WAPO – Congressional Hearing: Do banks lack the legal standing to foreclose?

“The judiciary may have inadvertently contributed to the creation of the foreclosure crisis, by accepting, without question, the submissions of lending institutions seeking foreclosure”

~

Congressional hearing: Do banks lack the legal standing to foreclose?

By Ariana Eunjung Cha

A state judge, law professor and consumer attorneys are testifying before Congress that in many cases the banks trying to foreclose on borrowers do not have the legal standing to do so, according to prepared remarks.

New York State Supreme Court Justice Dana Winslow said Thursday in written remarks that “standing has become such a pervasive issue” in the cases he sees “that I frequently use the term ‘presumptive mortgagee'” to describe the entity trying to foreclose.

Winslow described a litany of problems with documentation about mortgages that go far beyond the “robo-signing” that led to the current uproar over foreclosures. He said it’s unclear whether MERS, the electronic system used by the majority of lenders to record mortgage assignments, gives it the right to foreclose, as well as whether trusts — where many mortgages wound up after they were pooled and traded — also have that right.

However, Winslow acknowleged that “the judiciary may have inadvertently contributed to the creation of the foreclosure crisis, by accepting, without question, the submissions of lending institutions seeking foreclosure,” Winslow said.

The hearing before the House Judiciary Committee chaired by Rep. John Conyers (D-Mich.) is the second on foreclosures this week. During a hearing Wednesday by the Senate Banking Committee, Fannie Mae and Freddie Mac blamed mortgage servicers for causing the current foreclosure crisis.

On Thursday, University of Utah law professor Christopher L. Peterson raised further questions about MERS in his written remarks, saying the system has a “problematic legal foundation” because it undermines state recording laws.

Calling MERS a “deceptive” and “anti-democratic” institution because it allows 20,000 people who are not its employees but rather employees of mortgage lenders, servicers and law firms to sign mortgage paperwork in its name. Peterson argues that the practice clouds the ownership of the loan.

“How is a homeowner to understand with whom they can negotiate a settlement, or from whom to obtain additional information or how to distinguish a legitimate employee from the thousands of mortgage related con artists and charlatans?” he asked.

Merscorp, which owns MERS, and the financial services industry have said the legality of the system they use to track and transfer mortgages has been upheld by numerous court cases.

Peterson called on Congress to bar Fannie Mae, Freddie Mac and Ginnie Mae from purchasing MERS-recorded loans–echoing legislation introduced by Rep. Marcy Kaptur (D-Ohio) last month.

Thomas Cox, a pro bono attorney from Maine, took one of the depositions of Ally Financial “robo-signer” Jeffrey Stephan, who triggered the recent uproar. Cox refuted claims by banks that they are foreclosing only on borrowers who are hopelessly behind in their payments.

“I hear and see reports of wrongful foreclosure actions on virtually a daily basis,” Cox said in his written testimony.

~

4closureFraud.org

 

Comments
19 Responses to “WAPO – Congressional Hearing: Do banks lack the legal standing to foreclose?”
  1. I never had a loan with the bank that foreclosed on my mortgage. I never signed the note at the closing and the closer was so eager to get their fee, that they closed without it. I believe my loan was broken into at least 80 pieces and sold as mortgage backed securities equal to 20 times the value of the note. I believe the mortgage processor destroyed all the paperwork so as to cover up the evidence of their crimes. I believe that the European banks like Society Generale (owned by Warren Buffet) knowingly purchased these fraudulent securities with the belief that they would be guaranteed by the US govt. I believe that possession is 9/10 of the law and the only solution to this mess is Jubilee!

  2. Ken Hoover says:

    The best way to stop foreclosures is to make your payment on time. If you can’t refinance, perhaps you should default and move on with your lives. The foreclosure isn’t about whether a lender did this or that, it is whether the borrower makes the payments or not. If lenders can’t foreclose then they have no motive to lend to those who can and will make their payments. Life is tough but it isn’t the lenders fault for trusting you that you are in these problems.

    • RAMONA says:

      YOU ARE IN THE DARK, TURN THE LIGHTS ON.

