{"id":2382,"date":"2010-10-16T11:58:54","date_gmt":"2010-10-16T15:58:54","guid":{"rendered":"https:\/\/freedom24.org\/rationalpost\/?p=2382"},"modified":"2014-04-09T20:22:57","modified_gmt":"2014-04-10T00:22:57","slug":"the-foreclosure-mess","status":"publish","type":"post","link":"https:\/\/freedom24.org\/rationalpost\/the-foreclosure-mess\/","title":{"rendered":"the foreclosure mess"},"content":{"rendered":"

\"\"<\/a>A timely and frightening exploration of the causes and consequences of the emerging foreclosure mess. This close cousin of the earlier sub-prime mortgage debacle<\/a> provides even more evidence of the financial industry’s hubris and inescapable self-interest<\/a><\/em>. <\/em><\/p>\n

As the saying goes: garbage in, garbage out…<\/em><\/p>\n

<\/strong>The Foreclosure Mess
\n<\/strong>October 15, 2010,\u00c2\u00a0Cumberland Advisors (www.cumber.com)<\/p>\n

Dear Readers, this text came to me in an email from sources that are in the financial services business and with whom I have a personal relationship. The original text was laced with expletives and I would not use it in the form I received it. Therefore the text below has had some substantial editing in order to remove that language. The intentions of the writer are undisturbed. The writer shall remain anonymous. This text echoes some of the news items we have seen and heard today; however, it can serve as a plain language description of the present foreclosure-suspension mess. There is a lot here. It takes about ten minutes to read it. David Kotok<\/p>\n

~~~~~~<\/p>\n

Homeowners can only be foreclosed and evicted from their homes by the person or institution who actually has the loan paper\u00e2\u20ac\u201donly the note-holder has legal standing to ask a court to foreclose and evict. Not the mortgage, the note, which is the actual IOU that people sign, promising to pay back the mortgage loan<\/p>\n

Before mortgage-backed securities, most mortgage loans were issued by the local savings & loan. So the note usually didn\u00e2\u20ac\u2122t go anywhere: it stayed in the offices of the S&L down the street.<\/p>\n

But once mortgage loan securitization happened, things got sloppy\u00e2\u20ac\u201dthey got sloppy by the very nature of mortgage-backed securities.<\/p>\n

The whole purpose of MBSs was for different investors to have their different risk appetites satiated with different bonds. Some bond customers wanted super-safe bonds with low returns, some others wanted riskier bonds with correspondingly higher rates of return.<\/p>\n

Therefore, as everyone knows, the loans were \u00e2\u20ac\u0153bundled\u00e2\u20ac\u009d into REMIC\u00e2\u20ac\u2122s (Real-Estate Mortgage Investment Conduits, a special vehicle designed to hold the loans for tax purposes), and then \u00e2\u20ac\u0153sliced & diced\u00e2\u20ac\u009d\u00e2\u20ac\u201dsplit up and put into tranches, according to their likelihood of default, their interest rates, and other characteristics.<\/p>\n

This slicing and dicing created \u00e2\u20ac\u0153senior tranches,\u00e2\u20ac\u009d where the loans would likely be paid in full, if the past history of mortgage loan statistics was to be believed. And it also created \u00e2\u20ac\u0153junior tranches,\u00e2\u20ac\u009d where the loans might well default, again according to past history and statistics. (A whole range of tranches was created, of course, but for the purposes of this discussion we can ignore all those countless other variations.)<\/p>\n

These various tranches were sold to different investors, according to their risk appetite. That\u00e2\u20ac\u2122s why some of the MBS bonds were rated as safe as Treasury bonds, and others were rated by the ratings agencies as risky as junk bonds.<\/p>\n

But here\u00e2\u20ac\u2122s the key issue: When an MBS was first created, all the mortgages were pristine\u00e2\u20ac\u201dnone had defaulted yet, because they were all brand-new loans. Statistically, some would default and some others would be paid back in full\u00e2\u20ac\u201dbut which ones specifically would default? No one knew, of course. If I toss a coin 1,000 times, statistically, 500 tosses the coin will land heads\u00e2\u20ac\u201dbut what will the result be of, say, the 723rd toss? No one knows.<\/p>\n

Same with mortgages.<\/p>\n

