False Statements

50-State Investigation

Action Date: March 8, 2011
Location: West Palm Beach, FL

The terms of the possible settlement of the 50-State Investigation of mortgage servicer abuses have now been released. For the most part, the settlement would require servicers to do exactly what they are already required to do.

For example, according to the settlement, “Affidavits and sworn statements shall not contain information that is false or unsubstantiated.”

Despite the weaknesses of the settlement, it may not be worthless. Many states exclude banks from the groups that can be regulated under the state’s Unfair and Deceptive Trade Practices laws and there has been some significant argument that this exemption extends to servicers working on behalf of banks. So in that regard, the settlement is significant. Without any new legislation, the servicers agree, in effect, to be regulated by the Attorneys General – that is, they could be sued for violation of this agreement. Most significantly, the Attorneys General would not have to spend time and money to convince a court that certain conduct by the servicers is an unfair and deceptive act.

While other government agencies could have regulated mortgage servicers, they clearly failed to do so. Now the Attorneys General can act where other agencies have failed.

Nothing in the settlement ends the investigations by particular states of particular servicers and law firms. Those investigations and possible sanctions and relief for those harmed will likely continue. States that are serious about addressing past abuses will go forward with their investigations, sanctions and settlements.

What is missing from the settlement? It would be very useful to require employees of mortgage servicers to identify themselves as such on all documents. Identification as officers of MERS, banks or lenders should be prohibited.

Servicers have argued that their employees are allowed to represent themselves as MERS officers and bank officers because of corporate resolutions or powers of attorneys allowing this fiction. Some of these employees even use the address of the bank – and not their actual address – on Assignments, Releases and Affidavits. False titles and false addresses create confusion, difficulty and expense for homeowners in litigation who are trying to take a simple deposition of a document signer. Most judges give greater credibility to the sworn statement of a bank vice president than they would give to the sworn statement of an “authorized signer” for a mortgage servicing company. This is the very reason these titles were passed out to clerks and law office managers. Actual titles, actual employers and real addresses need to be used.

Who else needs to disclose their true employer? Again, while this seems like it should go without saying, lawyers working for banks and mortgage companies should not be allowed to represent that they are actual bank officers.

This practice has happened in tens of thousands of cases and already been condemned by many New York judges. Lawyers who hold themselves out to be bank vice presidents and MERS officers need to end this practice.

Servicers also need to stop acting as “Attorney-In-Fact” for banks, mortgage companies and even the FDIC. In many states, servicers do not meet the minimum qualifications to act as attorneys-in-fact and they need to end this practice as well.

The average citizen and the Attorneys General no doubt define “Information that is false and unsubstantiated” differently than most mortgage servicers.

Over 6 million mortgage assignments, affidavits and sworn statements have been filed in courts and country recorder’s offices with servicing company employees and lawyers signing using false titles as bank officers, mortgage company officers and MERS officers. The settlement should prohibit this widespread fundamental abuse.