From David Streitfeld at the NY Times: Backlog of Cases Gives a Reprieve on Foreclosures
In New York State, it would take lenders 62 years at their current pace, the longest time frame in the nation, to repossess the 213,000 houses now in severe default or foreclosure, according to calculations by LPS Applied Analytics, a prominent real estate data firm.Of course, because the denominator has declined - and the numerator is still very high - these time frames seem absurd. As an example:
Clearing the pipeline in New Jersey, which like New York handles foreclosures through the courts, would take 49 years. In Florida, Massachusetts and Illinois, it would take a decade.
In the 27 states where the courts play no role in foreclosures, the pace is much more brisk — three years in California, two years in Nevada and Colorado — but the dynamic is the same: the foreclosure system is bogged down by the volume of cases ...
Last September, before the documentation crisis, nearly 1,500 New Yorkers lost their houses as a result of foreclosure, according to LPS. The average over the last six months: 286.So in New York, with 213,000 homes in severe default or foreclosure, and only 286 completed foreclosures per month, gives a backlog of 62 years.
Some of this is due to process delays for some lenders. Some is because lenders are trying to modify more loans. Some is because the lenders already have plenty of REOs (Real Estate Owned).
It won't take anything like 62 years to clear the backlog, but it does show there is a long way to go.
Note: This doesn't quite fit with the recent reports that Fannie, Freddie and the FHA are all completing foreclosures (and selling REO) at a record pace right now ...
An article at the New York Times, “Backlog of Cases Gives a Reprieve on Foreclosures,” is more than a little frustrating in that it takes some high level factoids about the mortgage mess and fails to draw the right inferences from them.
The premise of the piece is that in some states, the average time to foreclosure has become so attenuated that it would take decades at current rates to clear the backlog. Consider these dramatic-sounding statistics:
In New York State, it would take lenders 62 years at their current pace, the longest time frame in the nation, to repossess the 213,000 houses now in severe default or foreclosure, according to calculations by LPS Applied Analytics, a prominent real estate data firm.
Clearing the pipeline in New Jersey, which like New York handles foreclosures through the courts, would take 49 years. In Florida, Massachusetts and Illinois, it would take a decade.
In the 27 states where the courts play no role in foreclosures, the pace is much more brisk — three years in California, two years in Nevada and Colorado — but the dynamic is the same: the foreclosure system is bogged down by the volume of cases, borrowers are fighting to keep their houses and many lenders seem to be in no hurry to add repossessed houses to their books.
The convention in writing is to list the most important cause first. Thus by giving “the foreclosure system is bogged down by the volume of cases” pride of place implies that the “foreclosure system” being overloaded is the biggest cause.
But this level of abstraction is misleading. There is no “foreclosure system”; that turn of phase implies a single overarching set of procedures. As the mere mention of judicial versus non-judicial states indicates, each state has its own laws and case history as to what is proper practice. Referring to a “system” when there is none is also likely to lead many readers to think in term of the system that is involved in the foreclosure process, the judicial system, and to incorrectly infer that courts being overloaded is a major culprit. The vagueness of the expression, in other words, has the effect of directing attention away from the fact that it is the banks’ own machinery that is the most gunked up.
Indeed, the failure of the banks’ own processes and procedures is very much underplayed in the story. There is virtually no mention of the fact that the banks cut corners so badly both in how they handled the process of transferring notes to trusts and in their use of the mortgage registry MERS, and then in the foreclosure process itself, that much of the delay is the result of their efforts to remedy major operational shortcomings. Passing references to “documentation crisis” and robosinging are inadequate to describe the scope of the problem and support the mortgage industrial complex’s narrative that this is a mere paperwork problem (the reliably sanctimonious Wells has the temerity to blame its problem on “changes in state laws governing foreclosure”).
The poster child that calls the implicit thesis of this article into question (as to what caused the slowdown) is Florida. Readers may recall that the state had such a bad backlog that it created special courts just to handle foreclosures, the so-called rocket docket. It quickly came under attack, since some of the newly-appointed judges appeared to give reducing the overhang higher priority than administering justice.
But after the robosigning scandal broke, banks halted or very much slowed foreclosures to get their procedures in order. Remember, a basic requirement of evidence is that affidavits are used to stand in the place of testimony, and the person providing the testimony has to have personal knowledge of the matter. Thus dispatching with robosigners, who didn’t even read what they were signing, much the less have any direct knowledge, meant at a bare minimum rebuilding substantial sections of what had been a highly streamlined process. That takes time and also means longer ongoing throughput time.
But even that charitable assumes that the banks’ depiction of the robosigning mess was to be taken at face value, that it was a mere “paperwork” problem. Adam Levitin reminded us last week that the real implications of the scandal were ignored by the media:
We’ve already seen pretty shocking evidence of documentation fraud in foreclosures. Remember that the robosigning scandal was the by-product of depositions that aimed to show backdating of assignments to trusts. The shame of the robosigning press coverage was that it focused on some shmucks signing 10,000 assignments in a month–which didn’t necessarily produce any harm itself, just carpal tunnel syndrome–and overlooked the really quite serious criminal problem of the backdating of assignments. The depositions showed pretty clearly that there was backdating–the notarizations were by notaries who didn’t have their commissions until a couple of years subsequent or were done on Christmas Day, etc.
