Mortgage Bankers Association

Oregon Foreclosures: The Mess That MERS Made, by Phil Querin, Q-Law.com

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For the past several years in Oregon, foreclosures have been processed fraudulently and in violation of Oregon’s trust deed law. Banks, servicers, title companies and licensed foreclosure trustees, were all aware of the problem for years, but no one did anything about it. This was not a minor error or simple oversight – it was a patent disregard for the laws of Oregon.

Oregon’s Trust Deed Foreclosure Law. It is widely known that during the credit/housing boom, lenders frequently sold their loans between one another. When the ownership of a loan is transferred, it is necessary to execute, in recordable form, an “Assignment of Trust Deed.” ORS 86.735(1) governs what must occur before a trust deed may be foreclosed in Oregon; all such assignments must be placed on the public record. This is not a new law and it is not significantly different from the laws of many other states. Oregon’s law has been on the books for decades.

ORS 86.735(1) is not complicated or confusing. It simply means that after the original lender makes a loan and takes back a trust deed (which is immediately recorded), all subsequent assignments of that loan must be recorded before the foreclosure is formally commenced. In this manner, one can see from the public record, the “chain of title” of the loan, and thereby know with certainty, that the lender filing the foreclosure actually has the legal right to do so. It protects the consumer and assures the reliability of Oregon land titles.

The MERS Solution. In the 1990s, MERS came into existence. Its avowed purpose was to replace the time honored system of public recording for mortgage and trust deed transfers, with an electronic registry which its members would voluntarily use when a loan was transferred. This registry is for use only by MERS members, all of whom are in the lending industry. The immediate effect of MERS was that lenders stopped publicly recording their mortgage and trust deed assignments. This deprived local governments of millions of dollars in recording fees, and took the business of the sale of loans “underground.” A more detailed discussion of MERS’ business model is posted here.

Although the numbers vary, it is believed that MERS comprises approximately 60% of the national lending industry. Until recently, it had no employees. MERS was not born from any state statute or national enabling legislation. It was the brainchild of its owners, Mortgage Bankers Association, Fannie Mae, Freddie Mac, Bank of America, Nationwide, HSBC, American Land Title Association, and Wells Fargo, among others.

How MERS Has Contributed To Oregon’s Mortgage Mess. In an effort to give MERS the appearance of authority, its rules clarify that it will act solely as a “Nominee” for each of its members – doing only what its member instructs, but in its own name and not the name of the member. The “Nominee” is, as some Oregon federal judges have correctly observed, nothing more than “a strawman.”

When the foreclosure crisis hit, lenders realized that they needed some way to get the trust deed into current bank’s hands to initiate the process. Since MERS’ existence was virtual, and with no real employees, whenever it came time to assign a mortgage or trust deed, a MERS “Assistant Vice President” or “Assistant Secretary” would execute the assignment on behalf of MERS in their “official” capacity. But since MERS has no such officers, it simply created mass “Corporate Resolutions”, appointing one or more low level member bank employees to “robo-sign” thousands of bogus assignments.

It is important to note that these MERS “officers” only made one assignment – i.e. from the original lender whose name appeared on the public record when the loan was first made, to the foreclosing lender. In Oregon, this means that ORS 86.735(1) requiring the recording all of the intervening assignments, was intentionally ignored. Hence, there was never a “chain of title” on the public record disclosing the intervening assignments of the loan. As a result, in Oregon, no one – including the homeowner – knows if the bank foreclosing a loan even has a legal right to do so.

And there is reason to believe many of the banks did not have the legal right to foreclose. In every Oregon foreclosure I have witnessed during the last twelve months, where the loan was securitized into a REMIC, there is substantial doubt that the foreclosing bank, acting as the “trustee” of the securitized loan pool, actually had any right to foreclose. This is due to the strict tax, accounting, and trust laws governing the REMIC securitization process.

