April 19, 2024

Economix Blog: Another Asterisk for Asset Purchases

Federal Reserve officials have complained for years that the rest of the government is impeding the effectiveness of monetary policy. The Fed keeps making it cheaper to borrow, but the nation’s favorite kind of borrowing is the mortgage loan, and the mortgage market — well, let’s just say it’s a little broken.

In the latest variation on this important theme, researchers at the Federal Reserve Bank of New York presented evidence in a recent paper that a government policy aimed at helping underwater borrowers also is helping lenders pad profits, reducing the benefits for borrowers — and the economy.

Notwithstanding such frustrations, the Fed’s policy-making committee is expected to announce Wednesday afternoon that it will keep buying Treasury securities and mortgage-backed securities to stimulate the economy.

There is ample evidence that asset purchases work, at least a little. The new Fed study simply adds to the list of reasons that it does not work better.

The federal government encourages mortgage companies to refinance borrowers whose debts exceed 80 percent of the value of their homes by instructing Fannie Mae and Freddie Mac to buy the new loans and to relax some of their usual conditions and safeguards. But the Home Affordable Refinance Program offers those terms only to the company controlling the original loan.

This unique financial advantage means lenders can charge higher interest rates while still underpricing potential competitors. The Fed study calculates that average rates are about 0.5 percentage points higher than on comparable loans.

That’s a problem for two reasons. First, it limits the number of people who can benefit from refinancing. Second, it means borrowers are saving less money. Instead, banks are booking larger profits — and much of the money either leaves the country or sits on balance sheets, waiting for brighter days. Borrowers, by contrast, are much more likely to take their savings and spend it.

The Fed announced in September that it would expand its holdings of mortgage-backed securities by about $40 billion a month until the outlook for the job market showed “sustained improvement.” The purchases are akin to removing multiple seats from a game of musical chairs. Other buyers are forced to accept lower interest rates — that is, they are forced to pay upfront a larger share of the money they are entitled to receive as the bond matures.

That reduces interest rates for borrowers, too. Borrowers pay higher rates to lenders than lenders pay to investors. That’s how lenders make money. But as investors charge less, lenders also can charge less without sacrificing profit.

The average rates that lenders charge borrowers, however, have fallen by less than the average interest rates that investors demand from lenders. Over the last decade, the median difference was about 0.4 percentage point, according to Bloomberg News. It now stands at more than 1.2 percentage points.

In other words, as my colleague Peter Eavis wrote in August, the Fed’s campaign is helping lenders much more than it’s helping borrowers.

That 3.55 percent rate for a 30-year mortgage could be closer to 3.05 percent if banks were satisfied with the profit margins of just a few years ago. The lower rate would save a borrower about $30,000 in interest payments over the life of a $300,000 mortgage.

The question is why: If profit margins have grown so fat, why aren’t some lenders trying to win business by offering lower prices? One popular theory is that the financial crisis decimated the ranks of lenders, but the New York Fed calculates that competition actually has increased over the last year. Another theory is that lenders lack the capacity to meet demand for loans, so they have little incentive to compete by cutting prices. The study discounts that explanation, too.

Instead, the study suggests that many borrowers do not benefit from competition because companies will make loans only with government subsidies, and the government is offering to subsidize only one lender for each borrower.

In addition to the evidence that companies are charging higher interest rates on HARP loans, the study found evidence of similar pricing in a companion program for people who owe less than 80 percent of a home’s value.

Notwithstanding these frustrations, the Fed is likely to persist in its efforts because officials remain convinced that buying mortgage bonds is the best way to reduce mortgage rates, and reducing mortgage rates is the best way to help the economy.

As William C. Dudley, the New York Fed president, put it in a recent, typically understated summation, “our policy has been and continues to be effective — though it is certainly not all-powerful in current circumstances.”

Article source: http://economix.blogs.nytimes.com/2012/12/12/another-asterisk-for-asset-purchases/?partner=rss&emc=rss

2 Banks to Settle Case for $417 Million

The S.E.C. has leveled claims against a handful of major banks, including JPMorgan and Credit Suisse, that they painted a deceptively rosy portrait of the securities while some of the underlying loans were already showing signs of delinquency.