    • Elizabeth says:

      Hey Hoover

      What the matter you don’t have a life maybe that’s what you need to do move on and get a life instead of searching the internet tying to make victims of the mortgage theft feel guilty just think about if you get your fat ass up and excerise you may even start to feel good about yourself get rid of that big bellie and you may even be able to use your little wee wee again

  3. Elaine….Concerning the holder of the Notes…I can’t speak of what other banks did, but I can speak of what WaMu did in 2003 with the AR’S Series. I, myself, am not in foreclosure, but my daughter is. So I have spent many many hours searching for facts and fraud. As I explained in my last comment I found fraud at the closing of her mortgage. But taking it further from the closing table..I followed the steps of where, how and who was involved. I actually wrote down every AR’s (ARM’S) Series and all info to follow the trail. From there I looked up each and every prospectus. Read every damn word not to miss a clue. Each prospectus tells you that from Originator to Master Server to Depositor to Trust the steps they took. But than it tells you no assignments were done, and their actual reason for that…are you ready??? ” To save on administration costs”. True fact. Than to add more insult it say’s ” The Notes will not be given to the Trust, Washington Mutual ( custodian) will keep them. Furthermore, the Notes will not be stamped in blank “. Reason: ” Someone may steal them or they could get lost”. Are you laughing yet? Now I am still in the prospectus mind you…and have a dozen or more to check. Then it say’s ( it names WaMu in different ways as ‘divisions’ whatever) ” We are the Originator of the loan..we are the Master server, we are the Depositor and we are the Custodian to the Trust…we keep the notes.” “The trust gives the sold certificates back to us on closing sale date”…Now I started to wonder..is there actually a trust? But to find what series her mortgage was in I had to go to the SEC and look the Pool and Service Agreement up…OVER 300 pages of crap..my notes say to find the schedule Exhibit D..there it lists all mortgages and infor concerning each mortgage..no problem…I start on page one and scan…page after page..after a few hundred pages I find the very small schedule with Exhibit D. I stop to make a coffee excited to see if I found it. I click on Exhibit D….WTF?? ” THIS INFORMATION HAS BEEN DELIBERATELY OMITTED”. Not one mortgage was listed. I was at the point of ripping skin off someones face. This was recorded in the Securities and Exchange…over 300 pages of shit. So with my french blood boiling I went thru over 12 prospectus and Pool Agreements…and never saw a mortgage listed…just a bunch of combined totals broken down..meaning crap. So when you speak of the holder and assigned steps to follow the trail…forget WaMu..nothing… went no where, just sold and they pocketed money. Now how many times was each Note sold? Remember they kept the Notes not stamped. Explain this to a judge..fraud over and over…from the day of closing…it fries my mind. The court dismissed the case and gave Chase another chance to start over…second set of papers got them deeper in dutch..so my daughter’s lawyer sent a requests, a demand of over 20 documents to prove every step..everything…they wanted more time to respond…it now is the 5th month we have waited for the documents…. This started Jan. 2010 and they have not replied…so it pays to find every little or big fraud to block them. As far as taxes, I would bet WaMu shafted the IRS and counties on recording fees. Remember, they wanted to save on administration costs.