What are the implications? Well, foreclosures that depended on fraudulent procedures are far less likely to be put forward in judicial foreclosure states (ones where the proceeding takes place through the court system), particularly ones where at least some of the judges are paying attention.
Thus what the article depicts as “backlog” (remember, LPS is including “severe defaults”, meaning deliquencies that have not yet resulted in foreclosure) is far more likely to be the result of foreclosures that either will not be initiated or have been abandoned. In other words, the samples all include a mix of foreclosures that are moving forward to resolution which should be parsed out and analyzed separately to see what the real time to foreclosure is, versus ones that the banks have dropped and/or are not initiating (and I don’t mean dropped by virtue of being contested, I mean left in limbo by the bank).
As we suggested earlier, the Florida example strongly suggests that bank inaction is a major reason for the rising backlog. As Florida attorney Mark Stopa wrote in March:
The hearing was brief but very interesting. With very little argument, the judge [Parsons] apologized for entering the Order ex parte, noting that such matters are often uncontested and he did not realize this one was contested. Quickly, the issue became whether the motion to correct the alleged scrivener’s error should be heard right then or at a future hearing [The bank’s lawyer had admitted the securitized trust that filed the lawsuit, sought summary judgment, and filed an affidavit in support did not exist].
The bank’s lawyer asked it to be heard right then, arguing the case had been delayed. The judge interjected, saying something to the effect of:
The bank is complaining about delay? I find that ironic. In October, I was handling 40-50 foreclosure cases at a time. Nowadays, I can’t get a bank to come have a hearing. The banks all shut down in October, stopped prosecuting these cases. I don’t see how the bank is now in a position to complain about delay.
And it is not accident that the apparent longest time to foreclose is in New York. Judges here have become particularly bloody minded about adhering to the law; the notorious curmudgeon Judge Schack now has plenty of company, with other judges issuing rulings that have gotten attention nationally (I particularly enjoyed the MERS smackdown that basically said, “I don’t really care if you have 62 million mortgages, rules are rules”). The article points out some of the procedures New York has implemented:
And many foreclosure lawyers seem unable to meet a requirement, made last October by the New York Chief Judge Jonathan Lippman, to affirm the accuracy of their documentation.
“The affirmation has had a pretty chilling effect,” said Ann Pfau, New York’s chief administrative judge. “The attorneys for the banks tell us they can’t get through to the right people at their clients who can verify the information.”
This is a stunning admission. Note that the New York procedure did not impose a new legal standard per se; lawyers are supposed to verify the accuracy of filings that as a matter of course. But it increased the consequence of casual violations. As a reader noted:
Judge Lippman’s recent rule has several lauditory benefits. First, the onus falls on counsel to affirmatively confirm compliance. Ordinarily, the duty to ensure the accuracy of the contents of any civil pleading or motion paper filed in a federal court, for example, is not self-actuating. In other words, when opposing counsel suspects that his or her counterpart has knowingly filed a pleading that is not well grounded in fact, or in law, or both, then the aggrieved counsel may choose to proceed by way of Rule 11 to seek sanctions, after giving the alleged offender the opportunity to cure. A Rule 11 motion is very much a last resort rather than a first one. The attorney who files such a motion may well find himself or herself facing a retalitory Rule 11 motion in response.
Also, from my own 20 years of experience in various courts, I can say with some confidence that judges internally groan when presented with such motions as they are considered to be satellite litigation that is disruptive of the orderly flow of the underlying claims. A Rule 11 motion is considered the equivalent of a declaration of war and the possibility of future cooperation or even civility between counsel vanishes with the filing of such a motion. Judge Lippman’s approach avoids all of these problems while placing plaintiff’s counsel on notice of the court’s decidely dim view of a party materially misrepresenting any significant aspects of its claims.
Finally, the N.Y. Judge’s approach also raises the prospect of a perjury prosecution for those who knowingly violate the rule, which otherwise would be a extraordinarily remote prospect absent the new rule. On the whole, the approach is logical, cost efficient, self-executing and extraordinarily timely. Let’s hope other state courts act in such a timely fashion.
Now in fairness, New York has imposed a new requirement, that banks and borrowers need to meet to “discuss terms”; this is allegedly leading to lots of conversations and considerable delay (I’d very much like to get informed reader input as to whether this is a burden to banks, which is the subtext).
Finally, the fact that state attorney general Eric Schneiderman is turning over lots of rocks also has to be leading to a good deal of caution on the part of banks and servicers.
The article suggests that some borrowers are gaming the system; it points to a remark by the same Florida attorney, Mark Stopa, that 1/3 of his current cases are strategic defaulters, some of whom are renting out foreclosed homes. The fact that they are renting them is consistent with what I have heard from other attorneys: that strategic default is a less common phenomenon than the media would have you believe, and occurs almost entirely in second homes (or investment properties that were improperly financed as primary residences). But it also points out that many borrowers are not benefitting from the attenuated process; they’d like to see if they can get a mod, and they instead are in an anxious limbo. Readers have also written about considerable delays in getting resolution on short sale offers.
