Josh Rosner On Massachusetts Foreclosure Ruling: "Opens the floodgates to more lawsuits and strengthens cases in other states" - Includes Amicus Brief
Our first story on the Massachusetts ruling:
Banks lose pivotal Massachusetts case
U.S. Bancorp and Wells Fargo & Co., in a ruling that drove down bank stocks, lost a foreclosure case before Massachusetts’s highest court that will guide lower courts in that state and may influence others in bank disputes involving state real-estate law.
The state Supreme Judicial Court yesterday upheld a judge’s decision saying two foreclosures were invalid because the banks didn’t prove they owned the mortgages, which he said were transferred into two mortgage-backed trusts without the recipients’ being named.
Joshua Rosner, an analyst at the New York-based research firm Graham Fisher & Co., called the decision “a landmark ruling” showing that at least in Massachusetts a mortgage “must name the assignee to be valid.”
“This is likely to open the floodgates to more suits in Massachusetts and strengthens cases in other states,” Rosner said.
“We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure,” Justice Ralph D. Gants wrote for a unanimous court.
Although the decision was issued by a Massachusetts state court, it will be used by homeowners in foreclosure cases in other states, said Matthew Weidner, a St. Petersburg, Florida, lawyer who represents such homeowners.
- “This is a very detailed, very specific indictment of an entire industry’s practices and procedures, and it’s an indictment that is going to send shockwaves throughout the entire mortgage, foreclosure, real-estate servicing industry,” he said.
“In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage,” Gants wrote.
- The court rejected the banks’ request to apply the decision only to future foreclosures if they lost.
- In a concurring opinion, Justice Robert J. Cordy said he was struck by “the utter carelessness with which the plaintiff banks documented the titles to their assets.”
“All that has changed is the plaintiffs’ apparent failure to abide by those principles and requirements” in the law “in the rush to sell mortgage-backed securities,” Gants wrote.
IBANEZ DECISION ANALYZED
They never did the assignment and later when they tried to correct that problem they found they were in the position of violating the terms spelled out in the PSA wherein the assignment could be accepted by the pool — as to time, content (non-performing loans) etc. As of this point in time, there are approximately 50 million transactions over the past ten years that fit this fact pattern. All of them have fatal defects in title.— Neil Garfield
The big point to take away from this decision is that the Banks must prove they have the right — it will no longer be presumed just because they have some paperwork of dubious authenticity and give an order to foreclose. Trustees around the country better take notice that if they receive an instruction on a Deed of Trust that they should foreclose they may be a tool in a fraudulent scheme.
AMICUS BRIEF FILED FOR LANDMARK MASSACHUSETTES CASES IBANEZ & LaRACE EXPOSES FORECLOSURE FRAUD
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