A new case came down from the state’s appellate court yesterday (it can be found here, with a couple clicks, although that’s only a temporary resting place) that looks like it could have a couple interesting wrinkles for local foreclosure law. I’m in the middle of rounding up some legal experts to run over the full implications — some of the issue discussed are bit technical — but one thing jumps out that could put some fresh grey hairs on the heads of servicers and their attorneys: Robosigning reared its ugly head.
The homeowner in the case, Joseph Sullivan, challenged the bank’s right to foreclose on his home, saying the lender involved, Kondaur Capital Corporation, shouldn’t be able to foreclose because it didn’t have proper legal title, due to problems with the legal documents used to transfer the mortgage between banks (the assignment). The Land Court judge which originally heard the case bounced it right out of court, saying that the homeowner didn’t even have standing to sue in the matter.
The Appeals Court disagreed. While it rejected some of the homeowner’s claims, it handed them a couple victories as well — first, by saying the homeowner had the right to bring the case in the first place despite the fact that they weren’t a party to the assignment. It also agreed with the homeowner that at least one of the assignments in the case was so flawed it didn’t automatically transfer good title:
“Sadly, the second assignment is further illustration of the phenomenon observed in the concurrence to [the landmark Ibanez case]… ‘what is surprising about these cases is … the utter carelessness with which the [foreclosing lenders] documented the titles to their assets,’” the Appeals Court scolded.
During the boom in mortgage securitization, having low-level employees employed rubber-stamp legal paperwork was a common, a practice critics termed “robo-signing.” The new case suggests that despite a big national settlement which dealt with this issue — and nearly half a decade of court decisions attempting to clear up the foreclosure mess — lingering problems with paperwork could still bite some banks.
