A timely and frightening exploration of the causes and consequences of the emerging foreclosure mess. This close cousin of the earlier sub-prime mortgage debacle provides even more evidence of the financial industry’s hubris and inescapable self-interest.
As the saying goes: garbage in, garbage out…
The Foreclosure Mess
October 15, 2010,Â Cumberland Advisors (www.cumber.com)
Dear Readers, this text came to me in an email from sources that are in the financial services business and with whom I have a personal relationship. The original text was laced with expletives and I would not use it in the form I received it. Therefore the text below has had some substantial editing in order to remove that language. The intentions of the writer are undisturbed. The writer shall remain anonymous. This text echoes some of the news items we have seen and heard today; however, it can serve as a plain language description of the present foreclosure-suspension mess. There is a lot here. It takes about ten minutes to read it. David Kotok
Homeowners can only be foreclosed and evicted from their homes by the person or institution who actually has the loan paperâ€”only the note-holder has legal standing to ask a court to foreclose and evict. Not the mortgage, the note, which is the actual IOU that people sign, promising to pay back the mortgage loan
Before mortgage-backed securities, most mortgage loans were issued by the local savings & loan. So the note usually didnâ€™t go anywhere: it stayed in the offices of the S&L down the street.
But once mortgage loan securitization happened, things got sloppyâ€”they got sloppy by the very nature of mortgage-backed securities.
The whole purpose of MBSs was for different investors to have their different risk appetites satiated with different bonds. Some bond customers wanted super-safe bonds with low returns, some others wanted riskier bonds with correspondingly higher rates of return.
Therefore, as everyone knows, the loans were â€œbundledâ€ into REMICâ€™s (Real-Estate Mortgage Investment Conduits, a special vehicle designed to hold the loans for tax purposes), and then â€œsliced & dicedâ€â€”split up and put into tranches, according to their likelihood of default, their interest rates, and other characteristics.
This slicing and dicing created â€œsenior tranches,â€ where the loans would likely be paid in full, if the past history of mortgage loan statistics was to be believed. And it also created â€œjunior tranches,â€ where the loans might well default, again according to past history and statistics. (A whole range of tranches was created, of course, but for the purposes of this discussion we can ignore all those countless other variations.)
These various tranches were sold to different investors, according to their risk appetite. Thatâ€™s why some of the MBS bonds were rated as safe as Treasury bonds, and others were rated by the ratings agencies as risky as junk bonds.
But hereâ€™s the key issue: When an MBS was first created, all the mortgages were pristineâ€”none had defaulted yet, because they were all brand-new loans. Statistically, some would default and some others would be paid back in fullâ€”but which ones specifically would default? No one knew, of course. If I toss a coin 1,000 times, statistically, 500 tosses the coin will land headsâ€”but what will the result be of, say, the 723rd toss? No one knows.
Same with mortgages.
So in fact, it wasnâ€™t that the riskier loans were in junior tranches and the safer ones were in senior tranches: rather, all the loans were in the REMIC, and if and when a mortgage in a given bundle of mortgages defaulted, the junior tranche holders would take the losses first, and the senior tranche holder last.
But who were the owners of the junior-tranche bond and the senior-tranche bonds? Two different people. Therefore, the mortgage note was not actually signed over to the bond holder. In fact, it couldnâ€™t be signed over. Because, again, since no one knew which mortgage would default first, it was impossible to assign a specific mortgage to a specific bond.
Therefore, how to make sure the safe mortgage loan stayed with the safe MBS tranche, and the risky and/or defaulting mortgage went to the riskier tranche?
Enter stage right the famed MERSâ€”the Mortgage Electronic Registration System.
MERS was the repository of these digitized mortgage notes that the banks originated from the actual mortgage loans signed by homebuyers. MERS was jointly owned by Fannie Mae and Freddie Mac (yes, those two again â€”I know, I know: like the chlamydia and the gonorrhea of the financial worldâ€”you cure â€˜em, but they just keep coming back).
The purpose of MERS was to help in the securitization process. Basically, MERS directed defaulting mortgages to the appropriate tranches of mortgage bonds. MERS was essentially where the digitized mortgage notes were sliced and diced and rearranged so as to create the mortgage-backed securities. Think of MERS as Dr. Frankensteinâ€™s operating table, where the beast got put together.
However, legallyâ€”and this is the important partâ€”MERS didnâ€™t hold any mortgage notes: the true owner of the mortgage notes should have been the REMICs.
But the REMICs didnâ€™t own the notes either, because of a fluke of the ratings agencies: the REMICs had to be â€œbankruptcy remote,â€ in order to get the precious ratings needed to peddle mortgage-backed Securities to institutional investors.
So somewhere between the REMICs and MERS, the chain of title was broken.
Now, what does â€œbroken chain of titleâ€ mean? Simple: when a homebuyer signs a mortgage, the key document is the note. As I said before, itâ€™s the actual IOU. In order for the mortgage note to be sold or transferred to someone else (and therefore turned into a mortgage-backed security), this document has to be physically endorsed to the next person. All of these signatures on the note are called the â€œchain of title.â€
You can endorse the note as many times as you pleaseâ€”but you have to have a clear chain of title right on the actual note: I sold the note to Moe, who sold it to Larry, who sold it to Curly, and all our notarized signatures are actually, physically, on the note, one after the other.
If for whatever reason any of these signatures is skipped, then the chain of title is said to be broken. Therefore, legally, the mortgage note is no longer valid. That is, the person who took out the mortgage loan to pay for the house no longer owes the loan, because he no longer knows whom to pay.
To repeat: if the chain of title of the note is broken, then the borrower no longer owes any money on the loan.
Read that last sentence again, please. Donâ€™t worry, Iâ€™ll wait.
