foreclosure manual under fire
By Danielle Douglas, The Washington Post
In the course of defending a New York homeowner attorney Linda Tirelli says she found a 150-page manual instructing Wells Fargo lawyers how to process foreclosures when the endorsement to the note is missing. Lenders need endorsements to prove that they own the mortgage, before they can foreclose or sue on the note.
Tirelli has filed a lawsuit that has caught the attention of state and federal regulators.
Tirelli said she has long suspected Wells Fargo of manufacturing documents. A number of her past cases involving the bank featured mortgage notes that were not endorsed by anyone, but when she brought it to Wells Fargo’s attention the bank would “magically” produced the document, Tirelli said. It happened so often to her and other consumer lawyers that they started to call paperwork “ta-da” documents, she said.
The bank denies wrongdoing, but the allegations are a reminder of the history of lenders, including Wells Fargo, using a practice known as “robo-signing.” Those charges, of course, led to a $25 billion national mortgage settlement that was supposed to put an end to such abusive practices, but many lawyers say that nothing has really changed.
The manual, reviewed by The Washington Post, outlines steps for obtaining the missing document after the bank has initiated foreclosure proceedings. It also lays out what lawyers must do in the event of a lost affidavit or if there is no documentation showing the history of who owned the loan, paperwork the bank should already have.
“This is a blueprint for fraud,” said Tirelli, who attached a copy of the manual as evidence in the lawsuit filed in U.S. District Court in White Plains, N.Y. “The idea that this bank is instructing people how to produce these documents is appalling.”
Adams explained that the company updated the manual in the midst of the investigation that led to the national mortgage settlement to help its lawyers keep pace with changing laws, regulations and foreclosure procedures. What’s more, the procedures laid out in the manual are legal, she said.
“What’s so unfortunate here is the exaggeration on behalf of litigation,” Adams said. “There are a number of procedures in place and triple checking before a foreclosure is brought. This is a misrepresentation of facts.”
Banking lawyer Jeffrey Naimon at Buckley Sandler said the law does allow lenders to endorse notes after filing for foreclosure. He said lenders can transfer ownership of a mortgage by filling out the endorsement or leaving a blank endorsement.
“All you have to do is have a note endorsed in blank. . . . The reason why is because the note could be sold to a few more people,” he said. “The bearer of the note still has the right to enforce it.”
Tirelli said she was also contacted by the Consumer Financial Protection Bureau and the monitor for the national mortgage settlement, both of which declined to comment for this article. A fifth agency, the Justice Department’s U.S. Trustee Program, which oversees bankruptcies, could not be reached for comment.
In Florida, court rules require the plaintiff to have a complete cause of action BEFORE they file a lawsuit. For that reason, an endorsement executed after filing is insufficient. The problem is, they aren’t dated, making it easy to mislead the court and the defendant.