TURNING THE TABLES
A recent court ruling has opened the way for attorneys to use one of the key mechanisms that created the mortgage lending mess as a weapon to help borrowers fight back against foreclosure actions.
On Oct. 31, 2007, Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio dismissed 14 separate foreclosure complaints because the plaintiffs failed to produce documentation confirming that they were the holders and owners of the mortgages on which they were seeking to foreclose.
In each case, Boyko noted, documents identified the original lending institutions, not the entities that later acquired the loans and were now seeking to foreclose, as the mortgagees. Moreover, the plaintiffs failed to produce documents showing that the loans were assigned to them.
Holding that the plaintiffs failed to establish federal court jurisdiction under Article III of the Constitution, Boyko dismissed their petitions. “This court acknowledges the right of banks, holding valid mortgages, to receive timely payments,” wrote Boyko in his order in In re Foreclosure Cases. “And, if they do not receive timely payments, banks have the right to properly file actions on the defaulted notes—seeking foreclosure on the property securing the notes. Yet, this court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of the secondary market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.”
Since Boyko’s ruling, more than 100 foreclosure actions have been dismissed in federal courts and some state courts because plaintiffs couldn’t prove they owned the mortgages on which they were seeking to foreclose. Lawyers say the ruling also has spawned some borrower class-action suits.
In the old days, when a mortgage created a long-term relationship between borrower and lender, it was easy for the lender to prove its interest in the loan. The bank that issued the loan would just produce the note, which it still held.
Securitization, however, changed all that.
In the late 1980s, banks started selling their home loans to other financial entities, which “pooled” large numbers of loans, put them into trusts and sold securities based on them. Purchasers of these collateralized debt obligations received regular payments on their investments as borrowers repaid their loans.
That meant loan originators no longer needed to wait years to get returns from their mortgages. Instead, they could sell the loans and make a quick profit. But loan originators also lost their incentive to ensure that borrowers could repay the loans. A default would be someone else’s concern.
Another consequence of securitization is that, because loan originators seldom hold mortgages anymore, a borrower who runs into trouble with mortgage payments is going to find it hard to identify someone in the chain of financial institutions who might be willing to help resolve the problem.
The originating lender has probably sold the loan, so it’s out of the picture. And it is extremely difficult to identify the new holder of the mortgage. That leaves the loan servicer, the company to which the borrower sends monthly mortgage payments.
But loan servicers haven’t seemed particularly interested in helping struggling borrowers—perhaps because they have a strong financial incentive to push loans into default.
Servicers typically are paid 25 basis points for servicing performing loans, but double that for servicing loans in default. The fee for servicing a loan with a $100,000 balance, for instance, is $250, but if the loan goes into default that fee would go up to $500. Moreover, once a loan goes into default, servicers can charge late fees, inspection fees and a variety of other fees.
“A $50 charge here, an $80 charge there may not seem like much individually, but it is a lot more than the servicer would get per month from a performing loan,” says O. Max Gardner III, a sole practitioner in Shelby, N.C., who concentrates in consumer bankruptcy law.
The consequence of this system is that entities involved in originating and securitizing loans frequently did not comply with the formalities of assigning the notes and physically transferring them. And now, trying to create a paper trail involves significant time and expense—if it’s possible at all. Judge Boyko’s ruling showed that such a dysfunctional system will likely come back to haunt the lending industry.
“You have to prove to the court that you have the original note and that you have lawfully obtained it via an unbroken chain of assignments,” Gardner says. “Those have turned out to be two very difficult obstacles for trustees to establish. Over 400 loan originators went out of business last year. I don’t see how you get an assignment from somebody thatwent out of business.”