Judges revisiting foreclosure cases may aid homeowners but clog market

By Ariana Eunjung Cha and Brady Dennis
Washington Post Staff Writers
Monday, October 4, 2010; 10:59 PM

On Florida's west coast, where the housing bust has flooded courts with foreclosure filings, the chief judge of the 6th Judicial Circuit has little sympathy for lenders who have routinely submitted flawed and possibly fraudulent foreclosure cases.

J. Thomas McGrady, whose jurisdiction includes two hard-hit counties with more than 1 million people in the Tampa area, said Monday that foreclosures based on improper paperwork should be tossed out.

Judges "are going to have to vacate that judgment and start over again," he said.

Across the country, judges facing pressure from homeowners and their attorneys are beginning to reexamine old cases and dismiss pending ones. The trend could lead to overturned evictions, and it could stall foreclosure cases for years and scare away buyers of millions of seized properties clogging the real estate market.

"We've never been inundated to this extent with this number of cases alleging fraudulent paperwork," said Peter D. Blanc, chief judge of the 15th Judicial Circuit Court, in West Palm Beach. "We're in new territory, and we're struggling to determine what the proper solution is."

Judges nationwide have broad latitude in deciding whether to accept new paperwork and whether to charge the lenders with fraud for submitting problematic documents in the first place.

Even before three of the nation's largest lenders - Bank of America, J.P. Morgan Chase and Ally Financial - announced moratoriums on foreclosures in the 23 states that require a court order to evict a borrower from a home, some judges were beginning to push back against banks with sloppy or fraudulent filings.

The lenders have acknowledged that a handful of employees signing off on hundreds of thousands of files may not have read them, but they have insisted that the problem amounts to a technical issue that can be fixed easily by replacing old documents with new ones. They say that the facts proving that borrowers missed their payments are sound and that the procedural errors might delay foreclosures but won't change the outcome.

As the situation in Florida shows, it's unlikely to wind up so simple.

Armies of consumer attorneys and homeowners are seizing on the paperwork issues to try to protect individual homes from foreclosure and bring into question the legitimacy of the millions of foreclosures undertaken since the housing crisis began in 2007.

The recent moratoriums have made life easier for people such as Michael Gaier, a Philadelphia lawyer who has taken on 130 clients hoping to fight their foreclosures.

Before, he said, judges churning through foreclosure cases tended "to roll their eyes, because they've heard every story in the book," he said. But now, "I don't have to convince them on my own. I don't have to start from scratch," he said, because the moratoriums show that the banks "know that something is wrong."

Gaier and other lawyers say they have been flooded with calls from new clients who had lost hope of keeping their homes but now see an opportunity to stay. In addition, homeowners who had been complaining of flawed or forged paperwork for years feel they are finally getting traction.

"My reaction is, it's about time. In the past, people thought we were crazy; the judges laughed at us. Now everyone knows there is a serious problem," said Denise McMillan, 51, who was evicted from her four-bedroom home in Pikesville, Md., in July and has been coordinating online with others fighting foreclosure.

The collective decisions of judges across the country could turn a foreclosure slowdown into a far larger mess if they determine that homes were wrongly seized and resold by lenders. Foreclosed homes accounted for nearly one-fourth of all residential sales in the second quarter, according to a report by RealtyTrac released last week.

That possibility already is driving away potential buyers of bank-owned properties who don't want to get caught in legal battles between banks and borrowers. At least one company that provides title insurance, Old Republic Title, has refused to work on homes foreclosed by Ally's GMAC mortgage unit.

Travis John, a broker in central Florida who specializes in distressed sales, said buyers in recent weeks have seen the headlines about problems in the foreclosure process and have shied away.

"If buyers continue to have this fear - if we have even 30 percent less sales - that would be traumatic," he said. "We're already in a traumatic market."

Across Florida, which has the most foreclosure filings of any state, mortgage companies are already submitting formal requests to judges for the withdrawal of documents that they say were "not properly verified."

Such actions show that the flawed paperwork is "a serious problem," said veteran circuit court judge Lynn Tepper, who has presided over foreclosure cases in Pasco County, north of Tampa.

"They've conceded that the affidavit is flawed," Tepper said. That means the judgment based on the affidavit must have been problematic as well - and that the decisions should be reversed.

Tepper sent a chill through law firms working for lenders this spring when she threw out a request for a foreclosure and ruled that U.S. Bank perpetrated fraud by submitting backdated documents that purported to show the lender owning the loan at the time of the foreclosure.

The homeowner, Ernest E. Harpster, got his home back despite the fact that he owed $190,000 on the loan. Tepper also ruled that U.S. Bank could not refile the case.

These days, Tepper is plodding slowly through the pending cases, looking closely at signatures and notarizations, making sure the names and numbers look accurate and legitimate.

"You have to be careful," she said. "It used to be such a pro forma thing; it was a no-brainer. That's surely not the case now."

chaa@washpost.com dennisb@washpost.com Staff writer Jia Lynn Yang and researchers Julie Tate, Magda Jean-Louis and Alice Crites contributed to this report.

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