Battle Over Invalid Foreclosures May Shift To Evictions In Housing Courts
In the closely watched case of Bank of New York v. Bailey (embedded below), the Massachusetts Supreme Judicial Court ruled on August 4, 2011 that the Housing Court may hear a homeowner’s challenge that a foreclosing lender failed to conduct a foreclosure sale in accordance with state law and under the now seminal U.S. Bank v. Ibanez decision. Previous to this decision, foreclosing lenders and their attorneys were quite successful in evicting homeowners even where there were defects in the foreclosures.
A Subprime Eviction
KC Bailey obtained a mortgage in 2005, which appears to have been of the sub-prime vintage (America’s Wholesale Lender), on his home in Mattapan. Merely two years later, he defaulted, and the lender commenced foreclosure proceedings. Bailey claimed that the lender never provided him with any notice of the foreclosure, and he first learned about it when an eviction notice was duct taped to his fence. The lender started an eviction in the Boston Housing Court. Bailey defended on the basis of the alleged defective notice. The Housing Court judge ruled in favor of the lender, and the case went up to the SJC.
Ruling: Housing Court May Hear Foreclosure Challenge
The SJC first ruled, in a case of first impression, that the Housing Court had jurisdiction to consider whether the lender had properly completed the foreclosure sale and provided adequate notice to Bailey. The court noted that such a challenged was “long-standing.” Next, the Court ruled that all foreclosing lenders seeking eviction must show that it has completed the foreclosure sale in full compliance with state law. This is a change in prior practice as lenders would typically submit the foreclosure deed as evidence of good title and ownership without additional investigation.
Impact: More Difficult To Evict, But More Opportunity For Loan Mods
This decision is going to make it more difficult and expensive to evict foreclosed homeowners and get these properties off lenders’ books. On the positive side, it may give homeowners more leverage to negotiate loan modifications to enable them to stay in their homes and recover from financial distress. Evictions based on faulty foreclosures will be nearly impossible to complete and could potentially drag on for months if not years.
This decision will also have a substantial impact on the already over-burdened Housing Court system. If you have ever been to the Thursday summary process session at Boston or Worcester Housing Court, it’s akin to a refugee camp, with hundreds of cases lined up and families facing homelessness. It’s very sad. I’m sure the judges will push lenders and homeowners dealing with faulty foreclosures to resolve their differences out of court, or tell them to wait in back of the line for trial assignment.
Ironically on the same day Bank of American is about to sign a historic $8.5 Billion settlement agreement over bad mortgages, somebody finally went through a registry of deeds to look at the effect of the U.S. Bank v. Ibanez decision and the validity of mortgage assignments in Massachusetts. This just came in off the Housing Wire and is scorching through the real estate newswires.
Audit Shows 75% of Mortgage Assignment Are Invalid In Mass. County
According to an audit performed by McDonnell Property Analytics, in the Salem, Mass. Registry of Deeds, 75% of mortgage assignments are “invalid.” About 27% of invalid assignments are fraudulent, McDonnell said, while 35% are robo-signed and 10% violate the Massachusetts Mortgage Fraud Statute.
McDonnell said it could only determine the financial institution that owned the mortgage in 60% of the cases reviewed. There are 683 missing assignments for the 287 traced mortgages, representing about $180,000 in lost recording fees.
“What this means is that the degradation in standards of commerce by which the banks originated, sold and securitized these mortgages are so fatally flawed that the institutions, including many pension funds, that purchased these mortgages don’t actually own them,” according to analysts at McDonnell. “The assignments of mortgage were never prepared, executed and delivered to them in the normal course of business at the time of the transaction.”
John O’Brien, register of deeds for Essex County in the northeastern corner of Massachusetts, urged state attorneys general for a third time to cease settlement talks with the nation’s largest servicers. In May, O’Brien sent a letter to Iowa Attorney General Tom Miller for this same purpose.
“My registry is a crime scene as evidenced by this forensic examination,” said O’Brien. “This evidence has made it clear to me that the only way we can ever determine the total economic loss and the amount damage done to the taxpayers is by conducting a full forensic audit of all registry of deeds in Massachusetts.”
Is This Audit Flawed Though?
Now, a few observations about this “audit.”
First, McDonnell Property Analytics is a company engaged in the business of stopping or delaying foreclosures and performing related audits. The company makes money when consumers hire them to perform audits of the mortgage paperwork when they are facing foreclosure. The owner of the company is on a crusade against the mortgage industry to expose the paperwork and robo-signing mess, not that that’s a bad thing. But there’s some built in bias here on this purported audit.
Second, there’s no indication of the methodology to determine whether a mortgage assignment is “invalid” or “fraudulent.” What does that mean exactly? What are the audit’s definitions of “invalid” and “fraudulent.” Same for “robo-signed.” Who is determined to be a “robo-signer,” and how is that determination made? I’d like to see the underlying assumptions here.
Based on what I’ve read so far on this “audit,” I’m not sure it would hold up in a court of law. The 75% invalid rate seems very high and questionable, in my opinion. But certainly, these are good questions to ask and analyze and bring to the forefront. It’s clear that Essex Registrar of Deeds John O’Brien wants to recoup all the millions in recording fees he’s lost to the securitization industry and MERS, and he’s the most outspoken of all the registrars of deeds on this problem. (Hmmm, I wonder if Mr. O’Brien has higher political aspirations?).
Well, this problem is big enough that BofA just threw $8.5 Billion to make it go away, and bank stocks are still anemic. So we’ll see how this ultimately plays out.
Established in 1898 and still staffed with only a handful of judges, the Massachusetts Land Court is the smallest of all the Massachusetts trial courts. But for real estate practitioners, it is the most important court in the Commonwealth.
The Land Court is known for its real estate expertise, and is the starting place for almost all foreclosures. Its judges, most of whom were practicing real estate attorneys, are widely regarded as experts in the intricacies of Massachusetts real estate law. Indeed, the diminutive Land Court has recently been at the forefront of national foreclosure law with Judge Keith Long’s seminal decision in U.S. Bank v. Ibanez which made national front page news for several days.
Registered Land
The Land Court was originally established to oversee the Massachusetts land registration system. Approximately 15-20% of all property in Massachusetts is registered land. Non-registered land is referred to as recorded land.
The purpose of the registered land system — modeled after the Australian Torrens system — is to make land titles as clear and defect-free as possible. To register land, property owners have to go through a fairly rigorous process where a land court title examiner searches and certifies title and a formal plan of the land is approved. All defects and title issues are fully vetted and resolved, if possible, and upon registration, the land is deemed free of defects except noted by the examiner, including claims of adverse possession.
Registered land is freely transferable, and there is no discernible difference in examining title to registered land, other than recording which involves a few more steps than non-registered land.
Foreclosures
The Land Court is widely known as the starting point for the vast majority of foreclosures in Massachusetts. Although Massachusetts is considered a “non-judicial” foreclosure state — that is, where a mortgage holder does not need a court order to foreclosure — the state has held onto the U.S. Soldier’s and Sailor’s Civil Relief Act which gives military members protections against foreclosure. In Massachusetts, mortgage holders bring a “Soldier’s and Sailor’s Act” proceeding in the Land Court to ensure that the property owner is not an active military member. Once the Land Court issues a judgment, the foreclosure can move forward. A Soldier’s and Sailor’s proceeding is not the forum in which to challenge a foreclosure. A homeowner needs to file a separate lawsuit in Superior Court or Land Court to do so.
Quiet Title, Partition and Title Disputes
In the last 20 years, lawmakers have widely expanded the Land Court’s jurisdiction to hear more types of cases. Today, the Land Court regularly hears cases involving zoning and subdivision appeals, quiet title and actions to try title, disputes involving mortgage priorities, tax takings, adverse possession, real estate contract disputes, petitions to partition, and more. I do most of my litigation work in the Land Court’s civil session.
