Congressional hearing: Do banks lack the legal standing to foreclose?
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, Conyers emphasized that as of last year, about 2.5 million homes were lost to foreclosure and that current projections estimate that as many as 13 million homes will be lost to foreclosure by the time the current crisis abates.
"Yet the big Wall Street firms, other mortgage lenders and servicers, and Fannie Mae and Freddie Mac - all of whom received taxpayer bailouts to the tune of billions of dollars over the last couple of years - have in many instances turned a blind eye toward homeowners in similar financial distress," he said.
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 argued 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.
Joseph R. Mason, a banking professor from Louisiana State University, said legislation may be necessary to clarify the status of MERS.
"MERS presents two main risks in the current marketplace," he testified. "The first regards whether MERS has legal standing to foreclose in its own name. The second is whether loans recorded in MERS can be foreclosed at all."
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.
Bloomberg VIDEO on MERS.
Ariana Eunjung Cha
| December 2, 2010; 10:51 AM ET
Categories: Congress, Housing
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