It looks like the mortgage soap opera may be well into a new act and one doomsayer is predicting that there is a rotund woman with a horned helmet and a spear waiting in the wings.
Iris Martin, writing in the Huffington Post on Monday set forth her claim that a huge percentage of securitized mortgages are fraudulent and asserted that many foreclosures are already being thrown out of court based on the poor or non-existent titles of those who are bringing the foreclosure action.
Lack of perfection of title is just one reason that Martin feels that thousands of homes may actually already belong free and clear to homeowners who are just not yet aware of their legal situation and that thousands of others that have already been foreclosed may become the focus of lawsuits once the former owners realize what has happened to them. She claims that not only will President Obama's plan to create public-private partnerships to purchase and manage toxic assets not work, but it will be the final blow to the global economy.
The imperfect title problem
came about, she says, because transfers and endorsements of notes were not properly made or not made at all and the real owner of a note may be impossible to identify.
Martin is promoting a new book to be published in June promoting her thesis so her theory needs to be taken with more than one grain of salt but, during the early 1990's real-estate-led banking crisis there were significant problems with mortgages that had been either bought or sold by failed banks where assignments had not been properly recorded and ownership was problematic.
One investor who had purchased a portfolio of FDIC loans blithely carried out a foreclosure in FDIC's name because he had failed to record and then lost his assignment. He was mightily offended that FDIC refused to sign documents making the farce legal. These unperfected liens not only popped up when foreclosures were initiated but also when homeowners who had paid off their mortgages sort of thought they would like a discharge.
That these problems were created long before mortgages were sliced and diced into derivatives and that banks seem to be having a heck of a time unwinding these securities gives some credence to Martin's claims. It has seemed odd from the start that lenders were telling both Congressional hearings and television interviewers that it was extremely difficult to modify a loan because so many investors were involved. Could it be that they simply didn't know who the investor were?
Martin references numerous cases nationwide where judges threw out foreclosures where lenders had brought action against "illegally securitized loans and are no longer current holders of the notes."
Martin sees another problem where homeowners have a defense against foreclosure or avenues for redress when they have already lost their homes. These cases would be based on the more familiar type of mortgage fraud, predatory lending. She quotes one litigator from California who states that predatory lending claims, which can not only free the homeowner from the mortgage but result in substantial damages, can be won if the homeowner can provide that the loan was made purely for the lender's sole benefit.
A Wisconsin couple recently won such a case charging fraudulent misrepresentation and predatory practices. Now their attorney is fighting his way through the courts to convert the suit to class action status.
Ms. Martin maintains that there is not enough money in the world - or even from the government - to save lenders from their eventual fate as homeowners sue en masse to remove lenders from the titles to their homes.
Ms. Martin's book, which appears to be a do-it-yourself manual for homeowners to fight their mortgagees, will certainly attract wide attention even months before its publication. If she is right, the outcome is too terrible to contemplate. Even if she is wrong, her book may push enough people toward litigating their fate to become a self-fulfilling prophecy.http://www.mortgagenewsdaily.com/04012009_imperfect_title_problem.asp