Judges Fed Up With Excuses for Foreclosure Fraud
There will be no end to the spin from banking executives and their high-priced team of lawyers and lobbyists, when it comes to foreclosure fraud. They will insist that the problem has been overblown by the media, that it involves relatively few homes, that they have strenuously checked and double-checked their documents and found no irregularities, and on and on. But the goal of all this spin is to exempt themselves from any regulation that would flip the incentives in the mortgage industry, away from self-interested profit-seeking on the part of the banks, and toward the best solutions for the overall economy. The Mortgage Bankers Association, for example, wants new risk retention rules being written by Dodd-Frank to exclude regulations on loan servicers or foreclosure operations, in contrast to the FDIC.
The Mortgage Bankers Association said in a letter to regulators that the two issues should be considered separately. Combining them “runs the risk of giving short-shrift to two highly complex and critically important issues,” wrote John Courson, the group’s president.
Federal regulators have been working on defining which home loans are considered safe enough to be exempt from a new requirement that issuers of mortgage-backed securities hold on to 5% of the risk.
The Federal Deposit Insurance Corp. has been arguing that these so-called risk-retention rules should also contain standards for mortgage-servicing companies, which collect home-loan payments and distribute them to investors. It has been battling behind the scenes with the Federal Reserve and Office of the Comptroller of the Currency, which question whether those standards should be included.
I suppose there are some people out there who buy that the Mortgage Bankers Association just wants regulators to give their full attention to those critical issues, rather than carving out an exemption for the businesses they represent. I suppose some people out there buy all of the justifications and rationalizations the banks have put out there. Some have a powerful incentive to believe it – namely, politicians who rely on campaign contributions from the same rich bankers.
But there are definitely a few public officials who aren’t buying any of it anymore – judges fed up with the fraud imposed upon their courts.
Judge Arthur M. Schack of New York State Supreme Court in Brooklyn has taken aim at an upstate lawyer, Steven J. Baum, referring to one filing as “incredible, outrageous, ludicrous and disingenuous.”
But New York judges are also trying to take the lead in fixing the mortgage mess by leaning on the lawyers. In November, a judge ordered Mr. Baum’s firm to pay nearly $20,000 in fines and costs related to papers that he said contained numerous “falsities.” The judge, Scott Fairgrieve of Nassau County District Court, wrote that “swearing to false statements reflects poorly on the profession as a whole.”
More broadly, the courts in New York State, along with Florida, have begun requiring that lawyers in foreclosure cases vouch for the accuracy of the documents they present, which prompted a protest from the New York bar. The requirement, which is being considered by courts in other states, could open lawyers to disciplinary actions that could harm or even end careers.
This has to be in bounds. Lawyers are walking into courtrooms with blatantly false documents, attempting to evict people from their homes illegally. And they’re doing it systematically over a number of cases. All the recent judicial rulings in New York, New Jersey and Florida state is that lawyers ought to be responsible for their own work, for the documents they’re using to make their arguments. In Florida, the same lawyers went right to work “robo-verifying” the documents and basically undermining the spirit of the rule.
Lawyers claim they’re relying on the client, the banks, to provide accurate documents. The big bank servicers claim they’re relying on the lawyers to organize the legal claims underlying their foreclosure operations. The judges – not all of them, but an increasing number – just aren’t buying this circular reasoning anymore. If there’s any hope for some reasonable conclusion to the foreclosure fraud crisis, it rests with them.