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The Solution Can be Similar to the Florida Swampland Fiasco During the Depression

By
Real Estate Agent with Atlanta Communities Real Estate Brokerage GREC #208281

It seems pretty clear to me that the MERS system that the mortgage industry put together in order to facilitate mortgage securitization has really screwed up the system of titles that the states and local governments had in place for over a hundred years.

It has caused many to question who actually owns their mortgage and who has the legal standing to actually foreclose on the home.

This has caused the whole "robo signing" fiasco where banks thumbed their nose to the legal system and fraudulently created fake documents in order to push through the foreclosure in court hoping that no one would take a close look and see the fraud that they were committing.

Our legal system is all about process.  Forget to read a murderer his rights or some other technicality and they can get off free even though they have overwhelming evidence that they killed someone.

I just can't understand why all of the clear cut fraud and perjury committed on the court in foreclosure proceedings is being let go with nothing more than a slap on the wrist.

Since when does expediency override legal process, especially when we are dealing with kicking someone out on the street.

I like a solution that Karl Denniger proposes.  He wants to model the way Florida handled the Swampland Fiasco during the Great Depression.  It sure makes sense to me.

This is not about free houses.  It is about the rule of law.  Our federal government has studiously refused to act as required by that law when it comes to safety, soundness and prudence in lending matters by our nationally-chartered banks. 

But the matter of land titles and security interests in them is a matter of state law.

The States must act - right here and now - in the following fashion:

  • All foreclosures must be stayed until the following procedure is completed.

  • All entities seeking to foreclose, irrespective of whether it is a judicial state or not, must come to court and prove up the provenance of their foreclosure.  Specifically, they must be forced to prove all of the following:

    • They are the actual holder in due course of the note, and can prove it with the original paperwork containing all allonges and endorsements from the originator to themselves.

    • All those endorsements were made in due course of business, and not now as a "backdated" event in an attempt to mislead the justice system.

    • The note, at the time it was originated, was negotiated in good faith.  That is, it did not violate the implied covenant of fair dealing and there was a reasonable expectation that the terms of the note as originally drawn could be complied with to completion.  This means that the original loan file in total must be presented to the court and subject to challenge by the debtor as to its provenance; the debtor must be given the opportunity to show that the debt is avoidable under the Uniform Fraudulent Transfer Act or violation of the implied covenant of fair dealing that attaches to all contracts and cannot be waived.  Since we now know due to under-oath testimony that Citibank's chief underwriter knew and reported that 60% of all origination was defective in 2006 and 80% in 2007, there is a strong presumption that loans made in these years, at minimum, breached this covenant.

If all of these cannot be shown, then the foreclosure must be avoided.  This will not, in most cases, result in a free house.  If the note is not actually owned and properly endorsed by the party claiming a security interest, then they cannot foreclose at all, and the real party at interest will have to step forward.  If that real party is a securitizer (or an originator who is bust, and their successor or bankruptcy trustee holds the paper) then they must come to seek the remedy desired.  If they have been paid in full then the MBS trust who was defrauded (who believed he had the note but in fact does not) must first pursue recovery of the funds from the securitizer or originator, so as to restore that party's standing.  Once they have done so they can come to court and run the same three-step gauntlet.

If the note cannot be proved up to have met the covenant of fair dealing in the inducement then the debt is avoidable and must be so-ruled.  This too does not result in a free house, but it does result in the debtor being released from the debt without damage to their credit.  They lose their home, but they never really owned it anyway.  The creditor is left with the home, but has no suit-at-law to recover from the debtor, since he dealt with the consumer in bad faith.

 

If the courts don't force the legal process to be followed, then the people need to use their power of civil disobedience. Do what it takes to defy the implementation of foreclosures where the legal process was ignored.  Force the courts to follow the law. 

If nothing else, boycott the banks who are committing the fraud on the courts. Put them out of business.  There are plenty of banks to do business with.  Make them know that their are consequences for their actions.

Posted by

 

 

About the Author:  Tim Maitski has been a full time Realtor since 1999. He has sold several hundreds of homes in areas around metro Atlanta.  Tim started with RE/MAX Greater Atlanta and is now with Atlanta Communities Real Estate Brokerage.

 

Along with blogging on ActiveRain, he provides one of the best real estate websites in Atlanta at www.HomeAtlanta.com .

 

His proprietary  "Maitski Line Reports" chart out the absorption rates over the past 14 years in 37 different market areas.  Know when it's a good time to buy or a good time to sell.    

 

His online Property Tax Calculator allows you to compare property taxes in many counties and cities around the Atlanta area.  He provides the Atlanta MLS Power Search Tool that allows searches of homes using over 35 specific criteria.

 

Over the years, Tim has optimized his business so that he now can offer a huge 50% commission rebate to his buyers.  The more experience one gets, the easier the job becomes.

 

Tim also has a "Five Days to Sold" System that uses an intensive marketing blitz to create a showing frenzy that creates urgency and offers.

 

Tim is always looking to LinkIn with anyone who is interested in building their social network.

