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Foreclosure-document mess growing, FBI now involved

Big lenders are trying to move past the foreclosure-document mess, saying they are now confident their paperwork is accurate.
/ Source: news services

The foreclosure-document crisis just keeps on growing, and now the FBI is getting into the fray.

A federal law enforcement official told the Associated Press that the agency is in the initial stages of trying to determine whether the financial industry may have broken criminal laws in the mortgage foreclosure crisis.

The official said the question is whether some in the industry were acting with criminal intent or were simply overwhelmed by events in the wake of the housing market's collapse. The official spoke on condition of anonymity because the investigation is just getting under way.

Big lenders are trying to move past the foreclosure-document crisis, saying they are now confident their paperwork is accurate. But they are facing so much organized resistance that they can't just snap up their briefcases, declare the crisis over and move on.

Consider the opposition:

  • Attorneys general in all 50 states are jointly investigating whether lenders violated state laws.
  • Lawyers for evicted homeowners are preparing lawsuits against major lenders.
  • State judges have signaled they will review the banks' foreclosure documents with skepticism.
  • Lawmakers on Capitol Hill plan to hold hearings.

The document crisis, in other words, appears far from over.

Statements on Monday by Bank of America Corp. and GMAC Mortgage that they are resuming foreclosures in the 23 states that require a judge's approval brought a wave of denunciations from public officials Tuesday. Attorneys general and other officials said bank officials could face civil — and potentially criminal — charges for flouting court procedures in handling foreclosure documents.

Hundreds of judges around the country have the authority to penalize bank officials who violate their procedural rules. They could also force thousands of foreclosure cases to go to full trials rather than issue a quick ruling.

Judges won't take well to banks that filed erroneous documents with their courts, said Indiana Attorney General Greg Zoeller.

"There could be some serious consequences," including criminal charges, Zoeller said.

Even if there aren't, lawsuits are likely to continue for years, said Guy Cecala, publisher of the trade publication Inside Mortgage Finance.

"Some of these plaintiffs' attorneys clearly smell blood in the water," Cecala said.

New York courts will become the first in the United States to require lawyers handling foreclosures for banks and servicers to take steps to ensure the procedure is done properly, the state's top judge said on Wednesday.

Effective immediately, lawyers representing the plaintiffs in residential foreclosure actions must file signed affirmations that they took reasonable steps to verify the accuracy of documents.

New York is one of 23 states where court approval is needed to foreclose.

Jonathan Lippman, the chief judge of the New York State Court of Appeals, said the rule is in response to disclosures by several mortgage lenders of problems in the foreclosure process, including in the notarization and so-called "robosigning" of documents.

"We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs — such as a family home — during this period of economic crisis," Lippman said.

Meanwhile, Bank of America and GMAC said they are not finding major mistakes in the documents they've reviewed so far and are able to fix any problems quickly.

The banks' decisions came several weeks after they began halting some foreclosures. They froze those cases amid allegations that their employees signed but didn't read documents that may have contained errors.

State officials argue that the systems the banks used to process foreclosures were inherently flawed and likely remain so. They are vowing to push ahead in their investigations.

"While they are telling us that they have fixed those problems, we can't just take their word for it," said Patrick Madigan, an assistant attorney general in Iowa who is spearheading the 50-state investigation. "We intend to independently verify whether the problems have been fixed."

Some judges say the document problems are persisting.

In New York City, Justice Arthur Schack of State Supreme Court in Brooklyn, who's gained national attention for throwing out flawed foreclosure cases, said he's still finding errors. In a stack of foreclosure cases sitting on his desk, he said he found flaws in most of them after a 10-minute once-over.

"It's nice of Bank of America to issue a press release," Schack said. "But they'd better file all their paperwork and make sure it's done correctly, because they're asking me to take someone's house away."

Florida has been the state most affected by the document mess. Officials there say they're skeptical that banks have managed to resolve their paperwork problems so fast.

Chief Judge J. Thomas McGrady of Florida's 6th Judicial Circuit on Florida's Gulf coast, said judges in his circuit will scrutinize foreclosure documents, case by case.

Peter Ticktin, a Florida plaintiffs' attorney, said, "Pragmatically, it is impossible" for the bank to fix documents so quickly.

Bank of America says it will begin next week to refile documents for more than 100,000 foreclosure cases. CEO Brian Moynihan said on a conference call Tuesday that employees who have reviewed the bank's documents have found no inaccurate information that "would affect the plain facts of the foreclosure."

The federal government is also starting to get involved. Housing and Urban Development Secretary Shaun Donovan, Treasury Secretary Timothy Geithner and other officials plan to meet on the issue Wednesday, but no announcements are planned.

Officials from the Federal Housing Administration, a government agency that guarantees home loans, have found clear disparities in how five major lenders have been responding to distressed homeowners after a four-month review of their practices, according to an administration official who declined to be named because the probe was not complete.

The review was reported earlier by the Wall Street Journal. The official declined to name the lenders in question. The government has the power to fine lenders not complying with FHA guidelines.

The White House has said federal agencies are investigating the allegations of flawed foreclosure documents. But the Obama administration has rebuffed calls for a national halt to foreclosures. It says doing so could hurt the housing market by making it harder for buyers of foreclosed homes to complete their transactions.

Attention will shift next month to Capitol Hill, where House and Senate lawmakers have scheduled hearings.

Rep. Maxine Waters, a California Democrat, said Tuesday that she was "disappointed by Bank of America's rush to resume foreclosures after such a short review." Waters has introduced legislation that would bar lenders from foreclosing without offering homeowners any assistance.

Consumer advocates and some lawmakers, meanwhile, argue that banks need to do far more than refile and re-sign piles of flawed documents. They say the banks must correct the way they handle foreclosures and requests for aid from distressed homeowners. Those efforts have been widely criticized as inadequate.