Despite foreclosure halt, mortgage crisis not over

10/12/2010

MIAMI — For most Americans at risk of losing their homes, the brutal business of foreclosure goes on.

Bank of America halted foreclosures across the country to address paperwork problems, but three other banks did so only in 23 states. Other banks holding millions of mortgages have not suspended any foreclosures.

In the other 27 states, judges don't have to review foreclosures. A homeowner must sue the bank for that to happen. Paperwork mistakes and fraud are even harder to discover, legal experts say.

Those states without judicial oversight for foreclosures include eight of the top 10 foreclosure states in America, including California, Arizona and Nevada. As with all real estate matters, location is everything.

“My gut tells me there's a greater likelihood of fraud in these cases,” said Ray Brescia, a professor at Albany Law School in New York who has closely studied the U.S. mortgage crisis.

Not only have the mortgage industry's actions been limited geographically, but banks mean different things when they say they're halting foreclosures.

Ally Financial's GMAC Mortgage unit, for example, is continuing to initiate foreclosures nationwide. It has stopped evicting homeowners and selling foreclosed properties in the 23 states that require judges' approval.

By contrast, Bank of America has stopped seizing foreclosed homes in all 50 states — but is continuing to sell homes that had already been foreclosed on and is still processing new foreclosures.

Outside of the major banks, and even in states that do require a judge to look over the bank's shoulder, foreclosures are going forward at a head-spinning pace. So the nation's mortgage crisis goes on.

In Tampa, Fla., last week, a county circuit judge dispensed with dozens of cases on a single day. Eleven foreclosures went through in one 18-minute period. Most people never show up, and few hire lawyers.

“I'm really sorry that you are in this situation, but I can't order the bank to modify your mortgage,” Judge Sandra Taylor told one young couple who owed $222,000 on a home and stopped making payments two years ago. “I wish you the best. You're in a really large boat with a lot of other people.”

Ally Financial, JPMorgan Chase and PNC have suspended foreclosures in 23 states amid evidence that bank employees falsely swore they had personal knowledge of a particular case, because documents could not be located or because of other paperwork problems.

At one law firm in Florida, signatures were routinely forged, unnecessary extra fees charged, notary stamps misused and documents altered, all in the name of racking up as many foreclosures as possible, a paralegal said in a recent deposition.

“We find sworn statements that justify depriving people of their homes that are made up. They are basically created out of thin air,” said Rep. Alan Grayson, a Florida Democrat who has pushed for changes in the foreclosure process. “I am sure that the easier it is to commit fraud, the more fraud you will see.”

So far, federal regulators and criminal investigators have taken little action. Lawmakers, including House Speaker Nancy Pelosi of California, have called for investigations into whether mortgage companies broke the law.

This week, the attorneys general of up to 40 states are expected to announce a joint investigation into banks' use of flawed foreclosure paperwork.

The banks say that there is little to no evidence that the foreclosures were improper and say the homeowners were in fact behind on payments.

In the 23 states with judicial oversight, the controversy centers on affidavits filed by bank employees falsely swearing to the accuracy of court documents. In one example, a Bank of America employee acknowledged signing up to 8,000 foreclosure documents without reading them, even though she previously claimed to judges that she had.

Similar affidavits are not used in the 27 states where foreclosures don't go before a judge. For example, in California, it takes just two documents — a notice of default and a notice of trustee's sale — to be filed at the county courthouse for a bank to get the right to evict.

Although borrowers are supposed to be notified via mail, newspaper notices and documents tacked to the homeowner's doorstep, that does not always happen.

In many of the 27 states without judicial oversight, lenders must sign declarations that certain steps have been taken, such as attempting to work out a solution for the borrower to keep the home.

And experts say the same problems — such as verifying true ownership of the home's title — undoubtedly occur in states without court supervision. It's just more difficult to detect without a court proceeding pitting a borrower against a lender.

“No one's individual situation is properly attended to. They are treating everybody like they are cogs in a wheel,” said Alys Cohen, staff attorney at the National Association of Consumer Advocates.

Even when lenders make mistakes on the documents — including the wrong name or address — most homeowners either don't notice or don't fight back.

“They may have an inkling that there's something wrong, but they don't have the money to follow through and hire an attorney,” said Jodi Woodsmith, a lawyer and housing counselor at Self-Help Enterprises in Visalia, Calif. “Mostly, they give up and let it happen.”

Even those who do fight are finding it tough. Susan Christensen, 48, and her husband. Scott, have been representing themselves before a U.S. bankruptcy judge, who has allowed them to stay in their home even though their foreclosure was completed in July.

The pair, who live in Poway, Calif., argue that their lender did not properly notarize documents and didn't follow a state law requiring mortgage companies to evaluate borrowers for assistance before foreclosing.

California's system for processing foreclosures, she said, “puts us, the consumer, in a very bad position,” she said. “We have nowhere to turn.”

Kristopher Lingo, chief executive of the couple's lender, Peninsula Equity Funding Inc., denied the allegations and called the foreclosure legitimate.

Kathleen Engel, a Suffolk University Law School professor who specializes in mortgage finance and regulation, said questions about the true ownership of foreclosed properties could trigger problems with titles and title insurance for the new owners, which in turn could lead to efforts to vacate sale of some homes. And that might mean fewer buyers show up at foreclosure sales.

“If word gets out that the title to the property is toxic, people aren't going to buy them,” Engel said.