You read it again? Good: Now you see the can of worms thatâ€™s opening up.
The broken chain of title might not have been an issue if there hadnâ€™t been an unusual number of foreclosures. Before the housing bubble collapse, the people who defaulted on their mortgages wouldnâ€™t have bothered to check to see that the paperwork was in order.
But as everyone knows, following the housing collapse of 2007-â€™10-and-counting, there has been a boatload of foreclosuresâ€”and foreclosures on a lot of people who werenâ€™t sloppy bums who skipped out on their mortgage payments, but smart and cautious people who got squeezed by circumstances.
These people started contesting their foreclosures and evictions, and so started looking into the chain-of-title issue, and thatâ€™s when the paperwork became important. So the chain of title became crucial and the botched paperwork became a nontrivial issue.
Now, the banks had hired â€œforeclosure millsâ€â€”law firms that specialized in foreclosuresâ€”in order to handle the massive volume of foreclosures and evictions that occurred because of the housing crisis. The foreclosure mills, as one would expect, were the first to spot the broken chain of titles.
Well, what do you know, it turns out that these foreclosure mills might have faked and falsified documentation, so as to fraudulently repair the chain-of-title issue, thereby â€œprovingâ€ that the banks had judicial standing to foreclose on delinquent mortgages. These foreclosure mills might have even forged the loan note itselfâ€”
Wait, why am I hedging? The foreclosure mills did actually, deliberately, and categorically fake and falsify documents, in order to expedite these foreclosures and evictions. Yves Smith at Naked Capitalism, who has been all over this story, put up a price list for this â€œserviceâ€ from a company called DocXâ€”yes, a price list for forged documents. Talk about your one-stop shopping!
So in other words, a massive fraud was carried out, with the inevitable innocent bystanders getting caught up in the fraud: the guy who got foreclosed and evicted from his home in Florida, even though he didnâ€™t actually have a mortgage, and in fact owned his house free â€“and clear. The family that was foreclosed and evicted, even though they had a perfect mortgage payment record. Et cetera, depressing et cetera.
Now, the reason this all came to light is not because too many people were getting screwed by the banks or the government or someone with some power saw what was going on and decided to put a stop to itâ€”that would have been nice, to see a shining knight in armor, riding on a white horse.
But thatâ€™s not how America works nowadays.
No, alarm bells started going off when the title insurance companies started to refuse to insure the titles.
In every sale, a title insurance company insures that the title is free â€“and clear â€”that the prospective buyer is in fact buying a properly vetted house, with its title issues all in order. Title insurance companies stopped providing their service becauseâ€”of courseâ€”they didnâ€™t want to expose themselves to the risk that the chain â€“of title had been broken, and that the bank had illegally foreclosed on the previous owner.
Thatâ€™s when things started getting interesting: thatâ€™s when the attorneys general of various states started snooping around and making noises (elections are coming up, after all).
The fact that Ally Financial (formerly GMAC), JP Morgan Chase, and now Bank of America have suspended foreclosures signals that this is a serious problemâ€”obviously. Banks that size, with that much exposure to foreclosed properties, donâ€™t suspend foreclosures just because theyâ€™re good corporate citizens who want to do the right thing, and who have all their paperwork in strict orderâ€”theyâ€™re halting their foreclosures for a reason.
The move by the United States Congress last week, to sneak by the Interstate Recognition of Notarizations Act? That was all the banking lobby. They wanted to shove down that law, so that their foreclosure millsâ€™ forged and fraudulent documents would not be scrutinized by out-of-state judges. (The spineless cowards in the Senate carried out their masterâ€™s will by a voice voteâ€”so that there would be no registry of who had voted for it, and therefore no accountability.)
And President Obamaâ€™s pocket veto of the measure? He had to veto itâ€”if heâ€™d signed it, there would have been political hell to pay, plus it would have been challenged almost immediately, and likely overturned as unconstitutional in short order. (But he didnâ€™t have the gumption to come right out and veto itâ€”he pocket vetoed it.)
As soon as the White House announced the pocket vetoâ€”the very next day!â€”Bank of America halted all foreclosures, nationwide.
Why do you think that happened? Because the banks are in troubleâ€”again. Over the same thing as last timeâ€”the damned mortgage-backed securities!
The reason the banks are in the tank again is, if theyâ€™ve been foreclosing on people they didnâ€™t have the legal right to foreclose on, then those people have the right to get their houses back. And the people who bought those foreclosed houses from the bank might not actually own the houses they paid for.
And it wonâ€™t matter if a particular caseâ€”or even most casesâ€”were on the up â€“and up: It wonâ€™t matter if most of the foreclosures and evictions were truly due to the homeowner failing to pay his mortgage. The fraud committed by the foreclosure mills casts enough doubt that, now, all foreclosures come into question. Not only that, all mortgages come into question.
People still havenâ€™t figured out what all this means. But Iâ€™ll tell you: if enough mortgage-paying homeowners realize that they may be able to get out of their mortgage loans and keep their houses, scott-free? Thatâ€™s basically a license to halt payments right now, thank you. Thatâ€™s basically a license to tell the banks to take a hike.
What are the banks going to doâ€”try to foreclose and then evict you? Show me the paper, Mr. Banker, will be all you need to say.
This is a major, major crisis. The Lehman bankruptcy could be a spring rain compared to this hurricane. And if this isnâ€™t handled rightâ€”and handled right quick, in the next couple of weeks at the outsideâ€”this crisis could also spell the end of the mortgage business altogether. Of banking altogether. Hell, of civil society. What do you think happens in a country when the citizens realize they donâ€™t need to pay their debts?
David R. Kotok, Chairman and Chief Investment Officer
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