MERS, Banks Sued by New York State; MERSCORP Responds

Three major banks and Virginia-based
MERSCORP, Inc. and its subsidiary Mortgage Electronic Registrations Systems
(MERS) were sued Friday by the state of New York.  The suit, filed by the state’s Attorney
General Eric T. Schneiderman
, charges that the creation and use of a privately
national electronic registration system, MERS, “has resulted in a wide range of deceptive and fraudulent foreclosure
filings in New York state and federal courts, harming homeowners and
undermining the integrity of the judicial foreclosure process.”  Further, the lawsuit charges that the
employees and agents of the three banks, Bank of America, J.P. Morgan Chase,
and Wells Fargo
, acting as “MERS certifying officers,” have
repeatedly submitted court documents containing false and misleading information
that made it appear that the foreclosing party had the authority to bring a
case when in fact it may not have.  The
suit also names additional defendants for some of the charges including loan
servicing subsidiaries of the three banks.

The
lawsuit, filed in the Supreme Court of the State of New York, Kings County levies
the following charges:   

  • MERS was created to allow financial
    institutions to evade country recording fees, avoid the need to publicly record
    mortgage transfers and facilitate the rapid sale and securitization of
    mortgages. MERS members log all of their
    transfers in a private electronic registry rather than in the local county
    clerk’s office.
     
  • MERS is a shell company with no
    economic interest in any mortgage loan.
    It is the nominal “mortgagee” of the loan in the public records and
    remains as such regardless of how often the loan is sold or transferred among
    its members.
     
  • MERS has few or no employees but
    serves as the mortgagee for tens of millions of mortgages. It has indiscriminately designated over
    20,000 MERS member employees as MERS “certifying officers” expressly
    authorizing them to assign MERS mortgages and execute paperwork to foreclose on
    properties and submit claims in bankruptcy proceedings while failing to
    adequately screen, train, or monitor their activities. Assignments were often automatically
    generated and “robo-signed” by individuals who did not review the
    underlying property ownership records, confirm the documents’ accuracy, or even
    read the documents. MERS certifying
    officers have regularly 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 filing the case or its counsel.
     
  • Use of the private database to
    record property transfers has eliminated homeowners’ and the public’s ability
    to track them through the traditional public records system. This data base is plagued with inaccuracies
    and errors which make it difficult to verify the chain of title or the current
    note-holder. In addition, as a result of these
    inaccuracies, MERS has filed mortgage satisfactions against the wrong property.
     
  • This “bizarre and complex end-around
    of the traditional recording system” has saved banks more than $2 billion in
    recording fees and allowed the banks to securitize and sell millions of loans, “often
    misrepresenting the quality and nature of the mortgages being transferred.”
     
  • The creation and use of the MERS
    System by the Defendant Servicers and other financial institutions has 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 proceedings.

The lawsuit estimates that MERS
members have brought over 13,000 foreclosures against New York homeowners
naming MERS as the foreclosing property when in many cases MERS lacks the
standing to foreclosure.  Even when
foreclosures were not initiated in MERS name, proceedings related to their
registered loans often included deceptive information.

The lawsuit seeks a declaration that
the alleged practices violate the law, as well as injunctive relief, damages
for harmed homeowners, and civil penalties. The lawsuit also seeks a court
order requiring defendants to take all actions necessary to cure any title
defects and clear any improper liens resulting from their fraudulent and
deceptive acts and practices.

On January 24 the U.S. Court of
Appeals for the 11th Judicial Court upheld an appeal from MERS that
contended a lower court had erred in finding that a homeowner had been
improperly foreclosed on by MERS on the grounds that:

1).   The assignment of the security deed was
invalid because MERS, as nominee of a defunct lender could not assign the
documents of its own volition.

2.
    The “splitting” of the mortgage and
the note rendered the mortgage null and void and therefore notices of
foreclosure were invalid as not coming from a secured creditor.

The New York suit differs slightly from
the facts in Smith V. Saxon Mortgage,
but if Schneiderman wins his case, it could be that the legitimacy of MERS will
ultimately have to be decided by the U.S. Supreme Court.

…(read more)

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Marriott Delivers Late Editions

Marriott has been trying—and failing—for more than four years to build a brand of hip hotels. Now, it finally may be breathing some life into the Edition brand, its competitor to the stylish W chain.

Scope of California Homeowner Bill of Rights Narrowed by Recent Negotiations

California’s proposed Homeowner Bill
of Rights
, originally proposed by the state’s attorney general Kamala Harris
and covered here
has been modified extensively following what the Center for Responsible Lending
(CRL) calls six weeks of intense negotiation with banks, legislators, the
attorney general and consumer groups. 

Among the changes reported by CRL is
a narrowed scope for both the loans and servicers covered by the bill.  The only loans to which the bill will now
apply are first mortgages on owner occupied one-to-four family houses and only
servicers who process more than 175 foreclosures per year will be subject to
many of its requirements.