Robert Khuzami, director of the S.E.C.’s division of enforcement, called mortgage products like those sold by the banks “ground zero in the financial crisis” in a statement Friday. The S.E.C. cautioned Wall Street to brace itself for more enforcement actions.

While the S.E.C. has brought more than 100 cases related to the financial crisis, the agency has won only piecemeal victories against the banks, and has not yet secured a big victory against any individuals responsible for some of the reckless behavior. In a significant setback for the agency, a federal jury in July acquitted a Citigroup manager the S.E.C. had accused of misleading investors in the sale of a complex security made up of residential mortgages.

In a conference call Friday, Mr. Khuzami acknowledged the challenge of bringing cases against individuals related to “structured” financial products, but noted that “we are by no means shying away from charging individuals.”

JPMorgan and Credit Suisse did not admit or deny guilt. JPMorgan agreed to pay $296.9 million to settle the charges and Credit Suisse agreed to pay $120 million.

The S.E.C. brought the cases in conjunction with the federal-state mortgage task force, which President Obama created in January to investigate the subprime mortgage morass. In its first major salvo against banks, the group sued JPMorgan last month. That federal lawsuit is still pending.

Separately, the federal regulator that oversees the housing finance giants Fannie Mae and Freddie Mac filed lawsuits against 17 financial firms last year over nearly $200 billion in mortgage-backed securities that imploded after the loans soured.

Legal wrangling over Wall Street’s behavior during the housing boom has targeted virtually every step in the process, from making loans to borrowers with tarnished credit to the sale of securities engineered with the subprime loans. As a result of the mortgage-litigation storm, banks have had to set aside billions of dollars to deal with claims from investors and regulators.

In 2010, the S.E.C. secured $550 million from Goldman Sachs. In that case, the agency focused on a single mortgage security created in 2007, just as fissures spread through the housing market. Goldman allowed a hedge fund manager, the S.E.C. claimed, to help construct the security, then bet against it, but never alerted investors.

The S.E.C.’s investigation into JPMorgan included creating troubled securities itself, as well as misleading investors through its Bear Stearns unit, the troubled investment bank it purchased at the urging of the federal government in 2008.

In a December 2006 sale of $1.8 billion of mortgage-backed securities, JPMorgan played down delinquency rates of the mortgages used as collateral in the securities, according to the S.E.C. Despite assurances by JPMorgan that only 0.04 percent of the loans were more than 30 days delinquent, roughly 7 percent of the loans were troubled, the agency said. While the bank reaped $2.7 million as part of the deal, investors didn’t fare as well, losing at least $37 million, according to the S.E.C.

The S.E.C. also faulted Bear Stearns for pocketing compensation it received from mortgage lenders for shoddy loans that the firm had purchased to package into mortgage securities. Bear Stearns, the agency claimed, never passed that money on to investors in the securities. As a result, Bear Stearns received $137.8 million, the agency said.

Credit Suisse was also accused of keeping roughly $55.7 million in such payments from investors. The Swiss bank was also faulted by the agency for misstating when it would buy back mortgages if homeowners fell behind on their payments, as part of $1.9 billion in securities it underwrote in 2006.

In a statement on Friday, JPMorgan said that it was pleased to “put these matters” behind it. Credit Suisse also expressed relief, noting that the bank was “committed to the highest standards of integrity and regulatory compliance in all its businesses.”

The S.E.C. said it would distribute the money to investors harmed by banks’ practices.

Despite the settlement, JPMorgan is still dogged by mortgage-related headaches. The mortgage task force case filed last month by New York’s attorney general, Eric T. Schneiderman, claimed that Bear Stearns sold securities between 2005 and 2007 that caused roughly $22.5 billion in losses for investors.

In another mortgage feud, JPMorgan is one of the 17 firms that the Federal Housing Finance Agency claims sold shoddy loans to the government without adequately disclosing the risks. In court filings, JPMorgan has pushed for the lawsuit to be thrown out.