Strategically, certain cases are better off in the Land Court and vice-versa. An important distinction with Land Court is that there are no jury trials. Thus, if you want a jury trial, the case should be filed in Superior Court, not Land Court. For cases which are based on the interpretation of contractual language or complex real estate legal issues, Land Court is probably a good choice. For cases which have an “emotional” component and less complex, a Superior Court jury session is probably the better choice.
New Permitting Session
Most recently, in 2007, the Legislature created a special Land Court permitting session to hear zoning and subdivision appeals for larger projects involving over 25 units or over 25,000 square feet of gross floor area. With the goal to expedite zoning disputes which have roadblocked development, cases in the new session will be assigned to a single judge for the life of the case and will be assigned one of three expedited tracks. For the first time, these tracks provide deadlines for both getting to trial (ranging from six to 12 months) and for receiving a decision after trial or summary judgment (ranging from two months to four months).
If you have a complicated real estate dispute, your attorney should always seriously consider bringing the claim in the Land Court where the judge will understand the issues and keep tight control over the case.
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Richard D. Vetstein, Esq. is an experienced Massachusetts Land Court Attorney who has litigated numerous cases in the Massachusetts Land Court. For further information you can contact him at [email protected].
Update (10/18/11): The Court has issued its opinion, affirming the Land Court’s dismissal. For a full analysis, click here.
Update (9/10/11): The Court has suspended its rule for the issuance of the final opinion within 130 days of oral argument. Hopefully, the decision will come down soon.
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The Massachusetts Supreme Judicial Court heard arguments today in the case of Bevilacqua v. Rodriguez on whether a home buyer can rightfully own a property if the bank that sold it to him didn’t have the right to foreclose on the original owner, after the U.S. Bank v. Ibanez landmark ruling in January. This case, which national legal experts are watching closely, may determine the rights of potentially thousands of innocent purchasers who bought property at foreclosure sales that have been rendered invalid after the Ibanez ruling.
Land Court Ruling
The case started in the Land Court where Judge Keith Long (ironically the same judge who originally decided the Ibanez case) ruled that the buyer of property out of an invalid foreclosure has no right to bring a “try title” action to establish his ownership rights because he never had good title in the first place. Judge Long’s ruling can be read here.
“I have great sympathy for Mr. Bevilacqua’s situation — he was not the one who conducted the invalid foreclosure, and presumably purchased from the foreclosing entity in reliance on receiving good title — but if that was the case his proper grievance and proper remedy is against that wrongfully foreclosing entity on which he relied,” Long wrote.
Whose Side Are They On Anyways?
Given the importance of the case, the SJC accepted it on direct appellate review. The oral arguments can be viewed here.
The positions taken by the case participants were curious to say the least. While the mortgage lobby argued in favor of the homeowner’s right to clear his title, the state Attorney General’s office argued against that position. Doesn’t the Commonwealth have a vested interest in assisting the thousands of innocent home buyers who have been impacted by the sloppiness of the mortgage and foreclosure industry? Maybe Attorney General Coakley didn’t want to give the impression that she was favoring the mortgage industry? But she’s short-sighted if she doesn’t realize that Ibanez title problems have hurt a lot of innocent folks. These people have transformed foreclosed properties from blighted eyesores into nice homes.
Tough Options
The AG feels that existing remedies are sufficient to assist home buyers clear Ibanez related title problems. From the front line trenches, I can tell you, they are often not. The remedies are: (1) sue the foreclosing lender for damages, (2) sue to force the lender to fix the deficiencies with the original foreclosure and re-foreclose, or (3) obtain a deed from the original owner, if the person is still even around. Options 1 and 2 are a non-starters. Homeowners want their titles cleared, not a huge legal battle with the likes of a U.S. Bank. And what about the lenders who are bankruptcy and out of business? What do homeowners do then? Option 3 has worked in cases I’ve handled. But what if the previous owner is long gone? Homeowners are out of luck then.
There is also a potential solution under a “foreclosure by entry theory” where home owners can wait 3 years from the foreclosure where their title will ripen into good title. However, in many of bungled foreclosures I’ve seen, the lenders have performed the entry improperly, so that option doesn’t work. And who’s wants to wait 3 years to sell or refinance their homes?
A Workable Solution?
The high court is being asked to craft a judicial solution to this huge mess. To backtrack, there has been legislation filed on these matters, to much initial fanfare, but it is still making its way through the legislative sausage making machine. If anyone has an legislative update, please comment below.
So isn’t it a good idea to have some kind of streamlined judicial remedy to help innocent home purchasers clear these toxic titles? I think so, and here’s why. First, the previous owners won’t get harmed because they defaulted on their mortgage, and in the vast majority of cases have no financial means or interest in making mortgage payments and returning to their foreclosed homes. If they want back in the game, well, pay your mortgage. Second, the innocent home buyers who purchased these toxic foreclosure titles won’t be left holding the bag and having to sue the foreclosing lenders many of whom are out of business. They won’t have to chase old owners across the U.S. either, often being forced to pay these owners ransom money to sign a deed over. Third, the title insurance companies won’t have to pay out huge claims and hire pricey attorneys to fix these messes, thereby keeping premiums level. Lastly, good public policy favors enabling blighted foreclosed properties to be sold and rehabilitated.
Better yet, get the banks to fund the system.
Broad Effect
Bevilacqua’s case could affect the securitized trusts that bundled mortgages and sold securities to investors. Like the Ibanez case, the court’s decision may resonate with other states as they grapple with the rights of new home buyers who may hesitate to complete a purchase for fear of uncertain title. That may be especially so in states such as Massachusetts that don’t require court action to seize a house.
“The Massachusetts case will have significant repercussions in many states that allow nonjudicial foreclosure,” Alan White, a law professor, commented to Businessweek. “The decision in Bevilacqua will not only determine the fate of past foreclosure sale deeds, but hopefully provide guidance so that lenders and their lawyers can get it right going forward.”
The final ruling should be release in several months. We’ll report on it then. In the meantime, I will continue to help clear the titles of the true victims of U.S. Bank v. Ibanez.
Last night, 60 Minutes did a compelling segment — Mortgage Paperwork Mess: Next Housing Shock? — on an important issue we’ve been covering here on the Blog. The segment details rampant forgeries by $10/hour bank “vice-presidents” and the pervasive robo-signing of bogus mortgage documents by “document mills” and “foreclosure factories.”
We’ve been particularly concerned about the thousands of Massachusetts residents who purchased foreclosed properties which are now left with defective titles due to the various errors and missteps of foreclosing lenders and their foreclosure attorneys. In the 60 Minutes segment, the new head of the FDIC, Sheila Bair, proposes a federal “Superfund” to clean up this colossal mess. That’s certainly a good idea. Innocent home buyers shouldn’t have to bear the burden of all the mistakes and shortcuts made by a banking industry too eager to process foreclosures at any cost.
First the robo-signing controversy. Then the U.S. Bank v. Ibanez ruling. Now the next bombshell ruling in the foreclosure mess has just come down from a New York federal bankruptcy judge.
The case is In Re Agard (click here to download), and essentially throws a huge monkey wrench into a hugely important cog of the entire U.S. mortgage market, the Mortgage Electronic Registration System, Inc. known as MERS.
What Is MERS?
MERS, even for many seasoned real estate professionals, is the most important entity you’ve never heard of. In the mid-1990s, mortgage bankers created MERS to facilitate the complex mortgage securitization system where hundreds of thousands of mortgage loans were (and still are) packaged and bundled as securities for sale on Wall Street. Each mortgage entered into the MERS system has a unique 18 digit Mortgage Identification Number (MIN) used to track a mortgage loan throughout its life, from origination to securitization to payoff or foreclosure. The MERS system was vital to the proliferation of the $10 trillion U.S. residential securitization mortgage market.
