
AND…
“SIFMA rejects sweeping claims that fundamental flaws regarding the transfer and ownership of mortgage loans are endemic to secondary markets and mortgage securitization, and believes that such concerns are exaggerated and without merit. While each situation may have variations, SIFMA believes that the customary practices utilized in secondary markets to convey ownership of mortgage loans from originators to other parties, and into securitization trusts, are sound and in accordance with generally applicable legal principles.”
The use of “sweeping claims” implies that the critics have no evidence for their views, when borrower attorneys all over the US report widespread errors. A group of nearly 100 attorneys who work with bankruptcy lawyer Max Gardner have reported that in their collective experience, they have yet to find a single note that was conveyed correctly in accordance with the requirements of the pooling and servicing agreement. Other investigations show widespread problems. As much as SIFMA tries to dismiss the use of the word “endemic”, all they offer is bluster, when the evidence on the ground to the contrary is extensive.
And you have to love this part: “customary practices…are sound and in accordance with generally applicable legal principles.” This is simple an effort to divert attention from the fact that the contracts that the industry itself devised were often ignored. So a more accurate rendering would be “We did what was convenient instead of what we agreed to do, and if you pretend we didn’t have to satisfy a lot of complicated legal requirements to meet all the objectives of all the parties, we can find a way to justify what we did.”
It’s all here:
http://www.nakedcapitalism.com/2010/11/more-mortgage-securitization-industry-propaganda-via-new-york-times-sifma.html
And I’m the “dumbass”?
Breaking the law to enforce a contract, no matter the material weight of breach on the offending parties’ side, is still breaking the law.
There it is.
.
Bill W Says:
November 16th, 2010 at 10:10 pm
b_thunder,
I agree with that sentiment. This could become an opportunity for Obama to reform the system the way it needs to be reformed. By letting the stupid and the greedy reap what they’ve sowed.
The political opportunity for him is to steal some of the T-Party’s anti-establishment thunder.
The Curmudgeon Says:
November 16th, 2010 at 10:29 pm
@hammerandtong2001:
Mortgage assignments between mortgagees, whether or not they are recorded in the public records, are enforceable as between each other, according to whatever contract they have entered regarding the assignments.
When borrowers signed the mortgages with the Mers as the nominee, they explicitly agreed, pursuant to the terms of the mortgage, that Mers had all the rights and obligations of the actual lender, so far as they are concerned, and that assignments could be made to other lenders in Mers which would not affect their relationship with Mers as the nominee agent for whatever lender made the assignment and to whom it was made.
Mers has been operating without objection in all fifty states for over a decade now, and only became an issue when a few clever lawyers and populist nutcase attorneys general decided that the system might serve as a good whipping boy for all these poor folks losing their homes that incidentally also serve on jury pools and vote in attorneys general elections.
If there was this terrible objection to the practices of Mers before, then why did the populists wait ’til now to present them? Same’s true of foreclosure affidavits in Florida and elsewhere. The structure of the foreclosure law in Florida made foreclosure mills a practical necessity if there were to be any Fannie Mae/Freddie Mac mortgages let in the state, and so foreclosure mills and robo-signers have been around a lot longer in Florida, and fully well-known by everyone, including preening attorneys general, than the financial crisis.
You seem to claim laws were broken to enforce a contract amongst the mortgagees? That isn’t really the issue here. If they breached their contract with each other, that’s not breaking a public law.
The issue here is whether a procedural misstep in foreclosure should yield a free house. I stand by my assertion that allowing such a thing would do great violence to the rule of law, far greater than simply requiring a correction to the procedure.
I won’t call you a dumbass again, but you’ve still not got the facts straight. It is not “breaking the law” that every assignment between mortgagees is not recorded. It is simply choosing, amongst themselves, to operate a supplementary assignment system.
and this:
“BR: That is not remotely what is going on with MERS. There is no parallel between the sharing of an asset between family members, and a fraudulent scheme designed to rip off filing fees from local towns, hide ownership of loans, and deceive the public thru an extra-legal technique that undermines 100s of years of property law.”
What, pray tell, is fraudulent about Mers? The borrowers agreed to Mers as the nominee lender at closing. There is no attempt to hide ownership of loans, it is simply a means of expediting the loan to the investor. Who owns the mortgage matters not a whit to the borrower–he is to pay whomever he is told to pay–and the ability to assign the loan is also agreed to by the borrower at closing. How, exactly, does Mers undermine hundreds of years of property law? There has never been a requirement as between the parties to a real property interest that the conveyance be recorded in the public records to make it enforceable as between the parties. I really don’ t get this outrage. Mers has been around a long time, and greatly facilitated the mortgage securitization process. Does it have flaws? Sure. Are mistakes occasionally made between the lenders within Mers as to who owns the loan or the servicing rights? Sure. But those sorts of things are rare and hardly rise to the level of criminality.
Mbuna Says:
November 16th, 2010 at 10:36 pm
Barry, get ready to hire those ninjas…. http://market-ticker.org/akcs-www?post=172452
as early as tomorrow!
Effective Demand Says:
November 16th, 2010 at 10:38 pm
Notice the number of cases that support MERS:
http://en.wikipedia.org/wiki/MERS#Litigation_and_major_legal_decisions
MERS seems to be losing some small cases which of course gets lots of press and winning the big cases, which doesn’t get any press. Nobody wants to hear that it’s actually legal and that they won’t actually get that house they overpaid for for free.
bergsten Says:
November 16th, 2010 at 10:39 pm
@Fred C — I can explain what people are arguing about, thought it might be simpler all round for you to just look at all that’s been written and reported on the subject to date.
