A Telling Foreclosure Story

In my previous post, I looked at the legal complications of using mortgage debts as collateral for additional debt. From the time I first heard about this practice--creating collateralized debt obligations or mortgage-backed bonds--in Thomas Friedman's book The Lexus and the Olive Tree (1999), I was troubled. Friedman takes a "gee-whiz-isn't that-cool" tone and looks forward to a day when "everything will be for sale" and can be turned into a bond.

But a story from Thursday's New York Times business section illustrates why turning mortgages into collateral is, in practice, a mess. At the end of the piece, the authors, Andrew Martin and Motoko Rich, tell the all-too-typical story of one family:

Charlotte and Thomas Sexton, of Carlisle, Ky., fell behind on their mortgage payments because the payments on their adjustable-rate mortgage spiked upwards and Ms. Sexton lost her job.

They tried unsuccessfully to sell the home, to refinance it and to modify their mortgage payment. When the Bank of New York Mellon filed a foreclosure notice last summer, they went to a local lawyer, Brian Canupp, who, with the help of a forensic accountant, found a problem in the foreclosure filing.

Last month, a judge tossed out a foreclosure judgment after Mr. Canupp argued that the mortgage trust that claimed to own the Sextons’ promissory note —Mortgage Pass-Through Certificates Series 2002-HE2 — did not exist.

Instead, another trust, called IXIS Real Estate Capital Trust, Series 2005-HE2, claimed to own the Sextons’ note, court records show.

Ms. Sexton said that regardless of who owns her promissory note, she just wants to stay in her home and hopes that the bank will eventually agree to a loan modification.

“We found a mistake,” she said, “that gave us a light at the end of the tunnel.”

So who owns their mortgage (or, more specifically, their promissory note)? The Bank of New York? The bondholders who own IXIS Real Estate Capital Trust Series 2005-HE2? Both? Neither?

The wizards didn't quite think through the simple question of who owns what. So our real estate market is a mish-mash of unclear title ownership, clogged courts, and messed-up foreclosures. It's going to take a long time to sort this all out--and nobody is happy about that (except maybe the Wall Street wizards who cashed out their profits a long time ago).

Who Really Owns Your House?

Who really owns your house? If your mortgage was securitized (used as collateral to back bonds that were sold worldwide) and you still owe on it, then the answer may be no one. Literally no one. As a matter of law, it isn't clear if the legal entities used to securitize mortgages can really assert ownership and foreclose on your house. Neither you, nor they, nor a bank, nor a diffuse group of bondholders can claim title. 

So how can banks foreclose on you if you go into default? Legally, they can't. This is the real reason why some of the big banks stopped foreclosure proceedings recently. Although recent stories focued on "robo-signers" signing tens of thousands of foreclosure notices a month, the story of this deeper legal morass is the real reason that bank shares are tumbling: investors are terrified that banks might not even be able to sell off foreclosed properties to cut their losses on mortgage-backed securities. The banks don't own the the underlying mortgages. Nobody does.

Floyd Norris of the New York Times, leads his column on Tuesday with this question: 

Was the great securitization machine that made hundreds of billions of dollars in mortgage loans based on a legal foundation of sand?

And the answer is Yes. 

In chapter 3 of my book, I made a passing reference to a judge's ruling in Cleveland that mortgage "trusts" couldn't actually claim title to homes. It turns out this is a major problem for any mortgages that were processed through MERS, the Mortgage Electronic Registration System, which is really a shell company set up by banks in the 1990s designed to bypass the traditional title registration process. (If you know anyone whose mortgage was processed through this system and who might be headed toward default, now is a good time to alert them to their rights.)

For those who want to delve into the legal details on this, Norris' column refers to a forthcoming paper by Christopher Peterson of the University of Utah Law School (click on the PDF download to read it)  that picks apart the fraudulent legal fiction called MERS, whose slogan is

As Peterson puts it, 

MERS is two-faced: impenetrably claiming to both own mortgages and act as an agent for others that also claim ownership.

