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Wednesday, December 8, 2010

foreclosure sales

It is hard to not laugh out loud at the amazing stupidity of those who say "It's Different Here".

Please consider 'Low-doc' home borrowers hit by rising rates

A new report shows a sharp increase in the number of 'low-doc' borrowers struggling to keep up with their mortgage repayments as interest rates rise.

Adjusted for loans that passed from being in arrears to being settled because the property was sold, the percentage of prime loans more than 90 days in arrears increased from 1.33 per cent in the June quarter to 1.37 per cent in the three months to the end of September.

However, Fitch says self-employed borrowers have been hit hard, which has pushed arrears among prime low documentation loans to a record 3.97 per cent - slightly higher than the previous peak of mortgage delinquencies in this segment reached during the peak of the financial crisis in the December quarter of 2008.

The associate director in Fitch's structured finance team James Zanesi says higher mortgage repayments appear to be hitting the self-employed sector much harder than employees.

"The three consecutive cash rate hikes ending in May 2010 modestly affected Australian prime mortgage performance in the third quarter of 2010. Households have demonstrated some stability in spite of the higher mortgage payments," he said.

The very worst performance in the September quarter continued to be amongst the closest equivalent Australia has to subprime loans - 'low-doc, non-conforming' borrowers.

The arrears rate amongst this group was 18.94 per cent, although it makes up a relatively tiny proportion of Australian mortgages.

Progression of Rot

Australia is starting to get hit hard but the important word in this sentence is starting. Rot starts at the edges and the outside periphery (subprime and low-doc), then spreads to the core.

The party is now over as I mentioned in Partied Out: A Recap of Australia's Now Imploding Housing Bubble; Property Bull Offers Jeremy Grantham $100m Housing bet, Party is Not Over

US Graphs, Statistics

Here is a nice set of US stats and graphs from the LPS Mortgage Monitor: October 2010 “Dashboard” that depicts where Australia will eventually head.

Total Delinquencies

Delinquencies remain about 2.7 times historical average, foreclosure inventories are 7.4 times and rising.

October Month-End Data: Conclusions

Foreclosure inventories continue to grow, the rise in delinquencies remains subdued as a result.
Accelerated foreclosure activity has led to a rapid decline in agency delinquencies. Foreclosure inventories have risen dramatically as a result.
Most western states have experienced a decline in the total 30 day and foreclosure inventory over the last six months.
The issue of current loans going delinquent remains, however more and more sixty day defaults are repeats.
Modification dominated seriously delinquent cures have declined over the last several months but still remain elevated.
More six and 12 month delinquent loans are moving to foreclosure, but the extremely delinquent category continues to grow.
Foreclosure sales dropped sharply, down 35 percent nationwide. Impact was across all investor categories.
Origination activity continues to accelerate with the government percentage declining. High quality lending is yielding the best vintage performance in years.

The housing rot in OZ has just started and it's a long way to the core. But it will get there. Australia can look forward to similar stats in years to come.

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com
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If you thought robo signing was bad, you ain’t seen nothin’ yet.

The website 4ClosureFraud presents the gory details of a potential major new front in the foreclosure mess. A Pennsylvania foreclosure mill, Goldbeck McCafferty & McKeever, is accused by Patrick Loughren of allowing non-attorneys to file and prosecute foreclosures. A DailyFinance story gives the overview:

Two Pennsylvania cases, one state and one federal, have exposed new types of document problems in foreclosure cases. One of the cases has potentially transformative consequences for thousands of troubled Pennsylvania homeowners. At the center of each is the same law firm: Goldbeck McCafferty & McKeever (GMM)…

As long as a lawyer supervises foreclosure filings, and at least reads them before they’re submitted to the court, that is acceptable. But Loughren is suing because all three named partners of GMM, Joseph Goldbeck, Gary McCafferty and Michael McKeever, have admitted under oath — during depositions last September and in a separate case in December 2009 — that no attorney ever read the filings. The partners made clear that the practice has gone on for the past several years.

If Loughren prevails, this case will prove to be vastly more significant than robo-signing.

Robo signing, while a fraud on the court, does not necessarily invalidate the underlying legal action. Even a punitive judge is far more likely to take action against the lawyers involved in the robo signing or to reject the new corrected affidavits and require them to restart the foreclosure action afresh than dismiss the case with prejudice. Only if the affidavits or other documents were submitted in error would it inevitably disrupt the foreclosure, and in those cases, it OUGHT to present a problem to the party trying to foreclose.