Given how mortgage market and foreclosure practices vary by state, making generalizations is always going to be a bit fraught. Nevertheless, it is remarkable to see a story of this sort give such short shrift to the banks’ self-inflicted wounds and fraudulent behavior.
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Peter Risdon Says:
May 16, 2011 at 2:40 pm | Reply
The paragraph you quoted from ends with this sentence:
“According to the best-sited stations, the diurnal temperature range in the lower 48 states has no century-scale trend.”
That was a surprise given the tenor of this post: “… maybe this is the end to questions as to whether surface temperature increases actually exist.”
Did you mean that we can now say the answer to that is that surface temperature increases do not exist? Or that, pace Keenan in the WSJ, the data do not contain statistically significant trends?
andyrussell Says:
May 16, 2011 at 2:58 pm | Reply
I don’t think diurnal temperature range is very important. Do you?
What’s more, the “century-scale” bit covers some interesting detail. Before Fall et al., it seems that the only work on diurnal temperature range showed a negative trend from the mid-century to 1980s-ish. What Fall et al. found was that this has increased again since the 1980s. So there’s no “century-scale trend”.
But that tells you very little about mean surface temperature trends.
Mark Says:
May 17, 2011 at 10:45 pm
I have heard it claimed that the reduction in diurnal temperature range over the past few decades provides evidence that GHG increases are responsible for the warming. In that sense, some people think diurnal temperature range is important.
Incidentally, I don’t think Fall et al. were the first to find that DTR has increased since the 1980s. I read a paper that said much the same thing a few years ago.
Sorry for the lack of references to back up these statements. I’m a little too busy at the moment to chase them up.
andyrussell Says:
May 18, 2011 at 8:43 am
Ok, so I’m probably not giving DTR as much significance as it deserves.
My point is that I don’t really care about DTR. I don’t think I know anyone who has a particular interest in DTR. If this paper had been published by anyone else I wouldn’t have looked at it. It’s not very interesting. It’s just another paper on climate observations that fits in with the “consensus view of climate change” or however you want to put it. That’s useful, but not to me or most people.
If, however, the paper had shown what Watts has been saying it would show for quite a while now (i.e. that the postitive temperature trend in the surface station record in the US was an artefact of poor station siting) then that would have been very interesting. To me and to many other people.
But it didn’t.
Ben Says:
May 16, 2011 at 4:49 pm | Reply
So Peter… If the diurnal high and the diurnal low both rise by 1°C, you think this means there has been no warming? After-all, the diurnal range hasn’t changed! Others might draw a different conclusion.
Peter Risdon Says:
May 17, 2011 at 8:26 am | Reply
I understand diurnal range has significance, and the relationship between day and night time temperature ranges is important, especially with regard to the period 1950 to 1980 when the effect of man-made global warming, it has been argued, was masked by a cooling but revealed by the changes in the relationship between these ranges.
I further understand that this argument is based on the idea that human pollution caused this daytime cooling, that it affected the range of day time temperatures as well as the difference between night time temperatures which continued to show warming, and daytime ones that didn’t. This makes day time temperature range significant: if this is right it would be expected to show a variation that correlates with human activity.
But this isn’t my field; I’m just reading what I can in an attempt to understand as much as possible about an important issue and, for me at least, that means reading Watts and reading this blog. Just searching out stuff you’re already disposed to accept isn’t good enough. My comment was prompted by what struck me as a somewhat partial quotation and exasperation: I’m with Feynman when he said you should point out the problems with a theory, not just the things that support it.
[It's not really a "partial quotation" is it? That sentence you are interested in is stuck on the end of the abstract as a new paragraph and isn't really related to the 2 sentences I quote and which are related to the subject of this post. I'm not really interested in DTR and I doubt Watts was either. - AR]
At least Watts invites people with different views to post on his blog and has been at the forefront of attempts to cross the ideological divide, not least with Judith Curry.
Ben, of course you’re right. Andy, a century is an arbitrary scale, of course.
I’d still be interested in your take on statistical significance.
JMurphy Says:
May 17, 2011 at 12:05 pm | Reply
In what way has Watts atempted to cross “the ideological divide” ?
Ben Says:
May 17, 2011 at 3:16 pm | Reply
Peter, I encourage a critical (i.e. thoughtful) reading of Anthony’s blog but my god do you really think he’s “at the forefront of attempts to cross the ideological divide”? Anthony has done more to harden denialist thought than anyone, with the possible exception Marc Morano.
The “different views” he solicits are unthreatening fig-leaves.
andyrussell Says:
May 17, 2011 at 3:24 pm | Reply
I’ve got no problem with most of what Keenan says, although he’s not the first/only person to be saying these things. There’s a JoC paper from 2010 and it was one of the useful points to come out of the UEA email enquiries (i.e. working more with stats people). Not sure where the funding was supposed to come from for these new people though!
I suppose the bigger problem comes down to climate science covering so much stuff – you can’t just look at problems from a stats/dynamics/modelling/chemistry/radiation/whatever perspective for too long before a) not getting very far or b) needing to doing something you’ve not done before.