These are the most interesting items I have come across on the current mayhem in the mortgage market. I do not expect this issue to pass very soon:

Who’s Who in the Foreclosure Scandal: A Primer on the Players: This Pro Publica piece is a MUST READ that will get you up to speed quickly

Blame The Victim – Or the Perp? The plain fact is that foreclosure law lays out a very specific series of steps intended to protect the rights of both the bank and the homeowner. This is critically important: mistakes or sloppiness in this process could easily (and grieviously) harm the homeowner or creditor. Accordingly, its vital that this process be followed to the letter of the law. Unless your a banker trying to evict people, apparently.

• This Fortune article gets my nomination for the single most clueless MSM piece so far: It’s time to stop blaming the lenders I guess the securitizers, servicers, underwriters, lawyers and banksters for sure — but not the lenders.

NY to Hold Lawyers Accountable on Foreclosures: NY State’s highest judge is starting to get angry (Front page NYT) See also Chicago sheriff says no to enforcing foreclosures

Fed Wants Banks to Buy Back Some Bad Mortgages but see New York Fed Faces ‘Conflict’ in Mortgage Buybacks

Mortgage Mess: Shredding the Dream: Street’s unspoken strategy has been to kick mortgage losses down the road until an economic recovery reinflates the housing market. The faulty-foreclosure crisis has forced the issue back into the present tense, triggering a fight over who will bear the brunt of those losses. The combatants—all of whom are trying to minimize their share of the damage—include homeowners, lenders and mortgage brokers, loan servicers and the underwriters of mortgage-backed securities, the buyers of those securities, title insurers, rating firms, and the federally controlled mortgage buyers Fannie Mae (FNM) and Freddie Mac (FRD).

Fidelity National Will Require Foreclosure Warranty but see also Fidelity National’s Role in the Cover-Up

Florida activists read between the lines on foreclosure paperwork:  While meeting for the first time in November at an old one-story law office in this city, the four strangers compared notes and began to piece together the scope of the problem: All over the United States, big financial firms might have been using fraudulent paperwork to evict struggling borrowers from their homes. Now tight-knit, the group is largely responsible for setting off the growing firestorm over foreclosures

Foreclosure freeze could put security clearances at risk

Regulator Says Fannie, Freddie Cost at Mercy of Economy To be filed under Duh!

Firm says foreclosure letters ‘mistake’ An East Bay law firm says it mistakenly sent out thousands of letters to San Francisco homeowners earlier this month warning them that their houses were in default — even though the loans weren’t delinquent. The letters were sent out by Provident & Associates, a Pleasanton-based law firm that is attempting to help people with loan modifications. Provident sent out what it estimated to be 2,000 letters to people telling them that they faced foreclosure on their mortgage. The letters went primarily to homeowners in San Francisco.

Regulator for Fannie Set to Get Litigious• Simon Johnson: Time for Some New Stress Tests for Banks

And Who Pays for the Laws? DJMT puts all this into a bigger context

The Foreclosure Mess: The Start of Another Bank Bailout? The foreclosure mess suddenly turned messier yesterday when a group of heavyweight investors, including the Federal Reserve Bank of New York, demanded that Bank of America buy back toxic mortgages that a subsidiary had sold them during the housing bubble. BlackRock, the world’s largest investment company, and Pimco, the world’s largest bond manager, joined the New York Fed in arguing that shoddy record keeping and other missteps by Bank of America subsidiary Countrywide Financial amount to a breach of their contract. Such a breach would allow the investors to sell the mortgages back to the bank at full price. The investors’ claims, which became public yesterday, probably marks the opening shot in a long legal battle that could cost B of A billions and possibly push it into insolvency.

Foreclosure Crisis + Higher Rates = Fewer Mortgage Applications

FBI looking at foreclosure mess Updated version of Tuesday’s article

Clueless or putting up a good front? Banks Clueless About Foreclosure Mess Severity The biggest U.S. mortgage lenders and servicers say they’re putting the foreclosure mess behind them, and that it never was a major problem. The reality is these companies are so big and unmanageable, the people in charge of running them have no way to know if that is true. One thing that remains unknowable is how many flawed home- mortgage records and foreclosure proceedings are out there waiting to be unearthed. Dozens of federal and state agencies are investigating. It’s anyone’s guess what they might turn up.

One nation, under fraud

• Here’s why the government should not own stock: Treasury on Foreclosuregate: “This is a problem for the banks and servicers to fix. They can fix it as fast as they feel like it.” (HuffPo)• WH Foreclosure probe: Problems aren’t ‘systemic’ Man, is this White House politically tone deaf or what?