 

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Richard Weisser
Richard Weisser Realty - Newnan, GA
Richard Weisser Retired Real Estate Professional

Tim...

In GA, I don't think that there is a buyer out there that is not aware of the "you don't pay, you don't stay clause."

These buyers have patently waived their rights to judicial foreclosure by contract as part of their loan agreement.

The "rule of law" in those cases, while it might favor the lender or note holder, is black letter.

Oct 27, 2010 02:21 AM
Geoff ONeill
John L. Scott Medford - Medford, OR

We'll stay out of this.  Oregon is a non-recourse state. 

Oct 27, 2010 02:22 AM
Richie Alan Naggar
people first...then business Ran Right Realty - Riverside, CA
agent & author

My friend, I am no expert on this subject matter. However, I read the other day that this can be a trillion dollar problem and who will fit the bill is what this is really all about. The concept of America is a good one. It is mankind that is defective. We taint everything and allow it to mutate into other things not intended. The law is like a two-edged sword that cuts both ways. The guilty use it well as do the greedy to beat the systems. Good discussion post and thank you Tim

Oct 27, 2010 03:00 AM
Tim Maitski
Atlanta Communities Real Estate Brokerage - Atlanta, GA
Truth, Excellence and a Good Deal

Wow, a feature!  Thank you very much.

Lenn,  Georgia is a non-judicial foreclosure state also and someone just filed a suit.  I wrote a post about it the other day.  I was hoping that Georgia would be immune to this stuff but Georgia has specific laws that state exactly who can give notification to foreclose.  If I know you are behind on your mortgage, I can't just advertise your home and take it to foreclosure, can I?  That would be madness.  I don't know what the detailed rules are in Virginia but I bet they have a very specific process that needs to be followed also.  Whether MERS as is now structured fits that process will probably eventually be tested in the courts.

Jeanne,  See my post about the lawsuit filed in Georgia

Tony,  Once you begin bending the law for some and not others, people begin to not respect the law and feel that they have to take matters into their own hands.  That's usually not a pretty site.

Richard,  See my post about the lawsuit filed in Georgia

Geoff,  I'm not certain whether recourse or non-recourse comes into play on this one.

 

Oct 27, 2010 03:07 AM
Tim Maitski
Atlanta Communities Real Estate Brokerage - Atlanta, GA
Truth, Excellence and a Good Deal

Richie,  You hit the nail on the head.  It's all about who gets stuck holding the empty bag.  The law is a two edged sword.  I find it amusing how the banks seem to obsess over so much fine print when they are giving out a loan but then seem to think that they can just skirt over the details when they go to foreclose.

Oct 27, 2010 03:12 AM
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

Tim.  I read about that case.  What is not clear in the published report is whether the mortgagor was or was not in default. 

I believe that the only cases such as these that will stand are the ones where the mortgagee performed a wrongful foreclosure; i.e., there was not a default, the wrong property was foreclosed, etc.

Other than that, I still beleive that it's technical and just because a lawsuit is filed, doesn't mean it will succeed or be precent.

We'll see.

Oct 27, 2010 03:21 AM
Ken Patterson
TPR Properties - Rocklin, CA
Roseville Real Estate, TOP Rocklin Realtor

Spend some TARP money to create a investigative unit that finds past current and on-going fraud.  Send some folks to jail and we will see how Wall Street 'benefits" from TARP.  Just a thought...  Probably tooo much TARP $$$ going to lobbyists and campaign contributions for that though.

Oct 27, 2010 03:24 AM
Connie Harvey
Pilkerton Realtors - Brentwood, TN
Realtor - Nashville TN Real Estate

Yet again, the banks are doing what they want with little or no consequences. No one is being punished for this but the consumer.

Oct 27, 2010 03:40 AM
Tim Maitski
Atlanta Communities Real Estate Brokerage - Atlanta, GA
Truth, Excellence and a Good Deal

Lenn,  I agree that it's just a lawsuit. The final ruling will be a big deal, especially if it goes against the bank.  Just a technical detail?  I wonder how that would work with our real estate contracts.  When an amendment to terminate is sent an hour too late or if someone forgets to sign something, do they just gloss over those little details and rule on the probable intent?

I think that it's pretty basic stuff that before you can collect on a debt, you have to show that you are the one who is really due the payment.  I've heard where there have been instances where two different banks were foreclosing on the same home.  There's some weird stuff going on behind the scenes and I think that it's just basic common sense to require someone to show them the note before taking their home away.  Gloss over that and you'll probably be setting up a bigger mess with title issues down the line.

Ken,  Someone needs to go to jail.

Connie, I guess it's because the banks are so "special".  I guess without the current banks, life as we know it would cease to exist.  The business of the banks is the business of America is now the new slogan that the politician can use.

Oct 27, 2010 03:47 AM
Mike Morrison
Will & Will Real Estate Brokers, The Woodlands, Texas - Houston, TX

Tim, I knew this would happen. Ms. Blair, head of the FDIC floated this trial balloon. Banks/Lenders take a 25% cram down on All delinquent mortgage loans in exchange for NO Fed Lawsuits.

