Foreclosed homeIn a decision that jeopardizes potentially thousands of completed foreclosures in Massachusetts, the state's Supreme Judicial Court affirmed the fundamental and long-established idea that a bank must own the mortgage it's foreclosing on before it forecloses. In this case, because both Wells Fargo (WFC) and US Bancorp (USB) could not prove they owned the mortgages when they foreclosed on two homes, the court held that the foreclosures did not give the banks clear title to the properties.

Moreover, since the legal principles involved were so well established, the court refused to limit its ruling to future foreclosures only. That means all completed foreclosures that had similar flaws also failed to give good title.

How many is that? It'll take a while to figure out, but for the reasons below, it may include any foreclosure of a Massachusetts mortgage securitized in the last several years, which would be thousands. The only sure thing right now is that Massachusetts real estate ownership is a mess, and title companies that have insured the sales of foreclosed properties in Massachusetts might see a flood of claims.

Investors were quick to react: In afternoon trading, the S&P 500's financial sector was off 1.8% vs. a decline of 0.9% for the broader index. In addition to Wells (down nearly 4%) and US Bancorp (down 1.5%) , the biggest losers were JPMorgan Chase (JPM), Travelers (TRV) and Bank of America (BAC).

Banks Couldn't Prove Ownership of Mortgages

As "proof" of their ownership, the banks gave the court three types of unacceptable evidence: documents dated after the foreclosure was done that claimed to transfer the mortgage to the foreclosing bank (something that has been done nationally); a very incomplete set of documents from the securitization of the mortgages that purportedly gave the mortgages to the securitization trust (something that I've heard of happening elsewhere); and assignments of the mortgages "in blank," that is, not naming the person the documents were assigned to.

The court rejected the idea that a mortgage could be foreclosed on first and acquired by the foreclosing bank second. That ruling alone jeopardizes thousands of foreclosures because apparently this was standard practice in Massachusetts. The court also explained why the incomplete securitization docs were insufficient. For example, the banks submitted unsigned copies of key contracts, failed to submit other relevant contracts and generally omitted the attachments to those contracts that would prove the mortgages were governed by those contracts even if the contracts had been signed and otherwise complete.

This failure to submit key documents seems inexplicable -- unless the banks really don't have them -- because at the initial trial the judge allowed the banks a special, extra opportunity to submit the documents.

Assignments "In Blank" Don't Cut It

But perhaps this difficulty in getting complete signed copies of all the deal documents for the securitizations at issue is relatively limited. That is, each securitization deal theoretically is memorialized in a "closing set," binders holding complete sets of all the deal contracts, which are hiding out in law firms' record departments.

So, perhaps all the banks need to do is make a habit of giving the foreclosing attorneys the right documents. But unfortunately for Massachusetts landowners, even if the banks in this case had given complete securitization documents to the court, they still couldn't prove ownership of the mortgages.

For a transfer of mortgage to be valid under Massachusetts law, it has to name the person the mortgage is being assigned to. Assignments "in blank" don't work. But that's what this securitization deal involved. Option One, the last recorded owner of the mortgages, executed assignments in blank, presumably to facilitate the securitization process by obviating the need to reassign them at later stages of the process.

So the biggest question is: How many Massachusetts mortgages were "securitized" by assignments in blank? Today's decision would not only invalidate all completed foreclosures done in the name of securitized trusts that believed they owned the mortgages, but also the very securitization of those mortgages.

Another Reason to Force Banks to Buy Back Loans

Because the assignments in blank of those mortgages failed to give the securitizing trust ownership of the mortgages, the investors in the securities supposedly backed by them had only an unsecured interest in the mortgage loans, that is, an interest in debt akin to credit card debt. If assignments in blank were standard practice, that could mean many or most Massachusetts mortgages in recent years are affected. Usually securitizations included mortgages from across the country, but it's possible at least some had a significant percentage of Massachusetts loans.

What the failure to transfer the mortgages into the trust ultimately means for the securities and for the not-yet-foreclosed loans isn't clear. Perhaps the mortgages can still be transferred into the trust. (The court decision makes clear, however, that the mortgages can't be transferred in by a document signed now that claims to have an earlier effective date.) But if not, investors will surely try to make the banks that issued the securities buy back the Massachusetts mortgages. That's bad news for the banks, as buyback risks are already significant.

Another huge question: Were any other states' real estate transfer laws violated by securitization procedures on any scale?

"Utter Carelessness"

In a concurring opinion, two judges scold the banks, writing:
What is surprising about these cases is not the principles articulated by the court regarding title law or the foreclosure law of Massachusetts, but rather the utter carelessness with which the plaintiff banks documented the titles to their assets. . .[the banks] need to take care to ensure [their] legal paperwork is in order. . . . The type of sophisticated transactions leading up to the accumulation of the notes and mortgages in question in these cases and in their securitization, and ultimately, the sale of mortgage-backed securities, are not barred or even burdened by the requirements of Massachusetts law.
Translation: "Hey big banks, the rules were easy to follow and would have let you do want you wanted to do. But you were too careless to follow them."