The short explanation is that if the paperwork was actually transferred into a loan pool between, say 2005 – 2008, there would be no need for an assignment to that trustee today – the loan would have already been in the pool and the trustee already had the right to foreclose; but if the loan was not transferred into the pool back then – when it should have been, it cannot be legally assigned out to that trustee today. Although it is not always easy to locate, the Pooling and Servicing Agreement, or “PSA,” governing the REMIC will contain a “Cut-Off Date.” That date is the deadline for the sponsor of the REMIC to identify the pool’s notes and trust deeds (or mortgages) in the trust. After that time [subject to limited exceptions – which do not include the transfer of nonperforming loans into the trust – PCQ], no new loans may be added. For example, if the REMIC was created in early 2006, the Cut-Off Date is likely to also be in 2006. This would mean that a bank, acting in the capacity of a trustee for a certain REMIC today, would not have the legal right to foreclose, if that trustee only recently received the trust deed assignment. The REMIC had been closed years earlier.

This is fraudulent. Yet it was so widespread, that foreclosures routinely adopted this “single assignment” model, and it became an assembly line business for MERS and its member banks. The assignment documents were typically prepared in advance by foreclosure mill attorneys and foreclosure trustee companies, uploaded into cyberspace to a servicer or foreclosure processing company, and signed, en masse, by robo-signers. Then the assignments were shipped over to notaries, who never actually witnessed the MERS “officer” sign an document. Once completed, the original assignment document was sent via overnight mail to the foreclosure trustee to record and begin the foreclosure. In many instances, the foreclosure trustee, (a) acting as a MERS “officer” would sign the assignment document transferring ownership of the loan to a lender, then (b) he or she would sign another document appointing their company as the Successor Trustee, then (c) that same person would also sign the Notice of Default, which commenced the foreclosure. No conflict of interest there…. It is this “need for speed” that epitomizes the MERS business model.

The result has been predictable – today there is evidence of fraudulent foreclosure paperwork on a massive scale. Forgeries are rampant. Notarization laws are flaunted. Until recently, the banks and MERS have gotten away with this scheme. The lending, servicing and title industries have simply taken a “don’t ask, don’t tell” approach to foreclosures in Oregon and elsewhere.

However, in 2010, Oregon and several other states said “enough.” In Oregon for example, there were at least three federal district court and bankruptcy court cases that struck down foreclosures due to the use of the MERS strawman model, and also based upon the flagrant violation of ORS 86.735(1). The most notable of these cases is the February 7, 2011 published opinion of Hon. Frank R. Alley III, Chief Bankruptcy Judge in Donald McCoy III v. BNC Mortgage, et al. Judge Alley held, in part, that: “…the powers accorded to MERS by the Lender [whose name appears in the Trust Deed] – with the Borrower’s consent – cannot exceed the powers of the beneficiary. The beneficiary’s right to require a non-judicial sale is limited by ORS 86.735. A non-judicial sale may take place only if any assignment by [the Lender whose name appears in the Trust Deed] has been recorded.” [Parentheticals mine. PCQ]

Judge Alley concluded that a failure to follow the successive recording requirement of ORS 86.735(1) meant that the foreclosure was void. It is important to note that in McCoy, as in most rulings against MERS lenders, the courts have not held that the banks may not prosecute their foreclosures – merely that before doing so, they must record all intervening assignments, so there is no question as to the foreclosing bank’s standing.

MERS is now engaged, through surrogates and one or more lobbyists, to introduce a bill in the Oregon legislature. It is a bold effort to legislatively overturn Judge Alley’s ruling, as well as similar adverse rulings by Oregon federal court judges, King, Hogan, and Perris.

MERS, its member banks, and the foreclosure industry, including its foreclosure mill attorneys, have never had justification for ignoring Oregon’s foreclosure law. Nor have they offered any justification. Instead, they have threatened that if ORS 86.735(1) and other homeowner protections in our foreclosure statutes are not amended to give MERS the right to continue acting as a strawman, and to avoid recording all successive assignments, the Oregon housing and foreclosure crisis will continue longer than necessary. Metaphorically speaking, having been caught with their hand in the cookie jar, MERS now asks the Oregon Legislature to legalize cookie theft.