Critics say that the decision to create MERS was driven, in large part, to avoid paying recording fees charged by county registry of deeds which required that all mortgage transfers and assignments be properly recorded and indexed in publicly available registries of deeds. Thus, MERS was designed essentially as a privately run, national registry of deeds under which MERS would act as the record “owner” and depository of all mortgages participating in the system, while the mortgage notes and loans themselves were freely bought and sold on the secondary market. About 50% of all U.S. mortgages participate in the MERS system.
The Ruling: MERS Cannot Legally Transfer & Assign Mortgages
Bankruptcy court judge Robert E. Grossman’s ruling is a bombshell and appears to be the first federal ruling holding that MERS cannot legally do what it was set up to do: transfer and assign mortgages through its electronic registry. Judge Grossman ruled that the foreclosing lender had to show that it owned both the note and the mortgage — rejecting the popular theory that the “note-follows-the-mortgage” — and there was no evidence that it held the note. “By MERS’s own account, the note in this case was transferred among its members, while the mortgage remained in MERS’s name,” Grossman wrote. “MERS admits that the very foundation of its business model as described herein requires that the note and mortgage travel on divergent paths.”
The judge found that the MERS membership agreement wasn’t enough to assign the mortgage and that to do so the lender would have to give power of attorney or similar authority to MERS. MERS’s membership rules don’t create “an agency or nominee relationship” and don’t clearly grant MERS authority to take any action with respect to mortgages, including transferring them, Grossman wrote. Because the interests at issue concern “real property” — land and buildings — under state law, any transfer has to be in writing, which isn’t done under the MERS system, he said.
The judge concluded, rather harshly, that “MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best.”
Impact of the Decision
The impact of this ruling may be quite muted. First the ruling is “dicta” which means that the ruling didn’t have much to do with the case since the judge upheld the validity of the foreclosure. Second, this ruling comes from the lowest level of the federal bankruptcy court system in New York, and will surely be appealed to a federal appeals court, and then possibly to the U.S. Supreme Court. Other courts have ruled in favor of MERS on the same issues, as well. The ruling could be overturned ultimately–if it gets there. Third, Congress and state legislatures could intervene, and bless what MERS has been doing for the past decade. The judge invited lawmakers to do just that.
Thus, it’s hard to say how much, if any, impact this ruling with have in other states or nationally. Plus, any easy fix would appear to be for MERS and its lender partners to go back, and record their mortgage assignments and pay the recording fees due.
That said, the decision definitely sends a shot across the bows of MERS and its partners (Fannie and Freddie), and should be watched closely by industry experts.
I am honored to be a panelist — along with the lawyers who prevailed in the U.S. Bank v. Ibanez case –in an upcoming online seminar on February 12 and 15. Here are the details:
The Massachusetts Ibanez Decision:
The Ruling and its Implications for the Industry, the Practitioner and the Consumer
Saturday, February 12th, 2011
12:00 PM Eastern Time
and
Tuesday, February 15th, 2011
8:00 PM Eastern Time
Hear from the attorneys and experts directly involved in the recent landmark Massachusetts Supreme
Judicial Court decision that shook up the foreclosure defense landscape.
A virtual panel discussion followed by audience Q&A.
Max is recognized as one of the leading lawyers in America in the area of Predatory Mortgage Servicing and the standing of Mortgage Servicers in consumer bankruptcy cases. His position on the front lines of the war against predatory lenders and mortgage servicers has captured the attention of ABC News Nightline, CNN, Business Week, The New York Times, The Washington Post and many other news outlets across the country.
**Only participating in the event on Saturday, February 12 at 12:00 PM EST
Marie McDonnell is the President of McDonnell Property Analytics, Inc., a foreclosure defense training and support services company. Her Amicus Brief is widely cited as a key factor in the Ibanez decision. Marie has been a nationally recognized mortgage auditing and forensics expert since 1987.
Jamie is one of the leading foreclosure defense lawyers in Massachusetts, with a current caseload of approximately 85 cases. He has worked closely with Glenn F. Russell, Jr., and Thomas B. Vawter to develop innovative foreclosure defense strategies, including challenging a foreclosing bank’s standing in Servicemembers cases in the Massachusetts Land Court and in raising standing challenges to post-foreclosure evictions.
Glenn is a solo practitioner based in Fall River, Massachusetts, whose practice is 100% devoted to the defense of mortgage foreclosure. Attorney Russell represented Mark and Tammy LaRace in the recent Massachusetts Supreme Judicial Court ruling in U.S. Bank v. Ibanez.
Richard D. Vetstein, Esq. is the creator and principal author of the Massachusetts Real Estate Law Blog. Rich is a nationally recognized real estate attorney, having written extensively on real estate legal issues and been featured or quoted by the Boston Globe, Bloomberg News, Financial Times, Associated Press, Wall Street Journal, and Banker & Tradesman. Rich was recently selected as one of Inman News’ Top 100 Most Influential in Real Estate.
**Only participating in the event on Tuesday, February 15 at 8:00 PM EST
I recently came across a very provocative and interesting idea to address the foreclosure and bankruptcy crisis: a new Chapter M for Mortgage bankruptcy. As described on FireDogLake:
“Prof. Adam Levitin has proposed this with his Chapter M for Mortgage bankruptcy. It would remove foreclosure actions from state court to federal bankruptcy court. Successful petitions can be offered a standardized pre-packaged bankruptcy plan. The plan would be based on HAMP modification guidelines (interest rate reduction to achieve 31% DTI goal, but without federal funding) plus cramdown to address negative equity.
We can make this fair on the backend. If the homeowner redefaults we can speed up the foreclosure process. It wouldn’t affect non-mortgage lenders. It is fast-tracked relative to traditional Chapter 13. It can have clawback mechanisms to address potential future appreciation.
And going through the process can give the lender clean title. Because there’s this whole issue of who owns what in the securitization chain which is a few court cases away from putting our financial system over a cliff. And the best feature is that it has no cost to the federal government. Like other smart policy, it builds off already existing infrastructure, so it can be started immediately using existing courts and Chapter 7 panel trustees for sales.”
Any solution which can simultaneously address banks’ unwillingness to offer loan modifications to otherwise qualified distressed homeowners and the litany of title problems created in the wake of cases like U.S. Bank v. Ibanez should be seriously considered. The recent foreclosure legislation proposed by Secretary of State Bill Galvin and Attorney General Martha Coakley contains mandates following these ideas. Galvin’s would create a special court to deal with Ibanez issues, and Coakley’s requires loan modifications for certain sub-prime loans before foreclosure.
We certainly need out of the box thinking to deal with these problems. What are your thoughts?
Harold Clarke, Esq., Senior Underwriter for Westcor Title Insurance Company–New England say the U.S. Bank v. Ibanez decision could be one of the most important real estate decisions in recent memory. He explains how it will impact the Massachusetts real estate market, and what may happen in the future. Also check out Westcor New England’s new YouTube channel.
You knew this was coming. The politicians smell a big political opportunity with the foreclosure mess in Massachusetts, and are filing legislation left and right.
The latest is legislation filed by State Senator Karen Spilka and Attorney General Martha Coakley mandating loan modifications in certain circumstances.Specifically, the loan modification legislation requires creditors to take “commercially reasonable efforts” to avoid foreclosure upon certain sub-prime loans. The legislation also provides a safe harbor for creditors to comply with this requirement of commercial reasonableness.
The legislation also addresses problems with foreclosures highlighted in the recent decision by the Massachusetts SJC, U.S. Bank v. Ibanez by prohibiting foreclosures where creditors lack the documents supporting their purported right to foreclose, and prohibits passing on certain fees and costs to homeowners. Specifically, this legislation:
Codifies the recent SJC decision in Ibanez by requiring a creditor commencing foreclosure to show it is the current legal holder of record of the mortgage. The bill also forbids misrepresentations to courts concerning holder status;
Prohibits passing on to third parties the costs of remedying prior improper foreclosures or absence of recorded assignments;
Prohibits “junk fees” (for goods or services not performed) tacked on during foreclosure and prohibits bribes, referral and similar fees for foreclosure business; and
Requires recording of assignment establishing the creditor as present holder of the mortgage before it can foreclose on the property.
