02/03/2012 archive

New York State Attorney General Eric Schneiderman filed suit today in New York State Supreme Court in Brooklyn charging them with deceptive and fraudulent practices that harmed homeowners and undermined the judicial foreclosure process. From Mr. Schneiderman’s office:

NEW YORK – Attorney General Eric T. Schneiderman today filed a lawsuit against several of the nation’s largest banks charging that the creation and use of a private national mortgage electronic registry system known as 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. The lawsuit asserts that employees and agents of 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 lawsuit names JPMorgan Chase Bank, N.A., Bank of America, N.A., Wells Fargo Bank, N.A., as well as Virginia-based MERSCORP, Inc. and its subsidiary, Mortgage Electronic Registration Systems, Inc.

The lawsuit further asserts that the MERS System has effectively eliminated homeowners’ and the public’s ability to track property transfers through the traditional public records system. Instead, this information is now stored only in a private database – which is plagued with inaccuracies and errors – over which MERS and its financial institution members exercise sole control. Additional defendants include BAC Home Loans Servicing, LP, Chase Home Finance LLC, EMC Mortgage Corporation, and Wells Fargo Home Mortgage, Inc.

“The banks created the MERS system as an end-run around the property recording system, to facilitate the rapid securitization and sale of mortgages. Once the mortgages went sour, these same banks brought foreclosure proceedings en masse based on deceptive and fraudulent court submissions, seeking to take homes away from people with little regard for basic legal requirements or the rule of law,” said Attorney General Schneiderman. “Our action demonstrates that there is one set of rules for all – no matter how big or powerful the institution may be – and that those rules will be enforced vigorously. Only through real accountability for the illegal and deceptive conduct in the foreclosure crisis will there be justice for New York’s homeowners.” [..]

The lawsuit specifically charges that the defendants have engaged in the following fraudulent and deceptive practices:

   

MERS has filed over 13,000 foreclosure actions against New York homeowners listing itself as the plaintiff, but in many instances, MERS lacked the legal authority to foreclose and did not own or hold the promissory note, despite saying otherwise in court submissions.

   

MERS certifying officers, including employees and agents of JPMorgan Chase, Bank of America, and Wells Fargo, have repeatedly executed and submitted in court legal documents purporting to assign the mortgage and/or note to the foreclosing party. These documents contain numerous defects, including affirmative misrepresentations of fact, which render them false, deceptive, and/or invalid. These assignments were often automatically generated and “robosigned” by individuals who did not review the underlying property ownership records, confirm the documents’ accuracy, or even read the documents. These false and defective assignments often masked gaps in the chain of title and the foreclosing party’s inability to establish its authority to foreclose, and as a result have misled homeowners and the courts.

   

MERS’ indiscriminate use of non-employee “certifying officers” to execute vital legal documents has confused, misled, and deceived homeowners and the courts and made it difficult to ascertain whether a party actually has the right to foreclose. 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. The signature line just indicates that the individual is an “Assistant Secretary,” “Vice President,” or other officer of MERS. Indeed, these documents often purport to assign the mortgage to the certifying officer’s own employer. Moreover, as a result of the defendants’ failure to track the designation of certifying officers and the scope of their authority to act, individuals have executed legal documents on behalf of MERS, such as mortgage assignments and loan modifications, when they were either not designated as a MERS certifying officer at the time or were not authorized to execute documents on behalf of MERS with respect to the subject loan.

   

MERS and its members have deceived and misled borrowers about the importance and ramifications of MERS’ role with respect to their loan by providing inadequate disclosures.

   

The MERS System is riddled with inaccuracies which make it difficult to verify the chain of title for a loan or the current note-holder, and creates confusion among stakeholders who rely on the information. In addition, as a result of these inaccuracies, MERS has filed mortgage satisfactions against the wrong property.

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.

Schneiderman has still not signed onto the Federal agreement and the final terms of that agreement are still pretty vague as no one has actually seen the final document but they have been given until February 6 to sign on to it.  Precisely how this suit, or the one file this week by Illinois AG against Nationwide, will effect or be effected by that agreement is anyone’s guess. But there is a lot of speculation. Happy Friday news dump  

Nothing surprising about the revelation in today’s New York Times that the SEC has failed to get tough with the big banks but it does highlight how Occupy Wall St. has change this conversation in the traditional media that is now taking a more critical look at what is wrong with the economy and why. Despite all the whining from the agency that it doesn’t have the resources or the tools, when in fact it does but has refused to use them against the biggest and repeat offenders. The SEC has repeatedly granted waivers to the laws and regulations that stop fraud:

JPMorganChase, for example, has settled six fraud cases in the last 13 years, including one with a $228 million settlement last summer, but it has obtained at least 22 waivers, in part by arguing that it has “a strong record of compliance with securities laws.” Bank of America and Merrill Lynch, which merged in 2009, have settled 15 fraud cases and received at least 39 waivers.