So in fact, it wasn\u00e2\u20ac\u2122t that the riskier loans were in junior tranches and the safer ones were in senior tranches: rather, all the loans were in the REMIC, and if and when a mortgage in a given bundle of mortgages defaulted, the junior tranche holders would take the losses first, and the senior tranche holder last.<\/p>\n

But who were the owners of the junior-tranche bond and the senior-tranche bonds? Two different people. Therefore, the mortgage note was not actually signed over to the bond holder. In fact, it couldn\u00e2\u20ac\u2122t be signed over. Because, again, since no one knew which mortgage would default first, it was impossible to assign a specific mortgage to a specific bond.<\/p>\n

Therefore, how to make sure the safe mortgage loan stayed with the safe MBS tranche, and the risky and\/or defaulting mortgage went to the riskier tranche?<\/p>\n

Enter stage right the famed MERS\u00e2\u20ac\u201dthe Mortgage Electronic Registration System.<\/p>\n

MERS was the repository of these digitized mortgage notes that the banks originated from the actual mortgage loans signed by homebuyers. MERS was jointly owned by Fannie Mae and Freddie Mac (yes, those two again \u00e2\u20ac\u201dI know, I know: like the chlamydia and the gonorrhea of the financial world\u00e2\u20ac\u201dyou cure \u00e2\u20ac\u02dcem, but they just keep coming back).<\/p>\n

The purpose of MERS was to help in the securitization process. Basically, MERS directed defaulting mortgages to the appropriate tranches of mortgage bonds. MERS was essentially where the digitized mortgage notes were sliced and diced and rearranged so as to create the mortgage-backed securities. Think of MERS as Dr. Frankenstein\u00e2\u20ac\u2122s operating table, where the beast got put together.<\/p>\n

However, legally\u00e2\u20ac\u201dand this is the important part\u00e2\u20ac\u201dMERS didn\u00e2\u20ac\u2122t hold any mortgage notes: the true owner of the mortgage notes should have been the REMICs.<\/p>\n

But the REMICs didn\u00e2\u20ac\u2122t own the notes either, because of a fluke of the ratings agencies: the REMICs had to be \u00e2\u20ac\u0153bankruptcy remote,\u00e2\u20ac\u009d in order to get the precious ratings needed to peddle mortgage-backed Securities to institutional investors.<\/p>\n

So somewhere between the REMICs and MERS, the chain of title was broken.<\/p>\n

Now, what does \u00e2\u20ac\u0153broken chain of title\u00e2\u20ac\u009d mean? Simple: when a homebuyer signs a mortgage, the key document is the note. As I said before, it\u00e2\u20ac\u2122s the actual IOU. In order for the mortgage note to be sold or transferred to someone else (and therefore turned into a mortgage-backed security), this document has to be physically endorsed to the next person. All of these signatures on the note are called the \u00e2\u20ac\u0153chain of title.\u00e2\u20ac\u009d<\/p>\n

You can endorse the note as many times as you please\u00e2\u20ac\u201dbut you have to have a clear chain of title right on the actual note: I sold the note to Moe, who sold it to Larry, who sold it to Curly, and all our notarized signatures are actually, physically, on the note, one after the other.<\/p>\n

If for whatever reason any of these signatures is skipped, then the chain of title is said to be broken. Therefore, legally, the mortgage note is no longer valid. That is, the person who took out the mortgage loan to pay for the house no longer owes the loan, because he no longer knows whom to pay.<\/p>\n

To repeat: if the chain of title of the note is broken, then the borrower no longer owes any money on the loan.<\/p>\n

Read that last sentence again, please. Don\u00e2\u20ac\u2122t worry, I\u00e2\u20ac\u2122ll wait.<\/p>\n

You read it again? Good: Now you see the can of worms that\u00e2\u20ac\u2122s opening up.<\/p>\n

The broken chain of title might not have been an issue if there hadn\u00e2\u20ac\u2122t been an unusual number of foreclosures. Before the housing bubble collapse, the people who defaulted on their mortgages wouldn\u00e2\u20ac\u2122t have bothered to check to see that the paperwork was in order.<\/p>\n

But as everyone knows, following the housing collapse of 2007-\u00e2\u20ac\u212210-and-counting, there has been a boatload of foreclosures\u00e2\u20ac\u201dand foreclosures on a lot of people who weren\u00e2\u20ac\u2122t sloppy bums who skipped out on their mortgage payments, but smart and cautious people who got squeezed by circumstances.<\/p>\n

