Second-Mortgage Case Has Justices Second-Guessing An Old Decision

by Daniel Fisher  3/24/15

Underwater-Mortgages

A case to decide whether homeowners can erase underwater second mortgages through bankruptcy quickly turned into a debate over whether the U.S. Supreme Court should overturn the precedent that raised the issue in the first place.

Oral arguments in Bank of America BAC +0.13% vs. Caulkett ostensibly focused on whether the 11th Circuit Court of Appeals should have allowed David Caulkett and a second plaintiff to dispose of their second mortgages in bankruptcy. Bankruptcy courts let them off the hook after determining there was no way the lenders could collect because the properties were worth less than even the first mortgage standing in front of them in them. Coulkett, for example, borrowed $183,ooo through a first mortgage and another $47,855 with a second but his house at the time of foreclosure was only worth $98,000.

The financial crisis left thousands of homeowners in similar straits, and advocates for financial relief argue that second-lien holders can hold a blocking position preventing borrowers from using bankruptcy to negotiate a reduction in principal balances to stay in their homes instead of losing them to foreclosure. In a business bankruptcy, for example, creditors are ranked by priority and holdouts who refuse to negotiate can be forced to accept a loss under a judicial order known as a cramdown.

The Supreme Court ordered different treatment for mortgage lenders in a 1992 decision with the improbable title of Dewsnup v. Timm. That case held that Section 506 of the Bankruptcy Code did not authorize a court to “strip down” a mortgage lien to the current value of the property, eliminating the portion of the debt the lender wouldn’t get even if it seized the land and sold it at foreclosure. The question in Bank ofAmerica v. Caulkett was whether that same reasoning applied to a second lien that was completely underwater, with no hope of collecting anything in a foreclosure sale.

Justice Antonin Scalia dissented in Dewsnup and came out swinging in today’s arguments. Since Dewsnup was a “terrible decision,” he asked Bank of America’s attorney, Danielle Spinelli of WilmerHale, why shouldn’t the court use a familiar trick and narrow that precedent down to the exact facts in that case? Spinelli said that would leave an illogical distinction between semi-underwater and fully underwater liens and it was better to expand Dewsnup to include lenders in the position of her client.

Justices Sonia Sotomayor and Anthony Kennedy both expressed concern that second-mortgage holders with no hope of collecting anything in a foreclosure could nevertheless unfairly block a negotiated settlement in bankruptcy that would benefit borrowers and first-mortgage lenders.

Bankruptcy is supposed to give debtors a fresh start, Sotomayor said, and “if you’re able to hold up that fresh start, that is the concern.”

Full article here

See also: http://www.scotusblog.com/case-files/cases/bank-of-america-n-a-v-caulkett/

California AG Sues JPMorgan Over Debt Collection Abuses (and then some)

May 10, 2013

California Attorney General Kamala Harris is on a roll. There’s been a fair bit of media coverage about abusive debt collection practices, particularly in credit cards, but at least until Harris filed a suit on Thursday against bank miscreant JPMorgan (hat tip Deontos), surprisingly little action.

Because the amounts are usually much smaller than in mortgages, banks have incentives to play fast and loose if they think they can wring some extra blood out of the turnip of an overextended consumer. But the result often goes well beyond just improperly submitting information to the court. JP Morgan and other banks have been accused of trying to collect on debt where they have the amounts wrong, where the debt was discharged in bankruptcy, or where the consumer was never notified an action was underway. And when the debt is sold to debt collectors, the same problems with inaccuracy of information, invalidity of the debt, and abuse of the legal system multiply.

Chase had its dirty laundry aired in public by whistleblower Linda Almonte, who filed an SEC suit in 2010, settled, and then decided to break her confidentiality agreement in 2012. She was an important contributor to an American Banker story that also revealed that the OCC had been investigating. As we wrote:

“The American Banker story discusses the operations of a unit that handled delinquent credit card borrowers. Handling these accounts involved using three different computer systems that communicated reasonably well on current borrowers but not with delinquent or defaulted ones. As a result, the operation had involved a high level of manual checks to make sure the amounts borrowers owed were accurate before they were sent off to collection (which in high population states, was an in-house operation, but for most, involved the use of outside law firms….

Linda Almonte, who was a process specialist who had worked at WaMu, joined in 2009 and was fired, as she charged in a wrongful termination lawsuit, for refusing to send files to collection that has obvious problems in them. Almonte filed a whistleblower complaint with the SEC (see an Abigail Field story for more detail). Her charges:

1. Chase Bank sold to third party debt buyers hundreds of millions of dollars worth of credit card accounts. . .when in fact Chase Bank executives knew that many of those accounts had incorrect and overstated balances.

3. Chase Bank executives routinely destroyed information and communications from consumers rather than incorporate that information into the consumer’s credit card file, including bankruptcy notices, powers of attorney, notice of cancellation of auto-pay, proof of payments and letters from debt settlement companies.

4. Chase Bank executives mass-executed thousands of affidavits in support of Chase Banks collection efforts and those Chase Bank executives did not have personal knowledge of the facts set forth in the affidavits.

…the American Banker story quotes current and recent employees who confirm that he bad practices that Almonte called out are still very much alive. Specifically:

“We did not verify a single one” of the affidavits attesting to the amounts Chase was seeking to collect, says Howard Hardin, who oversaw a team handling tens of thousands of Chase debt files in San Antonio. “We were told [by superiors] ‘We’re in a hurry. Go ahead and sign them.’”…

The records the law firms used to sue people sometimes differed from Chase’s own files at an alarming rate, according to a routine Chase presentation prepared by Almonte and later submitted to the Securities and Exchange Commission. Some law firms’ records disagreed with Chase’s in almost 20% of cases sampled, a rate far above what is regarded as an acceptable level of errors.

“That’s horrendous,” says a former Chase attorney who was informed of the numbers by American Banker…

Borrower correspondence sent to the San Antonio facility, such as bankruptcy notifications, address changes, and hardship requests were being dropped on an unmanned desk, according to a 2009 printout from Chase’s troubleshooting log….

“I understand there were documents trashed, yes,” she says. [Carol] McGinn retired from the San Antonio facility in June of 2010 after she says she became uneasy with how it was being managed.”

http://www.scribd.com/doc/140561152/California-v-JP-Morgan-Chase-May-9-2013

Full article from Naked Capitalism can be found here

Servicer Compliance Audits for Homeowners?

As the mortgage market increases the use of upfront automated audits to comply and prepare in advance for up-and-coming regulatory requirements, homeowners are being offered the opportunity to review whether lenders and servicers are up to the task.

Federal Home Retention Services is offering a new set of automated tools that enable real estate professionals and property owners to investigate whether residential and commercial real estate transactions comply with certain multistate requirements.

The FHRS platform ensures that loans are clear of violations. It enables users to conduct specific mortgage loan compliance audits that help streamline mortgage loan modification inquiries and loss mitigation reviews.

Yet it does not serve only lenders and servicers that need to take action so they save time and avoid cost associated with failure to comply or litigation.

Until now the firm only conducted business-to-business dealings with lending institutions, federal banking associations, law firms, wholesale lenders & loss mitigation companies. Now consumers can benefit from mortgage compliance reports and audits of securitized mortgage loans.

Mortgage compliance failures may help homeowners to avoid foreclosure action in both nonjudicial and judicial foreclosure states giving them “a better position to negotiate” new loan terms or a loan settlement, said Phillip Michaels, CEO of FHRS and acting VP of compliance, “regardless of financial hardship and payment history.” Hence, he added, violations found in investigative compliance reports can provide crucial assistance to the borrower, as well as to legal advisors who want to specializes in loan modifications.