Only about a dozen companies – Dell, General Electric and United Rentals among them – have felt the full force of the law after issuing misleading information about their businesses. Citigroup was the only major Wall Street bank among them. In 11 years, it settled six fraud cases and received 25 waivers before it lost most of its privileges in 2010.

The SEC also does keep an organized data base of the waivers it granted, so in its investigation the NYT’s had do some digging but found some very telling facts about the SEC’s failures to protect investors while protecting the big banks from lawsuits and prosecution:

JPMorganChase is among the big Wall Street firms that have been granted multiple waivers with nearly every settlement of S.E.C. fraud charges. Last July, it agreed to pay $228 million to settle civil and criminal charges that it cheated cities and towns by rigging bids with other Wall Street firms to invest the money raised by several municipalities for capital projects.

JPMorgan received three waivers related to that case for privileges that it otherwise would have lost. But the S.E.C. said the company’s fraudulent actions didn’t involve misleading investors about JPMorgan’s business. [..]

Despite six securities fraud settlements in 13 years, JPMorgan rarely if ever lost any special privileges. It has been awarded at least 22 waivers since 2003, with most of its S.E.C. settlements generating two or more. In seeking the reprieves, lawyers for JPMorgan stated in letters to the S.E.C. that it should grant a waiver because the company has “a strong record of compliance with the securities laws.”

JPMorgan isn’t the only big bank that has received a pass on fraud from the SEC, Bank of America has been a recipient of favored status:

In 2009, the S.E.C. was negotiating with Bank of America over charges that it had failed to disclose to shareholders that billions of dollars in bonuses were being paid to Merrill Lynch executives just as Bank of America was bailing out the firm.

Because the S.E.C. charges involved fraudulent statements by both Bank of America and Merrill Lynch about their financial status, the merged company was in danger of losing its special privileges for both offerings and forecasts. [..]

It settled the case by agreeing to a $150 million payment. The S.E.C., however, decided not to charge the bank with fraud, which could have endangered the bank’s special status. Instead, the S.E.C. charged Bank of America with violating disclosure rules for shareholder materials and proxies, and Bank of America kept its privileges.

It took years before the SEC finally took action against Citigroup for its violations of rules and regulations but in 2010. That only happened because Citibank blatantly lied to its investors about the amount of risk it was carrying on its balance sheets. In its disclosure the bank stated that it was only holding $13 billion in risks when in reality it was $50 billion. It settled the case for $75 million but because of the falsification of its financial statement it lost the ability to insulate itself from lawsuits over mistaken predictions about its business and had to wait weeks for the SEC’s approvals to make itself eligible to sell stocks, bonds and other securities to the public. Prior to those sanctions Citibank had settled six fraud cases and received 25 waivers. Meanwhile JPMorgan, Gold Sachs and others have avoided sanctions and continue their fraudulent practices.

Yves Smith at naked capitalism in pointing out the significance of this article makes this observation:

What the article does not make quite clear is the SEC rationale for this double standard. I’d hazard that it’s that big financial players are often in the market raising funds, and restricting their access is, well, just a bit too mean since they are money junkies. Just look how hard it was for Citi when it fell out of the SEC’s most favored nations status and lost its ability to use so-called “shelf registrations” to sell stock and bonds:

   And the companies continue to use rules that let them instantly raise money publicly, without waiting weeks for government approvals. Without the waivers, the companies could not move as quickly as rivals that had not settled fraud charges to sell stocks or bonds when market conditions were most favorable.

OMG, if you break the law, you might be put at a competitive disadvantage! Can’t have that, now can we?

She concludes:

[..] As we have said, one of basic rules of regulating is to make sure the regulated know you are not cowed by them. When I was a young person working on Wall Street, investment banks were afraid of the SEC. By contrast, this article reveals, as many have suspected, that regulators have plenty of tools to bring banks to heel. They choose not to use them.

The SEC does have a defense of sorts, which is (as we have recounted) that Congress has cut off funding when it merely tried to be tough in defending retail investors from abuses under Arthur Levitt in the 1990s. The passivity of the SEC is a symptom of elite corruption. A reform-minded President could choose to cross swords with Congress and defend the agency against harassment for tough minded enforcement. But that would be in a parallel universe where the banks were not in charge.

It was the Occupy Wall St. movement and a handful of state attorneys general who have changed the conversation from protecting the 1% to investigating them and looking at their practices and the agencies that regulate them with a more critical eye.