Did I miss anything worthwhile . . . ?

Category: Financial Press, Foreclosures

Please use the comments to demonstrate your own ignorance, unfamiliarity with empirical data and lack of respect for scientific knowledge. Be sure to create straw men and argue against things I have neither said nor implied. If you could repeat previously discredited memes or steer the conversation into irrelevant, off topic discussions, it would be appreciated. Lastly, kindly forgo all civility in your discourse . . . you are, after all, anonymous.

49 Responses to “Mortgage Madness Linkfest”

  1. Robert M says:

    I think you published the first part two days ago. This is his second piece on the subject.
    More on Why the PIMCO, BlackRock, Freddie, NY Fed Letter to Countrywide on Putbacks Is Way Overhyped
    I still laying odds on the perp walk.

  2. rktbrkr says:

    How could Donovan say foreclosure problems weren’t systemic and then admit to Jim Lehrer that they didn’t know the extent of the problems yet? Not very truthy.

  3. Soylent Green Is People says:

    This was an interesting read:

  4. I really have a hard time seeing how the mortgage issue will be a big deal in non-judicial foreclosure states.

    In judicial foreclosure states the homeowner has to actively defend themselves unless the courts start becoming activist.

    Both require en-masse participatation by the homeowners in bringing or responding to a lawsuit AND for the servicers processes to be so messed up they can’t ever produce the note.

    I can see it happening in the margins, but not en-masse. And thus it will be a relative non-event as far as keeping people who aren’t paying their mortgages in their homes. It will be an event played out over a very long time between bondholders, servicers and originators and it will cost billions over many years. But in the end it’s sort of a “meh” event in my view. The processes will be fixed and some additional losses not currently reserved for will be taken, spread out over time.

    I do see a change watching RE listings in my local area, in the last few days I can tell a lot of short sales that had been stalled have been noted that they are getting responses from the bank. So at least over the short term the banks are shifting resources into that department.

  5. Roger Bigod says:

    Why should I waste my beautiful mind on something like this? It will all be taken care of after the election in the Homeland Property Title Rectification and Forward Looking Respect for Law Act of 2010.

  6. tyaresun says:

    Consumer complaints about Provident and Associates:

    These guys are not much better than the others in the limelight.

  7. mavenwatch says:

    “An attorney from Portland [Maine] is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.”

    watch video to right from link above

    “DENMARK, Maine (NEWS CENTER) — An attorney from Portland is getting national attention after uncovering the faulty methods banks were using to review foreclosure documents.

    Thomas Cox volunteers at Pine Tree Legal, giving free legal advice to people facing foreclosure. While reviewing Nicole Bradbury of Denmark’s foreclosure documents, he realized they were signed by someone with the title “limited signing officer,” meaning the person’s only job was to sign the papers. Cox arranged a deposition with the signer, and he admitted to signing hundreds of foreclosure documents without ever reading them. Now the nation’s attorneys general are investigating. Banks have responded, saying that the problems are technical, and the facts in all of these cases are true. Cox says that answer is unacceptable.

    “The message that the industry’s putting out that these are just technical mistakes are a real red herring to the fact that they grossly abused the American judicial system by presenting many, many thousands of false affidavits to courts all over the country that judges believed to be true and entered judgements, taking away homes based upon them” Cox told NEWS CENTER.

    Cox says Nicole Bradbury is still living in her house. GMAC filed a motion to dismiss her foreclosure to fix the problems and start the process over again. An attorney representing GMAC and Fannie Mae, the mortgage company that owns Bradbury’s loan, declined to comment because the foreclosure case is still pending.”

  8. mote says:

    From “A question of property rights,” excerpted quotefest follows.

    Objects in the rear view mirror:

    Banks “have essentially sidestepped 400 years of property law in the United States,” said Rebel Cole, a professor of finance and real estate at DePaul University. “There are so many questionable aspects to this thing it’s scary.”

    Nothing but Blue Skies:

    Joseph Mason, a finance professor at Louisiana State University, said concerns about proper foreclosure documentation were overblown. At the end of the day, he said, even if the banks botched the paperwork, homeowners who didn’t make their mortgage payments still needed to be held accountable.

    Houston, we have a problem:

    Some analysts are not sure that banks can proceed so freely. Katherine Porter, a visiting law professor at Harvard University and an expert on consumer credit law, said that lenders were wrong to minimize problems with the legal documentation.