A violation of this legislation would constitute a violation of the Massachusetts Consumer Protection Act, Chapter 93A which carries triple damages and attorneys fees.
Massachusetts Secretary of State William Galvin filed legislation last Friday to give the Land Court authority to create a special master to deal with foreclosures that may have occurred improperly. Anyone seeking to challenge the legitimacy of a foreclosure would have one year to file a lawsuit in the court.
Galvin’s bill follows a Supreme Judicial Court decision in U.S. Bank v. Ibanez, upholding a 2009 Land Court ruling that a bank or lender must have proper documentation proving it holds a title before foreclosing on a home.
“It’s opened the door to anyone that wants to question a foreclosure that’s already moved forward,” Galvin said of the decision. As the secretary of state, Galvin is the state’s register of deeds. Galvin’s bill will go to the Legislature for debate.
The special court could play host to homeowners who purchased a foreclosed home staking claim against a former homeowner who may have faced an improper foreclosure. Galvin pointed out that about 40,000 foreclosures have taken place in Massachusetts since 2006.
“I doubt that half of them are going to be involved in this,” Galvin said. “I don’t know if it’s 5 percent. But if it’s 5 percent, that’s 2,000 properties.”
Depending on the numbers of foreclosure affected, this may be a step in the right direction–as long as homeowners are able to obtain clear title and get reimbursement of any out of pocket expenses dealing with a problem they didn’t create. As with any special court or master, there’s always a short statute of limitations imposed. So we’ll keep an eye out on that.
Breaking News (10/18/11): The Court has issued its opinion, affirming the Land Court’s dismissal. For a full analysis, click here.
The Massachusetts Supreme Judicial Court has taken up an appeal about whether a home buyer can rightfully own a property if the bank that sold it to him didn’t have the right to foreclose on the original owner, after the U.S. Bank v. Ibanez landmark ruling a few weeks ago. This case may determine the rights of potentially thousands of innocent purchasers who bought property at foreclosure sales that have been rendered invalid after the Ibanez ruling.
The case is Bevilacqua v. Rodriguez, and can be read here. In Bevilacqua, Land Court Judge Keith Long (ironically the same judge who originally decided the Ibanez case) ruled that the buyer of property out of an invalid foreclosure has no right to bring a “quiet title” action to establish his ownership rights because he never had good title in the first place. “I have great sympathy for Mr. Bevilacqua’s situation — he was not the one who conducted the invalid foreclosure, and presumably purchased from the foreclosing entity in reliance on receiving good title — but if that was the case his proper grievance and proper remedy is against that wrongfully foreclosing entity on which he relied,” Long wrote. The net effect of the ruling is that the innocent buyer’s only remedy is to sue the foreclosing lender for damages–not a great option–or force the lender to fix the deficiencies with the original foreclosure–if that’s possible at all.
Estimating how many purchasers have been affected by Ibanez defects is difficult. There have been over 40,000 foreclosures in Massachusetts in the last 5 years, and over 12,000 last year alone, up 32% from the year before. A Boston Globe columnist recently performed a rudimentary analysis of foreclosed properties in Chelsea, and found that about 33% may have been afflicted with Ibanez-type deficiencies.
Many people who purchased homes at foreclosure sales may not even know their titles are problematic–until they try to refinance or sell. So this problem will likely take years to ultimately resolve, unless the legislature comes up with some type of solution. And these problems may go back a very long way–5 or even 10 years in the past.
Bloomberg News has a great write up about the case here. I was quoted in the Bloomberg piece about the significance of the problem:
The third-party issue has become a major one for title insurers in the state, said Richard D. Vetstein, a real-estate lawyer in Framingham, Massachusetts.
“What’s going to happen to all these people?” Vetstein said. “The people who don’t have title insurance are really in big trouble.”
The court may have left the issue of third-party buyers unaddressed in Ibanez anticipating a ruling in the Bevilacqua case, said Thomas Adams, a partner at New York law firm Paykin Krieg & Adams LLP.
“That’s a big issue to leave outstanding,” said Adams, a former analyst at bond insurer Ambac Financial Group Inc. “If Judge Long’s decision holds, then that’s a big deal.”
If you purchased property out of a foreclosure sale within the last 10 years, you should have a title examination performed to assess whether you have defective title. Needless to say, if you are considering buying property out of foreclosure (or not), these cases are the very reason why you must obtain an owner’s title insurance policy! Contact us for more information.
On January 7, 2011, the Supreme Judicial Court (SJC) rendered its decision in the U.S. Bank v. Ibanez case. Before discussing the Court’s decision, here is a brief review of the procedural history of the case.
The Land Court’s decision in the Ibanez case and its two consolidated cases had created a conflict with the Massachusetts Real Estate Bar Association’s Title Standard #58 and its underlying rationale. Pursuant to the title standard, a title is not defective by reason of “The recording of an assignment of Mortgage executed either prior, or subsequent, to foreclosure where said Mortgage has been foreclosed, of record, by the Assignee.” In a nutshell, this means that if B forecloses a mortgage originally held by A, it is immaterial whether A’s assignment predates or postdates the foreclosure sale.
In Ibanez and in the other two companion cases-Rosario and Larace-the Land Court ruled on the validity of three different scenarios relating to the date of the assignment vis- a- vis the date of the first publication of the mortgagee’s sale of real estate/foreclose sale. In Rosario, the assignment was in existence and in recordable form (although not recorded) at the time of the first publication. In Larace, the assignment was dated after the date of first publication but had an “effective date” which predated the first publication. In Ibanez, the assignment was executed after the date of first publication.
At first blush, based on the Title Standard, it would appear that all three foreclosures were valid. Unfortunately, the Land Court disagreed. In fact, the Land Court found that only the Rosario foreclosure was valid. The Land Court held that G.L. c. 244, Section 14 must be given by the “holder of the mortgage.” Failure to do so renders the “sale void as a matter of law.” As a result, the foreclosures in Ibanez and Larace were invalidated since they did not comply with the statute. The Land Court held that it is not necessary to record the assignment prior to publishing but only that it be in existence and in recordable form at such time.
The plaintiffs filed a motion to vacate the judgment. On October 14, 2009, Judge Long rendered his decision which denied the plaintiff’s motion to vacate the judgment.
The Land Court noted that in each case the bank was the only bidder and bought back at a discount from appraised value which wiped out the defendants’ equity and created a deficiency. The foreclosing mortgagees could not get title insurance. The plaintiffs suggested that there were documents that would demonstrate that pre-notice and pre-foreclosure assignments existed. The Land Court granted the plaintiffs leave to produce such documents provided they were in the form they were in at the time the foreclosure sale was noticed and conducted. The plaintiffs produced the notes and assignments in blank which are not suitable for recording since there is no assignee listed. The Land Court found that the plaintiffs’ own securitization documents showed that such assignments were required. With all available files, it took 10 months in one of the cases and 14 in the other to obtain the assignments in recordable form. Such a burden should not fall on the high bidder at the foreclosure sale. “A bidder does not expect to purchase the right to a potential lawsuit, which only entitle him or her to actually obtain the property if such lawsuit is successful.”
The plaintiffs argued that they followed “industry standards and practice.” The Land Court said that if this is true, they should seek a change in the law.
The SJC granted direct appellate review and affirmed the Land Court’s judgment. The SJC held that “We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure. As a result, they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties, and their requests for a declaration of clear title were properly denied.”
The plaintiffs had the burden of proving the validity of their foreclosures. Since Massachusetts is a non-judicial foreclosure state, there must be strict compliance with the terms of the statutory power of sale. The Court noted that only “the mortgagee or his executors, administrators, successors or assigns” can exercise the statutory power of sale.
