What's that you say Bank of America and JPM, "it's all contained?" Hey Fed, it's not too late to add $8 trillion in MBS to QE2. On the other hand, now we know what QE3 will be buying.
Fitch Ratings-New York-04 November 2010: Fitch Ratings has assigned a Negative Outlook for the entire U.S. Residential Mortgage Servicer ratings sector on increased concerns surrounding alleged procedural defects in the judicial foreclosure process.
'Risks to servicers include cost to research and remediate any errors, additional fees and resources, potential penalties and reputational risk,' said Diane Pendley, Managing Director and head of U.S. RMBS Operational Risk for Fitch.
This industry-wide issue will cause all servicers to be under increased scrutiny from a wide range of state and federal regulators, state attorneys general, and GSE's. All servicers will be affected, even those fully in compliance with all foreclosure rules and regulations. This is due to the increased amount of time and manpower it will take to properly address the much higher level of oversight and inquiries that are received, as well as the anticipated additional court delays.
Fitch's Rating Outlooks indicate the likely direction of any rating change over a one- to two-year period and may be Positive, Negative, Stable or, occasionally, Evolving.
Fitch has received responses to its recent survey from all of its rated servicers regarding the servicers' specific internal procedures used to verify and execute foreclosure affidavits. All servicers have indicated that they are taking this matter seriously and have reviewed or are in the process of reviewing their internal procedures used to verify and execute foreclosure affidavits.
Approximately one-third of Fitch's rated servicers have completed their reviews of foreclosure processes and the accuracy of their foreclosure affidavits.
These servicers do not believe they will need to take any corrective action or make any changes to their current processes at this time. Some servicers have estimated that they will be able to complete their review within the next several weeks, while others are still unable to give a specific estimate of how long it may take to complete their reviews.
However, 'all servicers appear to be working towards quantifying and defining their position on foreclosures,' said Pendley. Therefore, Fitch expects all servicers will have substantially completed their internal reviews by the end of the fourth quarter.
Based on the research that the servicers have completed to date on these issues, all servicers generally maintain the factual accuracy of their affidavits.
However, some have found their procedures for reviewing, signing and notarizing foreclosure documents may require changes and corrective actions. Some servicers have announced publicly that they have halted certain foreclosure and liquidation actions until their reviews are completed.
Many servicers have also stated that they will be resuming the foreclosure and liquidation actions in identified jurisdictions as they complete their reviews and determine that their processes are adequate and any needed corrective actions have been taken.
Fitch has requested its rated servicers to provide estimates on the volumes and timeframes for submitting corrected affidavits when it is found to be necessary and as this information becomes available. However, the servicer's ability to resolve each corrective action at the local court level will create a wide variety of remedial steps and associated timeframes. 'Final resolution of the foreclosure affidavit concerns and the multiple resulting investigations, along with assigned ownership rights prior to initiating foreclosure actions, may not occur until well into 2011 and possibly beyond,' said Pendley.
Fitch has discussed with its rated servicers their ability to track and segregate the additional costs associated with taking any corrective actions.
If corrective actions are needed because of a servicer error, any increased costs should be borne by the servicers and not passed through to the trusts.
These increased costs may include legal costs to correct and file new or amended foreclosure documents and the increased carrying costs for the extended foreclosure and liquidation timelines.
Fitch may place an individual servicer's ratings on Rating Watch Negative and/or downgrade the ratings if the servicer does not diligently and timely review its processes and take immediate corrective action to remediate any foreclosure action or documentation failures. Fitch may take similar actions on a servicer's ratings if the impact of the additional costs that must be borne by the servicer significantly affects its financial condition. Until those conclusions are reached, the Negative Outlook on the sector impacts all U.S. RMBS servicers.
An increase in loss severities on liquidated loans from expected trend lines or any downgrades to servicer ratings may result in negative rating actions on related RMBS classes. As a direct by-product of the recent foreclosure issues, Fitch currently expects any negative rating actions on RMBS tranches to be limited largely to non-investment grade classes and tranches that currently have a Negative Rating Outlook. Additionally, Fitch does not envision RMBS downgrades to exceed a single rating category in most cases.
h/t Econotwist
We’re a little puzzled at the attention a Florida robo-signing case has garnered. A plaintiff tried arguing that robo signing alone constituted a reason to dismiss a foreclosure. That’s such a stretch that it is no wonder a judge decided against the borrower argument.
