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In the dark corners of suburban Washington D.C., a little known company called MERS (Mortgage Electronic Registration Systems) has been quietly bundling mortgages into securities and helping to get them off the books of Big Banks since 1997.  What most of the public doesn’t know is that this company was created by several large banks, lenders, and title companies.  This new entity allowed the banks to funnel millions of mortgages through the MERS system at greatly accelerated rates. With the snap of a finger, the Big Banks removed any predatory and high risk loans that they had issued immediately off their books.

According to a recent Wall Street Journal article, the creation of MERS essentially changed the way the ownership of mortgages were transferred and in doing so, they kept local county recorders offices out of the loop.  The funny part is that they didn’t get permission to do this… they just did it without asking.  Now lawsuits are popping up all over the country against MERS and the banks it services.  For example, several states and counties are suing MERS for not paying recording fees (to the tune of billions of dollars).  In addition, multiple class action lawsuits have sprung up from consumers claiming that MERS doesn’t have the right to start foreclosure proceedings on the consumer because they don’t legally own the loans any longer.

In Kentucky, attorney Heather Boone McKeever recently filed a state class-action suit and a federal civil-racketeering suit, both naming MERS. She argued in one filing that banks and lenders used MERS to facilitate “illegal mortgage registration, transfer and wrongful foreclosures” and that MERS “was created for the unlawful purpose of hiding and insulating the brokers and originators of predatory toxic loans from accountability and liability.”

What does all this mean?  Well for one, it’s created a dirty, slimy black hole from which the banks may have a hard time crawling out.  At a minimum, their fingers are going to be awfully dirty for a while!  One doesn’t have to look very far to see the effects of the problems inherent with the MERS business model: Bank of America (one of the creators of MERS) announced today that they are temporarily halting foreclosures in all 50 states so they can investigate the mistakes that they have made and the possible fraud that occurred within their organization while processing foreclosures.

The darkness that is the foreclosure nightmare is now shining brightly on the lenders who blindly issued these loans. The fallout is just beginning…

Big news this week in the world of foreclosures and the impact on the housing recovery…

News is finally coming to light publicly on major media networks like CNBC about what those of us who are entrenched in the real estate business have known about for months:  the big banks that are issuing new foreclosure notices every day DON’T have the legal right (the proper chain of title) to actually foreclose on a borrower.  The media is calling it the RoboSigning Scandal.  For a good, but somewhat complicated overview of the problem, watch this CNBC video from Monday, October 1st, 2010 and then read my cliff notes below for a simplified version of the story that truly is going to affect every American:

So here’s my abbreviated explanation of what is going on.  It’s a little complicated, but stick with me and I think you’ll soon understand what this means to everyone:

1. A borrower purchases a home and uses Bank of America (formerly Countrywide), JP Morgan, GMAC, etc. to get a mortgage

2. During the time the borrower owns the home, the Big Bank sells the rights to this borrower’s mortgage on the secondary market. To do this, the Big Banks create a “Mortgage Backed Security” thereby lumping the borrower’s mortgage together with hundreds and thousands of other borrower’s mortgages.

3. This security is bought and sold multiple times on the secondary market to investors and/or other banks.

4. Each time the security is sold, documents and affidavits are signed (or in many cases they weren’t signed at all or outright forgery took place) by representatives of these banks/securities in an attempt to create an ownership trail for who actually owns the mortgages within the security.  During the transfer of ownership on the secondary market, many times these affidavits of ownership were signed by notaries that aren’t even reading the documents or the documents were notarized months after the ownership transfer took place.  In some cases, actual “Robots” or fictitious persons or notaries whose licenses were expired signed these documents (highly illegal).  In the meantime, during the real estate boom years, those buying and selling these securities get rich.

5. Then comes the mortgage crisis and real estate values plummet across the country. People begin to lose their jobs and in many cases can no longer sell their homes because they owe too much money to the Big Banks. Eventually that original borrower falls behind on their payments. Soon there after, the ORIGINAL bank who owned the mortgage in the beginning starts the foreclosure process.

6. HEREIN LIES THE PROBLEM.  In many cases, the original bank is NO LONGER THE LEGAL OWNER OF THE MORTGAGE.  Once the foreclosure process starts, the law clearly states that the foreclosing entity (the Big Bank), can only initiate a foreclosure if they actually can prove that they OWN the underlying mortgage. Because of the multiple ownership transfers of the mortgage backed security and sloppy and illegal practices by some of the bank representatives, these banks can’t actually prove that they are the rightful owners of the mortgage, but they push on anyway and succeed in foreclosing on millions of homeowners across the country.  Because an ownership trail was never confirmed by the title companies issuing policies on the newly foreclosed properties, a large majority of the foreclosures that have taken place or that are scheduled to happen were done so illegally.  All I can say at this point is: Wow.