  4. People have to realize where OB is all this time…in the shadows….the banks rule and run the government…he just fills space in the White House to make it look good to the world…other’s tell him orders…or he is on vacation or on a world site seeing tour…costing millions upon million per trip. Doesn’t that make you feel special? I didn’t vote for him..the dirty hand prints were left on the wall..going no where. But to get to the foreclosures..the Robo-signing is a fraction of the fraud. That is the bottom of the ladder. Each and every mortgage is different in some ways…all had some frauds no doubt. Does one know if their mortgage was funded by an ‘investor’..that the loan money was wired to the closing before the actual closing? If closing was at a Title Co..the money was already wired there. So the lender was the investor..not the bank. Yet the bank put their name as payee/lender on the note and mortgage…FRAUD…If there was a broker, bank and title co at closing…the broker got paid by the investor or bank a FEE/ COMMISSION depending how much he screwed the borrower into an ARM’s or Sub-prime loan..the worse the loan the higher he got paid. The bank got paid by investor a FEE and generally was to be the server. NOW..the title company takes the mortgage to be recorded in county records under a fraud name of the bank…with a request to return recorded mortgage to them..NOT the bank. BIG CLUE THERE. The note that does not need recording ( in Florida) is stamped in blank and sent over night mail to investor. The title company sends the recorded mortgage to the investor. The pretender lender (the bank) has a limited time period to bundle and sell off that mortgage…in order to keep his line of credit in good standing with investors who do the funding. So now the mortgage is sold/securitized with laws, requirments and regulations to assign and stamp the back of the notes 3-4 times to get to the Trust. Remember the bank has not one cent invested..but claims ownership on your note/mortgage. So from the time you sat down at closing table and left…fraud was already done..the recorded mortgage was a fraud…yet the bank still went on to sell the mortgage in a Pool….BUT what WaMu did in 2003 that I checked..they kept the Notes..never gave them to the trust…so investors had securities that were worthless. Fraud. ..No assignments..FRAUD….If the courts do not understand this simple steps..all fraud…then they need to get off the bench and park their asses on a bench in a park and watch traffic go by. No matter how you spit out fraud..any one with brains would understand the word. If this is your case..a few clues..your papers are generally not signed copies, copies are missing, no Hud Statement, no closing cost sheet. Call your title co for the hell of it and ask for complete copies of the closing…if denied ask why. Reason: Privacy act.. There is the answer…an investor funded the mortgage. At the closing they all act as if the bank is the lender..nothing is mentioned about an investor…so you are in the dark. But if you call and ask for copies and refused copies they usually tell you that you need to subpoena the title co to get them. The investor is private information. If the copies show the investor…and the mortgage was recorded in the banks name…the mortgage is VOID…. That is your standing in court. All recorded documents…showing fraud. Then start screaming…demand answers..demand action taken against the bank for fraud…the louder the wheel squicks the faster it get’s the oil. Stand in court and speak up..show your proof. Find every fraud you can…but show that the mortgage is void. Good luck

  5. Elaine S says:

    I would like to recommend a new court rule for all foreclosures and all public trustees, there must be a concise listing of every holder in due course to define every transfer of the chain of title from originator to the entity doing the foreclosing, in order to define and establish standing.Together with check off boxes of proper assignment in file for each holder in due course with dates that don’t conflict etc. And has each in the chain passed the test of being a proper holder, so able to transfer it. ( You can’t transfer what you don’t really have!)

    A NEW question. If there is a huge unpaid tax issue with the IRS, if notes were not properly transferred into the mortgage backed securities in a timely way to avoid taxation. What happened to the same or similar taxation regulations for the other three or so transfers, in order to get the note to the MBS trustee? Which are implied to BE taxable because they didn’t have the shelter of the end recipient, Everybody was making money as each step transpired. and the notes had significant value. Any missing sales taxes or excise taxes for example? Are the notes listed in income tax filings with the IRS by these middlemen? Perhaps another can of worms here, just maybe? If not treated as real transfers for taxation, doesn’t this make the middlemen strawmen and defeat their intended purpose?

  6. Elaine S says:

    Different states are different. Most people don’t know for example that in Colorado law CRS 38-38-101 and thereafter, MERS is never named, but in the definitions for that real estate foreclosure section of the law the term “holder” needed for standing to foreclose, is defined to specifically exclude electronic registries who do not have other specific grants of authority. Yet just this week I saw MERS named as beneficiary on a current public trustee foreclosure filing. While within another file it acually quoted the definition I just mentioned, and claimed to be within that definition as part of their submission to the public trustee.

    search by name “(name your own state) statute Foreclosure” and start reading, laws are called statutes as you search. First, Read to get familiar, and re-read a few more times for understanding. Even read the definitions, that’s where I found the gem about electronic registries even though it never named MERS by name. I would never have thought to search for it yet I was able to find it.

    • wirednuts says:

      yeah Colorado is really jacked up as I have found out thru my foreclosure….I have one doc that was filed where BofA says they are “Holder” and another doc that says they are “Qualified Holder”….freaked out my County Trustee as she sees this crap all the time…talked to a couple of attorneys and they say too bad, thank your legislators for sticking it to Colorado homeowners by siding with banks….banks don’t even have to produce “true note” to declare standing….gee, and we are ranked #10 in foreclosures in this nation and our legislatures just stand by….

  7. Pelucheven says:

    We should sat a twitter, facebook, google, phone call, writing campaign like these people have never seen before. The leers should all be hand written with our heart felt stories, send hem copies of he evidence. We need a coordinated effort, we have done it before!!

