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Mortgage Lenders Committed Massive Fraud and Now Wall St. Wants to Escape the Law

Here they come looking for an out-clause and a way to keep their coffers full. We need to repeat a simple mantra: No more bailouts for Wall Street.

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Last week, in response to a class action suit, GMAC Mortgage thew out approximately 1,000 foreclosure filings in Maryland that had been “verified” – at a rate of as many as 10,000 per week – by infamous robo-signer Jeffrey Stephan. Anthony Depastina, an attorney for Civil Justice, Inc., a public interest law-firm representing the mortgage-holders, explained to AlterNet that in an affidavit, “the signer is supposed to attest that they verified the numbers … they're attesting under the penalties of perjury that the information contained in the affidavit ...are true and accurate. Plus they're supposed to sign it in the presence of a notary.” But in the robosigning scandal, “none of this happened.”

In fact, the Associated Press reported that “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.” In depositions reviewed by the AP, “many of those workers testified that they barely knew what a mortgage was. Some couldn't define the word 'affidavit.'" 

The Maryland case was the first ever “defensive” class action suit filed. GMAC responded by offering to dismiss the foreclosure proceedings against the homeowner whose case sparked the suit. “We argued that was just an attempt to get around what was right,” said Depastina. “At the end of the day we would have to file on behalf of some other Maryland homeowner after we found there was a falsified affidavit.” GMAC can refile the foreclosures, but they have to start at square one.

Depastina said he expects these issues to extend far beyond the home mortgage industry. It's “only symptomatic of a greater attempt by lending institutions of all types to circumvent the processes set up by the courts, the judiciary and legislatures in an effort just to increase their bottom line,” he said. “And I don't think the foreclosure industry is the only problem – you're going to see it in credit cards, in debt buying, in assignment of debt, in the auto industry... You know, the same individuals signed off on billions of dollars of debt every year. They're supposed to verify all that debt information. Do they verify it? I have my doubts.”

The case came only weeks after the Massachusetts Supreme Court dealt the banks a serious blow in US Bank National Association (as trustee) vs. Antonio Ibanez.  The case hinged on whether the banks (the case combined two separate foreclosure proceedings) actually had clear titles for properties they claimed to own.

At the heart of the case was the practice of slicing up and bundling hundreds of loans into investment vehicles – “securitizing” the debt. In the process, loans change hands a lot – they were assigned and reassigned from investor to investor, and a servicer dealt with the homeowners. But along the way, paperwork was required by law each time the mortgage changed hands. When the banks showed up to to foreclose, they didn't have the required chain of title – the court found they were essentially trying to foreclose on properties they didn't own.

The ruling only applied to Massachusetts, but it sent shockwaves across the mortgage industry. According to Harvard legal scholar Adam Levitin, “there are lots of securitization deals where the mortgages might not be enforceable in title theory states like Massachusetts … and that could well be fatal to enforcement of these trusts' mortgages in Massachusetts at the very least, and possibly in” many more states. 

Then there is the banks' potentially massive liability stemming from the MERS mess. MERS is a private company established by the banking industry to allow investors to instantly trade debt back and forth. The idea was simple: instead of assigning and reassigning loans and filing the required paperwork with the states, MERS would oversee a database of all of the securitized mortgages in the US – about half of the total number of loans. It would theoretically “own” all the securitized loans, and transfer them within its network instantaneously. The problem is that when a deed changes hands, a recording fee has to be paid to the state or locality where the property is located, and MERS allowed investors to skirt these fees, costing communities untold billions.