7. Fast forward to the first week in October 2010.  Several stories are beginning to unfold.  Last Friday, major title companies across the country begin to announce that they will not issue title insurance on bank owned properties going forward (which means someone trying to buy a foreclosed property will not be able to get financing to purchase that property!).  Essentially what the title companies are saying is that the big banks can’t prove ownership of these foreclosed properties.  That means that people who were kicked out of their homes may still have a legal right to that property and the new owners of those properties may have their ownership interest at risk!!!  Major media outlets are just getting ahold of this story and the Justice Department is launching an investigation into the matter.  With the media just now waking up to this story, it may soon be more clear what the ramifications of this story mean for borrowers, the banks, Wall Street, the housing market as a whole, the economy, and buyers of foreclosed properties. Bottom line: ALL of us are affected by what is coming to light — and in a very big way.

Here’s my initial take on what this means for those of you who are looking to buy, sell, invest, lease, or even stay in your home over the next 2 years: Hold onto your hats… we’re in for yet another potential bumpy ride.

I don’t want to sound like an alarmist (because that is definitely not my thing), but this is a very big story with huge ramifications for everyone and there are no clear cut answers or solutions to this problem.  To prove my point, last week Bank of America, JP Morgan Chase and Ally Financial (formerly GMAC) announced that they were going to temporarily halt all foreclosures in 23 states until they could get a handle on what their own employees have been doing to homeowners that are in foreclosure (Minnesota is not one of the states listed, but I have my suspicions that these same banks and others will be stopping foreclosures everywhere soon… and/or the government will step in and do it for them). – UPDATE: One day later, since writing this article, Bank of America just announced today that they are now extending their freeze on all foreclosures to all 50 states. – If all of this weren’t enough of a story, Congress quietly tried to pass a law just before their last recess that would have allowed these very same Big Banks to make it almost impossible for a homeowner to try and challenge any foreclosure notice (thereby essentially stripping a homeowner’s right to face their accuser in court). In my opinion, this is perhaps the scariest part of the whole story… your elected officials tried to side with the Big Banks and condone these illegal practices. The good news is that the Obama administration just announced that they will NOT be signing this legislation.

So for now, many people facing foreclosure could be allowed to stay in their homes rent free while the rampant fraud that has taken place gets addressed by the banks, the courts, and the government.  While I don’t agree that people should be able to live for free and dodge their responsibilities, I also could never side with the Big Banks who have blatantly skirted the legal system while at the same time reaping huge profits.  Attorneys are going to have a field day with this.  Meanwhile, the “shadow inventory” of foreclosures will continue to grow like a silent killer lurking in the darkness.  What this does to the housing market is unclear at this point (I’m still trying to wrap my arms around it!).  My gut tells me that this means opportunities for investors, but the jury is still out on that.  For those people that have stayed current on their mortgages, you are probably screaming at this point (we all should be), but if you are one of the lucky ones to be unfazed by the housing crisis, keep solace in this fact: you hopefully won’t have to go through the stress that so many others are facing or will be facing soon.

Bottom line… there is a much bigger story here that is just starting to unfold.

If you made it this far, thanks for reading.    Let me hear your comments… and stay tuned for more.

According to a new CNN article posted today,  certain areas of the country are suffering from not having enough properties for sale. While that may be true in some areas of the country… what does this mean for those buyers and sellers located in the Twin Cities? Well… we believe it may just be good news for both groups!

For sellers in the Twin Cities, this means that activity is starting to pick up and with less homes for sale, it should be easier to garner some much needed attention to your property. Properties that are in a first time home buyer’s price range (typically $250,000 or less) have been selling rather quickly over the past six months and oftentimes these sellers are seeing multiple offer situations arise on their properties. The foreclosure inventory that has been hampering a typical seller’s efforts is currently just a trickle compared to where we stood a year ago. Of course all the experts and talking heads are chomping at the bit to predict when the “next wave of foreclosures” will hit, but, at least for now, the short term looks fairly positive for sellers in the Twin Cities.  However, with the recent expiration of the first time home buyer tax credit, we as Realtors are noticing a sudden lull in the buyer activity. While we think (hope!) that this is temporary, the trend is something that sellers need to watch closely in the next few weeks.

Buyers, buyers, buyers. My oh my have you had opportunities over the past year or so. If you think the market is going to wait for you to make a decision before returning to somewhat normal conditions… think again. Ask any Realtor across the metro area for their opinion on what has happened in the market through the end of April 2010 and they will tell you this: BUY NOW or kick yourself later for sitting on the sidelines. Never before have we seen such a perfect storm of low interest rates, low prices, and eager sellers. If you were one of the fortunate that wrote a purchase agreement before the end of April, you benefited from a nice tax break. For those of you that are still looking for a home, don’t fret! There are a ton of first time home buyer rebate programs still available, and as mentioned previously, we all are expecting a slight lull in the market during May so this is your time to get out there and negotiate. Virtually everyone agrees that we’ve reached the precipice of the “buy low, sell high” mantra. So what are you waiting for? Contact an eGreen Realty agent today!