The Dallas County District Attorney filed suit Tuesday against Mortgage Electronic Registration Systems, its parent Merscorp Inc. and others alleging MERS acts as a shadow recording system to avoid county recording fees.
District Attorney Craig Watkins told HousingWire that MERS cost Dallas County taxpayers $50 million to $100 million in mortgage transaction filing fees.
The suit also names as defendants Stewart Title Guaranty Co., Stewart Title Co., Bank of America (BAC: 7.22 -1.10%), and Aspire Financial doing business as TexasLending.com.
"We are looking at it from the standpoint that because this entity was created, they were able to shirk this responsibility to pay the filing fees that are associated with a mortgage transaction," Watkins said. "When a document is filed with the county, there is a fee that is associated with it, but because of MERS these fees have not been paid," he said.
MERS declined to comment. Other defendants couldn't immediately be reached for comment.
BofA is named in the suit in connection with loans that it originated secured by deeds of trust recorded in Dallas County listing MERS as the mortgagee or beneficiary. BofA should have known that would result in the Dallas County Clerk's Office improperly listing MERS as grantee in the deeds record index, the lawsuit said.
"Upon information and belief, many of the notes and mortgages securing such notes, or the servicing rights thereto, have been sold, assigned, or transferred without notice of such sales, assignments or transfers being recorded in the deed records of Dallas County, Texas," the lawsuit alleges.
Stewart is named in connection with the preparation and filing of deeds that name MERS and the underwriting of title insurance. The suit asks the court to consider Stewart a shareholder in MERS. Aspire is named as an originator of loans secured by deeds of trust recorded in Dallas County that list MERS as mortgagee or beneficiary.
Watkins estimates 250,000 property transfers were inadequately handled in Dallas County because of the way mortgages were registered with MERS electronically during the securitization process.
Watkins quotes extensively from both the Financial Crisis Inquiry Commission in the suit, and also includes an April letter from the Guilford County, N.C., register of deeds and the Southern Essex District of Massachusetts register of deeds that was sent to Iowa Attorney Tom Miller. Miller is leading a 50-state attorneys general investigation into questionable practices by the mortgage servicing industry.
That letter lays out "grave concerns" about the role of MERS and asks Miller, as part of a settlement in the case, to require "MERS assignments of deeds of trust/mortgages be filed in local recording offices throughout the United States."
Watkins hasn't been one to shy away from controversial issues as Dallas County's DA. Shortly after being elected in 2007, he oversaw, in conjunction with the Innocence Project of Texas, the review of hundreds of criminal cases that has resulted more than 20 people being freed for wrongful convictions. His actions have garnered national media attention.
MERS has also been in the news as the defendant in multiple lawsuits across the nation with many of those over the issue of its legal standing as mortgagee, or agent of the note holder with some of those won and others lost.
Write to Kerri Panchuk.
Every American upset with the state of mortgage lending should read the Fox Business News article on strategic default in order to meet the "New Face of Foreclosure."
Strategic defaulters are underwater borrowers who intend to remedy their "upside-down situation" by simply walking away from their mortgages.
The Fox Business article paints a clear picture of a 67-year-old strategic defaulter who is walking away from a $166,000 loan.
So is this man a distressed borrower who lost his job, fell ill or landed on unexpected hard times? No, not really. Those situations tend to garner sympathy, and rightfully so.
Instead, this man admits he collects two pensions, Social Security and generates additional income through a small business.
The defaulter also has the ability to make his payments, but lost his drive to do so when home values dropped, leaving him $45,000 underwater.
The borrower's attitude recently changed in other ways. He now wants to live in the city, but he can't sell his home in this economy. Even if he could, it's impossible to get back what he paid. It's a type of new-car syndrome, but on a large scale.
Yet rather than sticking it out, the homeowner called a firm that readily advises homeowners on how to strategically default on their mortgages. If the borrower gets his heart's desire, he will simply walk away from the mortgage, sending the home into foreclosure while remaining cash-rich and free to move on.
Good move, right?
Of course, his neighbors won't be so lucky. They will now be living next to an REO.
Call it the strategic default phenomenon, if you will, but it's more than a trend. It's a threat to the power of contracts and an attack against all Americans who are paying for the mortgage crisis in the form of tax dollars that supplement housing initiatives and maintenance on foreclosures. Not to mention that declining home values and tighter lending standards that are keeping new homeowners on the sidelines.
Mind you, we are not talking about those who are truly in distress. Foreclosures from unexpected life changes are a different beast altogether.
While businesses should not be excused for unethical practices, the idea that homeowners are committing a permissible sin by not paying affordable debt is not admirable. In fact, it's an insult to borrowers who never bought in the bubble and to other homeowners who keep paying on underwater mortgages despite their frustrations.
A few months ago, an attorney working in default raised the following question: What if the strategic defaulter had made money on the same house? If he bought the home for $144,000 and gained a $20,000 profit, could the originator then call the borrower and ask him to split the earnings?
F. Scott Fitzgerald's famous American novel, "The Great Gatsby," dealt with a similar phenomenon in his time. While Fitzgerald's rant against the "careless people" of society in Gatsby was interpreted as an assault against rich aristocrats, his rant was more about carelessness in general. And the principle goes across class boundaries. In his worldview, those who are careless make decisions without consequences. They enjoy the fruits of the high-rolling times and let others pick up the tab when things go bad.
Certainly in the mortgage crisis there were many people and companies who were careless. But the idea that strategic defaulters are common heroes pushing back against a rigged system is the biggest slap in the face to all homeowners who bought into the American Dream only to be stung by the mortgage crisis.
Write to Kerri Panchuk.
Tags: foreclosure, mortgage lending, Strategic defaulters, underwater borrowers
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