HR 3808 Interstate Recognition of Notarization Concerns Appear Overblown « naked capitalism

Wednesday, November 17, 2010

HR 3808 Interstate Recognition of Notarization Concerns Appear Overblown

Given the ability of banks to muscle through all sorts of favorable legislation, there was good reason to be concerned about the sudden reappearance of HR 3808, the Interstate Recognition of Notarization Act. While this measure has been long sought by trial lawyers, many observers were understandibly concerned that this measure might serve to be a “get out of liability free” card for robo signing banks, particularly given that there had been no legal analysis of the measure. And this was far from conspiracy thinking; the Ohio secretary of state took a particularly dim view of the sudden effort to pass this measure.

Obama refused to sign the bill in October, but many were concerned it might rear its head again, and indeed, has returned. Here are the procedural details, hat tip 4ClosureFraud:

The House received a message from the Clerk. Pursuant to the permission granted in Clause 2(h) of Rule II of the Rules of the U.S. House of Representatives, the Clerk transmitted H.R. 3808, the “Interstate Recognition of Notarization Act of 2010,” and a Memorandum of Disapproval thereon received from the White House on October 8, 2010, at 12:55 p.m.

Mr. Scott (VA) asked unanimous consent That, when the House adjourns on Monday, November 15, 2010, it adjourn to meet at 12:30 p.m. on Tuesday, November 16, 2010, for Morning-Hour Debate. Agreed to without objection.

Mr. Scott (VA) asked unanimous consent That, when a veto message on H.R. 3808 is laid before the House on the legislative day of today, then after the message is read and the objections of the President are spread at large upon the Journal, further consideration of the veto message and the bill shall be postponed until the legislative day of Wednesday, Nov. 17, 2010; and that on that legislative day, the House shall proceed to the constitutional question of reconsideration and dispose of such question without intervening motion. Agreed to without objection.

The good news is, per a source on the Hill firmly in the anti-bank camp, that this move is strictly procedural, an objection to Obama’s use of the so-called pocket veto rather than an effort to revive the measure. From a Constitutional perspective, a pocket veto is not a legitimate action, but it can’t be overridden by Congress. The House vote is effectively a complaint, tantamount to, “We accept your veto of this bill, but it’s not a pocket veto because those don’t exist.”

FireDogLake provided a similar take as of earlier today; my source did further checking and confirmed that this move is strictly procedural, and not an effort to revive the measure.

It’s nevertheless good to see the quick alerts issued on this front. In the effort to try to rein in stealth efforts to help out the banks, you are bound to get the occasional false positive. But it’s better to err in these cases on the side of excessive vigilance.

37 Comments:

Paul Tioxn says:

November 17, 2010 at 4:54 pm

Yves, good source cultivation. An Edgar like data base for legislation process management would be great. To take power you have know how it is wielded, in our society, not in some idealistic sense. Putting the right people into the offices of power is power. Watching over them, with the political feedback of elections, to see that policies are executed and laws and institutions are preserved and protected is power as well. The Caro bio of LBJ, Master of the Senate may help people here to get a valuable handle on what is going in DC.

karen1p says:

November 17, 2010 at 5:16 pm

Yves,
Actually, the homeowner’s vigilance is actually a good thing for their elected officials to know. It makes them understand just how UN-silent we are going to be from now on. We demand that they protect us!

Protecting their constituents….now that’s a concept.

Walter Wit Man says:

November 17, 2010 at 5:38 pm

I’m still dubious.

Obama didn’t appear to use a valid “pocket veto” and if it’s not a valid pocket veto then this bill is the law of the land once Congress adjourns, right? Isn’t this a way for everyone to pretend they were against the bill but because of a “mistake” the bill becomes a law?

I’m a little unclear on the procedures. Does the next Congress (and more specifically, the Republican House) have to ‘certify’ that the bill became law when Congress adjourns? Is this the job of the Parlimentarian? Or can the banks simply allege in court that this is the law once Congress adjourns?

