Some Judges Stiffen Foreclosure Standards

By AMIR EFRATI

A cadre of state-court judges scrutinizing foreclosure actions in a string of recent rulings have discovered flaws in documents that borrowers may be able to use to keep their homes.

The judges, including a committee from the Kings County Supreme Court in Brooklyn, N.Y., are highlighting shortcuts taken by mortgage companies in court filings, which borrowers might be able to exploit when facing foreclosure.

Associated Press

A string of rulings by state-court judges, including a panel from Brooklyn, show the critical role of judges for borrowers facing foreclosures.

The rulings show the critical role that judges are beginning to play as foreclosures mount in the most severe housing crisis since the Great Depression. The recent decisions build upon widely circulated opinions issued last fall by federal judges in Ohio who found trusts that hold the mortgages regularly begin foreclosure proceedings before they obtain the legal right to do so.

Judges in states including New Jersey, Florida and Massachusetts have begun to dismiss many cases "without prejudice," meaning the plaintiffs can fix the defects and resume the process, but the ruling gives the homeowners more time. Meanwhile, some bankruptcy courts, where creditors may seek permission to foreclose if the debtor isn't keeping up with the bankruptcy plan, have issued standing orders requiring creditors to prove ownership of loans. Other state courts, including in Ohio and Pennsylvania, have begun requiring owners of loans who have filed foreclosure suits to try to negotiate settlements with borrowers to avoid foreclosure.

The extent to which the judicial process can make a difference is limited and uneven. Only a handful of judges have taken on this cause. And in about half of U.S. states, the foreclosure process doesn't require judicial approval. Nonetheless, in states where the process must wind its way through the courts, the efforts of a few judges are giving hope to borrowers.

"More and more judges are focused on these basic issues of making sure the party that's trying to get the property back is entitled to get it," says April Charney, a foreclosure defense lawyer in Jacksonville, Fla., who trains lawyers and pro se, or non-lawyer, litigants.

About six judges from the supreme court in Brooklyn, the state's lowest court, which handles most of the New York City borough's foreclosure actions, have been digging into the problem and finding new issues that they can use to dismiss cases.

The work of the Brooklyn court -- which formed a committee to discuss foreclosures about five years ago, long before the housing crisis emerged -- looks prescient now as it has rejected dozens of foreclosure actions since the crisis began by identifying mistakes or suspicious information. Among the most energetic members of the Brooklyn committee is Justice Arthur Schack, 63 years old. Justice Schack says barely any of the foreclosures he has denied eventually are completed.

Justice Schack, a former counsel to the Major League Baseball Players Association who is known for peppering his rulings with pop culture references such as Bruce Willis movies, dismisses most foreclosures sua sponte, or without the borrower even responding to the suit. He noticed in several cases that the foreclosure actions weren't halted even though the borrowers had paid off the loan.

In June, the judge dismissed with prejudice two cases filed by a unit of Wells Fargo & Co. By doing online public-records research himself, the judge found that Wells Fargo didn't own the two loans, and his dismissals mean that even if Wells Fargo eventually obtained legal ownership, it could take up to another year to obtain foreclosure.

Another dismissal involved a foreclosure filed by a U.S. unit of HSBC Holdings PLC. Included in Justice Schack's concerns was that the filed documents list the address for HSBC and a loan payment collector as being the same suite in a West Palm Beach, Fla., building, and that in prior foreclosure filings, other financial entities also claimed to be located in the same suite.

"The Court ponders if Suite 100 is the size of Madison Square Garden to house all of these financial behemoths or if there is a more nefarious reason for this corporate togetherness," he wrote, adding that HSBC would have to write an affidavit explaining the popularity of suite 100.

Spokespeople for HSBC and Wells Fargo said the banks were acting as a trustee, or caretaker, for loan securitization trusts that hold mortgages. As the trustee, the banks have a minimal role and other companies known as servicers, which collect loan payments for the trusts, intitiate foreclosure proceedings on the trustees' behalf, the banks said.

Elsewhere, in Suffolk County on Long Island, several judges have taken up scrutiny of mortgage documents. Justice Jeffrey Arlen Spinner wrote recently in a ruling that he found "glaring discrepancies and unexplained issues of substance" in a foreclosure lawsuit filed last year by GMAC Mortgage LLC. Judge Spinner wrote that the lender included a document that "purports to" but doesn't legally transfer the promissory note, the borrower's promise to pay back the loan, to GMAC from the original lender. He also questioned why the note was purportedly executed at Fairfax, Va., and signed by the borrower on the same day that the borrower allegedly signed the mortgage in New York. A spokeswoman for GMAC declined to comment.

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