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<div class="timestamp">February 15, 2012</div>
<h1>Audit Uncovers Extensive Flaws in Foreclosures</h1>
<span><h6 class="byline">By <a rel="author" href="http://topics.nytimes.com/top/reference/timestopics/people/m/gretchen_morgenson/index.html?inline=nyt-per" title="More Articles by Gretchen Morgenson" class="meta-per">GRETCHEN MORGENSON</a></h6>
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<p>
An audit by San Francisco county officials of about 400 recent <a href="http://topics.nytimes.com/top/reference/timestopics/subjects/f/foreclosures/index.html?inline=nyt-classifier" title="More articles about foreclosures." class="meta-classifier">foreclosures</a>
there determined that almost all involved either legal violations or
suspicious documentation, according to a report released Wednesday.
</p>
<p>
Anecdotal evidence indicating foreclosure abuse has been plentiful since
the mortgage boom turned to bust in 2008. But the detailed and
comprehensive nature of the San Francisco findings suggest how pervasive
foreclosure irregularities may be across the nation. </p>
<p>
The improprieties range from the basic — a failure to warn borrowers
that they were in default on their loans as required by law — to the
arcane. For example, transfers of many loans in the foreclosure files
were made by entities that had no right to assign them and institutions
took back properties in auctions even though they had not proved
ownership. </p>
<p>
Commissioned by Phil Ting, the San Francisco assessor-recorder, <a title="Link to the report from the San Francisco assessor-recorder." href="http://aequitasaudit.com/images/aequitas_sf_report.pdf">the report</a>
examined files of properties subject to foreclosure sales in the county
from January 2009 to November 2011. About 84 percent of the files
contained what appear to be clear violations of law, it said, and fully
two-thirds had at least four violations or irregularities. </p>
<p>
Kathleen Engel, a professor at Suffolk University Law School in Boston
said: “If there were any lingering doubts about whether the problems
with loan documents in foreclosures were isolated, this study puts the
question to rest.” </p>
<p>
The report comes just days after the $26 billion settlement over
foreclosure improprieties between five major banks and 49 state
attorneys general, including California’s. Among other things, that
settlement requires participating banks to reduce mortgage amounts
outstanding on a wide array of loans and provide $1.5 billion in
reparations for borrowers who were improperly removed from their homes.
</p>
<p>
But the precise terms of the states’ deal have not yet been disclosed.
As the San Francisco analysis points out, “the settlement does not
resolve most of the issues this report identifies nor immunizes lenders
and servicers from a host of potential liabilities.” For example, it is a
felony to knowingly file false documents with any public office in
California. </p>
<p>
In an interview late Tuesday, Mr. Ting said he would forward his
findings and foreclosure files to the attorney general’s office and to
local law enforcement officials. Kamala D. Harris, the California
attorney general, announced a joint investigation into foreclosure
abuses last December with the Nevada attorney general, Catherine Cortez
Masto. The joint investigation spans both civil and criminal matters.
</p>
<p>
The depth of the problem raises questions about whether at least some
foreclosures should be considered void, Mr. Ting said. “We’re not saying
that every consumer should not have been foreclosed on or every lender
is a bad actor, but there are significant and troubling issues,” he
said. </p>
<p>
California has been among the states hurt the most by the mortgage
crisis. Because its laws, like those of 29 other states, do not require a
judge to oversee foreclosures, the conduct of banks in the process is
rarely scrutinized. Mr. Ting said his report was the first rigorous
analysis of foreclosure improprieties in California and that it cast
doubt on the validity of almost every foreclosure it examined. </p>
<p>
“Clearly, we need to set up a process where lenders are following every
part of the law,” Mr. Ting said in the interview. “It is very apparent
that the system is broken from many different vantage points.” </p>
<p>
The report, which was compiled by Aequitas Compliance Solutions, a
mortgage regulatory compliance firm, did not identify specific banks
involved in the irregularities. But among the legal violations uncovered
in the analysis were cases where the loan servicer did not provide
borrowers with a notice of default before beginning the eviction
process; 8 percent of the audited foreclosures had that basic defect.
</p>
<p>
In a significant number of cases — 85 percent — documents recording the
transfer of a defaulted property to a new trustee were not filed
properly or on time, the report found. And in 45 percent of the
foreclosures, properties were sold at auction to entities improperly
claiming to be the beneficiary of the deeds of trust. In other words,
the report said, “a ‘stranger’ to the deed of trust,” gained ownership
of the property; as a result, the sale may be invalid, it said. </p>
<p>
In 6 percent of cases, the same deed of trust to a property was assigned
to two or more different entities, raising questions about which of
them actually had the right to foreclose. Many of the foreclosures that
were scrutinized showed gaps in the chain of title, the report said,
indicating that written transfers from the original owner to the entity
currently claiming to own the deed of trust have disappeared. </p>
<p>
Banks involved in buying and selling foreclosed properties appear to be
aware of potential problems if gaps in the chain of title cloud a
subsequent buyer’s ownership of the home. Lou Pizante, a partner at
Aequitas who worked on the audit, pointed to documents that banks now
require buyers to sign holding the institution harmless if questions
arise about the validity of the foreclosure sale. </p>
<p>
The audit also raises serious questions about the accuracy of
information recorded in the Mortgage Electronic Registry System, or
MERS, which was set up in 1995 by Fannie Mae and Freddie Mac and major
lenders. The report found that 58 percent of loans listed in the MERS
database showed different owners than were reflected in other public
documents like those filed with the county recorder’s office. </p>
<p>
The report contradicted the contentions of many banks that foreclosure
improprieties did little harm because the borrowers were behind on their
mortgages and should have been evicted anyway. “We can deduce from the
public evidence,” the report noted, “that there are indeed legitimate
victims in the mortgage crisis. Whether these homeowners are
systematically being deprived of legal safeguards and due process rights
is an important question.” </p>
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