Mind you, we think robo signing is serious because it is a fraud on the court and will almost assuredly be more complicated to clean up than the banks would have you believe. But the presence of a robo signer in and of itself is very unlikely to do much for the cause for an individual homeowner. The real implications are twofold. First is that the cost and hassle of banks straightening out this mess are serious. Not only will they have to spend more on foreclosures going forward, not merely getting proper signatures and notarizations, but also verfying the accuracy of the underlying information. And the state of Ohio is on a warpath, seeking to impose $25,000 fines for each improper affidavit. Second, some judges may make servicers start cases from scratch where a false affidavit has been submitted.
When banks find errors, as Bank of America has, what will the judge do?
HousingWire gives a report on this Florida case:
In Freemon v. Deutsche Bank, Florida’s Fourth District Court of Appeal ruled that an allegedly faulty affidavit didn’t constitute fraud in the case.
“Freemon’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment,” the court ruled this week. “Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect.”
In November 2007, Deutsche Bank filed to foreclosure against the homeowner, Veldrin Freemon, alleging she owed more than $570,000 on the mortgage note. Freemon didn’t answer the foreclosure complaint and a default judgment was entered. She later contested the case and it was delayed for six months. A foreclosure sale was reset for September 2009, and the property was sold back to the bank. When the bank sought to repossess the home after the sale, however, Freemon filed for relief from the judgment, alleging that an affidavit in the case was fraudulent.
The allegation of fraud was based on a deposition in another foreclosure case from a Litton Loan employee who was signing foreclosure affidavits without personal knowledge of their contents.
The court ruled that the deposition was insufficient to prove fraud and disagreed with Freemon’s characterization of the Litton Loan affidavit from Denise Bailey.
Freemon claimed that Bailey claimed personal knowledge of the matters in the affidavit yet she did not know who inputted information into the computer regarding the loan in question.
I pinged a lawyer who has been following securitization cases. HIs reply:Very narrow ruling with limited implications.
I haven’t reviewed the case, but it doesn’t look like this borrower was connected to any of the people we know because it was a very incomplete argument.
Facts (as far as I can tell from the article):
Borrower was foreclosed. Later learns about robo-signers, and uses deposition from another case to argue the foreclosure should be overturned because the robo-signer admitted in the other case that she didn’t personally verify facts in the affidavit.Appeals court dismissed borrowers complaint because the borrower didn’t present sufficient evidence of fraud or that any facts reviewed by the court in the original foreclosure case were in dispute. The borrower didn’t present any specific information regarding fraud in her case.
I did not see this as a ruling that robo-signing was not fraud. Rather, the judge said that the allegations about another case’s deposition were insufficient to show that an existing ruling (the house was already foreclosed and sold) should be vacated. The appeals court ruled that they would not over rule a trial court’s review of the facts without compelling evidence, which was not presented in this case.
I find the perspective of the article’s author and of Paul Jackson to be curious. The author said it was “good news for servicers” and Jackson said it was “huge news” because it found “robo-signing” was not fraud.
It seems very odd to me to be cheerleading for servicers’ right to submit bad information to the courts. That is a measure of just how far banks, and their minions, are willing to twist themselves over this issue.
In addition, this is far from a huge ruling. The borrower seems to have made a very weak case – first they didn’t challenge the foreclosure until after it was sold. Then, they only presented evidence from another case, without making any factual assertions in their own case (perhaps the goal was to re-open the case so they could take their own depositions, but this is a far more difficult route to attempt). In addition, they also tried to assert that the issue was “fraud”, which is, as you know, a very tough legal hurdle which requires the proof of “intent” which is difficult to establish.
While we’ll be seeing more fallout of the robo signing scandal, it’s more a symptom of deeper problems in the securitization process, namely, widespread disregard for contracts and legal procedures, than a huge issue in and of itself. But it will still be generating embarrassing stories for weeks and higher costs on an onging basis.
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