Unlike the Land Court, however, the Court continued:
“We do not suggest that an assignment must be in recordable form at the time of the notice of sale or the subsequent foreclosure sale, although recording is likely the better practice. Where a pool of mortgages is assigned to a securitized trust, the executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. However, there must be proof that the assignment was made by a party that itself held the mortgage.”
The Court ruled that possession of the note does not allow the holder to foreclose.
“In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage. Rather, the holder of the mortgage holds the mortgage in trust for the purchaser of the note, who has an equitable right to obtain an assignment of the mortgage, which may be accomplished by filing an action in court and obtaining an equitable order of assignment.”
The Court stated that “the mortgages securing these notes are still legal title to someone’s home or farm and must be treated as such.”
The Court was not persuaded that post-foreclosure assignments were valid pursuant to REBA Title Standard No. 58 and industry practice. The Court found that such “reliance is misplaced because this proposition is contrary to…G.L. c.244, Section 14.”
The Court rejected the warning in REBA’s amicus brief that “If the rule as announced in these decisions is not limited to prospective application, inequitable results that will cause hardship and injustice are inevitable, and will likely be widespread.”
The Court noted that its rulings are prospective only if they make a “significant change in the common law.” Such was not the case here where the law was well settled. “All that has changed is the plaintiffs’ apparent failure to abide by those principles and requirements in the rush to sell mortgage-backed securities.” In a concurring opinion, this was referred to as “the utter carelessness with which the plaintiff banks documented the titles of their assets.”
As Judge Long had suggested in his decision, perhaps it is time to change the law. Since the SJC began its discussion by noting that “Massachusetts does not require a mortgage holder to obtain judicial authorization to foreclose on a mortgaged property,” and reading between the lines, one solution would be for Massachusetts to adopt judicial foreclosures. Another possibility would be to return to the earlier practice in which the Land Court/Superior Court would review and approve in writing the foreclosure documents prior to recording. Perhaps the easiest solution would be to require the plaintiff in its Complaint to Foreclose Mortgage to cite the recording information for the assignment(s) by which it became the holder rather than simply to state “Your plaintiff is the assignee and holder of a mortgage.” If the assignments did not exist, the complaint could not be filed.
I think that the problem in Ibanez is that US Bank laid out the chain of title to the mortgages on the record but then could not document the supposed assignments into it. Justice Cordy referred to this as utter carelessness. Therefore, I don’t think that reforeclosure is possible since US Bank can’t show that it was either then or now the holder.
In general, I believe that you can reforeclose under the theory that since the original foreclosure was invalid, the power of sale was never exercised.
The case stands for the proposition that the foreclosing lender must be the holder of the mortgage at the time of foreclosure. The SJC said that this is well established law and that reliance on REBA Title Standard No. 58 is misplaced as it is contrary to the law.
It will be interesting to see how “widespread” the SJC’s decision becomes.
If you would like to discuss this or any other issue, please contact me directly via email.
Harold Clarke, Esq.
New England Regional Counsel, Westcor Land Title Insurance Co.
The case certainly has national implications as the Massachusetts SJC is the first state supreme court to weigh in on the legal ramifications of widespread irregularities in the residential securitized mortgage industry. Over half of U.S. states have foreclosure laws similar to Massachusetts’ regarding the assignment of mortgages, such as California and Georgia. Other courts across the country will likely be influenced by the ruling, especially since the SJC is widely regarded as one of the most respected state supreme courts in the country.
But is the Ibanez ruling really the next Foreclosure Apocalypse?
That remains to be seen. But the answer to the question will likely rest with what has transpired under little-known, complex mortgage securitization pooling and servicing agreements, known as PSA’s. These complex agreements may unlock the key to who, if anyone, owns these non-performing mortgage loans and has the legal right to foreclose.
The Ibanez Fact Pattern: Mortgage Assignments In Blank, A Common Practice
On December 1, 2005, Antonio Ibanez took out a $103,500 loan for the purchase of property at 20 Crosby Street in Springfield, MA secured by a mortgage to the lender, Rose Mortgage, Inc. The mortgage was recorded in the county registry of deeds the following day. Several days later, Rose Mortgage executed an assignment of this mortgage in blank, that is, an assignment that did not specify the name of the assignee. The blank space in the assignment was at some point stamped with the name of Option One Mortgage Corporation (Option One) as the assignee, and that assignment was recorded in the registry of deeds on June 7, 2006. Before the recording, on January 23, 2006, Option One also executed an assignment of the Ibanez mortgage in blank.
Option One then assigned the Ibanez mortgage to Lehman Brothers Bank, FSB, which assigned it to Lehman Brothers Holdings Inc., which then assigned it to the Structured Asset Securities Corporation, which then assigned the mortgage, pooled with approximately 1,220 other mortgage loans, to U.S. Bank, as trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-Z. With this last assignment, the Ibanez and other loans were pooled into a trust and converted into a mortgage-backed securities pool that was bought and sold by investors.
On April 17, 2007, U.S. Bank started a foreclosure proceeding in Massachusetts state court. Although Massachusetts requires foreclosing lenders to follow the Soldier’s and Sailor’s Servicemember’s Act to ensure the debtor is not in the military, it is considered a non-judicial foreclosure state. In the foreclosure complaint, U.S. Bank represented that it was the “owner (or assignee) and holder” of the Ibanez mortgage. At the foreclosure sale on July 5, 2007, the Ibanez property was purchased by U.S. Bank, as trustee for the securitization trust, for $94,350, a value significantly less than the outstanding debt and the estimated market value of the property.
On September 2, 2008–14 months after the foreclosure sale was completed – U.S. Bank obtained an assignment of the Ibanez mortgage.
The major problem was that as the time U.S. Bank initiated the foreclosure proceeding, it did not possess (and could not produce evidence of) a legally effective mortgage assignment evidencing that it held the Ibanez mortgage.
Pooling and Servicing Agreements are part of the complex mortgage securitization lending agreements. As one securitization expert explains, a Pooling and Servicing Agreement is the legal document creating a residential mortgage backed securitized trust. The PSA also establishes some mandatory rules and procedures for the sales and transfers of the mortgages and mortgage notes from the originators to the securitized trusts which hold the millions of bundles of mortgage loans.
The Ibanez ruling clearly invalidates a common practice in the sub-prime mortgage securitization industry of assigning the mortgage in blank and not recording it until after the foreclosure process has started. The Court held that there must be evidence of a valid assignment of the mortgage at the time the foreclosure process starts which would establish the current ownership of the mortgage.
Left open by the Court was what evidence would suffice to establish such ownership, specifically referencing PSA’s:
“We do not suggest that an assignment must be in recordable form at the time of the notice of sale or the subsequent foreclosure sale, although recording is likely the better practice.Where a pool of mortgages is assigned to a securitized trust, the executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. However, there must be proof that the assignment was made by a party that itself held the mortgage.”
This language opens the door for Massachusetts foreclosing lenders to move ahead with foreclosures and cure title defects by using PSA’s to prove proper assignment of the mortgage loans. That is, if they can produce proper documentation that the defaulting mortgage was actually transferred into the pool and assigned to the end-holder before the initiation of foreclosure proceedings. Whether lenders can do this is another story.
Have Lenders Complied With The PSA’s?
The major problem for banks is mounting evidence is that originating lenders like Countrywide and Bank of America never transferred a vast number of loans into the securitized trusts in the first place. Josh Rosner, a well respected financial analyst, issued a client advisory in October, advising of widespread violations of pooling and servicing agreements on mortgages. Mr. Rosner counseled that although PSA’s require transfer of the promissory notes into the securitized trusts, that hardly ever occurred in the white hot run-up of securitized loans in the last decade. He also says that the mortgage assignments which must accompany each note are routinely ignored or left blank. (This was the major problem in the Ibanez case).
