Unseemly is One Word For It

This is a great post on Naked Capitalism from Michael Olenick.  The scenario described is not at all rare, unfortunately.

Elements of their case that should surprise have become the new normal. An assignment of their mortgage from Resmae to ACE 2007-HE4 was dated Feb. 27, 2007, notarized Jan. 9th, 2009, and recorded May 22, 2009, long after the 2007 cut-off date for conveying the note and with it, the mortgage (the lien) to the trust. This dubious assignment was “signed” by Ocwen employee Scott Anderson and notarized by Ocwen employee Leticia Arias.

The Guerrero’s new attorney, an experienced trial lawyer, quickly noticed that something was wrong with the documents. When pressed by the Guerrero’s attorneys, Anderson, testifying under oath, wasn’t sure whether a signature labeled “Scott Anderson” was his. Anderson explained he “delegated” signing authority to a “small group,” that could have been up to any of the 3,500 people working for him. When asked how many documents bear his signature he was “not sure” if it was more than seven, an odd statement since he is a prolific robosigner. Notary Leticia Arias had a better memory; she notarized more than a hundred documents and remembered it is Ocwen employee Naomi Morales who often signs for Anderson.

Ocwen’s lawyer, Eliot Pedrosa comes from the venerable Greenberg Traurig, a large law firm that advertises it has expertise in structured finance deals, including REMIC’s. Needless to say, one wonders why a big ticket national law firm has been hauled in on a mere small foreclosure, particularly when it is double teaming a local law firm. But since the costs are borne by investors, foreclosure lawyers are a free resource to servicers.

But all this costly lawyering only dug a very deep hole for the trust. An effort by Pedrosa to educate the judge about rules civil litigation justifying his demand for delay led the already-unhappy judge Williams to point out that a lot of what happened in foreclosure cases was well outside the rules of procedure and the Florida statutes. The judge’s conclusion: “Very unfortunate. Very unseemly. It sometimes makes me embarrassed to be a lawyer.”

In a follow-up hearing on Oct. 25th, another trust lawyer, Thomas Moon of the Van Ness Law Firm, explained to the judge they really had lost the original note when they swore so under oath. Later, Moon claims, they found it in the office of a prior lawyer. Further, Moon really did mean to file the note in court, as he told the Guerrero’s lawyers by handing them a signed pleading saying so, but claims he changed his mind minutes later because, he claims, a Greenberg Trauig lawyer told him notes disappear from the Clerk’s office. The judge recited the supposedly innocent mistakes, the filing of a false lost note affidavit which was signed by a party that the servicer couldn’t even identify, a servicer employee directing another staffer to forge his signature before a notary, and then the magical appearance of the note just when the lost note treatment was looking like it might not fly. Williams declared the entire case to be a fraud on the court and dismissed it with prejudice.

Ocwen would be undoubtedly prefer that this dismissal with prejudice should be a one off event, but a year old opinion from the Florida Bar suggests that the pattern of facts uncovered in this case should cause judicial review of untold thousands of cases that may be tainted with the same false and fraudulent documents that sent this judge over the edge.

From the Florida Bar’s Formal Ethics Opinion:

.. if an attorney knows that any material false representations have been made on the record by a client to any court or tribunal, then the attorney must follow the instructions in the Comment to Rule 4-3.3 and ask the client to correct these false statements on the record. In the pending cases, if the client will consent to the affidavits being replaced, then the attorney may do so. The disclosure needs to be made to the court that the affidavit was improperly verified and notarized.

It’s not just for cases with flawed or fraudulent affidavits and assignments, the Bar opinion makes it explicitly clear that even cases closed years ago must be reopened if false evidence was relied upon:

With regard to the cases that have already been closed and judgment has already been entered, the duties and obligations under Rule 4-3.3 continue beyond the conclusion of the proceeding…. Therefore, the fact that improperly verified and notarized affidavits have been filed with the court needs to be disclosed to the court in the closed cases as well as the pending ones.

Finally, the FL Bar – closing the barn door they left open by ignoring David J. Stern and his ilk – leaves no ambiguity:

…whether the case is currently pending or already closed, if the client refuses to give consent to the attorney to disclose, then the attorney must make these disclosures him/herself, preferably in an in camera proceeding if possible. (emphasis added)

It is clear that Ocwen’s problems extend far beyond this one single case.

In an earlier exchange during the Oct. 25th hearing Judge Williams and Greenberg-Trauig lawyer Donald Crawford touch upon a deeper problem:

Judge Williams: “… why do people need to fake assignments if you didn’t even need it (to foreclose)?”

Donald Crawford: “Your Honor, if I could answer that, I would be a much wealthier man than I am because I can’t get in the heads of the people that made those decisions.”

I’ll clarify the answer; because without the assignments conveying the notes into ACE 2007-HE4 the asset-backed securities were not legally backed by any assets. That is, without a valid assignment of this loan, and likely many others in the trust, the servicer would be stuck without the ability to enforce the loan and, consequently, didn’t have the collateral it claimed to have. If the investors in ACE 2007-HE4 knew the trust didn’t have the collateral it purported to have, they might want their money back. Since they’ve already lost $252.6 million, destroying the mezzanine-level tranches and distributing losses to the AAA-rated tranches – they might get as cranky as Judge Williams. Even if the money managers who invested are willing to “move on,” the pensioners and municipal governments who entrusted them with their money might not feel as generous.

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