How do you characterize people who lie, cheat and steal? Well, it all depends on who those people are. If they are poor people who lie on welfare application forms in order to steal food money from the government, they are called criminals and they are subjected to prison time.
If they lie to homeowners in order to steal homes, they are called "banks" who are simply doing "banking," and they won't face prison time. I've learned from my own law practice over the past few years that it is common for banks to concoct false paperwork, including false affidavits and court filings, when they are trying to foreclose against homeowners. My experience is also the experience of numerous other attorneys who represent home owners.
Now I do need to be clear: No homeowners should have the right to live in their houses for free. On the other hand, no bank should be allowed to kick a homeowner out of his or her house until and unless the bank proves that it is legally entitled to kick the homeowner out of the house, and there are specific rules for how a bank would know whether it would be entitled to kick a family out of a house. In millions of foreclosure cases, however, banks have been making shit up. They are engaged in flagrant robo-signing, they are allowing unauthorized people to sign critically important legal papers, and they are filing this false paperwork in courts from coast to coast. The centerpiece for much of this chaos is a artificial entity called MERS that has been created by the banks to stand in for them whenever convenient and to provide plausible deniability when it is not convenient. I've written about MERS previously. This practice of the big banks should stop, and the people doing these things should go to prison (The Missouri Attorney General recently brought a criminal case against an entity that was cranking out fraudulent paperwork). These banks should also be punished by not allowing them to foreclose. Instead, they should be declared to have, at best, unsecured status regarding the home loans they have screwed up, and they should be made to stand in line with all of the other unsecured creditors (e.g., credit card companies and utility companies). This is not a harsh remedy for huge sophisticated entities that are intentionally breaking the law to unfairly assert the extraordinarily harsh legal remedy of foreclosure.
I'm attaching the Complaint recently filed by the New York Attorney General, The People of the State of New York, by Eric T. Schneiderman, Attorney General vs. JP Morgan Chase Bank, Bank of America, Wells Fargo Bank and others. This suit concerns the common practice of America's biggest banks to concoct MERS to circumvent the proper recording of real estate in the state of New York (this same problem is going on in each other other states too). The end result is that the banks are cheating local government recording offices of substantial fees, and destroying the right to confidently trace property rights in real estate (i.e., The American Dream, i.e., the most expensive thing most people will ever own). In sum, banks have intentionally created a system called MERS that makes sure that transfers of title to real estate are not being properly recorded. It is now the case in many states that one cannot determine who actually has property interests in real estate. This is true for 70 million pieces of property in all 50 states. The New York suit is extremely well written; it provides a detailed look into many of the things that the big banks have done in an attempt to rewrite laws in order to make money unfairly and to screw consumers. I invite all concerned citizens (lawyers and non-lawyers) to read the NY AG's new lawsuit to see how incredibly corrupt the system has become, thanks to the efforts of big banks.
Next time you are wondering why well-informed people refer to banks as "house-jackers" or "banksters," consider these allegations by New York's Attorney General (this is but a small sampling of what you will find in the NY AG's suit):
20. When the subprime mortgage crisis hit and the number of defaults and foreclosures skyrocketed around the country, the shortcomings of the MERS System and its impact on tracking a property's chain of title became readily apparent, sparking widespread litigation. The creation and use of the MERS System by Defendant Servicers and other financial institutions have resulted in a wide range of deceptive and illegal practices, particularly with respect to the filing of New York Foreclosure Proceedings in state courts and federal bankruptcy courts.
21. The use of the MERS System, coupled with faulty and sloppy document preparation and execution practices, have resulted in foreclosures being filed against New York homeowners where the foreclosing party lacked the authority or standing to sue. MER members, including Defendant Servicers, have brought over 13,000 foreclosures against New York homeowners naming MERS as the plaintiff/foreclosing party. Indeed, for years MERS affirmatively encouraged its members to file foreclosures in MERS' name, again based on the rationale that doing so would save banks time and money. However, MERS often lacked standing to foreclose, and representations in court submissions that MERS owned and/or held the promissory note in such proceedings were often false and deceptive.
22. Even when foreclosures were not initiated in MERS' name. New York Foreclosure Proceedings involving MERS-registered loans often included deceptive submissions. Because MERS Inc. served as the mortgagee of record, the foreclosing party needed to be assigned the mortgage before filing the proceeding to have standing. In many instances, this assignment was not properly made. MERS certifying officers, including Defendant Servicers' employees and agents, have executed and submitted to court MERS mortgage assignments that contain many defects, including affirmative misrepresentations of fact, which render them false, deceptive, and/or invalid. These assignments were often automatically generated and "robosigned" by individuals who did not review the underlying property ownership records, confirm the document's accuracy, or even read the document. These false and defective assignments have often masked gaps in the chain of title and the foreclosing party's inability to establish its authority to foreclose, and as a result have misled homeowners and the courts.
23. Although there are several New York court decisions finding that foreclosing parties lacked standing, the issue of standing is rarely raised and litigated because most homeowners lack counsel and are unfamiliar with MERS' precise role in their loan. Indeed, a significant percentage of foreclosure actions result in default judgments.
24. In addition, MERS' indiscriminate use of non-employee certifying officers has confused, misled, and deceived homeowners and the courts and made it even more difficult to ascertain whether a foreclosing party actually owns or holds the note and mortgage to have standing to foreclose. MERS certifying officers, including Defendant Servicers' employees and agents, have routinely executed and submitted in court mortgage assignments and other legal documents on behalf of MERS without disclosing that they are not MERS employees, but instead are employed by other entities, such as the mortgage servicer that filed the case or its counsel. As a further complication, the same MERS certifying officer might execute multiple documents on behalf of different parties in a single proceeding.
25. In short, MERS' conduct, as well as Defendants Servicers' use of the MERS have resulted in the filing of improper New York Foreclosure Proceedings, undermined the integrity of the judicial process, created confusion and uncertainty concerning property ownership interests, and potentially created clouds of title on properties throughout the State of New York.
