foreclosure report

In Part I of this series we discussed the media's failure to accurately report the scope and nature of the banker crime wave around foreclosure fraud, and talked about the confusion over reports that the Administration has proposed a framework for settling the fifty-state lawsuit against the banks. (Hmm ... wonder why there wasn't a Federal lawsuit, too?)

Is there really an Administration proposal for a deal? Given the number of reports and the absence of denials from the White House, the answer appears to be ... sort of. It seems clear that the Administration's proposing to create a $20 billion fund at the banks' expense which would be used to help underwater homeowners, and that the banks would administer this fund themselves (we'll respond to the proposal outline in Part III of this series). But even that's not 100% certain, since reports suggest that there's still infighting among government agencies.

Reuters reports that the Consumer Financial Protection Bureau (CFPB) and Federal Deposit Insurance Corporation (FDIC) folks are pushing for a larger settlement, but that the Office of Comptroller of the Currency (OCC) thinks the proposed settlement is already too big. All of this alphabet soup is beginning to spell out a slang expression that describes the government's handling of this situation with pinpoint accuracy. That expression begins with "cluster" and ends with the word Melissa Leo introduced to the Academy Awards last Sunday night.

The virtual ink was barely dry on the initial reports of an Administration proposal when Reuters reported that "regulators' efforts to settle with banks over improper mortgage foreclosures are being hampered by disagreements among the groups involved over the size and shape of an accord." Other stories then elaborated on the squabbles among Federal agencies over the scope and nature of the proposed settlement. It seems as if everybody in the Federal government is running to the press so they can put their own spin on a proposed deal.

It looks like we're observing a serious vacuum in leadership during a time of crisis. This vacuum, together with the confusion that's been created in the press as everybody pushed their own agenda, has left the public becalmed in fog-shrouded waters somewhere between Conflicting Viewpoints, Absolute Bewilderment, and WTF.

(Hey, you know what would be great? It would be great if all of these Federal agencies reported to a single person - and that person was empowered to make an executive decision on behalf of the entire executive branch of government. You could call that person the "Chief Executive," or ... but I digress.)

Despite all the confusion, the outlines of the Administration's proposal seem to be coalescing around three main provisions: Banks would have to write down the principal on underwater mortgages with $20 billion of their own money (investors in mortgage-backed securities and other instruments would not be held responsible), and they would implement their own mortgage modification programs. No government money would be used to reduce principal.

Any proposal from the Federal government would have to be accepted by the states before being presented to the banks. Based on what we've learned so far, does this proposal provide the right framework for a comprehensive settlement? We'll save our conclusion for the third and final installment of this series, but here's a sneak preview:

No.

There has been evidence here and there of a marked fall in new foreclosure filings. Lender Processing Services, which handles more than half of the loans serviced in the US, said its revenues in its Default Services Group were down in the final quarter of the year. Why? Its revenues are tied to initial foreclosure filings, and its were off 33%, no doubt in large measure due to the robo signing scandal. Recall that it led many banks to halt foreclosures (some all over the US, others in judicial foreclosure states only) while they inspected the state of play and scrambled to revamp procedures. Banks piously claimed that they found no problems in the correctness of foreclosure actions and that ex making the changes needed to assure affidavits were proper, they were going to be back to business as usual post haste.

Now we already know that that isn’t the case. Since the robosigning scandal broke, foreclosure activity has been down. RealtyTrac reported that foreclosures in January were up only 1% over December levels, which was down 17% from the year prior.

But RealtyTrac captures every foreclosure filing in that particular report, so it is a mix of new foreclosure filings plus additional filings for foreclosures already underway (the number of filings required varies by state, but the minimum number is three, and the number can also be increased if a borrower gets a foreclosure suspended, say by entering into a payment catchup plan, and then has the process restarted later on).

Lynn Syzmoniak of Fraud Digest provides a snapshot for January 1 through January 26 in two counties in Florida, Lee County and Palm Beach County:

Her tally for US Bank over the same period covered only Lee County, but showed similar results: 42 new foreclosures for 2011 versus 143 for 2010.

Now merely eyeballing this sample, and assuming it is representative of Florida (Syzmoniak says other counties show similar patterns), it’s clear the decline is bigger than the 33% fall that LPS mentioned for the fourth quarter of 2010 or the 17% figure from RealtyTrac.

There are reasons why Florida might show a steeper fall than other states. First, the state AG has been investigating all the major foreclosure mills in the state. Some, like the Law Offices of David Stern, have effectively folded. So there could be a bit of disarray simply due to the loss of some processing capacity.

Second, Florida, like New York, has implemented a rule requiring that attorneys verify information provided in foreclosures. That might seem to be merely ceremonial, since lawyers are already responsible for the accuracy of information provided to the court. But I am advised that this measure is more than mere belt and suspenders; it apparently would have the effect of lowering the bar for opposing counsel calling for Rule 11 sanctions if he thought the foreclosing attorney was submitting bogus documents or information. That rule did became effective February 11, 2010 (hat tip Lisa Epstein), and the foreclosure mills have tried to escape compliance. I’d imagine in the wake of the robo signing scandal, their clients are becoming less tolerant of this sort of thing.

If this pattern holds across at least across judicial foreclosure states, it suggests what we have long argued: that failures to convey loans as required by securitization documents are widespread, if not pervasive. Now that servicers and foreclosure mills are finding that a lot of judges no longer take them at their word, which means they increasingly have to provide documentation, they may be finding that a lot of their records do not pass muster. And while document fabrication was once an easy way out, that strategy is a lot riskier than it used to be.

Reader input welcome. Do you have any local data on the level of new foreclosures in 2011 versus same period 2010?

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