They committed widespread fraud – largely whitewashed by the corporate media – and, in the process, threw the economy into a tailspin. They've broken into and stolen people's homes, and, in the name of “efficiency,” bilked state governments out of billions of dollars in real estate transfer fees. They've even admitted to ripping off – and foreclosing on – soldiers deployed overseas, in violation of the law.
And they shredded a bedrock principle of capitalism, throwing hundreds of years of settled property law into doubt and in turn creating a massive drag on Main Street's economic “recovery.”
They got rich in the process. The mortgage industry did all of that for a fat stream of profits while the going was good, but now that they face the prospect of being held accountable by the justice system -- as would you or I had we routinely broken the laws -- analysts expect the “banksters” to lobby hard for another bailout.
They won't be looking for the Fed to shower them with free money or buy up trillions worth of “toxic assets” weighing down their books – they already got that sort of bailout once, the voters detested it and with the Tea Party ascendant in the GOP, the political atmosphere precludes a repeat performance.
No, the mortgage industry – with the help of its political lackeys in Washington-- is reportedly looking for a judicial bailout that would retroactively allow loan servicers to foreclose on properties without running up the costs of getting their paperwork in order, and limit investors' – and possibly the states' – ability to sue them for the mess they created in the housing market.
Third Way, the financial industry's Trojan Horse in Democratic policy circles (which is very well represented in the White House), released a policy memo last week urging Congress to step into the chaos caused by the banks' “robo-signing” scandal and immunize the banks from liability from the robo-signing mess (PDF).
As economics writer Yves Smith noted, the proposal “advocates Congressional intervention into well established, well functioning state law.”
This proposal guts state control of their own real estate law when the Supreme Court has repeatedly found that "dirt law" is not a Federal matter. It strips homeowners of their right to their day in court to preserve their contractual rights, namely, that only the proven mortgagee, and not a gangster, or in this case, bankster, can take possession of their home.
This sort of protection is fundamental to the operation of capitalism, so it's astonishing to see neoliberals so willing to throw it under the bus to preserve the balance sheets of the TBTF banks. Readers may recall how we came to have this sort of legal protection in the first place. England learned the hard way in the 17th century what happens with low documentation requirements: abuse of court procedures, perjury and corruption become the norm.
Lenders are playing down the mess they created, suggesting they're simply dealing with some isolated “paperwork” issues. But the Third Way memo comes in the wake of a series of judicial setbacks for the banks that indicate their legal problems are likely to be anything but “minor.”
Last year, the New York Times reported that “in numerous opinions, judges have accused lawyers of processing shoddy or even fabricated paperwork in foreclosure actions when representing the banks.” In both New York and Florida, courts “have begun requiring that lawyers in foreclosure cases vouch for the accuracy of the documents they present,” which “could open lawyers to disciplinary actions that could harm or even end careers.” Stephen Gillers, an expert in legal ethics at New York University, told the Times, “when ... it turns out there are documents being given to the courts that have no basis in reality, the profession gets a very big black eye.” The bar association is, understandably, up in arms over the requirement.
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.
Creating a privately operated registry of deeds in order to skirt local filing requirements was a remarkable act of hubris. “Fees are paid for a service performed, and if a document is eliminated because it is no longer necessary, no fee is due because there is nothing to record,’’ reads a statement on the MERS Web site. But that's nonsense; when a state charges a $50 filing fee, it doesn't represent the cost of the piece of paper. Those fees make up the revenues that finance state and local government and all the services they provide.
But the key point is that they're required to file those documents by law, a law the home loan industry believes doesn't apply to mortgage-lenders. Now they face not only investigations by all 50 state attorneys general, but potentially a wave of lawsuits from investors who may claim that the losses they took on these mortgage backed securities weren't just the product of the market's ups and downs, but a consequence of widespread misrepresentation on the part of Big Finance.
But the damage is, unfortunately, in no way being contained on Wall Street. According to data compiled by Housing Wire, the robo-signing boondoggle is largely responsible for a 50 percent drop in the number of foreclosures being completed over the past few months, shifting 250,000 from 2010 to 2011. It's good for those homeowners to stay in their places for another year, but potentially disastrous for the economy to have a large overhang of distressed properties weighing down the market. According to an analysis by Barclay's Capital, cited by Housing Wire, “If the worst happens... [if] widespread issues are found throughout the process and foreclosures are not allowed to be carried out, the damage could mean frozen home sales and new lending nationwide.”
In other words, the uncertainty around these chains of ownership may add to the “shadow inventory” of distressed properties that will come onto the market at some point down the road, a number estimated to be as high as seven million homes.
There are also untold numbers of homes that the banks are simply walking away from. Just as many homeowners have seen the value of “strategically defaulting” on their loans, these are properties so far under water that lenders have no financial incentive to take possession of and maintain them until they can be sold. A study conducted in Chicago by the Woodstock Institute, an advocacy group, found 1,896 “red flag” homes in the city that appeared to have been abandoned by loan servicers. The properties were disproportionally located in already distressed low-income communities.
Woodstock Institute VP Geoff Smith told AlterNet that the abandoned properties “add to the destabilization of these neighborhoods. They further effect surrounding property values.” He added that from the city's perspective, “a lot of times they have to step in and secure these properties because nobody else will. That's a cost to the city there. If there's criminal activity, the city has to respond, adding to the cost. They have to demolish these properties in many cases, again adding to the cost for the city. All of this is an extra layer of impact for communities that are already experiencing some distress.”
According to Smith, the issue “raises questions about servicer accountability. How are [they] accountable for the decisions they make and the impact those decisions have on communities? If it's not in their economic interests to take possession of the properties, then how does that effect the community” as a whole?”
The answer is that the consequences are disastrous, which may in turn provide the argument that the mortgage industry will use to seek judicial relief from the mess it created. It's a good bet that they will once again claim they are “too big to fail” – or too big to bear the brunt of widespread litigation on the part of struggling homeowners, investors and state governments.
It would be scandalous to reward the lending industry with an effective pardon for its wanton, fraudulent practices. The good news is that the banksters face a much steeper climb this time around. In October, only 26 percent of the public said that George W. Bush's Wall Street bailout was “good for the country, and disapproval spanned the political spectrum.
So defeating a judicial bailout for the loan industry should be a winnable fight against an opponent that the public views as a toxic influence on the economy. Back in November, rumors floated around about a potential “MERs whitewash bill” that would immunize the firm from lawsuits, but such a bill never materialized in Congress. Reaction to the trial balloon was swift and angry, and nobody on Capitol Hill has dared to introduce such a measure.
If a judicial fix ends up being debated, the outcome will likely be determined by which side wins the battle of narratives. The lending industry will say that it's necessary to keep the Main Street economy afloat. In order to defeat that message, opponents need to repeat a simple mantra: No more bailouts for Wall Street.
Joshua Holland is an editor and senior writer at AlterNet. He is the author of The 15 Biggest Lies About the Economy (and Everything else the Right Doesn't Want You to Know About Taxes, Jobs and Corporate America).