Mr. Rosner said:
“We believe nearly every single loan transferred was transferred to (securitized trusts) in “blank” name. That is to say the actual loans were apparently not, as of either the cut-off or closing dates, assigned to the (securitized trusts) as required by the PSA.”
Mr. Rosner concludes in this chilling statement:
There have been a large numbers of foreclosure proceedings where, because of improper assignments, the trust has been unable to demonstrate the right to foreclose. It is thus that we raised concern about the transfer “in blank name.” We do believe it likely the rush to move large volumes of loans may well have resulted in operational failures in the “true sale” process by some selling firms and trustees. Were this “missing assignment” problem, which we are witnessing in individual foreclosure proceedings, to be found to have resulted from widespread failure of issuers and trusts to properly transfer rights there would be appear to be a strong legal basis for the calling into question securitizations.
“It may mean investors who think they bought mortgage- backed securities bought securities that aren’t backed by anything,” said Kurt Eggert, a professor at Chapman University School of Law in Orange, California. Well, that’s already happened. Check out this lawsuit by MBIA Insurance against Credit Suisse 0ver a bad securitization loan deal.
Using the Ibanez case as a guide, CNBC.com Senior Editor, John Carney wrote a humorous yet ominous hypothetical conversation between U.S. Bank, the servicer, and Option One:
US Bank dude: “Hey, can I speak to whoever it is who is handling the Ibanez mortgage?”
Option One guy (after some delay): “No one handles that mortgage. We sold it five years ago to Lehman and closed the file.”
US Bank: “Right. Okay. Well, I need you to find someone who will execute an assignment of the mortgage to me.”
Option One: “First of all, no one who handled that mortgage still works here. You might have heard about the mortgage meltdown, right? Second, we sold it to Lehman, according to the file.”
US Bank: “Right. But I bought it from Lehman.”
Option One: “So get the assignment from Lehman.”
US Bank: “They’re an empty company that is in bankruptcy.”
Option One: “I’ve heard about that. Thanks for the news.”
US Bank: “So I need you to execute the assignment.”
Option One: “First of all, you’re going to have to show me that you bought the loan from Lehman. Second, I need to talk to legal to make sure I can assign a mortgage to someone we never dealt with. Third, how much are you willing to pay me to do all this?”
US Bank: “Pay you? I already own the mortgage.”
Option One: “The mortgage we sold to Lehman. If Lehman asks for the assignment, we’ll do it as part of that deal. But, as far as I can tell, I don’t owe you anything. If you want an assignment, you’re going to at least be paying the legal bills for the legal opinion that says it’s okay for us to do this.”
US Bank: “You don’t have to be an [expletive deleted] about this.”
Option One: “I also don’t have to give you an assignment.”
Now take that scenario, and multiple it by a factor of 10,000 or 50,000 or 100,000….see what we are talking about here? As Georgetown Law Professor Adam Levitan so artfully commented, “deal design was fine, deal execution was terrible.”
Before the Ibanez ruling came down Bloomberg News said the best scenario is that the disputes are deemed as legal technicalities, which would cause a one-year delay in foreclosures. In the medium case, years of litigation will ensue. In the worst case, the problem becomes systemic, causing “the mortgage market to grind to a halt as title insurers refuse to insure mortgages involving existing homes.”
Well, we now know from the Ibanez decision that this is hardly a “legal technicality.” So we are in the medium or worst case scenarios.
For those thousands (or millions?) of defaulted loans which were “assigned in blank,” I’m simply not sure if or how mortgage lenders are going to be able to cure the title defects they created. It’s going to take some major effort and creative lawyering, that’s for sure.
In some cases, I’m afraid, these problems may be fatal. That is, once U.S. Bank, for example, obtained a mortgage assignment executed and effective after the start of the foreclosure, which the SJC said was no good, they cannot then go back and re-create a new assignment dated prior to the foreclosure. That’s called back-dating, and would be fraudulent. And there’s also the issue of all these original promissory notes which were never transferred. Where are those? In some dingy warehouse in Texas. Good luck finding them.
Rather scary, huh?
Don’t Believe The Hype? Proceed At Your Own Peril
Not all investment analysts, however, expect financial chaos. The controversy may cause a six-month delay in foreclosures and “have a muted effect on valuation” of about $154 billion of mortgage-backed securities, Laurie Goodman, senior managing director of Amherst Securities Group LP in New York, wrote in a note to investors. “Servicers will incur high costs both from re-processing loans that are in the process of foreclosure as well as from defending themselves in litigations,” Goodman wrote. “And investors definitely need to question the cash flows they are receiving on private-label MBS, to ascertain that they are not paying for expenses that rightfully belong to servicers.”
There are several important and unanswered questions which remain. How many pools of mortgage loans are affected by the “assignment in blank” and related irregularities in the servicing pools? How many pools are affected by the missing or lost promissory notes? How many pools are affected by assignment executed after the foreclosure started? Will California and other states with huge foreclosure rates follow the Ibanez ruling?
“[W]hat is surprising about these cases is … the utter carelessness with which the plaintiff banks documented the titles to their assets.” –Justice Robert Cordy, Massachusetts Supreme Judicial Court
Today, the Massachusetts Supreme Judicial Court (SJC) ruled against foreclosing lenders and those who purchased foreclosed properties in Massachusetts in the controversial U.S. Bank v. Ibanez case. Here is the link for the decision. I’ve posted the decision below, and I’ve done a video blog embedded below.
Background
For those new to the case, the problem the Court dealt with in this case is the validity of foreclosures when the mortgages are part of securitized mortgage lending pools. When mortgages were bundled and packaged to Wall Street investors, the ownership of mortgage loans were divided and freely transferred numerous times on the lenders’ books. But the mortgage loan documentation actually on file at the Registry of Deeds often lagged far behind.
In the Ibanez case, the mortgage assignment, which was executed in blank, was not recorded until over a year after the foreclosure process had started. This was a fairly common practice in Massachusetts, and I suspect across the U.S. Mr. Ibanez, the distressed homeowner, challenged the validity of the foreclosure, arguing that U.S. Bank had no standing to foreclose because it lacked any evidence of ownership ofthe mortgage and the loan at the time it started the foreclosure.
Mr. Ibanez won his case in the lower court in 2009, and due to the importance of the issue, the Massachusetts Supreme Judicial Court took the case on direct appeal.
The SJC Ruling: Lenders Must Prove Ownership When They Foreclose
The SJC’s ruling can be summed up by Justice Cordy’s concurring opinion:
“The type of sophisticated transactions leading up to the accumulation of the notes and mortgages in question in these cases and their securitization, and, ultimately the sale of mortgaged-backed securities, are not barred nor even burdened by the requirements of Massachusetts law. The plaintiff banks, who brought these cases to clear the titles that they acquired at their own foreclosure sales, have simply failed to prove that the underlying assignments of the mortgages that they allege (and would have) entitled them to foreclose ever existed in any legally cognizable form before they exercised the power of sale that accompanies those assignments. The court’s opinion clearly states that such assignments do not need to be in recordable form or recorded before the foreclosure, but they do have to have been effectuated.”
The Court’s ruling appears rather elementary: you need to own the mortgage before you can foreclose. But it’s become much more complicated with the proliferation of mortgage backed securities (MBS’s) –which constitute 60% or more of the entire U.S. mortgage market. The Court has held unequivocally that the common industry practice of assigning a mortgage “in blank” — meaning without specifying to whom the mortgage would be assigned until after the fact — does not constitute a proper assignment, at least in Massachusetts.
My Analysis
Winners: Distressed homeowners facing foreclosure
Losers: Foreclosing lenders, people who purchased foreclosed homes with this type of title defect, foreclosure attorneys, and title insurance companies.
Despite pleas from innocent buyers of foreclosed properties and my own predictions, the decision was applied retroactively, so this will hurt Massachusetts homeowners who bought defective foreclosure properties.
