Implications of the Ibanez Case Ruling on Foreclosure Fraud: Financial Armageddon

Last week, Dan Crawford at AngryBear pointed to a January 7, 2011 analysis by Numerian at The Agonist of the "Ibanez" mortgage foreclosure case ruling by the Supreme Judicial Court of the State of Massachusetts, and the ruling's implications for the housing market. Truly scary. Forthwith, some choice excerpts:

The Too Big To Fail banks have been waiting with trepidation for a ruling from the Supreme Judicial Court of the State of Massachusetts on the case titled US Bank National Association (as trustee) vs. Antonio Ibanez. They were right to be fearful. The state supreme court has ruled against the banks and upheld a lower court order that nullified foreclosures by US Bancorp and Wells Fargo, on the grounds that neither bank had the legal right under Massachusetts law to foreclose. Today’s ruling has far-reaching consequences for the banks and the housing market in general, as it throws into serious question the legal soundness of millions of mortgages in the US if, as expected, courts in other states come to similar conclusions as the Supreme Judicial Court of Massachusetts.

Numerian has the best, most concise description of the whole befuddling chain of mortgage prioritization, from origination, to assignment, to second assignment, to third, and so on, to fraudulent foreclosure filings, I have seen yet. This particular case involved a mortgage assigned at one point to Lehman Bros. Holdings Inc.

This chain of assignments is important to the case, because all it took for the banks to win was to show up in court with the proper legal documents evidencing the mortgage assignment. They didn’t even have to show up with the original mortgage or the note from the borrower – they just had to have documentation for each link in the chain of assignments. Not only did they not have this, the best they could show was an assignment after the date of the foreclosure, meaning the banks never had assigned the mortgage properly in the first place. . . .

One of the justices who concurred in this decision, Justice Cordry, wrote:

[W]hat is surprising about these cases is … the utter carelessness with which the plaintiff banks documented the titles to their assets.

Carelessness is a polite word. The banks have acted with criminal recklessness. In these and similar cases that have cropped up around the country, it is becoming obvious that the big banks involved in securitizing mortgages during the past 15 years purposefully evaded local legal requirements for registering mortgages and accompanying borrower notes with a county recorder of deeds. The banks sold mortgages to other banks without bothering to transfer to the buyer a proper document of assignment evidencing the sale. Mortgages were bundled up into trusts for the purpose of securitizing them to investors, but the trusts were also never given proper legal evidence of the assignment of the mortgages. Then, when the housing market blew up and banks were forced into pursuing millions of foreclosures, they created the assignments after the fact, used “robo-signers” to submit legal documents to the courts (in one such case the signer had been dead for over five years), falsified notarizations, and in other similar ways perpetrated fraud upon the courts. . . .

The right of the banks to foreclose on residential property is now being contested in every state. People who have lost their homes in foreclosure are now suing for compensation for their loss, on the grounds the foreclosure was fraudulent. Even more serious than this, investors who bought “mortgage backed securities” are beginning to file claims of fraud against the banks, arguing that these securities were never properly collateralized in the first place. These investors want 100% of their money back, which would lead to claims of trillions of dollars against the big banks.

There are therefore two areas of jeopardy for the big banks. First, investors who bought securities that were supposedly collateralized by mortgages can claim they were victims of fraud, and demand their money back. This means that the big banks will become direct mortgagee not only for the properties in their portfolio now, but for millions more that they must buy back. This could constitute much more than half of all homes/mortgages in the US, of which over 3% are now already in default.

The second problem is that the mortgages in many of these cases may now be deemed legally invalid. This doesn’t mean the homeowner can live for free forever in their home if they default; it just means that the banks have to pursue the defaulting homeowner as it would someone who defaults on an unsecured credit card loan. Credit card defaults are usually absorbed 100% by the banks since there is no collateral to posses and sell. Credit cards therefore carry interest rates as high as 30% p.a., compared to mortgage rates of around 5%, even though the term of a mortgage is much longer. If mortgages were unsecured, they would be priced much closer to 30% p.a. to ensure that the banks made enough money on their mortgage portfolios after taking 100% of the loss on defaults. This would make homeownership virtually unaffordable for any American.

. . . For at least ten years the large US banks have been selling a product – the residential home mortgage – with a fatal legal flaw that renders it uncollateralized. The product should have been priced like any other unsecured consumer loan – at rates at least triple the actual mortgage rate in the US. There are something like $6 trillion of mortgages extant in the US, among over 55 million borrowers. Most of these mortgages have been grossly underpriced, and at existing default rates, there is simply not enough equity capital in the banking system – and not enough profit being generated by mortgage portfolios - to absorb current losses. Even if you assume the banks don’t have to take a full 100% loss on a home default, and that some portion of the home sale after bankruptcy will eventually trickle down to the bank as a general creditor, the Too Big To Fail banks are doomed to insolvency.