Beyond the government actions, JPMorgan and other Wall Street banks face an onslaught of battles with private investors. Dexia, a Belgian-French bank, for example, sued JPMorgan in federal court in Manhattan over $1.6 billion in mortgage-backed securities bought from Bear Stearns and Washington Mutual.

In a statement Friday, Kenneth Lench, head of the S.E.C. enforcement division’s structured and new products unit, said, “These actions demonstrate that we intend to hold accountable those who misled investors through poor disclosures in the sale of R.M.B.S. (residential mortgage-backed securities) and other financial products commonly marketed and sold during the financial crisis.” He added: “Our efforts in that regard continue.”

Article source: http://www.nytimes.com/2012/11/17/business/jpmorgan-and-credit-suisse-to-pay-417-million-in-mortgage-settlement.html?partner=rss&emc=rss

Home Resales Rose in November

WASHINGTON (AP) — The number of Americans who bought previously occupied homes rose last month. But the National Association of Realtors says it overstated more than 3 million sales during and after the Great Recession, showing the housing market was weaker than previously thought.

The private trade group says sales rose 4 percent last month to a seasonally adjusted annual rate of 4.42 million. That is below the roughly 6 million homes a year that economists say are consistent with a healthy housing market. But it is ahead of 2008’s revised sales, now considered the worst in 13 years.

The trade group revised its sales from 2007 to 2010 down 14 percent, from more than 20.6 million to nearly 17.7 million. Among the reasons for the lower figures, the Realtors group says: changes in the way the Census Bureau collects data, population shifts and some sales being counted twice.

The Realtors consulted with government and private housing experts, including the Federal Reserve, the Department of Housing and Urban Development, the Mortgage Bankers Association, the National Association of Home Builders, the mortgage giants Fannie Mae and Freddie Mac and CoreLogic, a California-based data firm that first raised doubts about the annual numbers earlier this year.

CoreLogic has estimated that the Realtors group overstated sales in 2010 by at least 15 percent.

The changing numbers could affect how economists view the trade group’s data. It could also affect companies that use the figures for hiring and expansion plans.

Sales are measured when buyers close on homes. But many deals are collapsing before that point. One-third of Realtors said they had at least one contract scuttled in October, up from 18 percent in September.

Contracts are being canceled for several reasons: Banks have declined mortgage applications; home inspectors have found problems; appraisals showed a home was worth less than the bid; a buyer lost a job before the closing.

More than two years after the recession officially ended, many people cannot qualify for loans or meet higher down-payment requirements. Even those with excellent credit and stable jobs are holding off because they fear that home prices will keep falling. Sales are also being hurt by a decline in first-time buyers, who are critical to reviving the housing market.

Sales have fallen in four of the five years since the housing boom went bust in 2006. Declining prices and record-low mortgage rates haven’t been enough to bolster sales.

At the same time, home construction has begun a gradual comeback and should add to the economy’s growth in 2011 for the first year since the Great Recession began in 2007. Last month, builders broke ground on an annual rate of 685,000 homes, the government said Tuesday. That was a 9.3 percent jump from October and the fastest pace since April 2010.

Most economists say home prices will keep falling, by at least 5 percent, through 2012. Many forecasts do not foresee a rebound in prices until at least 2013.

The high rate of foreclosures has made resold homes cheaper than new ones. The median price of a new home is roughly 30 percent above the price of one that has been occupied before — twice the normal markup. Investors are taking advantage of the discounts.

The housing market is struggling even as the broader economy has improved in recent months.

The economy grew at an annual pace of 2 percent in the July-September quarter. Many economists expect slightly better growth in the October-December quarter.

This article has been revised to reflect the following correction:

Correction: December 21, 2011

An earlier version of this article misstated the revision in home-sales figures for 2007 to 2010. They were revised downward 14 percent, from more than 20.6 million to nearly 17.7 million, not 16.7 percent, from nearly 17.7 million to 14.7 million.

