Law Expert: MERS Mess Could Have “a Massive Effect on the Economy. - FDL

[WillyT]

Law Expert: MERS Mess Could Have “a Massive Effect on the Economy.”
By: David Dayen
Monday October 18, 2010 8:00 am

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It’s important to know from the beginning that MERS is a wholly owned subsidiary of big financial institutions. The mortgage bankers wanted to avoid recording fees and reduce their overall expenditures. So they basically devised a method that would free them from those fees, ran an accounting study showing the savings, and just created MERS. There was no public debate or legislative statute to overturn what had been the customary practice for generations. The money backing MERS came from investors, according to Peterson, including some of the biggest banks and mortgage brokers in the country like Bank of America, Citi, and Countrywide, as well as Fannie Mae. You can see all their shareholders right here. It’s just a creation of the banks.

There are actually two MERS companies at this point. There’s MERSCORP, which owns some physical assets, including an office location in Reston, Virginia, and has about 60 employees, including a group of lawyers. There’s also MERS Inc., which has zero employees. This shell company is the one listed as the “mortgagee” on about 60 million American homes, or 60% of the total mortgage market.

Peterson described MERS to me as “a big Excel spreadsheet,” where financial institutions can input mortgage trades and information. “I don’t even like the word tracked,” he said. “They don’t assign records or anything.” The servicers use it to make a loan or a trade, and MERS stays as the mortgagee throughout the duration of the loan. This avoids recording the mortgage change each time with the county recorders office, altering the tradition for hundreds of years of recording the mortgage. This particularly becomes important if there’s a dispute on the property, which is what we’re dealing with now.

The other advantage of using MERS is that they will bring the foreclosure action instead of the mortgage servicer. This has tactical advantages; companies don’t have to take the PR hit of foreclosing on borrowers. In addition, Peterson said that some judges might not ask to produce the promissory note if MERS does the foreclosure action as the mortgagee. While MERS stipulates that the servicers must convey the promissory notes to MERS, it appears they didn’t do that in all or even most cases, and the underlying paperwork could be lost.

Because MERS has no personnel to bring foreclosures, they basically outsource the operations back to the servicers and foreclosure mills, just as the assignment of the mortgage was outsourced to them. Employees of the servicers simply pretend to be Vice Presidents or assistant secretaries or certifying officers of MERS Inc. Therefore, a company with no actual employees has thousands of Vice Presidents and certifying officers.

“I don’t think it’s legal, but whether it’s legal or not remains to be seen,” said Peterson. “The appellate courts haven’t dealt with it yet. MERS is a new system and they often settle cases, making it difficult to litigate through state courts (which have the jurisdiction). Plus, the defendants are usually borrowers almost always in foreclosure, and many don’t hire attorneys or can’t afford good ones.”

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More: http://news.firedoglake.com/2010/10/18/law-expert-mers-mess-could-have-a-massive-effect-on-the-economy/

:wtf:

:kick:

[lunatica]

1. Now the Federal Home Loan Bank of Chicago is suing B of A

http://www.chicagobusiness.com/article/20101015/NEWS01/101019921/federal-home-loan-bank-of-chicago-sues-b-of-a-others

Federal Home Loan Bank of Chicago sues B of A, others

The Federal Home Loan Bank of Chicago has sued several of the nation’s largest banks, including its biggest shareholder, Bank of America Corp., alleging that their failure to disclose lax mortgage underwriting standards led the Home Loan Bank to suffer losses after purchasing poor-quality mortgage-backed securities from them.

more at the link

[WillyT]

2. Good !!!

And good info... thanks for the link!

:hi:

[DirkGently]

3. That's potentially a bigger story than "the MERS mess,"

Poor underwriting is part and parcel of the subprime mortgage disaster. Once banks, lenders, and investors bought into the idea that ANY mortgage could be turned into a valuable "mortgage-backed security," all bets were off. Underwriting went out the window, because the accepted central myth that "real estate prices always go up," meant that any mortgage would pay off eventually, because it could be foreclosed against the ever-more-valuable collateral house in question.

This resulted in not only the inevitable collapse and foreclosure crisis we're seeing now, but to a huge amount of mortgage fraud. Once crooks discovered no one was bothering to verify things like income and employment, they set up "straw purchasers" to "buy" houses, usually with inflated appraised values, took the money and walked. The banks in turn looked to mortgage and title insurers to recoup their losses, while taking no responsibility for their own complete indifference to the quality of the mortgages they originated.

Now it looks like some investors are demanding that originatiors "re-purchase" the bad loans, which they can do if the lenders misrepresented the loans when sold. In the past "lazy underwriting" was not a frequent basis for these claims, but it looks like that may be changing. If that's the case, a lot of lenders could go down the tubes (again) as they're forced to buy up all the worthless mortgages they sold.

I wonder who will be asked to bail them out when and if that occurs?

Editted for gramer.