Oregon Consumers Need To Be Protected. MERS’ proposed legislative solution does nothing to protect homeowners. Rather, it is aimed at legalizing patently fraudulent conduct, in the name of “helping” Oregon homeowners get through the foreclosure crisis faster. Thanks, but no thanks. The title and lending industry are concerned that if a law is not immediately passed giving MERS its way, foreclosures will come to a halt and commerce will suffer. The banks have even threatened to file judicial foreclosures against homeowners, to somehow avoid the recording of assignments law. This is a complete ruse. Here’s why:

Lenders cannot avoid their paperwork problems in Oregon by going into court. As we have seen in Oregon’s federal court cases, the banks are still unwilling to produce the necessary documents to prove they have standing to foreclose. If a bank does not have the legal documentation minimally necessary to establish its right to foreclose non-judicially, why would it go into court and shine a bright light on its own fraudulent paperwork? The outcome will be the same – as we have seen in judicial foreclosure states such as Florida, where they now require the banks’ attorneys to certify to the truthfulness of their pleadings and paperwork.
Lenders will not go into court for fear of further alienating an already alienated public. [Note the recent MERS Announcement to it’s members, tightening is rules due to concern over its “…reputation, legal and compliance risk….” – PCQ]
The banks know that with the high court filing fees and lawyers, it will be much more costly for them to foreclose judicially in court. While they do not seem concerned about their high executive bonuses, when it comes to the cost of foreclosures, they’ll pinch a penny ’til it screams.
In any event, there is little reason to fear judicial foreclosures clogging court dockets. With proper documentation, the process can be relatively fast (3+ months), since the cases could be disposed of on summary judgment. If judicial foreclosure cases became too numerous, the local courts can create expedited protocols and assign certain judges to speed them through – as done in other states. Lastly, many foreclosures are already being filed judicially, especially on commercial properties. To date, there has been no hue and cry that it is overwhelming the court systems.
The lenders’ complaints that foreclosures are slowing Oregon’s housing recovery are not necessarily verified by the stats. Oregon’s Regional Multiple Listing Service (“RMLS™”) shows that January 2009 housing inventory (i.e. dividing active listings by closed sales) was 19.2 months; January 2010 was 12.6 months; January 2011 was 11.3 months. February 2009 was 16.6 months, February 2010 was 12.9 months; and February 2011 was 10.9 months. March 2010 showed housing inventory at 7.8 months (down from 12.0 months in 2009), and there is no reason we cannot expect even better numbers when this month is over.

These numbers suggest that housing inventory is gradually being reduced year over year. Although it is true that housing prices continue to decline, that is more likely the result of lenders fire-selling their own REO inventory, than anything else. I say this because of many anecdotal reports of lenders refusing short sales at prices higher than they ultimately sold following foreclosure. Perhaps lender logic is different than human logic….

In an online article in Mortgage News Daily [a lender resource site – just look at their advertising – PCQ], it was reported:

The cost of a foreclosure, it turns out, is pretty staggering and we wonder why lenders and the investors they represent aren’t jumping at a solution, any solution, that would allow them to avoid going to foreclosure whenever possible.***According the Joint Economic Committee of Congress, the average foreclosure costs were $77,935 while preventing a foreclosure runs $3,300.

Overall, foreclosure is a lose-lose proposition for all concerned – except perhaps the companies servicing and foreclosing the loans [Point of Interest: Bank of America owns BAC Servicing and ReconTrust, and is making millions from the business of servicing and foreclosing the loans it made to its own borrowers. A sterling example of vertical integration in a down market… PCQ]

The only good solution is a non-foreclosure solution. Lenders already have ultimate control over the outcome for every loan in default. In those cases where modifications are viable, they should do so on an expedited basis. [Point of Interest: Go to the following CoreLogic site here , where in 2010 they touted their new analytics program that is designed to enhance lender decision making on modifications, short sales, and deeds-in-lieu. One has to believe that if such programs exist and banks stopped losing borrowers’ paperwork, they could actually have a decision back fairly quickly – rather than the 14-month horror stories we hear about. – PCQ]