Article source: http://feeds.nytimes.com/click.phdo?i=763dc3725260f346e834c3553c96620d

DealBook: S.E.C. Sues 6 Former Top Fannie and Freddie Executives

Robert S. Khuzami, the Securities and Exchange Commission's director of enforcement.Jacquelyn Martin/Associated PressRobert S. Khuzami, the Securities and Exchange Commission’s director of enforcement.

The Securities and Exchange Commission has brought civil actions against six former top executives at the mortgage giants Fannie Mae and Freddie Mac, saying that the executives did not adequately disclose their firms’ exposure to risky mortgages in the run-up to the financial crisis.

The cases represent the first major action by the federal agency in its more than three-year investigation of the government-controlled mortgage giants that were at the center of the housing crisis.

The agency filed complaints against three former executives at Fannie Mae – its chief executive, Daniel H. Mudd; chief risk officer, Enrico Dallavecchia, and executive vice president Thomas A. Lund.

Freddie Mac’s former chief executive, Richard F. Syron; Patricia Cook, its chief business officer, and executive vice president Donald J. Bisenius were also named in a separate complaint.

“Fannie Mae and Freddie Mac executives told the world that their subprime exposure was substantially smaller than it really was,” Robert Khuzami, the head of enforcement for the S.E.C., said in a statement. “These material misstatements occurred during a time of acute investor interest in financial institutions’ exposure to subprime loans, and misled the market about the amount of risk on the company’s books. All individuals, regardless of their rank or position, will be held accountable for perpetuating half-truths or misrepresentations about matters materially important to the interest of our country’s investors.”

As part of its announcement, the S.E.C. said that Fannie Mae and Freddie Mac agreed to settle with regulators and cooperate with its investigation of former executives. The Justice Department has also investigated the two mortgage giants, but no charges have been brought.

The S.E.C.’s cases against executives will rely heavily on whether the two mortgage companies underreported or misled investors about their ownership of subprime loans and mortgages that required few documents from borrowers in the years leading up to and including the housing bust.

The complaint alleges, for instance, that Fannie Mae executives described subprime loans as those made to individuals “with weaker credit histories” while only reporting one-tenth of the loans that met that criteria in 2007. The S.E.C. complaint contends that Freddie Mac executives falsely led proclaimed that certain businesses had virtually no exposure to ultra-risky loans.

The S.E.C., which spent roughly two years interviewing former and current employees of the two companies, has been under tremendous pressure to produce cases in the wake of the financial crisis.

Earlier this year, the agency sent Wells notices, which warn of potential enforcement actions, to a number of top executives at the two firms. At the time, Mr. Syron, Mr. Mudd, Mr. Bisenius and Mr. Piszel all challenged those potential accusations.

Mr. Mudd and Mr. Syron are the two most high-profile subjects of the complaint. Mr. Mudd is now chief executive of private equity giant the Fortress Investment Group. Mr. Syron is a former president of the American Stock Exchange and currently an adjunct professor and trustee at Boston College.

Lawyers for Mr. Syron and Mr. Mudd did not immediately respond to requests for comment. Lawyers for Mr. Dallavecchia, Mr. Lund, Ms. Cook and Mr. Bisenius could not immediately be reached for comment.

Fannie Mae and Freddie Mac were created by Congress to help facilitate homeownership. Though they do not loan money to borrowers themselves, they buy up mortgages from lenders and resell them in packages to investors, which allows banks and others to issue more loans. By 2005, the two companies began an aggressive push to expand their mandate to include less fortunate borrowers typically excluded, an effort encouraged by lawmakers and lenders. The companies were also looking to reclaim business from Wall Street, which was thriving in the world of subprime mortgages.

But by the middle of 2008, as the housing market was sinking, exposure to subprime and other weak borrowers threatened the two companies. The Bush administration stepped in to rescue the two mortgage giants in September 2008, taking control of them in the process. Since then, the government has loaned the Fannie Mae and Freddie Mac more than $100 billion.

That the settlement with the two companies did not include a fine reflects their financially precarious situation. The Obama administration announced plans earlier this year to wind down the two companies.