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

New York Times Editorial: A Painful Betrayal

With its roster of corporate sponsors and the pink ribbons that lend a halo to almost any kind of product you can think of, the Susan G. Komen for the Cure foundation has a longstanding reputation as a staunch protector of women’s health. That reputation suffered a grievous, perhaps mortal, wound this week from the news that Komen, the world’s largest breast cancer organization, decided to betray that mission. It threw itself into the middle of one of America’s nastiest political battles, on the side of hard-right forces working to demonize Planned Parenthood and undermine women’s health and freedom. [..]

In addition to harming women, the foundation has also tarnished, perhaps permanently, its brand, symbolized by the pink ribbon that adorns yogurt cups and running shoes and tote bags and Federal Premium Ammunition’s pink shotgun shells. Companies like Ford Motor, Dell and Yoplait may not find the same value in identifying themselves with the foundation after its sharp departure from political neutrality.

Paul Krugman: Romney Isn’t Concerned

If you’re an American down on your luck, Mitt Romney has a message for you: He doesn’t feel your pain. Earlier this week, Mr. Romney told a startled CNN interviewer, “I’m not concerned about the very poor. We have a safety net there.”

Faced with criticism, the candidate has claimed that he didn’t mean what he seemed to mean, and that his words were taken out of context. But he quite clearly did mean what he said. And the more context you give to his statement, the worse it gets.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

February 3 is the 34th day of the year in the Gregorian calendar. There are 331 days remaining until the end of the year (332 in leap years).

On this day in 1959, “the music died” when rising American rock stars Buddy Holly, Ritchie Valens and J.P. “The Big Bopper” Richardson are killed when their chartered Beechcraft Bonanza plane crashes in Iowa a few minutes after takeoff from Mason City on a flight headed for Moorehead, Minnesota. Investigators blamed the crash on bad weather and pilot error. Holly and his band, the Crickets, had just scored a No. 1 hit with “That’ll Be the Day.”

After mechanical difficulties with the tour bus, Holly had chartered a plane for his band to fly between stops on the Winter Dance Party Tour. However, Richardson, who had the flu, convinced Holly’s band member Waylon Jennings to give up his seat, and Ritchie Valens won a coin toss for another seat on the plane.

Crash

The plane took off at around 12:55 AM Central Time. Just after 1:00 AM Central Time, Mr. Hubert Dwyer, a commercial pilot and owner of the plane, observing from a platform outside the tower, “saw the tail light of the aircraft gradually descend until out of sight.”

Peterson had told Dwyer he would file a flight plan with Air Traffic Control by radio after departure. When he did not call the Air Traffic Control communicator with his flight plan, Dwyer requested that Air Traffic Control continue to attempt to establish radio contact, but all attempts were unsuccessful.

By 3:30 AM, when Hector Airport in Fargo, North Dakota, had not heard from Peterson, Dwyer contacted authorities and reported the aircraft missing.

Around 9:15 AM, Dwyer took off in another small plane to fly Peterson’s intended route. A short time later, he spotted the wreckage in a cornfield belonging to Albert Juhl, about five miles (8 km) northwest of the airport.

The Bonanza was at a slight downward angle and banked to the right when it struck the ground at around 170 miles per hour (270 km/h). The plane tumbled and skidded another 570 feet (170 m) across the frozen landscape before the crumpled ball of wreckage piled against a wire fence at the edge of Juhl’s property. The bodies of Holly and Valens lay near the plane, Richardson was thrown over the fence and into the cornfield of Juhl’s neighbor Oscar Moffett, and the body of Peterson remained entangled inside the plane’s wreckage. Surf Ballroom manager Carroll Anderson, who drove the musicians to the airport and witnessed the plane’s takeoff, made positive identifications of the musicians.

All four had died instantly from “gross trauma” to the brain, the county coroner Ralph Smiley declared. Holly’s death certificate detailed the multiple injuries which show that he surely died on impact:

The body of Charles H. Holley was clothed in an outer jacket of yellow leather-like material in which four seams in the back were split almost full length. The skull was split medially in the forehead and this extended into the vertex region. Approximately half the brain tissue was absent. There was bleeding from both ears, and the face showed multiple lacerations. The consistency of the chest was soft due to extensive crushing injury to the bony structure.[…] Both thighs and legs showed multiple fractures.

Investigators concluded that the crash was due to a combination of poor weather conditions and pilot error. Peterson, working on his Instrument Rating, was still taking flight instrumentation tests and was not yet rated for flight into weather that would have required operation of the aircraft solely by reference to his instruments rather than by means of his own vision. The final Civil Aeronautics Board report noted that Peterson had taken his instrument training on airplanes equipped with an artificial horizon attitude indicator and not the far-less-common Sperry Attitude Gyro on the Bonanza. Critically, the two instruments display the aircraft pitch attitude in the exact opposite manner; therefore, the board thought that this could have caused Peterson to think he was ascending when he was in fact descending. They also found that Peterson was not given adequate warnings about the weather conditions of his route, which, given his known limitations, might have caused him to postpone the flight.