In any case, I wouldn’t accept these excuses at face value. Why didn’t Obama simply veto the bill? Why create uncertainty by using a “pocket veto” when a regular veto would have worked?

Tao Jonesing says:

November 17, 2010 at 5:58 pm

Obama called it a pocket veto but it was an actual veto. You don’t send a memo to Congress explaining your reasons for a pocket veto, you just let the bill die.

Remember that at the time of the “pocket veto,” there were serious questions about whether Obama could issue a pocket veto when Congress was not actually formally adjourned (the clerk of the Senate, I think, was officially in town and available to accept papers from the executive). That’s why everybody breathed a sigh of relief when they saw the formal writing from Obama that acted as a formal veto.

This just in: HR3808 officially dead.

In a largely token vote, the House on Wednesday declined to override President Barack Obama’s veto of legislation that could have facilitated the processing of home foreclosure documents.

Read more:

http://www.kansascity.com/2010/11/17/2445657/house-sustains-obama-veto-on-mortgage.html#ixzz15aEA1U1X
- Walter Wit Man says:
  
  November 17, 2010 at 6:21 pm
  
  But he specifically cited the pocket veto case in his memo, implying that it was a pocket veto and not a regular veto. http://www.whitehouse.gov/the-press-office/2010/10/08/presidential-memorandum-hr-3808
  
  I don’t think this is how the president normally vetoes a bill, is it? Via memorandum like this? Again, I’m no expert but why does he need to cite the pocket veto case if he’s using a regular veto?
  
  His assertion in the memo that there is “no doubt” the bill is being vetoed seems like typical Obama double talk.
  - Paul Tioxn says:
    
    November 18, 2010 at 12:35 am
    
    You know, for a bunch of finance types who talk about MMT and reserve currency and so on, like its corn flakes for breakfast, your area of specialization is not to be outdone by other specialists in our division of labor. The rule of law has a lot of rules.
    
    Feast yr eyes:
    
    http://www.rules.house.gov/archives/RS21750.pdf
- karen1p says:
  
  November 17, 2010 at 7:22 pm
  
  I want to know who the jackasses were (185 of them) who voted to override this veto. Where do we find the link to that info???
  - kravitz says:
    
    November 17, 2010 at 9:36 pm
    
    Read on, McDuff…
    
    Victory on H.R. 3808 Vote – So, Who is Who and What is What
    
    http://4closurefraud.org/2010/11/17/victory-on-h-r-3808-vote-so-who-is-who-and-what-is-what/
  - john bougearel says:
    
    November 18, 2010 at 1:00 am
    
    Karen,
    
    The answer to your question is quiet clearly divided along party lines. Most all of the yea votes were republican and the nay votes Democratic.
    
    Now that the Repubs are back, no reason another “like” bill to JR 3808 can’t be introduced in 2011.
    
    There is no room for slack in the excessive vigilance amongst those capable of channel checking these types of bills that are being introduced and reintroduced.
William A. Roper, Jr. says:

November 17, 2010 at 7:38 pm

Walter:

When President Obama first announced his intention to veto H.R. 3808, it was announced that he would “pocket veto” this bill. Then, it was discovered that many banking lobbyests were toasting and celebrating their VICTORY, because a pocket veto was actually IMPOSSIBLE given the fact that the Senate REMAINED IN SESSION. It was discovered that the PLAN had been for Obama to “pretend” to “pocket veto” the bill, while actually “accidentally” letting it become law. In this way, the President could pretend to show solidarity with the American people, while actually delivering the result desired by the big banks!

When these whisperings were uncovered and the vigilent discovered that the Senate actually HAD remained in session — a so called “pro forma” session expressly agreed to by the Republican minority leader — foreclosure defense activists ramped up their networks which had just been flush with the seeming success of getting President Obama to “pocket veto” the bill! Those of President Obama’s domestic advisors who had promised to deliver this legislation on the bank’s behalf continued to tell teh President that a pocket veto was OK. By contrast, one ardent consumer advocate working in the White House pointed out that many noted Constitutional lawyers had already weighed in saying that a “pocket veto” was IMPOSSIBLE while the Senate remained in session.

