We’ve described in various posts how evidence is growing that the participants in mortgage securitizations sometime early in this century appear to have ignored the requirements of a variety of laws and their own contracts. We believe the most serious and difficult to remedy problem results when the parties involved in the creation of a mortgage securitization failed to take the steps necessary to convey the loans to the legal entity, a trust, which was set up to hold them. As we wrote:
…. there is substantial evidence that in many cases, the notes were not conveyed to the trust as stipulated. As we have discussed, the pooling and servicing agreement, which governs who does what when in a mortgage securitization, requires the note (the borrower IOU) to be endorsed (just like a check, signed by one party over to the next), showing the full chain of title. The minimum conveyance chain in recent vintage transactions is A (originator) => B (sponsor) => C (depositor) => D (trust).
The proper conveyance of the note is crucial, since the mortgage, which is the lien, is a mere accessory to the note and can be enforced only by the proper note holder (the legalese is “real party of interest”). The investors in the mortgage securitization relied upon certifications by the trustee for the trust at and post closing that the trust did indeed have the assets that the investors were told it possessed.
It isn’t simply that the notes had to go through a particular chain of parties to get to the trust. All these steps had to be accomplished by a particular date, which was generally no later than ninety days after the trust closed. And all the assets conveyed to the trust had to be “performing”, meaning the borrower was current on his payments.
The evidence that the deal creators violated these stipulation is widespread. Borrowers fighting foreclosures often find the trustee can’t locate the note, which should be impossible if the certifications the trustee made were accurate. Another proof of the failure to adhere to these requirements is that the note are often conveyed to the trust right before the foreclosure. This fix is impermissible for three reasons: it is far too late (years after the cutoff), it is typically directly from the originator to the trust (in violation of the requirement that it go through all the intermediary parties) and it occurs after they have defaulted (contrary to the stipulation that the loan be performing).
Some investigators have been trying to provide more convincing proof of their belief that these abuses were not merely widespread but pervasive. Lynn Syzmoniak of Fraud Digest in her November 13 entry. She looked up all the foreclosure filings in five Florida counties in the month of October 2010. I’ve boldfaced her key findings:
Wells Fargo Bank was the bank that filed the most foreclosure actions in five South Florida counties in October, 2010….. The majority of these cases were filed by Wells Fargo as Trustee for mortgage backed trusts. In every case involving a trust, the original mortgage assignment to the trust was missing. Wells Fargo used Assignments prepared years later – most often within a few months of the foreclosure – and often prepared AFTER the foreclosure was filed. In many cases, JP Morgan Chase transferred non-performing loans originated by Washington Mutual Bank into these trusts. Wells Fargo’s top choice for law firms was The Law Offices of David Stern. To supply “replacement” assignments showing the trusts had acquired the mortgages, Wells Fargo used its subsidiary, America’s Servicing Company in Ft. Mills, SC. The mortgage servicing company most often used by JP Morgan Chase to get its bad loans into trusts was Lender Processing Services in Dakota County, MN.
This practice is more than a little problematic. Transferring non-preformorming loans into a trust or making an out-of-time assignment is a void act under New York trust law (and mortgage securization trusts are organized as New York trusts). Borrower’s counsel is typically not in a position to hire a New York trust expert to argue the point, but this is going to become a serious issue as this area heats up.
Syzmoniak was so kind as to send a couple of examples via e-mail. Needless to say, consumer lawyers have been seeing this sort of thing for years: