Archive for February, 2011

 

The HAMP mortgage modification program, according to recent figures, continues to demonstrate that it is a failure.

 

Only one in four of the 2.7 million homeowners who sought assistance in the HAMP program actually succeeded in getting their monthly payments permanently reduced, according to a report in today’s Wall Street Journal.  HAMP is the Homes Affordable Modification Program.

 

Most of the participants failed to qualify for the program or were disqualified after being initially accepted into the program.

 

I have previously reported on the abysmal results from the HAMP program — Problems with HAMP — Too Many to Count?

 

The WSJ article also reported that about 6.7 million homes were lost in foreclosure during the decade, 2000 to 2010.  In the next three years, however, another 3.6 million foreclosure will likely occur, according to a report by Moody’s Analytics.

 

The HAMP program has faced sharp criticism.  Many Congressmen have called the program a waste of money and some Republicans are even considering a bill this week to end the program.

 

One of the biggest problems with the program is the number of applicants who were rejected because they did not submit the necessary paperwork, or, as is often the case, the homeowners’  mortgage companies lost the paperwork.  Over a quarter million homeowners were rejected for this reason.

 

I can attest to meeting with numerous clients who complained that they submitted requested papers several times, only to be repeatedly told that the mortgage companies had no record of this. 

 

Another quarter million homeowners were rejected because they were considered to have affordable mortgages.  According to HAMP guidelines, the monthly mortgage payments must be more than 31% of pre-tax income.  Other homeowners were turned down because they were either current (HAMP requires the homeowner to be in default) or were not considered in danger of defaulting soon.

 

When a client comes to us after unsuccessfully applying for HAMP benefits, we usually assist them with either bankruptcy or foreclosure defense.

 

 

 

The United States Trustee Program began auditing consumer bankruptcy cases in October 2006 to further ensure that debtors were properly disclosing accurate information in their bankruptcy petitions pursuant to BAPCPA — supposedly to promote the integrity and efficiency of the bankruptcy system.

 

I discussed the auditing concept in great detail in my post Random Audits of Consumer Debtors to Begin in October .

 

The statute that calls for audits provides for the establishment of procedures “to determine the accuracy, veracity, and completeness of petitions, schedules, and other information that the debtor is required to provide in individual bankruptcy cases.”

 

The same statute also requires the Attorney General to issue a yearly report of the audit results.

 

 

There were 2,675 audits in 2010.  Out of these, there were 1,395 random audits and 1,280 targeted audits.  I discussed the different types of audits in my prior post:   Random Audits of Consumer Debtors to Begin in October .

 

The law provides for conducting one random audit per 1,000 filed bankruptcy cases.  However, the U.S. Trustee program ran out of funding.  Since 2008 and continuing through 2010, there was only enough money to conduct one random audit per 250 filed cases.

 

Of all of the 2,675 audits, there were 584 cases in which there was a material misstatement, representing 23% of the cases. 

 

Targeted audits had a higher percentage of misstatements — 29%, compared to random audits — 17%

 

These figures have remained consistent for the past three years.

 

The overall average for the Eastern District of New York was 21%, meaning that Long Islanders are slightly more honest or accurate than the rest of the country, or that Long Island bankruptcy attorneys do a better job in preparing their petitions.  I’d like to think that it’s the latter.

 

 

Of the 1,395 random audits conducted last year, one of them was performed on one of my clients. 

 

We cooperated with the auditors (an accounting firm) by providing a number of documents from a rather lengthy list.

 

Several weeks later we received a copy of a letter that they sent to the U.S. Trustee indicating that there were no material misstatements in that case.  Nevertheless, one of the trial attorneys in the local U.S.T. office requested an explanation of something, which we quickly provided, and the case was then closed.

 

Here is the article:

 

Critics Question a Digital Financial System Web

by LIBN Staff
Published:  January 26, 2011

The lending industry launched the Mortgage Electronic Registration System in 1997 to be a centralized database to streamline the transfer of home loans among investors while making it easier for borrowers to keep track of who owns their loans.

But the system’s critics say the industry got it only half right: Loans are being transferred electronically between investors at such an alarming pace – and with so little governmental oversight – that homeowners often cannot discover the current loan owner’s identity.

This difficulty results, in large part, from a legal fiction in which MERS registers as the nominal mortgagee in county land records offices. Loan transfers under the mortgage are not similarly recorded and “transparent” but are instead handled through the electronic database.

The true lender comes to light only when foreclosure proceedings begin, when MERS reassigns the mortgage in land records to the lender, critics say. “Mortgages seem to be bought and sold at such a dizzying pace on the secondary mortgage market that frequently a plaintiff  mortgagee is no longer the proper party by the time the foreclosure is served,” said Craig Robins, a Woodbury-based attorney and writer who specializes in bankruptcy law.

But MERSCORP President R.K. Arnold said the MERS database, which his company operates, makes it easier for borrowers to track the current owner of the loan.

He referred to written testimony he gave in November to the U.S. Senate Banking, Housing and Urban Affairs Committee as part of its examination of the mortgage serving industry.

“MERS helps the mortgage finance process work better,” the written testimony said. “The MERS process of tracking mortgages and holding title provides clarity, transparency and efficiency to the housing finance system. We are committed to continually ensuring that everyone who has responsibilities in the mortgage and foreclosure process follows local and state laws, as well as our own training and rules.”

Robins noted that MERS, of course spins toward the positive for his company. “Although MERS claims its process is efficient, we can see that’s not the case because of all the sloppiness that’s been exposed in the way they maintain their records,” he added.

In response to claims that MERS is not a valid mortgagee, MERSCORP’s president told the Senate panel that the company clearly notes on mortgage documents signed by the borrower at closing that MERS is the mortgagee. The document is then recorded in the public land records, Arnold said in written testimony.

The lenders, under their membership agreement with MERS, state that the system serves as the mortgagee of record with regard to each loan, he added.

“What MERS does is eliminate the expense of repeated assignments, resulting in lower cost for lenders when they sell the loans … to investors,” Arnold added. “When the note is sold, MERS continues to act as the mortgagee for the new note holder because the mortgage interest follows the note when it changes hands.”

Despite this assurance, and even in the absence of a court ruling or legislation, title insurers might grow leery of underwriting home sales involving properties in which the MERS database was the mortgagee. Title insurers feel more comfortable with paper documents attesting to the ownership of property and loans. One reason for title insurers comfort level with paper is it’s easier to document a complete chain of title, assuming the mortgage instruments are properly prepared, Robins noted.

Critics of MERS say the electronic database has also enabled banks to avoid paying county recording fees whenever they assign a loan.

The banks need not record the loan transfers because on paper the same company, MERS, retains the mortgage.

University of Utah law professor Christopher L. Peterson, a critic of MERS, said the practice shortchanges counties and is presumably illegal in many jurisdictions, testifying last month before the House Judiciary Committee as it examined causes and effects of the foreclosure crisis.

Peterson, in an interview, said state lawmakers should consider passing legislation that would require mortgages and loans to be recorded with land records officials to ensure proper chain of title.

Such legislation would combat the mortgage industry’s “cavalier documentation practices” under which MERS is “pretending to own the mortgage,” Peterson said.

MERSCORP’s Arnold, in response to Peterson’s criticism, referred once more to his written Senate testimony.

“We take our role as a mortgagee very seriously and we see our database as a key to moving toward better access to information and transparency for customers,” the testimony said.

Robins sees big trouble ahead unless fundamental questions are resolved. “Until there’s some kind of resolution of the problems MERS has created, we’ll certainly see an increasing number of attorneys who are raising MERS defenses to foreclosure proceedings,” he said. “However if this is left unabated, the MERS problem will spiral out of control.”

This story originally appeared in LIBN’s sister paper, The Daily Record.

 

Long Island Business News, a weekly, is Long Island’s only publication devoted to local commerce and has been the premier source of news and data on Long Island business, economic trends and the region’s entrepreneurial sector for more than 50 years.

 

 

This morning I reviewed a proof of claim filed in one of our Chapter 13 bankruptcy cases.  It was filed by American General Financial Services, LLC for a $7,000 debt that was incurred two years ago for an in-ground swimming pool.  The local merchant was Island Recreational.  They filed the claim as “secured.”

 

Here’s the problem:  The proof of claim contained an attachment that consisted of the one-page quicky credit application my clients filled out at the time they purchased the pool and applied for financing.  

 

Attaching this document was not the problem; the creditor’s failure to remove or redact my clients’ Social Security numbers was.

 

 

With identify theft becoming a significant concern this past decade, the bankruptcy courts adopted a new privacy rule that was made part of the official Bankruptcy Rules. 

 

Bankruptcy Rule 9037 requires any party filing a document to ensure that any references to Social Security numbers and other sensitive data are deleted or redacted.

 

I previously wrote about this:  Maintaining Privacy in Bankruptcy Court Filings .

 

 

Foreclosure entrepreneur Steven J. Baum is somewhat of a curiosity here in New York.

 

I, for one, have my own fascination of the man and his law firm, as evidenced by having written three lengthy blog posts about his escapades, dealings and bungling in the New York court system.

 

Why?  For starters, Baum has filed more foreclosure proceedings against New York homeowners than any other attorney in our state’s history.  See my detailed post on him –  Has Steven J. Baum, P.C. Served You with Foreclosure Papers? 

 

As a foreclosure defense attorney, I regularly defend clients who were served with foreclosure pleadings that his firm prepared.

 

Secondly, Baum has developed a reputation for not being a good king, but rather, a wicked king.  To me, taking illegal shortcuts to evict people from their homes is truly heinous.

 

Constantly criticized by the courts for sloppy and shoddy foreclosure practices, he does not enjoy a stellar reputation.  He has been sanctioned, criticized and lambasted by the courts.  A Long Island judge recently described his conduct as “out of the Twilight Zone.”  

 

But if Baum is King of Foreclosure here in New York, he should take heed of the fate of David J. Stern, the King of Foreclosure of Florida, who is currently in a viscous free fall from grace, and in the process of losing his crown in the Sunshine State.

 

Before addressing Baum, lets look at his brethren King in Florida.

 

 

David J. Stern, for a time, seemed to have it all.  In 2009, his Florida firm handled an incredible 70,000 foreclosures – about five times more than Baum here in New York.  The Stern firm brought in $260 million in revenue that year.

 

The firm had 1,200 employees which enabled Stern to enjoy a lifestyle that included grand mansions, flashy sports cars and a yacht named Misunderstood.  Money was flowing big-time.  It was reported that one of his 13 or so exotic luxury cars is a $1.85 million 2008 Bugatti Veyron.

 

Stern owns a $15 million mansion on an island in Fort Lauderdale, a $6 million beachfront condominium in the city, and another $6 million home.

 

But here’s some news most people did not know, as reported in this week’s New York Times.  Stern actually took his foreclosure mill public by selling his foreclosure operations to a newly-formed, publicly-traded corporation, set up by investors just to securitize Stern’s business of providing foreclosure services.  The company is listed on NASDAQ. 

 

Stern pocketed about $60 million from this transaction and still retains a large percentage of stock in the newly-formed company, known as DJSP Enterprises.  Stern became chairman of the new company and still receives a handsome salary.  The company even has a fancy website:  http://www.djspenterprises.com/.

 

 

The corporation now owns the law firm’s “back office operations.”  The corporation then sells these services back to the law firm.  The law firm’s clients, consisting of big banks with large mortgage portfolios, then pay fees to the law firm to bring foreclosure proceedings.  Finally, the law firm shares these fees with the corporation.  Investors who have invested in the corporation receive dividends on their stock, and the value of the stock can rise or fall.

 

If that sounds weird, it should.  Imagine if I took my law firm’s paralegals, sold them to a company for a profit, and then bought back their services, this time from the company.  What kind of investors would be foolish enough to fall for something like that, especially when one can argue that such an unconventional arrangement constitutes an illegal splitting of legal fees?

 

Incidentally, DJSP states that it out-sources a large part of its paperwork and document preparation services to the Philippines.  So, many of those who were foreclosed upon in Florida were served with foreclosure pleadings that were prepared in Manilla.

