Your Bank Foreclosure Fraud Update

Barry Ritholtz opens a can of whup ass on a clueless Diana Olick (@ 8:20 but watch the whole thing)

First, some perspective.

When I went to UMass, there was a murder case in the Amherst area. Someone bought some land, and they met on the property to exchange deed and money, and when he got the deed, he shot the seller, and took back the money.

At the time, I wondered how someone could be so stupid to think that this would still work.

The requirements of real estate transactions are such that, even if they never find the body or suspect you of murder, you won't get the property, and it's been that way since well before the Civil War, and possibly since before the Revolutionary War in Massachusetts.

That's what all these transactions are about. They are the product of hundreds of years of social and legal development in order to ensure that someone does not just shoot you and take the deed.

But the bankers just want to shoot you and take the deed, so they take short cuts.

It's why Barry Ritholtz calls the foreclosure fraud an assault on the basic property rights that make capitalism work in our society.

On a slightly less philosophical level, read Rortybomb's Foreclosure Fraud for Dummies, Part One, Part Two, and Part 3. It's clear, it's concise, and it helps you understand just what is going on here with the fraudulent paperwork.

Additionally, Felix Salmon points out that the entire mortgage backed securities process was a deliberate fraud perpetrated on investors:

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This is where things get positively evil. The investment banks didn’t mind buying up loans they knew were bad, because they considered themselves to be in the moving business rather than the storage business. They weren’t going to hold on to the loans: they were just going to package them up and sell them on to some buy-side sucker.

In fact, the banks had an incentive to buy loans they knew were bad. Because when the loans proved to be bad, the banks could go back to the originator and get a discount on the amount of money they were paying for the pool. And the less money they paid for the pool, the more profit they could make when they turned it into mortgage bonds and sold it off to investors.

Now here’s the scandal: the investors were never informed of the results of Clayton’s test. The investment banks were perfectly happy to ask for a discount on the loans when they found out how badly-underwritten the loan pool was. But they didn’t pass that discount on to investors, who were kept in the dark about that fact.

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In any case, it’s clear that the banks had price-sensitive information on the quality of the loan pool which they failed to pass on to investors in that pool. That’s a lie of omission, and if I was one of the investors in one of these pools, I’d be inclined to sue for my money back. Prosecutors, too, are reportedly looking at these deals, and I can’t imagine they’ll like what they find.

The bank I talked to didn’t even attempt to excuse its behavior. It just said that Clayton’s taste-testing was being done by the bank — the buyer of the loan portfolio — rather than being done on behalf of bond investors. Well, yes. That’s the whole problem. The bank was essentially trading on inside information about the loan pool: buying it low (negotiating for a discount from the originator) and then selling it high to people who didn’t have that crucial information.

We should be looking at throwing these folks in jail. (read the whole thing)

In terms of shoes dropping, we now have Wells Fargo initiating a review of its foreclosures, and J.P. Morgan announcing in an investor call that it has stopped using MERS as its agents in foreclosures, which indicates that the big banks have real concerns about the legality of what is basically a database containing an incomplete record of scanned images:

JP Morgan Chase is a valued member of MERS. They currently have their correspondent loans registered on the MERS System. They do not, nor have they ever, registered their retail loans on the MERS System. As members of MERS and for loans registered on the MERS System, banks have the option of foreclosing in their own name, or MERS foreclosing for them.

Notwithstanding the people out there who are maintaining that this is just a bit of paperwork, one of the more savvy banks out there is clearly concerned.