MERS no legal right to both foreclose on you (as if it owns your mortgage) and act on behalf of banks (as if it is an agent of banks or trusts, to whom you owe a promissory note, promising to pay off what you owe). It cannot both assert property rights over your house and claim to be acting as a trustee of banks or bondholders who have a lien on your home. It has to be one or the other, but cannot be both. Yet MERS tries to do both. 

When financiers talk to investors, they claim to own mortgages in order to convey the sense that they own what they are selling. But when financiers talk to the government they claim not to own what they are selling so as to not be obliged to pay fees associated with owning it. MERS and its members prevent recording fees from being paid on assignments—that was the whole point of MERS—but then attempt avail themselves of the protection that having taken such an action would have afforded. 

The "whole point of MERS" was attempt to privatize and speed up the process of recording property rights and titles, bypassing local governments and their fees. Meanwhile, as Peterson says, the same giant banks that set up this shell company received massive bailouts while local governments were 

laying off teachers, firefighters, police officers, infectious disease clinic workers, closing criminal detention centers for violent juveniles, and shuttering courthouses.

Maybe this is why people are so mad at incumbent politicians. They know that something is deeply wrong with our institutions. They see that massive global banks continue to profit while ordinary people struggle to get by in local communities. 

Now, thanks to Professor Peterson and others like him, we can see that monied interests captured our institutions and no one really noticed. Globalized finance ran amok while we slept.

Can we wake up and figure out who owns our houses?

The Most Important Movie of 2010

In today's New York Times A.O. Scott positively reviews Inside Job, a new documentary about the global financial collapse. Produced by Charles Ferguson, who was responsible for No End in Sight, which was a brilliant analysis of the fiasco of the post-Iraq War occupation, this looks to be the most important film of the year. 

Call me a crazy globalization geek, but I cannot wait to see this as soon as possible. (If anybody knows if or when it's showing on the big screen in Northeast Ohio, please let me know. I don't want to wait until it's out on DVD.) I really do think every American citizen who cares about their country ought to watch this.

I say this because I think everyone needs to understand how our economy got into its current mess. And the way our economy got into its current mess is mainly due to the financial shock caused by aggressive, irresponsible lending by global banks.

Unlike Michael Moore, whose Capitalism: A Love Story was silly, Ferguson is not a cranky partisan. He has a PhD in political science from MIT, and he got into filmmaking by accident. He's an academic policy analyst at heart, and he applies his skills in his films. While No End in Sight was tightly focused on what happened after the Iraq invasion (in part because Ferguson actually supported Bush's policies beforehand), Inside Job delves into the deeper causes of the financial breakdown. (Here's the trailer.)

If you care about the world, you need to engage the story told in this film.

A Clear Analysis of New Global Financial Regulations

As the global sub-prime meltdown of 2007-08 showed, the financial systems of the world's major countries have been tightly integrated over the last 30 years. When U.S. banks wanted investors to buy bonds linked to subprime mortgages, they found them overseas. When overseas investors wanted to get higher returns on bonds, they bought supposedly safe subprime mortgage CDOs. Capital is global and mobile.

Meanwhile, banks and investment firms were able to leverage their assets, borrowing far more than they should have been able to, against the supposed value of their supposedly safe portfolios. It's clear to everyone that stricter capital requirements on banks would help. And that's exactly what the major players in global finance have agreed to in the so-called Basel III agreement. It's "so-called" because it's the third major agreement on global banking negotiated through the Bank of International Settlements in Basel, Switzerland. 

For a wonderfully clear and insightful analysis of this new deal, see a new article written by my former student, Dan McDowell. Dan makes the point that the enforcement of these new standards, which require banks to "keep more cash on hand" (as Dan puts it so clearly) will be voluntary. No international body will monitor compliance with the new Basel III standards, so the various participants might be tempted to cheat.

Basel III is a classic case study of global "governance without government" (which I discuss in chapter 9 of my book). There are standards, but there is no global authority to punish those who violate them (despite the misplaced fears of those who imagine that "a one world government" is just around the corner). Thanks to Dan, this is now clear. Nice work, Mr. McDowell!