Although it is doubtful that the industry can and will – anytime soon – create a fast and fair process to reduce principal balances, that is certainly a fair solution. It is fair to the homeowner in need, and actually fair to the bank, since the cost of foreclosure, including taxes, insurance, commissions, and other carrying costs, are significantly more than the short term pain of a write down. [If the banks need a little accounting sleight-of-hand from the FASB, there’s no reason they couldn’t put some pressure on, as they did with the mark-to-market rules. -PCQ]

Another, more likely and quicker solution, is to establish a fast-track short sale process. This should not be complicated if the banks stopped “losing paperwork” and focused on turning short sales into 45-60 day closings, consistent with the timing for equity sales. It has been lender delays that have stigmatized short sales, so only hungry investors, and buyers with the patience of Job, participate. This can change if banks begin expediting their short sale processing.

With both the modification and short sale alternatives, lenders do not receive the property back into their already bloated REO departments; and there is the added advantage that the banks do not have to risk a judicial slapdown, when using their fraudulently prepared Assignments of Trust Deed. In short, it is a “win-win” solution for lender and borrower.

Conclusion. The MERS business model was based upon the concept that “It is better to seek forgiveness than permission.” The problems they created were done with their eyes wide open in a brazen act of “might makes right” hubris. After having created these problems, they are now seeking to legislatively overturn the rulings of several of Oregon’s highly regarded federal judges. These decisions have affirmed the rule of law. To do otherwise – that is to sanctify MERS’ illegal conduct by eviscerating statues designed to protect homeowners, would be a travesty.

MERS, the banks, and the title industry own this problem, and they should own the solution. Whatever the outcome, it must be fair, and should not be borne on the backs of Oregon’s already struggling homeowners.

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Mortgage Apps Rise as FHA Loan Demand Surges, Thetruthaboutmortgage.com

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Mortgage application volume increased 5.3 percent on a seasonally adjusted basis during the week ending April 15 as government mortgage demand surged, the Mortgage Bankers Association reported today.

The refinance index increased a meager 2.7 percent from the previous week, but purchase money mortgages jumped 10.0 percent, mostly due to a 17.6 percent spike in FHA loan lending.

“Purchase application volume jumped last week largely due to another sharp increase in applications for government loans. Borrowers were likely motivated to apply for loans before the scheduled increase in FHA insurance premiums,” said Michael Fratantoni, MBA’s Vice President of Research and Economics, in a release.

“Refinance activity increased somewhat, as rates dropped to their lowest level in a month towards the end of the week.”

That pushed the refinance share of mortgage activity to 58.5 percent of total applications from 60.3 percent a week earlier.

So it looks as if purchases will eclipse refinances in the near future, which is good news for the flagging housing market.

Meanwhile, the popular 30-year fixed-rate mortgage dipped to 4.83 percent from 4.98 percent, keeping the hope of refinancing alive for more borrowers.

The 15-year fixed averaged 4.07 percent, down from 4.17 percent a week earlier, meaning mortgage rates are still very, very low historically.

That alone could bring more buyers to the signing table this summer.

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Would-be buyers face even more hurdles on home front, by Mary Ellen Podmolik, Chicago Tribune

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The drumbeat from the housing community was loud and clear in 2010: There was never a better time to buy a home.

For most of the past 12 months, home prices tumbled, mortgage rates ticked downward, and the inventory of available traditional and distressed homes was plentiful.

But would-be buyers, even if they were able to overcome job worries, found that the hurdles to obtain a loan were formidable. They remained on the sidelines, and housing analysts opined that if the broader economy improved and unemployment fell, pent-up demand would be unleashed, credit guidelines would ease and home sales would improve.

As the new year begins, that guarded optimism has turned into uncertainty, thanks to a combination of rising mortgage rates, tighter underwriting guidelines and sweeping government regulation. As a result, it’s unlikely to get any easier and may, in fact, get much more difficult to buy a home in 2011.

“From a credit standpoint, I tend to think we’re toward the bottom of that cycle,” said Bob Walters, chief economist for Quicken Loans Inc. “The bad news is, I don’t think it’s going to get a lot better in 2011. You’ll hear a lot more noise pressuring the industry to ease guidelines, and you’ll hear from the industry that we don’t want a redo of what’s happened.”