 

Stern must feel that there’s nothing like enlisting help from foreigners abroad to assist in evicting our own citizens.

 

 

We are all aware that our country’s mortgage meltdown mess was created by the securitization of mortgages that were sold and traded like stocks on the secondary mortgage market.  Now we have one of the country’s largest mortgage foreclosure law firms going public by securitizing itself into publicly-traded stock.

 

However, in the past few months, there have been revelations that the Stern foreclosure mill had engaged in what appeared to be a massive, wholesale robo-signing foreclosure enterprise involving documents that were falsified to speed up the foreclosure process.  Not exactly good news for the corporate investors or Stern.  The business is now under major scrutiny.

 

The Florida Attorney General began an investigation into possible mortgage foreclosure fraud.  Numerous homeowners began asserting various fraud and robo-signing defenses.  Several foreclosure defense attorneys brought class actions against the firm.  Embarrassing videos of depositions of foreclosure mill employees admitting to robo-signing went viral on Youtube.

 

To add to Stern’s woes, here’s some recent happenings: 

 

● The Stern firm lost its biggest clients – Citibank and Fannie Mae
● Many of the firms’s executives left
● The firm laid off 80% of its employees (that’s 800 people)
● Shares in the company went from $14 to 50 cents
● The company is facing lawsuits from its investors alleging they were defrauded and misled
● Employees who were laid off have sued, arguing the company broke federal laws
● There may be issues as to whether the scheme to sell the company is really an illegal scheme to split profits, which attorneys are prohibited from doing
● It has been revealed that some of the ”consultants” and investment bankers who developed this deal have a history of run-ins with regulators and the S.E.C., and previously settled charges of engaging in fraudulent transactions in other deals.

 

 

First, let’s put a value on Baum.  If Stern received $60 million for his law firm and still retained a substantial interest, not to mention an impressive salary, and also knowing that he made many, many millions before that time, then by my most unscientific measure, Steven J. Baum has got to be worth at least $50 million or more – money that he made by evicting New Yorkers from their homes.

 

Now, let’s ponder if Baum could be headed into similar trouble.

 

Baum, too, has a production-line foreclosure mill, more similar to a factory than a law firm.

 

 

Like Stern, Baum, too, appears to have turned a large part of his back-office operation into a separate, but private company – Pillar Processing, LLC.  However, no one seems to know how many millions of dollars Baum received for selling it.

 

Since Pillar Processing is not a publicly-traded corporation, there is little info about this company.  What we do know is who purchased it – Manhattan heavy-hitter private-equity firm Tailwind Capital LLC.  This is an independant private equity firm, which, according to its website, is focused on controled investments in middle-market healthcare, media/communications, and business services companies.

 

The firm, which was founded in 2003, manages about $2 billion. 

 

As a bicycle racer, I’ve heard of the firm before.  A former partner of Tailwind Capital, Thomas Weisel, started Tailwind Sports, which was one of the sponsors of the United States Postal Service Bicycle Team – the world-famous team of Lance Armstrong who won the Tour de France seven times, several of which he was wearing a jersey that listed Tailwind Sports as one of the sponsors.

 

Like Stern’s corporation, DJSP Enterprises, Pillar Processing has its own website – http://www.pillarproc.com/.  The website states:  Pillar Processing LLC is a leading provider of business process outsourcing services to the default management sector of the residential mortgage industry.

 

Also, doing a quick WHOIS internet domain search reveals that Pillar Processing is the registrant of the Baum Law Firm website.

 

The Baum relationship with Tailwind is not necessarily good for homeowners, as it means that there is now $2 billion of muscle behind the drive to evict New York homeowners from their homes.

 

 

In a 2007 bankruptcy case pending in New York City (SDNY) before Judge Cecelia G. Morris, Baum’s firm brought a motion for relief from the stay.  After the court raised some issues with the mortgage and scheduled an evidentiary hearing, Pillar Processing filed a letter with the court advising the court that the lift-stay motion “has been withdrawn.”

