The current debate over foreclosure fraud has been a revelation, even for those of us who have become familiar with the power of moneyed interests to influence the national dialog. Despite overwhelming evidence of widespread lawbreaking and deception, there's still a popular point of view that says that fraudulent foreclosures are "just a technicality" and that what we're seeing is neither a systemic problem nor a crime wave of epidemic proportions.
Actually, it's both. Here are four reasons why the foreclosure fraud scandal is very important. They're counterarguments to the conventional "paperwork" wisdom, a point of view whose numbing effects threaten to anesthetize us to the profound significance of this scandal.
A recent New York Times article is just one of many that put names and faces to the foreclosure scandal: A man who paid cash for a vacation cabin found that foreclosure papers had been filed and his locks had been changed, despite the fact that there was no mortgage on the property. A couple was foreclosed upon -- successfully -- by a mortgage trust that court papers say doesn't exist. A woman in Colorado also had her locks changed by mistake, so the bank offered to let her skip a mortgage payment as an apology. When she did, foreclosure papers were filed on her.
The writers of the Times article also frame the counterargument: "Even if the paperwork was faulty, the fact remains that most homeowners in foreclosure have not paid their bills ... " That's Argument #1 in favor of downplaying the foreclosure fraud controversy: Sure, there have been some outrageous cases like the ones listed above. But the vast majority of people facing foreclosure really have mortgages, and they're really delinquent on them. So, the argument goes, what's the big deal? Fix the paperwork, weed out the errors, and let's all get on with our lives.
Here's the real problem: Any massive invasion of personal rights and liberties will catch some people who deserve to be caught. If we placed the entire country under martial law, initiated a state of siege, and rounded up every suspicious-looking person in America with a nationwide dragnet, many -- perhaps most -- of the people dragged off to jails would be guilty of something. But that's not how free societies operate. People have rights, even if they owe money.
The legal process around foreclosures has become a massive dragnet, run and managed by the financial services industry with the compliance of too many state and national legal institutions. The most egregious stories -- i.e., people who paid cash for houses and had them seized anyway -- are almost certainly a small minority of the foreclosure cases out there. But they show us how badly corrupt the entire process has become, and how far we've drifted away from fundamental principles of due process.
2. The Dukes of Moral Hazard
Here's the complete sentence from the Times article: "Even if the paperwork was faulty, the fact remains that most homeowners in foreclosure have not paid their bills, often because they bought more house than they could afford or because they lost their jobs. As a result, they will most likely lose their homes eventually, once the banks clean up their paperwork ..." That's a point the financial services industry is only too happy to underscore: "We believe that the overwhelming majority of the cases will be that the loan was seriously delinquent and needed to go to foreclosure," the article quotes an industry spokesperson as saying.
While the Times journalists did some excellent reporting for this piece, their sentence (above) framed the situation so well - from the financial industry's point of view, that is - that a quote from the industry itself was almost redundant. Sure, a lot of people "bought more house than they could afford," and some of them did so irresponsibly. But the financial industry's all too happy to leave it at that, characterizing all these foreclosures as problems of individual character rather what they really are: a breakdown of process, law, and ethics on a systemic level.
According to the most recent report from Lender Processing Services, Inc., 9.22% of all mortgages in the US are delinquent - and that's not counting those that are in foreclosure. 8.22% are either in foreclosure or more than 90 days overdue. All told, roughly 11% of all mortgages are either delinquent or in the foreclosure process. That's a problem with the system, not the product of millions of flawed individual characters.
Here's the bottom line: More than one in ten mortgages is in bad trouble. What's more, one in four mortgages is underwater, which means there's not enough collateral to cover billions of dollars in loans. The generous explanation for the banking industry is that they're completely incompetent at what they do. A huge chunk of the loans they've written are bad. Forgive the language here, but the bank-friendliest explanation for this systemwide breakdown is that bankers suck at what they do.
But the real explanation is that they knew these loans were bad -- and wrote them anyway.
Why? Because they intended to make quick and easy money by pumping up housing values, churning loans to customers who they knew couldn't pay. (The customers didn't know that, but the banks did.) They thought they could float this crap game forever, riding an ever-growing bubble and tossing the defaulting homeowners away when they couldn't pay the nut. But the bubble burst and the crap game got shut down.
They were able to walk away from this massive nationwide scam by convincing the country that the only irresponsible parties were people who "bought more house than they could afford." It worked, too. But now they've been caught in widespread fraud -- and they want to walk away from that, too. Nobody's suggesting there weren't irresponsible buyers out there, too. But so far, the bankers have been able to convince the country that the "moral hazard" was everybody's but theirs -- even though they were running the entire system, and it's the entire system that's broken down.
This time, the guilty parties should be made to pay for criminal behavior. And they should be forced to accept some of the financial consequences of their bad behavior by writing down some of the principal on the bad loans they've issued and sold.
3. Contract Killers
A loan is a contract, an agreement between two parties. The lender agrees to provide a certain sum of money, which the borrower agrees to repay according to agreed-upon terms and conditions. One of the biggest problems with the foreclosure fraud scandal - and the systems, tricks, and traps that created it - is that it obscures the contractual record between the parties, leaving all the information (and all the power) on one side of the transaction.
Consider the woman whose bank offered to let her skip a monthly payment in return for accidentally changing her locks, and then proceeded to foreclose on her. With shell games like the mortgage industry's MERS, which obscures the actual trail of ownership and insulates the lender from court proceedings, the bank in question doesn't even have to show up during the foreclosure process. That means that she's denied the right to face her trading partner in court. Due process is trampled upon, and so is the right to legally enforce a contract.
People facing foreclosure aren't just people who lost their jobs or "bought too much house." They're people who had a deal with their bank. Then they were hit with late fees, or unilateral changes to their loan terms, or other surprises that caused them to fall into a spiral of debt. Of those who have missed payments, many of them have a legitimate case to make: that the other party broke the contract and that's why they've missed payments. The foreclosure fraud scandal has taken away their right to defend themselves in court.
4. Getting Medieval On Your Assets
The last counterargument is literally an ancient one. It's based on the long-established right of any citizen to be inviolable in their home and possessions. This goes back to the Magna Carta, which established that the will of the monarch wasn't arbitrary and that the property of "freemen" could not be seized without proper legal recourse. This principle was enshrined in the Fifth Amendment of the Constitution, which says "No person shall be deprived of life, liberty or property without due process of law." (emphasis mine)
It's bad enough that we've seen massive violations of the Constitution and people are saying it's no big deal. But we're also seeing massive violations of a legal principle that was established as an inalienable human right ... in 1215 AD! And people are still saying it's no big deal. This isn't a "technical" problem or a "paperwork" issue. It reflects on our national character, and our will to preserve the rights and liberties that have existed for eight centuries.
The problem isn't that some people bought "more house than they can afford." The problem is that we have more rights as free citizens than the banking industry can afford. So, naturally, they want us to pretend those rights don't exist. If we do, we'll lose them. And that will be a really big deal.
Richard (RJ) Eskow, a consultant and writer (and former insurance/finance executive), is a Senior Fellow with the Campaign for America's Future. This post was produced as part of the Curbing Wall Street project. Richard also blogs at A Night Light.
He can be reached at "email@example.com."
Website: Eskow and Associates