Risky practices

Looming large over the mortgage market are provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act that have yet to be finalized. Among them is a requirement that mortgage lenders maintain some “skin” in the game on the mortgages they originate by holding at least 5 percent of the credit risk rather than bundling the loans and selling them off entirely.

The goal is to discourage a repeat of risky past practices, but the legislation makes an exception to the risk-retention standard for what is labeled a “qualified residential mortgage.” It is the still-unspecified definition of what’s become the industry’s latest acronym to digest, QRM, that has lenders in an uproar.

If a very strict definition is applied by regulators, and a final rule isn’t expected until the spring, it could become more difficult, and more costly, for homebuyers to secure mortgage financing.

“People have some very different ideas of how to define this,” said Michael Fratantoni, vice president of research and economics at the Mortgage Bankers Association. “Some would say if it doesn’t have a 30 percent down payment, it’s not a QRM. For a first-time homebuyer, that would really be eye-opening. It definitely has the potential to turn the market upside down.

“This could dramatically tighten underwriting much more than what the lenders have already done. It’s going to make it even tougher to work through the (housing) overhang.”

Wells Fargo has told regulators it supports exempting mortgages with a 30 percent down payment. Community banks worry such a strict definition would curtail home mortgage lending.

“If you have to have 30 percent down, the American dream would become the American fantasy,” said Nick Parisi, a senior vice president at Standard Bank and Trust Co. in Hickory Hills, Ill.

Less competition

Additional regulation on mortgage bankers will mean a thinning of their ranks, weeding out the unscrupulous players. But it also will lessen consumers’ ability to comparison-shop widely for the best home mortgage product.

“That means less competition, and generally, less competition is not good for the consumer,” said Quicken’s Walters. “It might mean that your interest rate over time is a little higher. A less competitive industry has to work less hard.”

Tighter lending requirements already have steered 40 percent of buyers to secure Federal Housing Administration-backed loans, which carry their own set of fees. FHA-backed loans are exempt from the Dodd-Frank provision.

Another new wrinkle to the mortgage market is that beginning in March, Freddie Mac will raise fees for mortgages sold to Freddie that carry higher loan-to-value ratios.

Fannie Mae in late December announced its own series of considerable loan-level price adjustments, effective April 1, for mortgages with greater than a 60 percent loan-to-value that will apply even to consumers with credit scores above 700.

Loan fees aren’t the only item going up: So is the cost of money itself. The average rate on 30-year, fixed-rate mortgages has been below 5 percent since early May, but economists predict those days are nearing an end.

General guidance on mortgage rates for a 30-year, fixed-rate mortgage call for them to stay under 6 percent for the year, likely falling somewhere between 4.75 percent and 5.5 percent. Still, that could be a jolt to buyers on the sidelines who watched rates drop to as low as 4.2 percent in the fall.

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Mortgage Applications in U.S. Increase From 12-Month Low on Refinancing, by Bob Willis, Bloomberg.com

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Mortgage applications in the U.S. rose last week from a 12-month low as refinancing increased for the first time since early November.

The Mortgage Bankers Association’s index of loan applications increased 2.3 percent after dropping 3.9 percent in the prior week to the lowest level since December 2009. The group’s refinancing gauge rose from the lowest level since Jan. 1, while the purchase index declined.

Home-purchase applications fell 31 percent at the end of the year from a 2010 high in April, while an increase in mortgage rates hampers refinancing. Declining home prices, mounting foreclosures and unemployment hovering near 10 percent mean any recovery in housing, the industry that triggered the recession, will probably take years.

“It doesn’t look good,” Brian Bethune, chief financial economist at IHS Global Insight in Lexington, Massachusetts, said before the report. “With rates moving up, it’s going to be a tough hurdle.” On purchases, “we’re still in this sideways, choppy situation.”

The group’s refinancing gauge rose 3.9 percent after dropping 7.2 percent. The purchase index fell 0.8 percent last week after rising 3.1 percent.

