How current events impact business & real estate

Sunday, October 10, 2010

Foreclosure mess & the case of the robo-signers

So what does this all mean to you? The key issue in law is called standing to sue. Meaning, do the banks have the right to sue? Before anyone goes to Court they must be aggrieved in some way. The issue is that the banks cannot substantiate that they are the correct bank that is owed the debt on the mortgage. Now that the issue is in the limelight creative names like "robo-signers" are all abound in the headlines, but the truth is that this has been a big issue for years within the foreclosure industry. Well before the national media took hold of this issue, many in the foreclosure defense world have long been expressing that the bank's paperwork does not substantiate their right to sue. In fact, one of the main ways that people defend a foreclosure is through discovery demands that the bank cannot fulfill followed by a motion to dismiss.

This post is not meant to minimize the issue. Instead, just the opposite is intended. Yet, my hope is that the national politics don't minimize the issue either. Its plain, its easily understood, it should not be open to debate - If a bank cannot show through competent evidence that it owns the mortgage (a big big problem), its foreclosure action should be dismissed and in this individual's opinion, the bank and its attorneys should face sanctions for filing a frivolous lawsuit. My point is this, over the past week I have seen many pundits come out on both sides of a moratorium on foreclosures. This sidesteps the issue. Instead, the issue must be only: Does the bank seeking to foreclosure on the homeowner have documentation that it owns the mortgage? Its as simple as a person who wants to sell their car having the title to the car. This is not a fitting topic for national debate. Instead, this is a fitting topic for national dismay. How can banks not have clear paperwork that they own the mortgages? (I will explain how this mess happened in a future blog, which involves the distinction between servicers and investors coupled with the secondary market and MERS).

Additionally, there is no need for a moratorium on foreclosures. Instead, homeowners facing foreclosure should be vigilant in making the banks prove that they have the requisite documents and that they have been signed by someone with knowledge (can be tested by discovery demands inclusive of a good Demand for Discovery & Inspection coupled with a Notice to take an Examination Before Trial of the signatory). If this doesn't work, readers should pay attention on Tuesday of this week when its expected that many State Attorney Generals will uniformly announce an investigation of the the robo-signer epidemic. Click here to read a Reuters article addressing the expected announcement.

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