If you own a foreclosed home with an “Ibanez” title issue, I’m afraid to say that you do not own your home anymore. The previous owner who was foreclosed upon owns it again. This is a mess.
The opinion is a scathing indictment of the securitized mortgage lending system and its non-compliance with Massachusetts foreclosure law. Justice Cordy, a former big firm corporate lawyer, chastised lenders and their Wall Street lawyers for “the utter carelessness with which the plaintiff banks documented the titles to their assets.”
If you purchased a foreclosure property with an “Ibanez” title defect, and you do not have title insurance, you are in trouble. You may not be able to sell or refinance your home for quite a long time, if ever. Recourse would be against the foreclosing banks, the foreclosing attorneys. Or you could attempt to get a deed from the previous owner. Re-doing the original foreclosure is also an option but with complications.
If you purchased a foreclosure property and you have an owner’s title insurance policy, contact the title company right away.
The decision carved out some room so that mortgages with compliant securitization documents may be able to survive the ruling. This will shake out in the months to come. A major problem with this case was that the lenders weren’t able to produce the schedules of the securitization documents showing that the two mortgages in question were part of the securitization pool. Why, I have no idea.
The decision opens the door for foreclosing lenders to prove ownership with proper securitized documents. There will be further litigation on this. Furthermore, since the Land Court’s decision in 2009, many lenders have already re-done foreclosures and title insurance companies have taken other steps to cure the title defects.
We don’t know how other state court’s will react to this ruling. The SJC is one of the most well respected state supreme courts in the country. This decision was well-reasoned and I believe correct given that the lenders couldn’t even produce any admissible evidence they held the mortgages. The ruling will certainly be followed in states (such as California) operating under a non-judicial foreclosure system such as Massachusetts.
Watch for class actions against foreclosing lenders, the attorneys who drafted the securitization loan documents and foreclosing attorneys. Investors of mortgage backed securities (MBS) will also be exploring their legal options against the trusts and servicers of the mortgage pools.
The banking sector has already dropped some 5% today (1.7.11), showing that this ruling has sufficiently spooked investors.
It’s that time again for our annual review of hot topics and top posts for the last year, 2010.
#5. The Great Flood of 2010. Ah, who can forget the flooding in the spring of 2010. I sure remember bailing out my flooded basement every 30 minutes through the night, into exhaustion. Good times… FEMA declared a “major disaster” and the IRS granted taxpayers in 7 counties an extension to file their taxes.
#4. The Obama HAFA Short Sale Program. The Obama short sale program, announced at the end of 2009, was aimed to speed up short sales of homes and other loan modification alternatives to stem the rising tide of foreclosures. The Home Affordable Foreclosure Alternatives Program (HAFA) provides financial incentives and simplifies the procedures for completing short sales, a growing practice in which a lender agrees to accept the sale price of a home to pay off a mortgage even if the price falls short of the amount owed. By all accounts, however, the HAFA program has been a dismal failure.
#2. Our popular primers on the Massachusetts Offer to Purchase and the standard form Purchase and Sale Agreement, checked in with over 16,000 reads. Great to see posts about buying a new home ranking so highly. An indicator of the recovery of the Massachusetts real estate market perhaps?
#1–Fannie Mae & FHA Condominium Regulations: Our series on the Fannie Mae and FHA strict new condominium lending rules were incredibly popular, combining for over 25,000 reads during 2010. The new guidelines had condominium developers and associations, buyers and sellers in a tizzy, as Fannie and FHA imposed much tougher pre-sale requirements, condominium financial guidelines and the imposition of unit owner HO-6 insurance policies, among other requirements.
Early 2011 should bring the final word from the Mass. Supreme Judicial Court on the very controversial foreclosure case of U.S. Bank v. Ibanez which invalidated foreclosures across the state for sloppy paperwork. Thousands of property owners and their ownership rights to their homes hang in the balance. Click Here For Our Entire Series Of Post On the Ibanez Case.
“Are title insurance companies still insuring foreclosure properties?”— James In Cambridge
Answer: Yes, they are. Initially, the press reported that some major title insurers had temporarily stopped insuring foreclosure titles from JP Morgan Chase, Ally Financial, and Bank of America. However, my understanding is that all title insurers have resumed insuring all foreclosure properties in the wake of several major agreements between national title insurance companies and lenders. These warranty and indemnification agreements would essentially shift the risk of loss from irregular/defective foreclosures back onto the foreclosing lenders.
From the conveyancing side, I can definitely tell you that title insurers have advised their attorney agents to go through foreclosure titles with a fine tooth comb and to be especially diligent in examining and certifying foreclosure titles. Buyers of foreclosure properties should be prepared for delays in getting their transactions closed.
“How is robo-signing different from the Ibanez case situation”?–Scott
Answer: “Robo-signing” and the Massachusetts Ibanez foreclosure case are two different situations, but the root of the problem — the complexity of the securitized mortgage industry and the sheer volume of foreclosure paperwork to be processed — remains a contributing cause of both problems.
“Robo-signing,” as one of the leading foreclosure defense attorneys has claimed to the Huffington Post, refers to how financial institutions and their mortgage servicing departments hired hair stylists, Walmart floor workers and people who had worked on assembly lines and installed them in “foreclosure expert” jobs with no formal training to sign sworn documents submitted to courts. According to depositions released in Florida and the Post, many of those workers testified that they barely knew what a mortgage was. Some couldn’t define the word “affidavit.” Others didn’t know what a complaint was, or even what was meant by personal property. Most troubling, several said they knew they were lying when they signed the foreclosure affidavits, and that they agreed with the defense lawyers’ accusations about document fraud.
This is obviously a major problem in states such as Florida which require a judge’s approval of a foreclosure based on sworn documents. However, Massachusetts is not such a state. Other than verifying the borrower is not in the military, Massachusetts state law doesn’t require any sworn verification that the foreclosure is kosher (if you will). That may change after lawmakers and the Attorney General’s office react this foreclosure mess. In fact, the AG announced this week she is investigating on of the largest “foreclosure mills” in the state for alleged non-compliance with the new tenant foreclosure law.
The Ibanez problem occurs when mortgage loan documentation recorded with the Registry of Deeds lagged far behind the actual ownership of the loan, due to complex mortgage securitization agreements and sloppy follow up. Land Court Judge Keith Long’s ruling effectively invalidated thousands of foreclosures which suffered from this newly recognized “defect.” The Ibanez situation is not a product of fraud, like robo-signing, in my opinion. In fact, the practice of recording mortgage assignments “late” was long accepted by the title examination community prior to the Ibanez ruling. So it caught a lot of folks off-guard.Getting title insurance on an Ibanez-afflicted property is near impossible these days, and the robo-signing controversy certainly doesn’t help alleviate the risk tolerance of anxious title insurance underwriters.
To be sure, both Ibanez and the robo-signing controversy have reverberated through the real estate community, and have impacted foreclosure sales on a number of levels. If you are considering purchasing a foreclosed property, please contact us so we can guide you through the complicated process and protect your interests.
David Gaffin of Greenpark Mortgage, www.massmortgageblog.com, is here with a superb summary of what’s now going on with Massachusetts (and national) residential mortgage market.
The National and Massachusetts Mortgage Lending Picture
Lot’s has been happening in the Mortgage World lately. Refinance business is very good. Purchase business is fair, heading into the all important year end buying season.
I will let this post be a little more free-form than my taking a particular topic and expounding on it (or beating it to death) depending on your perspective.
FHA has changed guidelines… Again.
USDA is still not guaranteeing loans.
Fannie and Freddie need another $200 billion of taxpayer money.
Foreclosures stopped and started again. What could that mean to you and me?
The Fed is meeting on Nov 3 to either lay the hammer down on Quantitative Easing II or will do nothing and really mess up interest rates.
Refinance Now!