The average rate on a 30-year fixed loan dropped to 4.82 percent last week from 4.93 percent the prior week, which was the highest since May, the group said. The rate reached 4.21 percent in October, the lowest since the group’s records began in 1990.

Borrowing Costs

At the current 30-year rate, monthly borrowing costs for each $100,000 of a loan would be $525.87, or about $22 less than the same week the prior year.

The share of applicants seeking to refinance a loan rose to 71 percent last week from 70.3 percent the prior week.

Hovnanian Enterprises Inc., the largest homebuilder in New Jersey, on Dec. 22 reported a fourth-quarter loss bigger than analysts expected as revenue fell 19 percent.

“The year can generally be described as one where we and the industry were bouncing along the bottom,” Chief Executive Officer Ara Hovnanian said on a conference call.

The Washington-based Mortgage Bankers Association’s loan survey, compiled every week, covers about half of all U.S. retail residential mortgage originations.

To contact the reporter on this story: Bob Willis in Washington at bwillis@bloomberg.net

To contact the editor responsible for this story: Christopher Wellisz at cwellisz@bloomberg.net

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In foreclosure controversy, problems run deeper than flawed paperwork, by Brady Dennis and Ariana Eunjung Cha, Washingtonpost.com

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Sign of the times - Foreclosure

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Millions of U.S. mortgages have been shuttled around the global financial system – sold and resold by firms – without the documents that traditionally prove who legally owns the loans.

Now, as many of these loans have fallen into default and banks have sought to seize homes, judges around the country have increasingly ruled that lenders had no right to foreclose, because they lacked clear title.

These fundamental concerns over ownership extend beyond those that surfaced over the past two weeks amid reports of fraudulent loan documents and corporate “robo-signers.”

The court decisions, should they continue to spread, could call into doubt the ownership of mortgages throughout the country, raising urgent challenges for both the real estate market and the wider financial system.

For struggling homeowners trying to avoid foreclosure, it could mean an opportunity to challenge the banks they argue have been unhelpful at best and deceptive at worst. But it also threatens to leave them in prolonged limbo, stuck in homes they still can’t afford and waiting for the foreclosure process to begin anew.

For big banks, “there’s a possible nightmare scenario here that no foreclosure is valid,” said Nancy Bush, a banking analyst from NAB Research. If millions of foreclosures past and present were invalidated because of the way the hurried securitization process muddied the chain of ownership, banks could face lawsuits from homeowners and from investors who bought stakes in the mortgage securities – an expensive and potentially crippling proposition.

For the fragile housing market, already clogged with foreclosure cases, it could mean gridlock and confusion for years. And there is concern in Washington that if the real estate market and financial institutions suffer harm, it could force the government to step in again. Attorney General Eric H. Holder Jr. said Wednesday he is looking into the allegations of improper foreclosures, and Sen. Christopher J. Dodd (D-Conn.), chairman of the Senate banking committee, said he plans to hold hearings on the issue.

At the core of the fights over the legal standing of banks in foreclosure cases is Mortgage Electronic Registration Systems, based in Reston.

The company, known as MERS, was created more than a decade ago by the mortgage industry, including mortgage giants Fannie Mae and Freddie Mac, GMAC, and the Mortgage Bankers Association.

MERS allowed big financial firms to trade mortgages at lightning speed while largely bypassing local property laws throughout the country that required new forms and filing fees each time a loan changed hands, lawyers say.

The idea behind it was to build a centralized registry to track loans electronically as they were traded by big financial firms. Without this system, the business of creating massive securities made of thousands of mortgages would likely have never taken off. The company’s role caused few objections until millions of homes began to fall into foreclosure.

In recent years, the company has faced numerous court challenges, including separate class-action lawsuits in California and Nevada – the epicenter of the foreclosure crisis. Lawyers in other states have also challenged the company’s legal standing in court.

 

Kentucky lawyer Heather Boone McKeever has filed a state class-action suit and a federal civil racketeering class-action suit on behalf of homeowners facing foreclosure, alleging that MERS and financial firms that did business with it have tried to foreclose on homes without holding proper titles.