   

A new window has opened for your Bloguero on the meaning of “insignificance.” Your Bloguero is delighted to be able to tell you about it and to allow you to infer, if you wish to, how he and you may now be the zenith of insignificance (Note: or the nadir of significance, if you prefer).

On Ground Hog Day the “celebrity businessman” who calls himself “The Donald” endorsed Willard for president. (Note and digression: your Bloguero does not refer to this person as “Mitt”. He will never refer to him by that name. “Mitt” is a preppy, friendly, brotherly, harmless sort of name.  “Willard,” the candidate’s real moniker, reminds of rats and is, therefore, preferable). It wasn’t much of a surprise. It was an ersatz “surprise.”  A manufactured event. So, of course, there were front page stories, and videos, and the kind of breathless oohing and ahhhing reserved for contrived, fabricated, apparently meaningless events. (Note and digression: Your Bloguero notes that such oohing and ahhing isn’t required and never accompanies really breathtaking, really surprising events. The Egyptian Soccer Riots for example. Those are accompanied by eye popping incredulity. By gasps. By screams. They don’t need a laugh oohing and ahhing track). But your Bloguero digresses.

And in the midst of the simulacrum of excitement, CNN reported deep in its story:

It was unclear whether Trump’s decision will have any impact on the Republican race. A Pew survey last month found that 64% of definite and likely GOP voters said an endorsement from the reality television star would make no difference to them.

In the survey, 13% said it would make them more likely to back a candidate, while 20% said it would actually make them less likely.

May your Bloguero translate this paragraph? 84% of “definite and likely GOP voters,” almost 6 in 7, said The Donald’s endorsement didn’t matter or would make them less likely to vote for whoever the Donald chose to endorse.  Your Bloguero wonders who “definite and likely GOP voters” might be and whether, having scrutinized the potential nominees, admitting to be a “definite or likely GOP voter” might be tantamount to admitting that one had a diagnosed thought disorder or suffered from delusions (Note: Even if the assertion that these people are mentally ill is problematic, your Bloguero does not retreat from it. If the reader is more comfortable with the venerable assertion that they are “fools,” the reader may so edit the previous sentence). But your Bloguero digresses.  A further translation: even among the zealots nobody gives a hoot about The Donald’s endorsement, or they just don’t like it.

Your Bloguero was talking about “insignificance.” If an endorsement actually hurts the candidate, why would the candidate show up to accept it amidst all the oohing and ahhing reserved for such obviously fake events? Wouldn’t the candidate be better served by actually campaigning in Nevada or Maine or making speeches to likely primary voters, the people whose votes he needs to receive to win a primary? Put another way, what kind of loon seeks out and accepts an endorsement in New York City, which is not having a primary this weekend, that will hurt him with voters in states having primaries he is running in? Why would Willard show up to kiss The Donald’s [expletive deleted]?  Thereby, as the Bard said, hangs the tale.

How naïve even to ask such a thing. As if this had to do with voters. As if this had to do with directly seeking votes. Tsk. Tsk. No. As everybody by now knows, the candidate is always better served by fellating a ginormous donator like The Donald than by doing the actual campaigning, the shaking hands, the eating corn dogs, the VFW halls, inspiring his GOTV workers. (Note: the adjective “ginormous” refers to The Donald’s money, and not to any part of his anatomy). The old school, get out the vote stuff. The old routine of getting votes directly. This, herman@s, is not about The Donald’s appeal to voters. It’s not about old school politicking. That, as your Bloguero and CNN have pointed out, is the definition of “insignificance.”  Of no importance. Without importance. Without meaning. With no significance. Meaninglessness. The Donald’s appeal to voters is the very definition of “insignificance.”

No, this is about something else. You know what it is already. Admit it. Ok.  If you insist, your Bloguero will tell you. It’s about money. Dinero. Moolah. Cash. Greenbacks. What used to be called “bread.” Surprise! It’s about Citizens United and the spigot of funds The Donald claims to possess and to be willing to turn on in the service of Willard, and the supposed message from The Donald’s explicit endorsement to other fat cats to pony up. To pay up. To buy the votes. To buy the TV attack ads. That’s why The Donald is significant, and we, compadres, aren’t. We’re insignificant. We cannot fund a campaign that is about meeting our desires. Nope. All we can do is vote for whatever candidates others have bought for us. We are that insignificant.

The opposite of “insignificance,” the precise antonym is what Willard expects from The Donald.  And what he showed up on Ground Hog’s Day to attain. How many zeroes are in the number?

This Week In The Dream Antilles is usually a weekly digest. Usually, it appears on Friday. Sometimes, like now and for several of the past weeks, it isn’t actually a digest of essays posted at The Dream Antilles. For the essays you have to visit The Dream Antilles.