What
You Don’t Know about “Mortgagegate” Could
Crush the U.S. Banking System By Shah Gilani, Contributing
Editor, Money Morning | October 15, 2010
[Editor's Note: In the aftermath of the
burst housing bubble, in the rush to foreclose upon million
s of U.S. homeowners, big U.S. lenders resorted to apparently
fraudulent strategies as part of an assembly-line repossession
grab. Money Morning's Shah Gilani, a retired hedge-fund
manager, warns investors about the possible fallout facing
the U.S. financial system and provides detailed advice on
the steps to take.]
What most Americans don't know about " Mortgagegate"
is that "robo-signing" of foreclosure documents
is the tip of the iceberg.
The breadth and depth of this newest mortgage crisis is
so dangerous that the U.S. Federal Reserve last month pre-announced
another potential round of quantitative easing (pundits
are calling it "QE2") to address "potential
negative shocks."
In fact, the fallout potential is so numbing and the actions
that birthed it so scandalous that commentators have given
the crisis the Watergate-esque title of " Mortgagegate"
(or, as some prefer, "Mortgage Gate").
Here's what the news-story headlines aren't telling you.
Foreclosure Follies
The Fed can't admit that the potential shocks it's worried
about have already materialized, because that would trigger
the very panic the central bankers hope to avoid.
But the odds that a financial tsunami will result from
Mortgagegate are building each day. If this storm strikes
with its full fury , it could be the kind of credit-crisis
aftershock that undermines the tentative handhold that the
U.S. recovery is so desperately clinging to.
On the surface, the problem looks like foreclosures have
been conducted based on improperly processed paperwork.
That is a gross understatement.
Here's what's wrong. When a homeowner buys a property with
a mortgage, the property title lists them as the rightful
owner and their lender as the mortgage-holder. The named
lender possesses an encumbrance on the title. If the homeowner
doesn't pay his or her mortgage, the lender can rightfully
repossess the property and sell it.
In order to take the home back, the lender must first foreclose
on the property. The problem begins with the fact that lenders,
in order to make trading mortgages between themselves easier
so they can be packaged into mortgage-backed securities
(MBS) pools and sold to investors, assign their rights on
titles to a "nominee." (How that happens is the
part of the story that news outlets aren't talking about
and will both shock and sicken you).
To take homes back, lenders or mortgage services start
by filing court documents in "judicial foreclosure
states" (most states in the U.S. require foreclosures
to be court-processed). Filings against homeowners must
include signed affidavits attesting to the relevant facts
and demonstrating the lender's legal status to foreclose.
Affidavits must be notarized.
But here's what's been uncovered: The people who are signing
the necessary documents on behalf of the lenders aren't
even reviewing documents - which means there's absolutely
no way they followed the pre scribed procedures. It turns
out that signers are basically "rubber-stamping"
legal documents.
In the case of IndyMac Bank FSB (since purchased by a private
equity group and renamed OneWest Bank), The Wall Street
Journal reported that Erica P. Johnson-Seck routinely signed
as many as 6,000 documents a week. In another instance,
employees of GMAC Home Mortgage and the mortgage unit of
JPMorgan Chase & Co. (NYSE: JPM) admitted in sworn testimony
that they each signed 10,000 documents per month, without
properly reviewing and notarizing them.
Similar instances of what's become known as "robo-signing"
are now coming to light in relation to hundreds of thousands
of other documents. And by the time it's all said and done,
it's likely that we'll be talking about millions of documents.
Fraud was clearly rampant in the notarization of documents
that were part of the foreclosure process. The fact that
document signers weren't reading and reviewing the paperwork,
and weren't contacting homeowners - all of which was mandated
by lenders - there clearly was no way that the proper due
diligence was observed.
Questionable legal notarizations include pervasive findings
that documents were notarized even before they were signed
and dated. A notary is legally designated to verify the
identity of the signer of a document and affix their notary
stamp along with their signature that they have witnessed
the signer executing the document, and that the signer is
who they say they are.
Some notarizations on suspect documents are affixed by
notaries that don't live or work anywhere near where documents
were signed. Indeed, many of them live across state lines.
That makes it highly unlikely that signers were verified
or that the documents properly notarized by law.
Congress, in its inimitable way, was made aware of this
problem. Legislators tried to solve the problem by ramming
through - without debate (highly unusual, but they did it)
- legislation that partly addressed some of the notary issues.
In a bill that was supposed to facilitate interstate commerce,
our elected representatives made it legal for notarizations
to be accepted across state lines. How high up is the knowledge
of this crisis? Apparently pretty high. After all, it was
none other than U.S. Sen. Patrick Leahy, D-V T, the chairman
the Judiciary Committee, who on Sept. 27 rammed through
the Interstate Recognition of Notarizations Act, the bill
in question.
In case you miss the egregious irony of the timing of the
bill, it came up for a vote only a couple of weeks after
the initial disclosure in courts around the country that
GMAC had robo-signers falsely notarize foreclosure documents.
Last Thursday, U.S. President Barack Obama refused to sign