Dragged into this situation automatically is the federal government. The US Treasury owns Fannie Mae and Freddie Mac, which are already insolvent and must turn to the government for capital infusions every quarter just to cover the losses on their existing home mortgage portfolios. . . You may throw into this picture also the Federal Reserve System, which chose to buy over one trillion dollars of mortgage backed securities from the banks in 2008 and 2009, and which is itself technically insolvent if this portfolio turns out to be uncollateralized, as is becoming increasingly likely.

With increasing desperation, banks along with their enablers in Washington are going to try to jerry-rig a way out of this problem. Unfortunately for the banks, ex post facto laws are strictly forbidden by the Constitution, which is now being treated with new-found reverence by the Congress. . . Maybe the US Supreme Court will accept the banks’ argument that the securitization process in itself established a valid foreclosure claim even though mortgages were not properly assigned as required by state laws. This, however, would require the Supreme Court to make up a legal doctrine out of the blue (as the banks have done), thereby overturning all state laws and court rulings going back well over 100 years. Only a Supreme Court bought and paid for by bank lobbyists, and willing to prostitute itself publicly to its paymasters, would issue such a ruling.

This means that the likely progression of events – the path we are now on - will lead to a near complete collapse of the housing market, because the big banks and the two government enterprises responsible for supporting the housing market will be fatally crippled wards of the state. The US government itself, including the Federal Reserve, will be equally crippled. Try as you might, you will find no words in the Bible – no phrases applicable to The Flood or to the destruction of whole cities at the hands of a vengeful God – that appropriately capture the financial gravity of this situation. But if we are forced to come up with some metaphor, Financial Armageddon will have to do.

And a few days ago, L. Randall Wray wrote, in Memo to Banks: You are Toast,

Banks are not making any money in traditional lines of business—that is, by making loans. No one wants loans. The economy is down for the count. Other than pulling money out of loan loss reserves, banks can only make profits by revaluing assets. The write-downs of trashy mortgages need to be reversed. Banks trade trash with each other at higher prices, recording profits. They sell trash to the government at inflated prices—more on that below. And they jack up late fees on homeowners, credit card users, and other debtors. Even though none of those borrowers can actually pay the late fees, the banks book the revenue now.

But here is the much bigger problem: the banks are getting sued from here to Pluto by homeowners, soldiers and sailors, Fannie and Freddie, PIMCO, the NYFed, and just about anybody with access to a lawyer. And, increasingly, the banks are losing.

JPMorgan-Chase was caught stealing homes from military personnel. The bank admitted 14 outright thefts—improper foreclosures. It is illegal to foreclose on active duty personnel. But illegal activity is routine business practice at the big banks. They flaunt the laws. They then claim they had some paperwork problems. . .

. . . Sanjiv Das, CEO of CitiMortgage (that originates loans for Citi) argued that with “only” a 15% rate of fraudulent mortgages, that qualifies as “one of the most outstanding stories” of Citi's business model; it represents a “fantastic job” he claimed. True, it is down from a 30% fraud rate in the fourth quarter of 2009. And, who knows, maybe this really is the least fraudulent business the big banks have going on right now—compared with money laundering, drug running, and who knows what else, this might really be the shining example of good citizenship on Wall Street.

Courts continue to chip away at the justifications banks and their Frankenstein creation, MERS, have created for theft of homes. MERS was manufactured by the industry to evade proper recording of property sales in county recorder's offices. This will sound overly dramatic, but there is no other way to accurately state it: MERS was from inception a criminal conspiracy designed to cheat counties out of recording fees, the US Treasury out of taxes, and homeowners out of their homes. That conspiracy will have to be proven in the courts, but everyday and everywhere courts are ruling against MERS. The fiction perpetrated by MERS is that it is simultaneously a nominee of the true owner of the mortgage debt and at the same time it is the mortgagee of the security instrument. (You cannot simultaneously be the party of interest and the nominee, of course.) It also disclaims any financial interest in the mortgage and has no claim on the mortgage payments. But it claims that it can operate as the agent of unnamed owners of the mortgage instrument, unknown owners who—since they are unknown—have never designated MERS as agent. . . .

MERS has screwed up the records so badly that in many or most cases no one knows who holds the notes, who is entitled to receive mortgage payments, and who has got the deed. What we used to call “mortgage backed securities” are probably mostly unsecured. It is not clear that any of the securitizations of home mortgages were done properly. In that case, the securities are not mortgage backed. Mortgage servicers do not have the right to foreclose, and neither do the securities holders. . . .

And that makes the banks toast. Forget anything you read about their income, their profit rates, their recovery. They've got to take back the unbacked mortgage securities—they do not meet the “reps and warranties”. And there is no property behind them, so foreclosure is out of the question. They can pursue homeowners in court—but homeowners lost their jobs and in any case could not afford the houses the lender fraudsters put them into. . . .