1. So you want to refinance? My suggestions: A. Get started now! Loan pipelines continue to be backed up. Remember the bad old days when rates were an exorbitant 4.75% for a 30 year fixed rate and everyone re-fied? When was that again? Oh, right. JUNE. Well many of those same people are now re-fiing again in the low 4′s, possibly high 3′s. And people who were late to the party are adding on. So don’t expect your file to be closed in less than 60 days. Many lenders are at 120 days for refinances. If you have a current home equity line of credit that you plan to keep open, add another 30 days or so.
It is not all doom and gloom. I know of many files that were closed in less than 45 days. Purchases always get priority and about 30-35 days is the requirement. If you lender can’t get it done in that time, well my contact info is below.
Don’t be cranky with your loan officer or processor when they request enough paper work to rebuild a forest. The secondary market has really toughened its verification guidelines, cause no one wants to be left holding the bag on a loan that goes bad. Everyone wants to ensure that the underwriting, appraisal and income verification has been double and triple checked.
Good news for Realtors
End of year buying season has begun and the clients that want to be in their new homes by year end must make some decisions soon. We should see a boost in P & S activity over the next 30 days. If that doesn’t come to fruition, it could be a long dark winter for many of my realty friends. But rates are great! If you bought the same priced home 2 years ago, you would have paid 5-20% more than current prices and your interest rates could have been more than 2.00% higher. Now is a GREAT time to buy. I know that is self-serving, but I am a numbers and value guy. I don’t like seeing the value drop in my house either, but if I were buying I would be psyched!
FHA has changed it guidelines again as of Oct 4
FHA needs money to keep guaranteeing its loans against default. Every borrower pays a fee to get into the program and to ensure its continuation. So the fees got changed. FHA lowered the UPMIP (up-front mortgage insurance premium) from 2.25% to 1.00%. Sounds good right? With one hand they giveth and the other taketh away. The monthly mortgage insurance will virtually all FHA borrowers pay has moved from .55% of the base loan amount to .84% monthly. On a $200,000 loan the old cost over 7 years was $12,200 and the monthly MI was $91.67. Now the projected expense is $13,760 and the monthly MI is $140.00. Most investors have now raised the minimum credit score requirement from 620 to 640. FHA is still the best choice for borrower’s with credit scores under 660 and who may have little equity or down payment or who need higher tolerance levels for debt to income ratios.
USDA Loans
The USDA which offers a great program, or at least did, can’t seem to get its funding in order and therefore cannot issue any conditional guarantees for loans. USDA offers several advantages over conventional and FHA loans but they are proving very hard to get. If you would like more information on the availability of these loans, send me an email.
Freddie and Fannie are in more trouble with losses.
Do we shut them off and let the private sector take over? We can but rates would rise dramatically and put an even further damper on the housing market. Given that TARP actually turned a profit, I think any additional funds to rescue the GSE’s should have an opportunity for the taxpayer to make a return on the re-sold properties even if it takes years to divest the shadow inventory that they own.
Foreclosure Mess
Speaking of shadow inventory… Foreclosures are on again/off again/on again. For legal thoughts on this check out the Mass Real Estate Law Blog by Rich Vetstein and Marc Canner.
My thoughts are that although there will be a delay to ensure that the legal work has been properly done, people will unfortunately continue to lose their homes. Many will lose them due to the economic downturn or medical reasons. Others will have lost them to predatory lenders or poor decision making on their parts. I don’t really want to get started on “It was all the lender’s fault.” Needless to say, a reason the paperwork requirements exist today, is reliant upon the the lack of paperwork requirements and shoddy underwriting in the past.
I could write several scrolls on this whole mess, but I don’t wish to bore. It may already be too late.
Big Federal Reserve Meeting
Possibly the greatest short to mid-term driver for interest rates will be what the Fed decides or doesn’t decide to do at it’s next meeting. The market has baked in that the FED will ease monetary policy further. If they don’t come through in a big way the stock market most likely will drop and interest rates will rise. But how much will rates rise? Probably enough that any one who re-fied this summer won’t be able to do so again, or at least until some other economic driver comes to bear. So get off the fence and talk to your loan officer NOW.
I just finished watching the oral argument web-cast in the U.S. Bank v. Ibanez controversial foreclosure case before the Massachusetts Supreme Judicial Court. It was a bit anti-climatic, with the judges and attorneys spending an inordinate amount of time discussing the complex, mortgage securitization documents and process.
Here’s a recap of what caught my eye:
The justices had many questions about the Wells Fargo/Option One mortgage pooling and servicing agreement, private placement memo, and other mortgage securitization documents. If you’ve read the great book, The Big Short by Michael Lewis, you know how complex these agreements are. Some of the justices clearly weren’t following the complex securitization process and agreements. Justice Ganz characterized the securitization documents as “extraordinarily sloppy.” I wonder what Goldman Sachs and Lehman Brother’s $1,000/hour corporate attorneys would think of that comment.
The justices were searching for a document in the record evidencing that Option One Mortgage was holder of mortgage that was foreclosed, as the problem in this case was that Option One had an assignment executed “in blank.” That is, without the identity of a new lender who was purchasing the mortgage on the secondary market. They were really struggling with the problems in the documentation filed with the registry of deeds in this case, which was endemic as thousand of securitized mortgages were being foreclosed.
The attorney for the lenders spent most of his time attempting to explain the securitization process to the justices. I think that took away some of the impact of the public policy arguments he was expected to make.
Chief Justice Marshall referenced the friend of the court brief filed by the Real Estate Bar Association (REBA), asking an attorney for the foreclosed homeowner whether “the sky will fall if the Land Court’s ruling is upheld”? (Answer was n0). Likewise, Justice Ganz asked what are we to do about the seemingly innocent folks who bought these foreclosed homes unaware that the titles were defective. Justice Ganz and Marshall agreed that these purchasers could be “bona fide good faith purchasers” which under the law means they could be immune from claims challenging their title. That’s an encouraging line of reasoning for many people waiting on the outcome of this case.
There was also a discussion about changing the current common law which does not require recording of mortgage assignments, to require it. Justice Marshall asked how many states required recording of mortgage assignments, giving a hint of where’s she thinking on this.
Lastly, Justice Cordy, the former big firm attorney, was clearly on the side of the lenders, even going so far as to ask whether Mr. Ibanez waive his challenge to the foreclosure by not challenging it in lower court.
As with any appeal, the Court takes several months to decide the case and render a formal written opinion. But here’s how I think this could play out. The majority of justices were deeply troubled by the “extraordinarily sloppy” paperwork surrounding the securitized mortgage documents and assignments which is the root problem here. My guess is they probably think Land Court Judge Long is right about the lender’s compliance with the foreclosure laws. They also likely think that in the current foreclosure mess, the chain of ownership of these loans should be more transparent to the consumer and those searching titles. However, the justices don’t want to hurt thousands of innocent homeowners who bought properties out of foreclosure and fixed them up, etc. Chief Justice Marshal and Justice Ganz were clearly concerned about this, and their opinions typically carry substantial weight. So, to play this down the middle, the court could uphold Judge Long’s ruling, holding that all mortgage assignments must be recorded from now on. But the court would not make the ruling retroactive as is usual, so the innocent homeowners won’t be saddled with defective titles.
There are many folks waiting out this important decision, including several of my clients. I hope the SJC will strike the right balance.
The oral argument in the much anticipated U.S. Bank v. Ibanez companion cases is Thursday October 7, 2010 at 9:00AM at the Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston, MA.
In addition to the merits of the Land Court’s ruling, watch for a discussion of whether the Land Court’s ruling will be applied retroactively, which will leave thousands of invalid foreclosure titles intact, or prospectively, which will minimize the damage of this decision. I’ve been predicting that the SJC will strike a balance by upholding the Land Court on the merits, but applying the ruling prospectively.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With 25 years in practice, he was voted a "Super Lawyer," a "Top Lawyer" by Boston Magazine and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