    Tax man’s whatif:

    Robert Willens, a tax expert, said documentation issues had created potentially severe tax problems for investors in mortgage securities and “there is enough of a question here that the courts might well have to resolve the issue.”

    Now investors who bought mortgage trusts – investment vehicles composed of mortgages – are wondering if the loans inside them were recorded properly. If not, the tax advantages of the trusts could be wiped out, leaving mortgage securities investors with significant tax bills.

    Guantanamo Bay revisited:

    Lenders and their representatives have sought to minimize the significance of robo-signing and, while acknowledging legal lapses in how they documented loans, have argued that foreclosures should proceed anyway. After all, the lenders say, the homeowners owe the money.

    But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.

    “We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.”

  9. Maseratij says:

    ” Regulator Says Fannie, Freddie Cost at Mercy of Economy.. To be filed under Duh! ”

    I keep coming back to this droll of a subject for your wit BR. Your youthful character is evident in your exuberance and cultural relevance. If your a Dad, I bet your a good one and know your children well, if not you will be.

  10. Swarm The Banks says:

    Forcing people to fall behind on their mortgages before being eligible for HAMP, even though this triggers parallel foreclosure and hastens the loss of the property is beyond a smoking gun, it’s a stinking gun because it’s been going on for a year and a half now.

  11. farmera1 says:

    And from the Baseline Scenario we have this:

    “The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”

    “Let’s hope there’s a better explanation than “we have created [our biggest banks], and we’re sort of past that point, and I think that in some sense, the genie’s out of the bottle.”

  12. ACS says:

    Every time a bank is shut down, a law school should be shut as well.

  13. Vilgrad says:

    Gonzalo Lira, who’s post was stolen by David Kotok as his own. Real lowlife move.

  14. philipat says:

    Barry, what became of Parts 3-5 in the series “Forclosure Fraud for Dummies”?

  15. dss says:


    Great observation.

  16. Ltdata says:

    File this under Law of unintended results: Quite frankly, even if a megabank, etc. does not know their exposure – their auditor WILL find some way to sample the mess, quantify it for the financials, and bill, bill, bill. If they thought shoddy was cheap, wait til they get the audit bill.

  17. Roger Bigod says:

    Mark E Hoffer

    “no doubt, in an action deemed ‘Passed’, by voice vote, during the ‘lame duck’ …”

    Oh, yes. Afterward, the Preznit will get that serious, stern look and point the finger at the GOP for killing the option of public, non-electronic property records. Especially since he fought for the option it so fiercely. At least there will be a special approproation to help the county clerk’s offices pay for shredding and burning all the backward-looking paper records.

  18. “But such reasoning is the “Guantanamo Bay argument” said Adam Levitin, an associate professor of law at Georgetown University.

    “We know these guys are terrorists, we picked them on the battlefield, and we don’t need to give them any legal rights,” Levitin said. “Yet the courts have said they get some rights. Surely American families are entitled to that same level of process, that they get a fair trial, even if they are deadbeats.” ”

    ~The good associate professor of law is surely aware that liberty interests enjoy far greater protections under the constititution than do property interests. Due process for the denial of property interests (think Kelo, e.g.) is far less stringent than due process for the denial of liberty interests (think Miranda and its progeny). I doubt anyone will seriously attempt to formulate an exclusionary rule for mortgage foreclosures, where the failure to submit a properly attested affidavit means the mortgage company is barred from admitting into evidence the promissory note. But that’s the reasonable view. And these are markedly unreasonable times. So, who knows?

  19. franklin411 says:

    This is what happens to bad little Democrats who actually propose making Wall Street pay for the mess it created:

    Wealthy financier is mysterious funder of ads attacking DeFazio

    Robert Mercer, the co-CEO of one of the world’s largest hedge funds, is the mysterious donor who has been paying for $300,000 of attack ads aimed at Rep. Peter DeFazio, D-Ore.

  20. victor says:

    To Effective Demand,

    Not a big deal? it is already a big deal and I suspect (because NOBODY knows for sure) it may get a great deal bigger. Remember when Ben Stein told us on national TV that the sub-prime mortgae “event” would blow over?

  21. S Brennan says:

    Off topic, but food for thought…read it through, the punches get thrown at the end.

  22. einniv says:

    I’ve been reading a lot of the blogging on the foreclosure mess. Every time I think I understand it fully something else comes up that makes me wonder if I do. Some of the reports make it sound like the whole idea of of MBS tranches is inherently illegal. Let me explain.