It is noteworthy that one of the two key PURPOSES of the Senate “pro forma sessions” are to PREVENT RECESS APPOINTMENT and to PREENT POCKET VETOS. SO it wasn’t readily apparent HOW a pocket veto could have ever been possible in respect of the pro forma session expressly designed to AVOID pocket vetos.

When actually confronted with the fact that the ruse had been exposed and that the deceit wasn’t actually going to be effective, the President UPGRADED his “pocket veto” by writing an actual written veto message, still calling it a pocket veto and claiming to have intended to have issued such a written statement all along.

So the so-called “pocket veto” was actually a FULL VETO, but President Obama made no formal press announcement and continued to describe it as a pocket veto to cover up the prior scheme.

Hope this helps!
- Skepticus Maximus says:
  
  November 17, 2010 at 7:56 pm
  
  Oh, how I hope you are wrong about this, while worrying that you may be right!
  
  SM
  - William A. Roper, Jr. says:
    
    November 18, 2010 at 3:43 am
    
    There were some reports circulating in cyberspace AFTER the original veto message that a Congressional staffer had a mobile phone video of some staffers and banking lobbyests in a drunken celebration over their cleverness at the “accidental enactment”.
    
    Fox News had already reported that afternoon that supporters of the Dodd-Frank Digital Robo-Signing Act were claiming that a pocket veto was Constitutionally ineffective. Then everyone clammed up about this except for the inebriated partiers.
    
    The mobile phone video never surfaced and rumor has it that the staffer was threatened with firing (others seem to have KNOWN who made the video).
    
    The folks in the White House who do the bidding of the big banks were pretty unhappy when President OBAMA decided to upgrade to a full veto. There is a LOT of e-mail traffic memorializing what is related above, but the news media didn’t want to print the story.
  - William A. Roper, Jr. says:
    
    November 18, 2010 at 4:01 am
    
    Here is the quote from the Fox News article which appeared immediately following the announcement of the “pocket veto”:
    
    “A “pocket veto” is a tactic that allows the president to not sign legislation while Congress is out of session, forcing it to go back to Capitol Hill. Supporters of the bill say the president can’teven use the measure because technically the Senate is not adjourned.”
    
    See:
    
    http://www.foxnews.com/politics/2010/10/07/obama-veto-foreclosure-documents/
    
    When I READ this, my reaction was “Uh oh” and I went and read the U.S. Constitution to verify the language. Then I checked the Senate Calendar and it showed that the Senate was STILL IN SESSION.
    
    I then e-mailed several attorneys with whom I am acquainted and asked their opinion. I later learned that others had already noticed the same defects and were reaching the same conclusion.
    
    Promises that somebody knew somebody who had seen the video circulated, but the video of drunken lobbyests bragging about accidental enactment never actually surfaced. There did seem to be a LOT of very specific information indicating that the choice of a “pocket veto” wasn’t an accident and that this had been suggested to President OBAMA by a key advisor who is captive to the banking industry. The pretext was that a “pocket veto” would avoid embarrassing Sen. Patrick LEAHY, who had taken responsibility for the Digital Robo-Signing Act to shield Sen. DODD.
- Walter Wit Man says:
  
  November 17, 2010 at 8:59 pm
  
  Thanks,
  
  That’s pretty much what I’m worried happened but I guess I’m taking it one step further–did the president really pull off a full veto? In his memorandum he still makes it sound like a pocket veto.
  
  Plus, isn’t he a day late and a dollar short? By my count he sent his “veto” message 11 days after the Senate passed the bill. http://www.govtrack.us/congress/bill.xpd?bill=h111-3808
  
  Doesn’t he only have 10 days or am I counting wrong?
  - William A. Roper, Jr. says:
    
    November 18, 2010 at 3:49 am
    
    I made the same calculation mistake when we were first confronted with this treachery! But the provision is in Article I, Section 7 of the U.S. Constitution and the key sentence reads:
    
    “If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.”
    