I knew these gutter snipes would come up with something to cover their ass. I wonder when the President will appoint someone to the Atty Generals Office. That post has been vacant for almost 2 yrs. These guys are giving empty suits a bad name.

Oct 27, 2010 03:58 AM
Tim Maitski
Atlanta Communities Real Estate Brokerage - Atlanta, GA
Truth, Excellence and a Good Deal

Mike,  Let the lawsuits begin. If the law was broken, send them to jail.

Michael,  I really think that the "documentation" problem is due to them trying to conceal a bigger fraud problem.  By forcing the documents out in the open, we are probably going to shed light on a big can of worms.  I believe that is why they are willing to commit fraud and perjury during the foreclosure proceedings. 

Maybe by forcing the  "documentation" problem it will motivate them to accept your proposal or become more motivated to work out a short sale.

Oct 27, 2010 04:37 AM
Christine Donovan
Donovan Blatt Realty - Costa Mesa, CA
Broker/Attorney 714-319-9751 DRE01267479 - Costa M

There's a lot of thought provoking information to ponder here, and now I think I need to go read Michael's link too.

Oct 27, 2010 10:00 AM
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

Tim, I think It's quite ironic that the lenders and others think this is just a "technicality". A few weeks ago it took me almost 10 days to get BofA to accept a "Letter of Authorization" in Equator. Finally after being rejected 3 times I was able to reach someone who told ne the issue was that the sellers signature did not match the signature that was on his original loan application from 9 years ago!! I guess this wasn't considered just a technicality!!

Oct 27, 2010 10:27 AM
Wendy Rulnick
Rulnick Realty, Inc. - Destin, FL
"It's Wendy... It's Sold!"

Tim - I had the exact same experience that Bryant writes about above.  BOFA refused to proceed without an exact matching signature on LOA a week ago!  They demanded it! That was their law. The LAW of the U.S. and the individual States should also demand strict adherence in all matters, not just the serious matter of foreclosure.  THANKS FOR THE POST, TIM!

Oct 27, 2010 12:57 PM
Michael Eisenberg
eXp Realty - Bellingham, WA
Bellingham Real Estate Guy

I think the "too big to fail" banks will be bailed out of this mess by the politicians.

Who's right is another matter

Oct 27, 2010 01:11 PM
Michelle Francis
Tim Francis Realty LLC - Atlanta, GA
Realtor, Buckhead Atlanta Homes for Sale & Lease

Tim, 

It's a shame nothing is that simple.  I am glad we are non-judicial, but when then are lawyers, there will be lawsuits.... 

This will take a long time to settle out. 

All the best, Michelle

Oct 27, 2010 01:24 PM
Tim Maitski
Atlanta Communities Real Estate Brokerage - Atlanta, GA
Truth, Excellence and a Good Deal

John, Thanks for stopping by.  I always like to see your smiling face.

Christine, It's really tough to keep up with it all and understand all of the angles.  But I think it's very important.

Bryant, I have the same thoughts.  Underwriters check and double check and want everything verified.  Too bad there isn't a robosigning company for consumers. Any documents that the bank asks for can just be created out of thin air, affidavits and all attesting that it's all true. What's the big deal? We all know that we are good for the loan so all of the paperwork is just technicalities.  Somehow I think that if that were the case we'd see the FBI swooping in on closings and hauling homebuyers off to jail for mortgaeg fraud.

Wendy, the rule of law means that everyone has to follow it, whether or not it's a pain in the butt and will slow down the housing market. 

Michael,  The only way to stop that is to have people understand what's going on.  As long as the media plays this out as just some little "paperwork" technicality, the politicianw will be able to cover it up and protect their banking benefactors.

Michelle, Unfortunately, doing the right thing many times does take a long time.

Erica,  I'm not certain how that would all play out for the defaulting homeowner.  Eventually, the rightful owner of the note has to be determined so that the right person of standing can bring on the foreclosure and the chain of title can be certain.    Somehow it probably would end up making the note an unsecured  loan subject to collection like any other unsecured loan.

Oct 27, 2010 02:21 PM
Pamela Seley
West Coast Realty Division - Murrieta, CA
Residential Real Estate Agent serving SW RivCo CA

Tim: very interesting and controversial post.  I don't have much to say, except keep blogging because it is important to bring this can of worms out into the open.  Justice must be served.  I don't see how the banks who are in the backroom as we speak making up all the back paperwork is going to make the foreclosure process legal and legit.  I just don't see how that's right.

Oct 27, 2010 07:52 PM
Robert Slick
Beach and River Homes - Georgetown, SC
NRBA, RDCPro, Trident/CCAR MLS

Have you even driven through a city when the trash workers are on strike? Well, it stinks! Stopping foreclosures will start the smell of homes piling up.

Oct 28, 2010 02:57 AM
Keith Lutz
Keller Williams Metropolitan - Long Valley, NJ

Very good post Tim.  I side with ya, the law is the law.  Let them (banks) spend millions fixing the mess they have gotten into.

Oct 28, 2010 10:15 AM