naked capitalism

We’ll see next week whether two articles, one in the Wall Street Journal, the other in the New York Times, are a sign of a sea change in the media posture towards the banking industry’s spin efforts, at least as far as the securitization mess is concerned. Let’s face it, the banks have lied so often, so badly, that journalists might finally be prepared to take their remarks with a fistful of salt.

Or these articles may merely be a weekend outburst of “objectivity” which will be beaten back when the financial services industry flack crank up their efforts next week.

The most interesting change in posture was at the Wall Street Journal, which heretofore has been staunchly falling in with the industry party line. Apparently two days of battering of bank stock prices have persuaded the Journal’s writers that the critics’ case might have some validity. The article, “Mortgage Damage Spreads” focuses clearly on the main issue, as its subtitle telegraphs: “Big Bank Stocks Hit Again as Modern Finance Collides With the Legal System.”

Now of course, the Journal is not yet ready to point out what ought to be the logical conclusion: if you compromise legal processes to bail out a miscreant industry, you’ve made a bargain with the Devil. Who will ever trust contracts in the US if a powerful enough party can violate them in a wanton, widespread manner, and not be held to account? And it also tilts the story more in favor of the “deadbeat borrower” meme than is warranted. But given the Journal’s track record on this story, this is a meaningful change in posture:

In essence, fast-paced modern finance is colliding with the much slower machinery of the U.S. legal system. While finance aims for efficiency and maximized profits, the courts demand due process. And that’s becoming a growing issue as lenders come under attack for taking short cuts to oust homeowners who haven’t mailed in a mortgage check for months…..

Banks argue that these problems will be repaired swiftly, and they’ll soon be running the foreclosure machinery at full speed again. But analysts say the problems could expand into a legal crisis if banks can’t prove that they are following standard property-law procedures…

Industry executives note that few, if any, borrowers in the foreclosure process dispute the fact that they’re not paying their mortgages. “We’re not evicting people who deserve to stay in their house,” James Dimon, J.P. Morgan chief executive, told analysts Wednesday.

But the banks’ “reassurance is not reassuring,” says Susan Wachter, a professor of real estate at the University of Pennsylvania’s Wharton School, because it doesn’t deal with how easily they can prove ownership of the underlying mortgages…

There are two different problems. The first resulted after lawyers for troubled borrowers discovered that banks were using “robo-signers,” or back-office employees who approved hundreds of foreclosure documents daily without reviewing them, in states where repossessions must be approved in court.

Banks had no choice but to suspend foreclosures in those states because submitting false witness testimony meant they hadn’t properly proved ownership of the loans in foreclosure.

The second, and perhaps thornier, issue is that banks could have trouble proving they have standing to foreclose as they go back to correct errors…

“This is back-office work. This is not all going to resolve itself immediately, and we’re going to have to be patient,” says Richard Dorfman of the Securities Industry and Financial Markets Association’s securitization group.

Real-estate law requires the physical transfer of paperwork whenever mortgages trade hands, and analysts are raising questions about how often that happened during the housing boom. One concern is that banks may have lost, or didn’t ever have, mortgage certificates. If that happened, banks will have to pause foreclosures for months as they track down certificates and refile paperwork…

Under a far gloomier scenario, the problems created by using robo-signers may be irrelevant if, instead of being lost, mortgage documents weren’t ever properly transferred during each step of the securitization process, says Adam Levitin, a professor of law at Georgetown University. If that happens, “the whole system comes to a halt,” he says. Investors could argue in court that they never owned the mortgages backing their money-losing securities.

Yves here. I believe this is the first time a major media outlet has discussed the issue of the failure to convey notes (the borrower’s IOU) through the conveyance chain (usually four parties in total, although it can be more) as described in the contract governing these deals, the pooling and servicing agreement.

The Times has a completely different sort of account, with a headline that is remarkably blunt: “Avoid Foreclosure Market Until the Dust Settles.” This is the sort of article that gives industry lobbyists nightmares. And with good reason. It contains a horror story that is enough to scare lots of people who are thinking of buying properties out of foreclosure.

Just as the account of a man who had his house foreclosed upon when he has no mortgage persuade a lot of people that there could be real problems with foreclosures, this one illustrates how title has become a mess.

Todd Phelps and Paul Whitehead bought at a foreclosure auction. It turns out the lender who had seized the house was the second mortgage-holder; unbeknownst to them, the property had a large first mortgage outstanding, which meant it was now their obligation.

The buyers had asked their broker to check the records to make sure the title was clear; he appears not to have done so. The auction company would not refund their payment.

But the really nasty bit here is…both loans on the house were from the same bank, Wachovia, now part of Wells Fargo. The Times story does not draw out the implication: first, that the bank foreclosed on a second, rather than a first (is that a weird way to provide a data point to justify not writing all seconds down to zero? And the fact that the buyers were saddled with the first says, in effect, that Wells defrauded the first mortgage holders, presuming, as is likely, that the first mortgage was part of a securitization, as opposed to on Wells’ books. The proceeds of the foreclosure sale should have gone to the first lien holder, not the second.

The hapless buyers did get out whole; the inquiries of the reporter led Wells to reverse the deal. But anyone in that situation who didn’t get a big media outlet shining a bright light on the transaction would have been stuck. Caveat emptor indeed.