These people started contesting their foreclosures and evictions, and so started looking into the chain-of-title issue, and that\u00e2\u20ac\u2122s when the paperwork became important. So the chain of title became crucial and the botched paperwork became a nontrivial issue.<\/p>\n

Now, the banks had hired \u00e2\u20ac\u0153foreclosure mills\u00e2\u20ac\u009d\u00e2\u20ac\u201dlaw firms that specialized in foreclosures\u00e2\u20ac\u201din order to handle the massive volume of foreclosures and evictions that occurred because of the housing crisis. The foreclosure mills, as one would expect, were the first to spot the broken chain of titles.<\/p>\n

Well, what do you know, it turns out that these foreclosure mills might have faked and falsified documentation, so as to fraudulently repair the chain-of-title issue, thereby \u00e2\u20ac\u0153proving\u00e2\u20ac\u009d that the banks had judicial standing to foreclose on delinquent mortgages. These foreclosure mills might have even forged the loan note itself\u00e2\u20ac\u201d<\/p>\n

Wait, why am I hedging? The foreclosure mills did actually, deliberately, and categorically fake and falsify documents, in order to expedite these foreclosures and evictions. Yves Smith at Naked Capitalism, who has been all over this story, put up a price list for this \u00e2\u20ac\u0153service\u00e2\u20ac\u009d from a company called DocX\u00e2\u20ac\u201dyes, a price list for forged documents. Talk about your one-stop shopping!<\/p>\n

So in other words, a massive fraud was carried out, with the inevitable innocent bystanders getting caught up in the fraud: the guy who got foreclosed and evicted from his home in Florida, even though he didn\u00e2\u20ac\u2122t actually have a mortgage, and in fact owned his house free \u00e2\u20ac\u201cand clear. The family that was foreclosed and evicted, even though they had a perfect mortgage payment record. Et cetera, depressing et cetera.<\/p>\n

Now, the reason this all came to light is not because too many people were getting screwed by the banks or the government or someone with some power saw what was going on and decided to put a stop to it\u00e2\u20ac\u201dthat would have been nice, to see a shining knight in armor, riding on a white horse.<\/p>\n

But that\u00e2\u20ac\u2122s not how America works nowadays.<\/p>\n

No, alarm bells started going off when the title insurance companies started to refuse to insure the titles.<\/p>\n

In every sale, a title insurance company insures that the title is free \u00e2\u20ac\u201cand clear \u00e2\u20ac\u201dthat the prospective buyer is in fact buying a properly vetted house, with its title issues all in order. Title insurance companies stopped providing their service because\u00e2\u20ac\u201dof course\u00e2\u20ac\u201dthey didn\u00e2\u20ac\u2122t want to expose themselves to the risk that the chain \u00e2\u20ac\u201cof title had been broken, and that the bank had illegally foreclosed on the previous owner.<\/p>\n

That\u00e2\u20ac\u2122s when things started getting interesting: that\u00e2\u20ac\u2122s when the attorneys general of various states started snooping around and making noises (elections are coming up, after all).<\/p>\n

The fact that Ally Financial (formerly GMAC), JP Morgan Chase, and now Bank of America have suspended foreclosures signals that this is a serious problem\u00e2\u20ac\u201dobviously. Banks that size, with that much exposure to foreclosed properties, don\u00e2\u20ac\u2122t suspend foreclosures just because they\u00e2\u20ac\u2122re good corporate citizens who want to do the right thing, and who have all their paperwork in strict order\u00e2\u20ac\u201dthey\u00e2\u20ac\u2122re halting their foreclosures for a reason.<\/p>\n

The move by the United States Congress last week, to sneak by the Interstate Recognition of Notarizations Act? That was all the banking lobby. They wanted to shove down that law, so that their foreclosure mills\u00e2\u20ac\u2122 forged and fraudulent documents would not be scrutinized by out-of-state judges. (The spineless cowards in the Senate carried out their master\u00e2\u20ac\u2122s will by a voice vote\u00e2\u20ac\u201dso that there would be no registry of who had voted for it, and therefore no accountability.)<\/p>\n