I can explain why people are arguing — because people will argue about anything.
I can explain what I am worried about:
1. I take out a mortgage. 2. I dutifully pay my mortgage month after month until it’s paid off. 3. I ask the bank for the paperwork to show I no longer have a mortgage and own the property free and clear. 4. The bank tells me to pound salt as they weren’t the holders of the note. 5. The (lack of) precedent thanks to “nobody caring” about a few shortcuts and paperwork errors, causes the courts to tell me to pound salt too.
Finally, I can explain what I’m mad about, though to do so, I am forced to invoke that conversation-stopping bit of history that starts with “H,” done by those who start with “N.”
Millions of people were eventually tortured and killed because (effectively) nobody complained as each individual indignity, infraction, policy, procedure, eviction, curfew, restriction, graffiti, insult, violence, theft, discrimination, law, and on and on were each excused as being non-material.
Everybody asked “how can this happen?” and say “it can’t happen here.”
Well, it happens one small step at a time, and it sure can happen here.
All you have to do is marginalize the rule of law.
Still want to blame the whole thing on “deadbeats”?
LoveFreedomTruth.com Says:
November 17th, 2010 at 12:35 am
Presidential Veto Override Attempt
H.R. 3808:
to require any Federal or State court to recognize any notarization made by a notary public licensed by a State other than the State where the court is located when such notarization occurs in or affects interstate commerce.
http://market-ticker.org/akcs-www?post=172452
I suggest everyone follows the market tickers advice. Fast
JerseyCynic Says:
November 17th, 2010 at 4:17 am
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7691500/Cyber-attack-could-fell-US-within-15-minutes.html
JerseyCynic Says:
November 17th, 2010 at 4:20 am
http://ca.reuters.com/article/technologyNews/idCATRE6AF4UX20101116
So gates says there is a huge future threat and a considerable current threat…
I say perfect timing to pull the plug and make all this bad bad go away
JerseyCynic Says:
November 17th, 2010 at 4:57 am
http://ca.reuters.com/article/technologyNews/idCATRE6AF4UX20101116
gates yesterday on cyber attack:
“I think there is a huge future threat. And there is a considerable current threat,” Gates told The Wall Street Journal CEO Council. “And that’s just the reality that we all face.”
PULL THE PLUG
what a perfect way to make all this bad bad go away!
Mr. Ritholtz — maybe you can get that team of Ninjas to install a few dead drops around the area so we can keep in touch…
http://deaddrops.com/
Fred C Dobbs Says:
November 17th, 2010 at 2:17 pm
I apologize to Bergsten unreservedly, if he thinks I or anyone else wants “… to blame the whole thing on ‘deadbeats’”. They are mostly victims that should not have been lent to, in the first place.
For myself, I agree that laws should be enforced, that when they are not enforced they marginalize law, and those who break the laws should not be excused because their ‘crime’ is non-material. And, I will go forward, and agree that in the case of documenting the making and transfer of residential loans, those humans that actually broke the law should pay fines and suffer imprisonment, every last one, even if they number in the tens of thousands. But, if we ignore them, and look at the abstract institutional entity, the lender, punishing the lender is misplaced. In the first place, you cannot imprison a bank, an inanimate mental construction, you can only fine them. And if you do, the human employees and agents of the institution who actually broke the law, will not suffer, only shareholders and society will suffer.
As for you pounding salt, with all respect, I believe your fears are misplaced. If whoever you have been paying your loan fails to issue you a ‘deed of reconveyence’ to clear your title, you have your cancelled checks showing you have paid, and, if you misplace them, you can get copies, as all checks cleared since the ’70s are copied front and back by the bank and retained. If you show your last monthly loan statement that you received and your check showing payment to a Judge, he will order the loan paid, and you can record this and clear your title. And, he will no doubt fine the entity who failed to issue your deed of reconveyence, together with costs of suit and attorney fees. You will find most States have had, since the 1930s, such laws incentivizing institutions to play fair or else.
As for ‘H…’ and “N…” I assume you meant no reference to me personally, but, if I am mistaken, please let me know.
bergsten Says:
November 17th, 2010 at 2:53 pm
@Fred C. (2:17pm) — Absolutely no reference to you personally, my apologies if this wasn’t entirely clear. For that matter, the entire diatribe (written after a long day including many hours in god awful traffic), was directed at the issue (and its potential consequences), not at any TBP participant. Never at any TBP participant.
I’ve recommended for over a year now that anyone so concerned should go down to their local Country Recorder to ensure that their home paperwork is “in order.” Which I’ve done. Of course, even so, they may only be “in order” at that particular point in time…
So, this isn’t over any particular personal concern. But the more serious concern is that all of this finagling could set a precedent for having no recourse in the case of an error, intended or otherwise.
If you (all) don’t believe this can happen, try calling anyone’s customer support.
dss Says:
November 17th, 2010 at 3:13 pm
@bergsten,
“All you have to do is marginalize the rule of law.
Still want to blame the whole thing on “deadbeats”?
Well said!
dss Says:
November 17th, 2010 at 3:24 pm
The initial laws that were broken may be minor or inconsequential, like driving 30 in a 25 mile an hour zone, but it doesn’t matter how minor or inconsequential the law that was broken when it can kill a family of five. Then a minor traffic infractions suddenly becomes vehicular manslaughter.
It is very revealing when the rule of law is treated by some as a matter of inconvenience, when the standard should be what were the end results when the laws were broken?
Like a credit card company skimming a penny off on each transaction, (so inconsequential and petty, no real harm was done, why bother to worry about it?) and ends up stealing millions of dollars stolen from it’s customers.
Would we prosecute either case?
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