    See: http://topics.law.cornell.edu/constitution/articlei#section7
    
    You are erroneously counting Sunday, as I initially did.
    
    OBAMA’s crooked advisors were counting on the fact that he slept through his Constitutional Law classes. In the end, when confronted with the facts, the President actually did the RIGHT THING.
    
    There is some dispute as to whether the President was actually in on the treachery or whether this was all orchestrated by the dishonest people who work for him. We should probably give him the benefit of the doubt.
    - Walter Wit Man says:
      
      November 18, 2010 at 9:20 am
      
      Reading further I see that the bill was presented to Obama on September 30th, so his “veto” memorandum would have come within the 10 day limit, regardless of counting Sundays.
  - William A. Roper, Jr. says:
    
    November 18, 2010 at 4:46 am
    
    I had also forgotten about this article by Professor Robert SPITZER:
    
    http://www.huffingtonpost.com/robert-j-spitzer/pres-obama-veto-yes-pocke_b_754660.html
    
    SPITZER is Professor at SUNY and the author of a book about Presidential Vetos. He wasn’t confused about the deceit at all!
    
    When numerous well respected academic Constitutional experts and leading consumer advocates began to come forward to EXPOSE the hypocracy, it became impossible for the White House to carry forward its deceitful plan for an “accidental enactment”.
    
    “The President was resolved AGAINST this bill before he accidentally was FOR IT causing it to be inadvertently enacted into law” was an increasingly problematic sound bite for the President, as ForeclosureGate began to boil and support for corrupt Democrats collapsed!
- Dave of Maryland says:
  
  November 17, 2010 at 9:08 pm
  
  Obama’s even more of a sleaze than I dared imagine.
- Doug Terpstra says:
  
  November 17, 2010 at 9:35 pm
  
  Thanks, William. I’m with Dave of MD again. If your scenario is accurate, and the behavioral pattern to date supports it, Obama is a Machiavellian schemer to the core. His audacity of change brings another level of dank slime and gagging stink to imperial politics.
- john bougearel says:
  
  November 18, 2010 at 1:06 am
  
  Thanks Bill,
  
  How duplicitous an example of how our highest elected officials behave once we have elected them to scheme against and deceive Americans.
  - William A. Roper, Jr. says:
    
    November 18, 2010 at 4:55 am
    
    Regrettably, the GOP House leadership allowed Rep. Robert ADERHOLT to maneuver the caucus into SUPPORTING an override of this outrageous legislation. So after all of the White House deceit and a PERFECT issue for Republicans to show the utter moral, ethical and policy bankrutpcy of the Democratic Party, on the override vote we saw Rep. ADERHOLT stand in the House and issue an impassioned plea for Congress to OVERRIDE this bill.
    
    By contrast, the House Democratic leadership had awoken and smelled the coffee. House Judiciary Committee Chairman John CONYERS (D-MI) spoke against the override.
    
    The override was defeated mostly along party lines with almost ALL Republicans voting with Rep. ADERHOLT. It is readily apparent that ADERHOLT is either a complete IDIOT or a patsy for the banking industry. After speaking with members of his staff today, it seems most likely that he is the former.
    
    I will begin looking for a REAL conservative to oppose him in the GOP primary in 2014. He certainly doesn’t deserve to serve in Congress.
    
    This vote also called into question the JUDGMENT of the Republican House leadership. On an issue which could be effectively used to consolidate power, they let the impulse to OPPOSE President OBAMA overwhelm COMMON SENSE. This was a measure that OBAMA’s people WANTED and the VETO was FORCED ON HIM!
- attempter says:
  
  November 18, 2010 at 4:06 am
  
  It sure sounds like classic Obama:
  
  1. The malevolent intent.
  
  2. The cowardly execution.
  
  3. The craven, reticent, weaselly way he expresses everything, no matter what he’s doing.
  
  4. In spite of all the fatuous hype about his alleged intelligence and how he’s a “constitutional scholar”, his basic ignorance and intellectual incompetence.
William A. Roper, Jr. says:

November 18, 2010 at 4:35 am

Here is an example of two of the blog posts that went up seeking to block the double-cross and to secure a REAL veto:

http://4closurefraud.org/2010/10/08/action-alert-is-pres-obamas-pocket-veto-on-h-r-3808-possibly-ineffective/

http://ssgoldstar.websitetoolbox.com/post?id=4920486

Here is a contemporaneous Huffington Post news article which actually picked up the UPGRADE to the full veto:

http://www.huffingtonpost.com/2010/10/09/obama-clarifies-pocket-ve_n_756873.html

For some clues as to the identity of the person who ultimately prevailed upon the President to sign the FULL VETO despite his advisors contrary plan, see also:

http://news.firedoglake.com/2010/10/08/veto-only-removes-one-hurdle-to-accountability-for-foreclosure-fraud/

See also:

http://ssgoldstar.websitetoolbox.com/post?id=4921460

leapfrog says:

November 17, 2010 at 6:21 pm

How would I find out the names of the 185 that voted against this?

Yoko Thomasloc says:

November 17, 2010 at 8:08 pm

http://clerk.house.gov/evs/2010/roll573.xml

ScottS says:

November 17, 2010 at 8:10 pm

Not sure how to submit items other than comments, so apologies for the off-topic post.

Sheila Bair is against fair value accounting:
“Another ongoing regulatory process is FASB’s proposal to substantially revise the accounting standards for financial instruments. Under the proposed rule, banks would be required to measure substantially all of their financial instruments at fair value on the balance sheet.

While we understand that the objective of the rule is to make financial statements more transparent, we believe that its effect could be to undermine financial stability by making bank performance more procyclical. In short, we do not believe that a bank – whose business strategy is to hold loans and deposit liabilities for the long term – should be required to measure them at fair value on the balance sheet. Why? Because fair value does not necessarily reflect the manner in which the cash flows associated with these instruments will be realized or expended. ”

http://www.fdic.gov/news/news/speeches/chairman/spnov1710.html

Please show me a bank that holds loans and deposits (credit unions don’t count).

Paul Repstock says:

November 17, 2010 at 9:06 pm

Scott; that is extremely pertinent to the topic. The reason the banks are not required to post “Fair Value” of assets in their balance sheets is that then they would be bankrupt for all to see. Given the government’s support of these institutions, that wouldn’t look too good.
- ScottS says:
  
  November 18, 2010 at 12:38 pm
  
  Thanks, Paul.
  
  Right. Of course the banks are completely bankrupt. I think it’s important to point out the flawed logic so it doesn’t make it on the books and enable the bad behavior.

jd says:

November 17, 2010 at 8:31 pm

This is off subject, however I have noticed anti labor and anti health care ads on the is site… Just wondering whats going on. Anyone car to explain. ( i know its a profits center)

jd says:

November 17, 2010 at 8:32 pm

This is off subject, however I have noticed anti labor and anti health care ads on the is site… Just wondering whats going on. Anyone care to explain. ( i know its a profits center)

Paul Repstock says:

November 17, 2010 at 9:01 pm

Yves; Do not be naive! Nor be lulled by apparent justifications and analysis of legislation which Suggests a benign impact. Specially when such legislation receives near unanamous support from separate legislative bodies which normally couldn’t agree on the design of a square knot! The apparent escape clause the President seems to have tried to engineer for himself only confirms the unanimity.

There is a big rotten fish here somewhere!

Dave of Maryland says:

November 17, 2010 at 9:22 pm

As in, how could someone we thought we knew turn out to be such a complete phony? I thought the worst thing about Obama was that he was a well-meaning poseur, lacking any real experience.

I’m not a birther, but I would bet a large amount of borrowed money that the man who calls himself Obama was born in Chicago, got his present name while a member of the Nation of Islam (a Chicago outfit), spent time in jail in the late ’70′s & then reinvented himself, from the ground up. Anybody out Chicago way want to do the legwork, find the incriminating mug shot, the real name that goes with it, and prove me right?