“They have no legal standing and no right to foreclose,” McKeever said. “If you or I did this one time, we’d be in jail.”

Judges in various states have also weighed in.

In August, the Maine Supreme Court threw out a foreclosure case because “MERS did not have a stake in the proceedings and therefore had no standing to initiate the foreclosure action.”

In May, a New York judge dismissed another case because the assignment of the loan by MERS to the bank HSBC was “defective,” he said. The plaintiff’s counsel seemed to be “operating in a parallel mortgage universe,” the judge wrote.

Also in May, a California judge said MERS could not foreclose on a home, because it was merely a representative for Citibank and did not own the loan.

On the other hand, Minnesota legislators passed a law stating that MERS explicitly has the right to bring foreclosure cases. And on its Web site and in e-mails, MERS cites numerous court decisions around the country that it says demonstrate the company’s right to act on behalf of lenders and to undertake foreclosures.

“Assertions that somehow MERS creates a defect in the mortgage or deed of trust are not supported by the facts,” a company spokeswoman said.

But that’s precisely what lawyers are arguing with more frequency throughout the country. If such an argument gains traction in the wake of recent foreclosure moratoriums, the consequences for banks could be enormous.

“It’s an issue of the whole process of foreclosure having been so muddied by the [securitization] process,” said Bush, the banking analyst. “It is no longer a straightforward legalistic process, which is what foreclosures are supposed to be.”

Janet Tavakoli, founder and president of Tavakoli Structured Finance, a Chicago-based consulting firm, said that for much of the past decade, when banks were creating mortgage-backed securities as fast as possible, there was little time to check all the documents and make sure the paperwork was in order.

But now, when judges, lawyers and elected officials are demanding proper paperwork before foreclosures can proceed, the banks’ paperwork problems have been laid bare, she said.

The result: “Banks are vulnerable to lawsuits from investors in the [securitization] trusts,” Tavakoli said.

Referring to the federal government’s $700 billion Troubled Assets Relief Program for banks, she added, “This problem could cost the banks significantly more money, which could mean TARP II.”

dennisb@washpost.com chaa@washpost.com

 

 

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Home Purchase Loan Applications Highest Since May, thetruthaboutmortgage.com

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It was a good week for home purchase applications as refinance apps fell for a fifth straight week, according to the Mortgage Bankers Association.

Overall, mortgage application volume decreased 0.2 percent on a seasonally adjusted basis for the week ending October 1.

The refinance index slipped 2.5 percent from the previous week and the seasonally adjusted purchase index jumped 9.3 percent to the highest level since the week ending May 7.

The unadjusted purchase index was up 9.1 percent compared with the previous week, but still 34.7 percent lower than the same week a year ago.

“The increase in purchase activity was led by a 17.2 percent increase in FHA applications, while conventional purchase applications also increased by 3.6 percent,” said Jay Brinkmann, MBA’s Chief Economist, in a release.

“This is the second straight weekly increase in purchase applications and the highest Purchase Index level since the expiration of the homebuyer tax credit program.

Brinkmann noted that FHA loan apps may have jumped as borrowers rushed to get applications in before the new FHA requirements took effect on October 4th, which include higher credit score and down payment requirements.

The increase in purchase activity pushed the refinance share of mortgage activity to 78.9 percent of total applications from 80.7 percent the previous week.

Mortgage Rates Hit New Record Lows

Meanwhile, the popular 30-year fixed-rate mortgage hit a new record low 4.25 percent, down from 4.38 percent a week earlier.

The 15-year fixed also hit a record low, falling to 3.73 percent from 3.77 percent.

Finally, the one-year adjustable-rate mortgage increased to 7.11 percent from 7.04 percent.

The mortgage rates are good for mortgages at 80 percent loan-to-value – pricing adjustmentscan lower or raise your actual interest rate.

Keep in mind the MBA’s weekly survey covers more than half of all retail, residential loan applications, but does not factor out duplicate or rejected apps, which have surely increased since the mortgage crisis got underway a few years back.