  8. Pelucheven says:

    Mr. Obama will be a one term president, he knows it, so now that his dream came true and he will have a security detail, a pension and federal benefits for life, he could care less.
    Our fight is at different levels, the local level with our courts, our land records office, our Federal Court Districts, our State courts, with our local county and city officials, with our state legislators and state regulatory agencies. We must make it almost impossible for some clown to get a Real Estate license and a Loan Officers license. These people play and target our emotional triggers in well refined and tuned sales pitches and it should also start from there. If they know that their livelihood will be at stake if they screw any one of us, they will be at least more ethical. We need to ask of our newly elected congress people and senators to be accountable to the people. Yes the Banksters paid for their ads and campaigns, however, we were the ones who actually went to the polls.

    This is our fight, If you believe that some miracle will happen and out of the sudden the bankers will drop dead and agree to fix your mortgage, we all would be under the influence of some sort of voodoo medicine.
    . We need to exert as much pressure as we can and not fall for the cheap pandering these politicians are used to apply on us.

  9. MisterKeitel says:

    But where in President Obama in all of this? I actively campaigned and voted for the man because I thought “hope” and “change” meant ensuring a better life for America’s common people. But I was wrong. Mr. Obama has been strangly silent on the issue of foreclosure – refusing to take a stand. And in his silence he’s let the banks, and corrupt courts bulldoze and steamroll over the regular American homeowner. In the begining this made me very sad. But now, in true Bill Bixby/Lou Ferigno-style, I can feel myself getting Very ANGRY!

  10. l vent says:

    I think a STATE BY STATE MORATORIUM on ALL FORECLOSURES is in order here. Let’s all call and /or e-mail or STATE SENATORS. WHAT IS THE STATE BY STATE MORTGAGE DEFAULT RATE IN THIS COUNTRY RIGHT NOW? I think somebody needs to do a STATE BY STATE ANALYSIS and let the NEW YORK TIMES print it as FRONT PAGE NEWS. We all need to start screaming a lot louder because they are STILL NOT LISTENING TO WE THE PEOPLE!!!! THIS FORECLOSUREGATE SCANDAL NEEDS TO REACH FEVER PITCH BEFORE “THEY” ARE GOING TO DO ANYTHING IN THE WAY OF FORECLOSURE MORATORIUMS ON A STATE BY STATE BASIS.

    • l vent says:

      WE THE PEOPLE NEED TO GET PROACTIVE ABOUT A FORECLOSURE MORATORIUM. WE THE PEOPLE need to CALL and/or EMAIL OUR State Governor’s, too. We need to be vigilant right now and demand action be taken by ‘OUR ELECTED OFFICIALS’ REGARDING A MORATORIUM ON ALL FORECLOSURES, STATE BY STATE. WE CANNOT WAIT FOR ‘THEM’ TO DO IT FOR US OR ELSE NOTHING WILL GET DONE. WHAT IS HAPPENING RIGHT NOW? NOTHING!!! JUST ALOT OF TALK, BUT NO ACTION. WE NEED TO SCREAM AT OUR ‘ELECTED OFFICIALS’. LIKE WE DID ABOUT BILL HR 3808 (A/K/A HITLER’S BILL 3808). NOW THAT SHOWED THE PROGRESS THAT CAN BE MADE WHEN ‘WE THE PEOPLE” WORK TOGETHER. TOGETHER WE ARE A POWERFUL VOICE. GOD BLESS AMERICA!!!

  11. kravitz says:

    Hey, Abby Field at Daily Finance. And Bank of America knew…

    Thousands of Pennsylvania Foreclosures Could Be Thrown Into Doubt
    http://www.dailyfinance.com/story/thousands-of-pennsylvania-foreclosures-could-be-thrown-into-doub/19740497/

  12. housemanrob says:

    Yadee Yadee Yadee Yadee Yadee Ya Ya Ya! Same old sameold! Anybody out there listening? Hello!!! The cat’s out of the bag! Let’s get this locomotive rolling!!

    • Doretha Gill says:

      This states that the note and the mortgage must stay together. We all know now that the originators did not keep the two together, which means all of these mortgages were never completed and now not valid! I just wish someone in authority would deal with this.

      • RAMONA says:

        IF they dont soon deal with this … those of us whom have been crapped on will unite and deal with it good!! I have a gullitine in my basement ready!!

Leave a Reply