The practice of law by non-lawyers is a far more serious matter. In Pennsylvania it is a crime. In the case against GMM and its apparently unsupervised paralegals, the plaintiff is seeking disgorgement of falsely billed “attorney’s fees”.

But even more important, the lack of attorney involvement would render the foreclosures void. Pennsylvania courts have found “proceedings commenced by persons unauthorized to practice law are a nullity”. Federal courts interpreting Pennsylvania law have supported this point of view.

If Loughren succeeds, the ramifications would be wideranging. For GMM foreclosures, it would cloud the title of the properties sold. The parties who lost their homes could seek recourse. It is unlikely they could reverse the foreclosures. As Bob Lawless noted at Credit Slips:

The law, however, strongly protects the finality of past foreclosure sales.

At first, these rules might seem unfair. Why should the law protect old court proceedings that have been tainted by mistake or, even worse, fraud? The answer, of course, is for the instrumental reason that a court system could not operate where every old judgment was open to attack. Losing parties will almost always feel the judge make a mistake or the opposing party misled the court through half-truths or outright lies. Before a court enters final judgment, procedural rules and court appeals are designed to maximize the possibility the truth will win out and to minimize the possibility of judicial error. The law imposes a very heavy burden on those seeking to attack final court judgments.

The same ideas strongly protect the finality of a court’s foreclosure judgment. The foreclosure judgment, however, is only an interim step to the ultimate disposition of the property at the foreclosure sale and the transfer of the deed. Now, third party rights will come into play, and the need for finality becomes even stronger. If foreclosure deeds were subject to attack, at worse we might have no bidders at the sale, and at best we would have drastically lower prices. Even if the successful purchaser at the foreclosure sale is the lender, it will be selling later to a third party, and we will have the same need for finality.

For these reasons, and not surprisingly, most every (or maybe even every–I’ll let someone else do the 50-state survey) state provides the strongest possible finality protections for deeds obtained through foreclosure sales.

But that does not mean the borrowers do not have other avenues. The logical targets are the foreclosure mills, and perhaps most important, the servicers and trustees. And per the lawsuit:

Plaintiff avers, on information and belief, that the “clients” of the non-lawyers – consisting of banks, loan servicers, REMIC trusts, and other creditors – are all aware that the non-lawyers are engaged in the unauthorized practice of law. The individuals employed at the entities (i.e., at the “clients”) all interact with the Non-Lawyer-Defendants on a day-to-day basis via e-mail and phone and they are aware that the Non-Lawyers are responsile for preparing, signing and filing these foreclosure cases and that the cases are being filed without attorney review.

Proving that the clients knew the paralegals were not supervised might be a stretch, but I suspect that the charge is accurate, particularly since as 4ClosureFraud points out, Bank of America was involved in a case where GMM staff admitted to the lack of attorney supervision and did nothing:

Loughren notes that in both cases involving the partners’ testimony about the practice, Bank of America (BAC) was the foreclosing bank. It was actually present during the December 2009 trial when the admissions were first made. Loughren points out that BofA’s representative at that trial, John Smith, is himself a lawyer, and so presumably understood the legal significance of GMM’s admission.

Other BofA employees surely learned about the practice too, given that the December case was an effort by the U.S. Bankruptcy Trustee to sanction both the bank and GMM for misconduct, and evidence submitted for it showed the involvement of “high-ranking” BofA people not normally involved in a foreclosure, such as its assistant general counsel.

So why is this such a big deal? Non-lawyers practicing law is impermissible in other states.

Most foreclosure mills are run on the same template: impossibly high staff to attorney ratios, 90 or 100 to every attorney. The ratios alone make meaningful supervision impossible. And this high leverage wasn’t due solely to partner greed. Some foreclosure mills, contrary to the laws of many states, had private equity funds as investors. And other foreclosure mills were keen to secure PE monies. So most industry incumbents had the same profile: an extraordinarily high staff to partner ratio, with standardized processes to maximize profits.

As a result, just as with the robo signers, it appears likely that documents were signed improperly. Matt Weidner has examples of signatures from an Ohio law firm by attorney Edward M. Kochalski that are so different that it is pretty implausible that one person signed them all. But here, the ramifications are far more serious.

The Loughren complaint looks solid and has detailed factual allegations.

Patrick J Loughren Complaint in Equity on Non-Attorneys Filing and Prosecuting Foreclosures

So where have the state bar associations been? It’s appalling that there have been no sanctions or disbarments over the robo signing scandal. We need to see some lawyers lose their licenses, or better yet, their freedom. Otherwise, it will be clear that the legal profession is siding with its meal tickets rather than the rule of law.

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