    Take this excerpt from

    “The top tranche is triple A because it includes the mortgages that did NOT default; but no one could know which those were until the defaults occurred, when the defaulting mortgages got assigned to the lower tranches and foreclosure went forward. That could explain why the mortgages could not be assigned to the proper group of investors immediately: the homes only fell into their designated tranches when they went into default.”

    So this sound to me like there would be no legal way to do tranches. Or at least no way to do it without breaking the chain of title or violating tax laws. The note must be in legal limbo until you know what tranche it goes in. And assigning it to the trust after the default will always be against REMIC tax rules.

    Am I understanding this POV correctly? Was there some legal way these tranches could have been done?

  23. VennData says:

    I wonder what the GOP media machine, Fox news and the World-Wide Chamber of Commerce would say if instead of a moratorium on foreclosures …

    …say they had a moratorium on… uh… I dunno… say on oil drilling or something. I wonder if they would be so blasé about that? It would be interesting to know. Anyone have any idea?

  24. I thought all hedge fund managers were dem’s?!? didn’t they line Obama’s pockets in 2008? What, they’re just whores like the rest of ‘em, licking their finger and pointing it in the air to see which way the political wind is blowing?

  25. GeorgeBurnsWasRight says:

    There was a report on NPR today of yet another part of the foreclosure mess. In Florida they have something called the “Rocket Docket”, courts that handle 200 foreclosures a day. The judges admit they don’t have time to either look at the documents or listen to arguments. So you can imagine the level of “justice” being dispensed.

  26. call me ahab says:


    and we care why? the people that aren’t paying should stay? what’s your point exactly (as if anyone cares)


    one trick pony with nothing to say (over and over and over again)-

    push on to political blogs

  27. Petey Wheatstraw says:

    Strange that those of the opinion that this situation will have a limited and manageable but perhaps costly resolution, seem to completely discount the criminality of what has taken place. Is the idea that this industry is immune from prosecution a given? If it is, we’re more screwed than I thought, and y’all know how screwed I think we are.

  28. jimh says:

    i was just reading farmera1′s reference to the baseline scenario’s treatment (great blog) of the this subject…

    “The scary possibility is that what they’re really afraid of is systemic risk: the possibility that, as Konczal and others have pointed out, the mortgage securitization trusts (the entities that bought mortgages and issued mortgage-backed securities) could sue the investment banks, forcing them to buy back the underlying mortgages at the original cost. Since those mortgages are now worth far less than before, this would impose huge losses on the Big Six banks.”

    While I would join many other investors in the n/a mbs mkt in celebration if a significant amount of loans out of these deals were put back to the issuers, the reality is that the big originators/issuers/banks have the upper hand here. They will drag this fight out on a loan by loan basis. I don’t care how big you are (ny fed, pimco, blackrock, etc.), the diligence expense is prohibitive. You have to understand how time intensive a project like this would be.

    BofA seems like it is in serious trouble, and they will probably settle for some huge amount of money, but the idea of fighting them loan by loan is not remotely feasible. What gets missed in this discussion is that money managers, hedge funds, insurance companies, etc should have done more diligence at before purchasing said security. While the big IBs certainly ran with market, buyers had access to the loan tapes. They had the prospectus. And they got greedy and it all fell apart. It’s a disgrace that that the big $mm are not on media trial right next to the head of GS. The “buy” side is just as much to blame as the big IBs. But that wont happen. Such is life.

  29. Been going around looking at the RE investor boards, none of the trustee sale buyers are having trouble getting title insurance…


    BR: I can’t speak to those particularly anecdotes, but when Title Ins companies announced they were halting writing insurance on foreclosure and REO transactions, and now are demanding the banks warranty the paper work.

  30. VennData says:

    Why don’t people just own their houses / apply for mortgages in off shore tax havens so no one can ever figure out how to get at them to foreclose on them?

    Google 2.4% Rate Shows How $60 Billion Lost to Tax Loopholes

    …like all those US companies that complain that they want a tax break on the money they repatriate to the US, when they never paid taxes anywhere on that money in the first place?

    Oh, sorry, we just need to take the World-Wide Chamber of Commerce ‘s word that they MUST have a tax break to repatriate those cash profits from Bermuda and Cayman Islands… oh and they’ll spend them over here.

    I mean, if they repatriate them WITHOUT another tax break, and spend them, wouldn’t they get a tax deduction equal to the amount they spent? Sorry, didn’t mean to get technical there.

    Thanks for helping out with the defense of the free world you large multi-nationals.

  31. [...] – Mortgage madness linkfest. [...]

  32. JerseyCynic says:

    let’s start at the very beginning

    In ’03, when bush signed the AMERICAN DREAM DOWN PAYMENT ACT

    Now, are there any lawmakers out there that can introduce an “OPT OUT (of the American Dream) ACT”?

  33. hammerandtong2001 says:

    Re: “White House Comments…” link above.

    I hear a Hank Paulson echo — from the summer of 2007 when those Bear funds blew up and the credit cascade began.

    “The subprime mortgage problem is contained and represents only a small fraction of mortgages issued, blah, blah…” Well, we all know how that turned out.

    I’m worried about putbacks, and I’d suspect that this can quickly evolve into a legal game of musical chairs with big holders putting back those bonds on issuers in a race to get in line for claim. With issuers needing to do massive set-asides to cover potential losses, amid collapsing balance sheets.

    I don’t like this at all. In fact, I could easily see this being credit crunch round 2.


  34. rktbrkr says:

    Does anybody know if MERS is regulated? Do they file a tax return? Are they a non-profit? I’ve read that they don’t have any employees.

    A lot has been made about the convenience and avoidance of filing fees but have they created an unregulated shadow property record system that at the end will provide clouded titles not only for foreclosures but all real property transactions they have processed (for 2/3 of homes during the boom years)?

    Also wondering if large commercial properties go thru MERS or if they insist on traditional real property documentation.


  35. GeorgeBurnsWasRight says:

    Call me Ahab asks, perhaps sarcastically, why we should care if the courts actually read documents and listen to attorney arguments.

    In the NPR story, a homeowner supposedly got a mortgage modification from one department at their bank, along with all the verifying paperwork, and was current. But another department went ahead with the foreclosure, and without ever notifying the homeowner. If this is true, this is the kind of error that a court hearing should rectify.

  36. rktbrkr says:

    So much is being hidden by fuzzy terminology like systemic risk and moral hazard, what exactly do they mean?

    Shaun Donovan claimed the mortgage situation isn’t “systemic” and then later admits he doesn’t know how widespread it is. What exactly is “systemic” in this situation. If MERS provides insufficient documentation for clear title for home buyers then that is exactly a systemic failure. If the “rocket docket” and foreclosure mills create a system rife with fraudulent documentation that is a systemic failure in those states.

    Donovan was busy pumping sunshine up our asses with his systemic comments.

  37. BR, I think the point being at the frontlines at least, transactions are still getting done both on the investor side at trustee sale or with agents overseeing REO properties for the banks. I’ve heard of minor delays in some transactions and of course the moratorium has meant fewer properties have been for sale at the courthouse steps.. but the people doing the transactions are seeing it clear and everything move forward.

  38. AHodge says:

    here– tardily– is excellent quote from apparent lawyer in todays WSJ law blog
    “We are a country of laws. You say the borrower is in default based on his/her payment history – the law says prove the default with a full accounting of ALL payments including third party payments from insurance, and credit default swaps, over collateralization of the pools, etc. It’s all in the Pooling and Service Agreements (PSA) for every single MBS Trust.

    Read paragraph 9 of any note since 2003 – the borrower has an obligation to pay AND SO DOES “ANY OTHER PERSON THAT IS A CO-OBLIGOR, SURETY OR ENDORSER” A corporation is a person under the law. Make the banks follow the contract and give a FULL accounting, not just the borrowers’ payment history if they want to prove their case. then we will see WHETHER THERE EVER WAS A DEFAULT and who is trying to get the free house. Stick to the terms of the contract and make them prove it up under the law and the rules of evidence and the UCC.

    emphasis in caps supplied by me. he has apparently actually read and worked w the secret PSA’s.
    Love the WSJ law blog, at least one laugh per day and good info

  39. AHodge says:

    also helpful
    a trust can not “own” anything and particularly the foreclosed house

    I’m not a lawyer
    but i play one in the virtual world?

  40. JerseyCynic says:


    I’m just trying to sort through MERS today

    mike (please take it down a notch) rivero, over at whatreallyhappened, has a Banker’s Gone Wild post up with lots of linkage. For what it’s worth…..

    see #’s
    18. ………

    But while the US Government using taxpayer money was buying back the fraudulent uncollateralized mortgage bundles, the holders of the genuine mortgages were still faced with a problem. The trail of documents through MERS was a hopeless rats’ nest! Mortgage Service companies were forced to go into court without all the required documents, and judges, failing to see the actual debt note or title before them,. were starting to throw foreclosure cases out! Representative Marcy Kaput got up in Congress advising homeowners to demand the foreclosers to prove they owned the actual loan!