We'll have to wait to see how many bad consequences flow from that carelessness.

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51 Comments

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jerri2222

Abagail....I read you often and appreciate your reporting..some of it confusing to the laymen such as myself..but very needed at the same time. The ruling in this case will most likly be appealed of course, but all the cases being sighted
for robo -signing etc...are on a State by State basis..Where does one go to find out what it means in NY ? (my state). Every suffolk county judge seems to set up their own rules..how do I over come this in fighting a foreclosure is what I can't seem to figure out.. Chief Judge Lippman is the only one that did something to clarify procedure , but where is the new Attorney General Hiding ?
Why hasn't he gone after Banks here yet ?

January 09 2011 at 10:56 AM Report abuse +1 rate up rate down Reply
Wayne

Thomas Jefferson said in 1802 :
'I believe that
banking institutions are more dangerous to
our liberties than standing armies.
If the American people ever allow
private banks to control the issue of their
currency, first by inflation, then by
deflation, the banks and corporations that will
grow up around the banks will deprive the people
of all property - until their children
wake-up homeless on the continent their fathers
conquered.'

January 08 2011 at 7:21 PM Report abuse rate up rate down Reply
1 reply to Wayne's comment
jamestcap

I don't get it. If the bank doesn't have clear title, there's no point in foreclosing. The property can't be sold for anything near full value. The only alternative is to rent it, and no bank in my experience wants to be a landlord. No one wants to abandon the securitization process. It eliminates the middle man and results in much lower mortgage costs. But carelessness will kill it, as will failure of the law to keep abreast of modern business practices.

January 08 2011 at 10:00 AM Report abuse rate up rate down Reply
1 reply to jamestcap's comment
Le Fay

The Banks for many years have operated with impunity on the basis that if you desired financing, do it our way, or go elsewhere...As for the major Credit Card Companies, that's another "serious rub" in which they held hands with the Congress to allow them to charge outrageous and punative rates, doing so in a recession or any other time is usurious and should not be allowed. since it would appear the Bank Card Companies are regularly used by members of Congress there is an appearent conflict if interest the congress overlooked in voting for the windfall the banks were getting arising out of that vote.

January 08 2011 at 8:49 AM Report abuse rate up rate down Reply
Rodney

WOW....This has the potential to turn into a huge problem. Not only have some homes already been forclosed on, but many of them have been re-sold by a bank who never clearly owned them. Some have been then purchased by investors who did repairs then flipped them to a now new owner yet.....What about a then third owner who now doesn't clearly own the home he's been making payments on for a couple years. Or the bank who loaned to that third owner. Sounds to me like somebody could get the s...t sued out of them. Over and over again???

January 08 2011 at 6:15 AM Report abuse +1 rate up rate down Reply
stubit586

While a clouded title will prevent a foreclosure, it will also prevent any other type of mortgage activity. The banks may have created millions of "zombie" mortgages which cannot be foreclosed upon, sold, bought or even paid in full due to clouded title. What a mess.

January 08 2011 at 3:02 AM Report abuse rate up rate down Reply
pamelakuo08

I just refinanced using "123 Mortgage Refinance" and went from a 5.5/20yr to a 3.25/15yr. Monthly payments went down by about $100 but overall savings over the life of the loan are over $60,000. Definitely worth it in my opinion.

January 08 2011 at 2:24 AM Report abuse rate up rate down Reply
fmirabelli

It is interesting to note that many if not all banks utilized electronic transfer of mortgage information without verification of owner, original mortgage holder (the bank that had the mortgage first before it was either sold or sliced into "pieces to bundle into multimillion dollar investment packages") or the name of the new owner or bank holding the mortgage after the sale of the original mortgage. In essance, the banks did not follow standard practices for transfer of mortgages / notes to indicate the actual owner of the mortgage on the property. The state of Mass. has the right approach to demand one set of standard practice for banks to follow. People who are in the foreclosure process or have been foreclosed already should contact a knowledgeable and established real estate attorney to demand actual mortgage / note holder information from the bank in question and its relevant sequence to establish true verification of the ownership of the mortgage. If the bank cannot do the simple task of establishing true ownership of the property with the attached mortgage note; then the owner of the property (who has or had title insurance on it) has the right to claim the property as their own without a verifiable mortgage note. If the owner of a property has not been given a modification and the property has a change in mortgage bank; then the person listed on the title policy (verifies true owneership of the property) can and should file against the bank to prove the bank actually owns the mortgage on the property. If the bank provides the nonsense seen in Mass., then there is no verifiable indicator who (bank) owns the mortgage. New Jersey and other states have begun the proces of demanding the standard practice to verify "who" owns the mortgages on properties being or already foreclosed.

January 07 2011 at 5:54 PM Report abuse rate up rate down Reply
fishlover

We love them that we bail out most the banks but in reurn will not help taxes payer.

January 07 2011 at 5:48 PM Report abuse rate up rate down Reply
dgs755

Or at least put them in jail

January 07 2011 at 4:46 PM Report abuse rate up rate down Reply