 

Judge Morris was understandably quite upset as Pillar Processing was a total stranger to the court.  The letter did not identify or explain its relationship with the Baum firm, nor was it a part of any court record for any case.  The letter was filed by a Baum attorney.

 

Judge Morris refused to recognize the letter and instead denied the pending lift-stay motion.  She also issued a decision as a warning that the conduct here amounted to an abuse of process and she sanctioned the mortgagee (Chase) for the debtor’s actual expenses incurred in response to the motion.  (In re: Schuessler, SDNY 07-35608).

 

 

Will Baum suffer the same fate as the fiendish Florida Foreclosure King? 

 

Stay tuned.  At the rate his firm is going, with class action suits, ongoing criticisms from the courts, new revelations about possible robo-signing conduct, and more, the answer is possibly yes.

 

 

I discussed many of these issues in my prior post:    Has Steven J. Baum, P.C. Served You with Foreclosure Papers?

   

In that post I discussed the numbers of foreclosure cases he filed, the concept that his firm is really a factory, and some of the questionable conduct that he has engaged in including filing botched papers and failing to divulge information.

 

Also see my continuation of this article — Steven J. Baum Foreclosure Firm Pursued with Same Laws Used to Go After Organized Crime.

 

In this other post, I reviewed many of the court decisions that have criticized Baum’s practices including the now famous Judge Schack Twilight Zone case.

 

 

Forcing lenders to work out settlements with homeowners in bankruptcy is the subject of a bill that Senator Sheldon Whitehouse (D., R.I.) introduced last week.  Today there were hearings on the bill before the Senate Judiciary Committee.

 

The ideas under the proposed law, which would permit homeowners to modify their mortgages through bankruptcy proceedings, have been tossed around before and at times have been quite controversial.

 

 

Previous bills would have given debtors the ability to cram-down first mortgages in bankruptcy cases.  However, these bills never made it into law.

 

Currently,  mortgage cram-down in a bankruptcy can only be done with second mortgages. 

 

Cramming down a mortgage in bankruptcy is not the essence of Senator Whitehouse’s bill; getting the lender to voluntarily agree to it, however, is.

 

The current bill would give bankruptcy judges the power to require foreclosure mediation between banks and homeowners.

 

The bill creates a mechanism for judges to supervise talks between homeowners and their lenders.  This could address the problem where a homeowner makes a reasonable settlement proposal to the mortgage lender, but the lender or its servicer rejects it — a rather common occurrence.

 

 

One of the biggest obstacles in seeking a mortgage modification is the difficulty in getting though to individuals at the lender who have the authority to negotiate terms.  Take it from me, this can be a fruitless exercise in frustration.

 

The proposed bankruptcy modification bill would require that an individual with full settlement authority for the bank must show up for the mediation proceeding.  In addition, the bill requires the lender to be open to good-faith negotiations.

 

Senator Whitehouse believes that court-ordered talks could pressure mortgage servicers to modify mortgages that they wouldn’t otherwise agree to modify.

 

During the hearings, Senator Whitehouse also criticized the HAMP program which has not succeeded as intended — Something I’ve written about extensively.  See Problems with HAMP — Too Many to Count?

 

 

This is now more important than ever as foreclosures are expected to climb to 12 million by the end of 2012 and Long Island will certainly have its fair share of that number..

 

I’ve also written extensively before about the frustrations in persuading lenders to modify a mortgage.  See Why I Won’t Negotiate Loan Modifications and Loan Modification Industry is a “Sham” Says Attorney General Cuomo !

 

 

The New York Bankruptcy Courts in the Southern District have a pilot loss-mitigation program that enables debtors to confer with their mortgagees.

 

Judge Robert Drain, sitting in the Southern District of New York, testified that half of the mediations that take place in his court end in an agreement which is often a modification.  He said that the other half at least give the homeowner a clear understanding for why they are losing their home.

 

Judge Drain said that such programs are vital to sorting out the foreclosure issue.

 

 

There is currently an underutilized loss-mitigation pilot program here in the Eastern District of New York that has been in existence for just over a year.

 

I will discuss this program in a future blog post.