Earlier versions of the bill
required the lender or servicer to record and provide evidence of all
assignments as part of the chain of title to foreclose.  The current version requires that only
evidence of the last assignment be available to the borrower.  The current bill also includes an express and
comprehensive right to cure until the notice of trustee sale is filed.  A servicer can avoid liability by curing a
violation before the foreclosure sale.

Originally the bill provided
post-sale minimum statutory damages of the greater of actual damages or
$10,000; the new version allows only actual damages with triple damages or a
minimum of $50,000 available only in cases of intentional reckless violations
or willful misconduct.

Unlike the National Mortgage
Settlement the California bill allows for multiple contact persons as long as
they have the access and authority of a single point of contact.  Prohibitions against dual tracking and false
documents remain as in the original law, however the enforcement provisions
sunset after five years.

CRL says that this Homeowner Bill of
Rights remains critical for large number of borrowers, their communities, and
the California housing market.  It
ensures that borrowers in owner-occupied homes applying for loan modifications
get full and fair consideration for those modifications before the foreclosure
process begins.  This will allow the
foreclosure process to move more quickly for those who do not qualify for home
retention alternatives while preventing unnecessary foreclosures on borrowers
who do.

CRL released a new study of
California delinquencies with three principal findings.  First, loan modifications work well to keep
borrowers in their homes.  More than 80 percent
of California homeowners who received modifications in 2010 stayed current and
avoided re-default despite the continued recession.  Only 2 percent of those modified loans ended
in foreclosure.

Second, large numbers of borrowers
remain at risk with nearly 700,000 California mortgages in some state of delinquency
or foreclosures.  This is one out of nine
borrowers.

Third, middle class, African
Americans, and Latinos are the hardest hit. 
The delinquency rates for African Americans and Latinos are 11.1 and
10.7 percent respectively while for Asians and whites the rates are 7 and 7.3
percent.  Delinquencies are concentrated
among middle class borrowers, those making between $42,000 and $120,000
annually.

 “California policymakers will soon have the
chance to extend key servicing reforms from the National Mortgage Settlement to
all California borrowers, said Paul Leonard, CRL’s California Director. 
“Our legislators have an historic opportunity to overcome intense opposition
from the big banks and ensure that all Californians get a fair shot at loan
modifications.”

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Private Equity Checks In at Jameson Inn

Colony Capital, a California-based private equity firm, on Monday won a hard-fought battle among creditors for control of the Jameson Inn chain of 103 budget hotels in the Southeast and Midwest U.S.

April New Home Sales Bounce Back after March Drop

Sales of new single-family houses in April 2012 were at a seasonally adjusted annual rate of 343,000, according to estimates released jointly today by the U.S. Census Bureau and the Department of Housing and Urban Development. This is 3.3 percent above the March rate of 332,000 and is 9.9 percent above the April 2011 estimate of 312,000.  The March rate had originally been estimated at 328,000 so this revision somewhat moderates to -5.9 percent the sharp 7.1 percent decline which had been the focus of the March report.

On a non-seasonally adjusted basis there were an estimated 33,000 homes sold during the month, up from 32,000 in March.  This was the highest number of estimated monthly sales since April 2010 when there were 41,000 sales.  Sales one year earlier, April 2011, totaled 30,000.

At the end of April there were 146,000 new homes for sale (seasonally adjusted), more than half of which (88,000) were in the South.  The total represents a 5.1 month supply at the current sales pace, down from 6.7 months one year earlier when there were 174,000 new homes on the market.

Sales rose in all regions except the South where the annual rate was 177,000 units, down 10.6 percent from March but up 4.7 percent year-over-year. The rate in the Northeast was 28,000 units, up 7.7 percent from March and 16.7 percent from one year earlier.  The rate in the Midwest was 50,000, an increase of 28.2 percent and 22.0 percent respectively while in the West sales were at a rate of 88,000 units, up 27.5 percent and 12.8 percent.

The median sales price of new houses sold in April 2012 was $235,700 and the average sales price was $282,600 compared to $224,700 and $269,900 in April 2011.

MND received some reactions from industry analysts.  Andrew Grantham, an economist with CIBA World Markets said of the Census data “The slightly better figure reflected both a sharper rebound during the current month and some slight upward revisions to previous data. However, following a still sharp decline in March, the underlying trend in new home sales since the start of the year remains broadly flat, following the gradual uptrend towards the end of 2011. While this morning’s figures were slightly better than expected, reaction should be limited as markets remain preoccupied with events and news flow out of Europe.”

“The new homes sales data is much like what we saw from existing home sales yesterday,” according to Sean Incremona, Economist, 4Cast Ltd. “There is progress but still at a gradual pace. It is still baby steps. This increase of 343,000 still comes in below that February high, which was probably inflated by weather. It does look like we have found a bottom, which is encouraging, but it is still very slow progress at this point.”

Subodh Kumar, Chief Investment Strategist, Subodh Kumar and Associates said, “I don’t think this adds anything new for the market at this stage because there was some indication housing was bottoming out from yesterday’s numbers.

“It’s positive in the sense there have been various signs the pressure on housing is starting to abate. If new housing starts to pick up, it has a chain effect on the rest of the housing market.”

…(read more)

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