Paul Repstock says:

November 17, 2010 at 9:11 pm

I just had a “survey/questionare” pop up purportedly from Naked Capitalism..I don’t know if this was indeed from Yves. If it was I question whether it s appropriate to ask questions about income and trading/investment habits. Normally I would have happily responded to a survey from Yves…Not this one!!

john bougearel says:

November 18, 2010 at 1:18 am

Paul,

I thought it peculiar too. Questions about how much trading we do each month and what products we trade seemed particularly irrelevant for this blog as well as an invasion of privacy in spite of their claims to the contrary.

I answered the questionaire because I was led to believe it was a request from Yves to help her understand the demographic composition of her readership. That was the way it was request was “couched,” but the questions asked were imo well beyond the scope of simply understanding demographics, and were well beyond what would be helpful to Yves and well beyond what Yves herself might ask…..

kravitz says:

November 17, 2010 at 9:47 pm

HousingWire claims MERS is kinda tweaking its involvement in this mess…

MERS to testify it forecloses only by mortgage servicer request
http://www.housingwire.com/2010/11/17/mers-to-testify-it-forecloses-only-by-mortgage-servicer-request

“In written testimony for the House Financial Services Committee, R.K. Arnold, CEO of MERS Corp, will state that the electronic mortgage registry system only begins a foreclosure when instructed by the mortgage servicer and receives no financial compensation when it does so.”

THAT HOUSE MEETING…

Robo-Signing, Chain of Title, Loss Mitigation and Other Issues in Mortgage Servicing
November 18, 2010, 10AM
Ms. Phyllis Caldwell, Chief, Homeownership Preservation Office, U.S. Department of the Treasury
• The Honorable Elizabeth A. Duke, Governor, Board of Governors of the Federal Reserve System
• The Honorable David Stevens, Assistant Secretary for Housing and Federal Housing Administration Commissioner, U.S. Department of Housing and Urban Development
• Mr. John Walsh, Acting Comptroller of the Currency, Office of the Comptroller of the Currency
• Mr. Edward DeMarco, Acting Director, Federal Housing Finance Agency
Panel Two:
• Ms. Rebecca Mairone, Default Servicing Executive, Bank of America
• Mr. Thomas Marano, CEO of Mortgage Operations, Ally Financial Inc.
• Ms. Stephanie Mudick, Executive Vice President, Office of Consumer Practices, JP Morgan Chase
• Mr. Alan Jones, Manager of Operations, Wells Fargo Home Mortgage Servicing
• Mr. Harold Lewis, Managing Director, Citi Mortgage
• Mr. RK Arnold, President and CEO, Mortgage Electronic Registration Systems, Inc. (MERS)
Panel Three:
• Mr. Adam Levitin, Associate Professor of Law, Georgetown University Law
• Center
• Mr. Anthony B. Sanders, Professor of Finance, Distinguished Professor of Real Estate Finance, School of Management, George Mason University
• Ms. Julia Gordon, Senior Policy Counsel, Center for Responsible Lending
• Ms. Linda Fisher, Professor of Law, Seton Hall School of Law
• Ms. Anne Anastasi, President, American Land Title Association

chris says:

November 18, 2010 at 8:36 am

Anyone who thinks hr 3808 concerns are overblown is either not paying attention or lying.

Fucked in Maryland says:

November 18, 2010 at 10:56 am

Well, take a look at Maryland. I’m not a lawyer but stuff like this cannot be helpful to borrowers:

House Bill 633 / Senate Bill 562 (Real Property –Mortgages and Deeds of Trust – Authority to Exercise a Power of Sale)

This bill establishes that if a mortgage or deed of trust allows, a trustee or individual authorized to exercise a power of sale it may be appointed or substituted. It also explains that if a deed of trust does not name a trustee, it may still be used to foreclosure on property so long as a trustee has been appointed. This law is designed to end certain local courts’ practice of treating deeds of trust that omit the name of the trustee, or that have an entity, rather than a natural person, as being void. This bill will take effect June 1, 2010.

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