And President Obama\u00e2\u20ac\u2122s pocket veto of the measure? He had to veto it\u00e2\u20ac\u201dif he\u00e2\u20ac\u2122d signed it, there would have been political hell to pay, plus it would have been challenged almost immediately, and likely overturned as unconstitutional in short order. (But he didn\u00e2\u20ac\u2122t have the gumption to come right out and veto it\u00e2\u20ac\u201dhe pocket vetoed it.)<\/p>\n

As soon as the White House announced the pocket veto\u00e2\u20ac\u201dthe very next day!\u00e2\u20ac\u201dBank of America halted all foreclosures, nationwide.<\/p>\n

Why do you think that happened? Because the banks are in trouble\u00e2\u20ac\u201dagain. Over the same thing as last time\u00e2\u20ac\u201dthe damned mortgage-backed securities!<\/p>\n

The reason the banks are in the tank again is, if they\u00e2\u20ac\u2122ve been foreclosing on people they didn\u00e2\u20ac\u2122t have the legal right to foreclose on, then those people have the right to get their houses back. And the people who bought those foreclosed houses from the bank might not actually own the houses they paid for.<\/p>\n

And it won\u00e2\u20ac\u2122t matter if a particular case\u00e2\u20ac\u201dor even most cases\u00e2\u20ac\u201dwere on the up \u00e2\u20ac\u201cand up: It won\u00e2\u20ac\u2122t matter if most of the foreclosures and evictions were truly due to the homeowner failing to pay his mortgage. The fraud committed by the foreclosure mills casts enough doubt that, now, all foreclosures come into question. Not only that, all mortgages come into question.<\/p>\n

People still haven\u00e2\u20ac\u2122t figured out what all this means. But I\u00e2\u20ac\u2122ll tell you: if enough mortgage-paying homeowners realize that they may be able to get out of their mortgage loans and keep their houses, scott-free? That\u00e2\u20ac\u2122s basically a license to halt payments right now, thank you. That\u00e2\u20ac\u2122s basically a license to tell the banks to take a hike.<\/p>\n

What are the banks going to do\u00e2\u20ac\u201dtry to foreclose and then evict you? Show me the paper, Mr. Banker, will be all you need to say.<\/p>\n

This is a major, major crisis. The Lehman bankruptcy could be a spring rain compared to this hurricane. And if this isn\u00e2\u20ac\u2122t handled right\u00e2\u20ac\u201dand handled right quick, in the next couple of weeks at the outside\u00e2\u20ac\u201dthis crisis could also spell the end of the mortgage business altogether. Of banking altogether. Hell, of civil society. What do you think happens in a country when the citizens realize they don\u00e2\u20ac\u2122t need to pay their debts?<\/p>\n

David R. Kotok, Chairman and Chief Investment Officer<\/p>\n

Resources:
\nTo sign-up for Market Commentaries from Cumberland Advisors: http:\/\/www.cumber.com\/signup.aspx
\nFor Cumberland Advisors Investment Portfolio Styles: http:\/\/www.cumber.com\/styles.aspx?file=styles_index.asp
\nFor personal correspondence: david.kotok@cumber.com
\n*********
\nCopyright 2010, Cumberland Advisors. All rights reserved.
\nThe preceding was provided by Cumberland Advisors, Home Office: One Sarasota Tower, 2 N. Tamiami Trail, Suite 303, Sarasota, FL 34236; New Jersey Office: 614 Landis Ave, Vineland, NJ 08360. 1-800-257-7013. This report has been derived from information considered reliable, but it cannot be guaranteed as to accuracy or completeness.
\nFor a list of all equity sales\/purchases for the past year, please contact Therese Pantalione at 1-800-257-7013, ext. 315. This report is currently about 600 pages in length. It is not our intention to state or imply in any manner that past results and profitability are an indication of future performance. This does not constitute an offer to sell or the solicitation or recommendation of an offer to buy or sell any securities directly or indirectly herein.
\nCumberland Advisors supervises about $1.5 billion in separate account assets for individuals, institutions, retirement plans, government entities, and cash-management portfolios. Cumberland manages portfolios for clients in 47 states, the District of Columbia and in countries outside the U.S. Cumberland Advisors is an SEC registered investment adviser. For further information about Cumberland Advisors, please visit our website at www.cumber.com.
\nPlease feel free to forward this Commentary (with proper attribution) to others who may be interested.
\nArchived Commentaries: http:\/\/www.cumber.com\/comments\/archiveindex.htm<\/p>\n","protected":false},"excerpt":{"rendered":"

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