    So a new creature came into being, the “Foreclosure Document Mill”, small start-up companies which for a fee would “re-create” missing paperwork to allow the foreclosures to pass a judge’s scrutiny. But the foreclosure mills were also faced with the confusion in the MERS system and under pressure to perform, were hiring virtually anybody willing to engage in a little “gray” paperwork, hiring Wall Mart floor walkers, former beauticians, factory workers, and putting them in offices with no formal training to process foreclosure paperwork. According to one whistle blower, workers who produced large amounts of “re-created” documents were rewarded with cars and jewelry! Computerized processing systems cranked out foreclosure lawsuit paperwork by the reams!

    The problem was that nobody was checking to see if the documents were actually correct or accurate, or if the people being foreclosed were actually behind in their payments.Even worse, lawyers were walking into court with foreclosure documents they knew were forged! The rush was on to file as quickly as possible ahead of the expected backlog of cases hitting the courts. In at least two known cases, foreclosure proceedings were started against home owners who did not even have mortgages! Companies that contracted to serve the legal papers on the homeowners never delivered those papers and many people were unaware they had been foreclosed on until the Sheriff showed up to change the locks!

    22. and 23

    The Producers video is pretty good too!

    I like this one better though:

  41. JerseyCynic says:


    So, how do we fix this mess? MERS is a Gordian Knot of trails between lender and borrower and holder of the titles. Sorting through the mess, even if possible, will take years both in the computer files and in the courts.

    …..The Government will not, indeed cannot ever admit error, even though, like the Gulf Oil Disaster and the Bernie Madoff scandal, the government’s job was to prevent this from happening, not bait more victims into the scam with a tax credit.But having swindled the American people out of trillions of dollars to buy back and conceal the fraudulent non-collateralized mortgage securities, the US Government is now clearly an accessory to the crime, if after-the-fact. The original fraud with the mortgage-backed securities was covered up ahead of the 2008 election, and it appears Obama is trying to do the same for the 2010 elections, announcing a Federal criminal investigation which will supposedly look into the bankers’ possible illegal activity, but in reality is intended to block criminal investigations already underway in all 50 states. CNBC reports that Congress may simply retro-actively declare the fraud to be legal, ending all investigations and indemnifying the bankers from criminal prosecutions.

  42. [...] A mortgage madness linkfest.  (Big Picture) [...]

  43. Robert Hahl says:

    Debunking Banks’ “Procedural Problems” Defense on the Foreclosure Crisis

    …An affidavit is a legal document which can substitute for live witness testimony in court. All testimony in court is governed by the rules of evidence or by statute. All testimony requires that the witness swears to tell the truth, is competent and has personal knowledge of the facts they are testifying about. An affidavit is no different, in most if not all jurisdictions; the affiant swears to tell the truth by being placed under oath by the notary, the affiant states in the affidavit that they were sworn, are competent and that they have personal knowledge of the facts in the affidavit. The notary attests to the oath of the affiant and that the affiant is who he claims to be.

    If a witness lies in court or in an affidavit then they could be charged with perjury. Perjury is lying to the court.

    The affidavit issue is being portrayed in the MSM at a paperwork problem. Lying to the court is not a paperwork problem. Attorneys are prohibited from making a material misrepresentation to the court of fact or law. Further, attorneys in most jurisdictions have an affirmative duty to report known perjury by their clients to the court.

    The problem with the affidavits is perjury on behalf of the affiants and possibly the notaries depending on the notaries’ knowledge that the affiants had not reviewed the files, the promissory notes, the mortgages, or the records of default.

    Further, you can reasonably argue that the entities pursuing foreclosure (banks or servicers) have perpetrated a fraud on the court by submitting perjured affidavits. If the attorneys representing the entities have knowledge of the fraud or are preparing questionable documents then they may also be involved and subject to penalties.

    At the heart of any trial or hearing is the determination of the truth of the matter. It is the very purpose of the rules of evidence and what law and fact is presented to the court. If the affiants lied, as it appears, then the truth of whether they owned the note and held the mortgage and the borrower was in default is at issue. Courts, Attorneys General, and bar associations need to serious consider actions that will assure compliance with the rule of law.

    This country cannot stand as a democracy if there is one set of law for the banks, corps, elites and another set of law for the rest of us. Perjury and fraud on the court is very serious matter. It is not a mere paperwork problem…