Could Court Ruling Prolong Housing Slump?

January 10, 2011 (Chris Moore)
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Could the recent court decision by the Massachusetts Supreme Judicial Court against U.S Bancorp and Wells Fargo facilitate a worsening of the current housing slump? The ruling affirmed a lower court judge’s ruling invalidating two mortgage foreclosure sales because the banks, in their capacity as trustees for mortgage securities, did not prove that they actually owned the mortgages at the time of the foreclosure.

“This decision is going to raise serious problems in hundreds of thousands of foreclosure cases,” said homeowner-defense attorney Thomas Cox, a Maine attorney who was one of the first to put the robo-signing scandal in the national spotlight. “It has the potential to require that foreclosures be done over, and I think there’s going to be significant turmoil nationally. There’s going to be major uncertainty.”

The Massachusetts court is the highest to have ruled on this issue and the decision has the potential to invalidate thousands of foreclosures across the state. It also provides more ammunition to borrowers in other states who could push the case to the U.S. Supreme Court. If the nation’s highest court rules that these transfers are not legal, the multi-trillion-dollar mortgage-backed securitization industry could face massive liability.

Joshua Rosner, an analyst at the New York-based research firm Graham Fisher & Co., called the decision “a landmark ruling” showing that at least in Massachusetts a mortgage “must name the assignee to be valid.”

“This is likely to open the floodgates to more suits in Massachusetts and strengthens cases in other states,” Rosner said.

Most affected would be the 23 states that use judicial proceedings in order to enact a foreclosure, but the ruling could lead to additional lawsuits in all states as homeowners might feel more emboldened to challenge their mortgage servicer in court.

“Bank stocks got hit in the market yesterday because investors don’t fully understand the ruling and it looks as though it may preclude banks from foreclosing on delinquent borrowers,” said Paul Miller, a bank analyst for FBR Capital Markets in Arlington, Virginia, and former examiner for the Federal Reserve Bank of Philadelphia.

“I don’t think that’s the case at all,” Miller said, adding that the decision will probably slow down the process. “Any time you bring into question the foreclosure process, it will be negative for the banks.”

“It definitely puts into question some of the foreclosure practices of the transfer of notes,” Miller said. “The banks are going to feel some pain until we get a better, clearer picture of what’s happened.”

But it also doesn’t mean that all judges feel the same way as different states may require lower thresholds regarding the banks proof of ownership. On Jan 6, JPMorgan Chase & Co. won a case before Maine’s highest court challenging the bank’s right to foreclose on a home because it didn’t own the mortgage when it filed suit. Maine’s Supreme Judicial Court agreed that JPMorgan had satisfied the requirements for standing in the foreclosure case by the time a lower court ruled the bank’s favor, according to the decision.

There’s an estimated 6.3 million homes somewhere in the foreclosure process in the United States. Real estate analysts are predicting that as many as 1.8 million homes may be foreclosed on this year. CoreLogic has recently reported that based on current sales rates, in order to clear out current visible and shadow housing inventory it would take 44 months and Freddie Mac reported that on average it currently takes 449 days for them to foreclose on a home.

And even with the robo-signing controversy slowing the amount of foreclosures coming to market to a trickle for several months, the prices of homes have continued to decline for the past five months.

Most real estate experts agree that the current foreclosure situation is daunting and that a flood of lawsuits could further slow the foreclosure process and continue to prolong the pain of the current housing crisis.

“It’s up to lawmakers to take action to remove the uncertainty over mortgages raised by the decision,” said Massachusetts Secretary of State William Galvin. “Without legislative action, the court’s ruling will have a “chilling effect” on the real estate market.”

Tags: mortgage lenders, mortgage servicers, foreclosures, mortgage foreclosures, housing crisis, real estate market, mortgage notes