S.E.C. v Mudd, Dallavecchia and Lund

S.E.C. v Syron, Cook and Bisenius

Article source: http://feeds.nytimes.com/click.phdo?i=bf9883ed2fef5a99a98d85d406156d75

Economix Blog: Podcast: Paul Volcker’s Warnings, the S.E.C.’s Privacy Problem and Some Economic Pitfalls

With European leaders struggling to contain their financial crisis, many Americans may be feeling complacent. Perhaps they shouldn’t be.

Paul Volcker, the former Federal Reserve chairman, warns that we are not out of the woods yet, as Gretchen Morgenson writes in her Fair Game column in Sunday Business and says on the new Weekend Business podcast. Mr. Volcker focuses on two big problems.

First, he says, money market funds should be treated like other mutual funds — whose price can fluctuate — rather than as guaranteed stores of value, like bank accounts. In addition, he says, the United States needs to plan on eventually shutting down Fannie Mae and Freddie Mac, the two agencies that now dominate the mortgage market.

The public pension crisis, another big problem afflicting the American economy, is the focus of a cover article in Sunday Business by Mary Williams Walsh. In a discussion on the podcast with David Gillen, she says Rhode Island is experiencing acute problems now, which may provide a preview of much that is still to come elsewhere in the country.

Greg Mankiw, the Harvard economist, discusses his Economic View column, in which he points out four pitfalls for the American economy, which he says are epitomized by four countries that have already experienced them: Zimbabwe, Greece, Japan and France. He provides details in his column and in our discussion. Briefly, though, he is referring to the potential for runaway inflation, uncontrolled debt, a protracted slump and a relatively high tax regime.

And, in a separate conversation, Natasha Singer asks whether the S.E.C. may have inadvertently compromised the financial privacy of its own employees. The potential problem, which arose after the agency brought in an outside contractor to help it monitor its employees’ finances, is the subject of her Slipstream column in Sunday Business.

You can find specific segments of the podcast at these junctures: Paul Volcker’s warnings (34:10), news headlines (23:36), the public pension crisis (21:30), four pitfalls of the American economy (14:15), the S.E.C. and privacy (7:50) and the week ahead (1:43).

You can download the program by subscribing from The New York Times’s podcast page or directly from iTunes.

Article source: http://feeds.nytimes.com/click.phdo?i=eb49a59d332af6d8593f15a46e45992f

DealBook: Fannie and Freddie Near Settlement With Regulators

Robert Khuzami, the S.E.C. enforcement chief, is said to have met this summer with lawyers for ex-chiefs of Freddie and Fannie.Daniel Rosenbaum for The New York TimesRobert Khuzami, the S.E.C. enforcement director, is said to have met with lawyers for ex-chief executives of Freddie and Fannie.

Regulators are nearing a settlement with Fannie Mae and Freddie Mac over whether the mortgage finance giants adequately disclosed their exposure to risky subprime loans, bringing to a close a three-year investigation.

The proposed agreement with the Securities and Exchange Commission, under the terms being discussed, would include no monetary penalty or admission of fraud, according to several people briefed on the case. But a settlement would represent the most significant acknowledgement yet by the mortgage companies that they played a central role in the housing boom and bust.

And the action, however limited, may help refurbish the S.E.C.’s reputation as an aggressive regulator, particularly as the country struggles with the after-effects of the financial crisis that the housing bubble fueled.

But the potential settlement — even it if it is little more than a rebuke — comes at an awkward time for Fannie Mae and Freddie Mac. Last week, the government overseer of the two companies sued 17 large financial firms, blaming them for luring the mortgage giants into buying troubled loans. That is a similar accusation to the one the S.E.C. is leveling at Fannie and Freddie — that the two entities misled their own investors. The case against the financial firms could be complicated should Fannie and Freddie sound a note of contrition for their own role in the implosion of the mortgage market in settling with the S.E.C.

The agency abandoned hopes of assessing a fine because of the precarious financial positions of the two companies, according to the people briefed on the case, who spoke on condition of anonymity because the deal was not yet final. The government has already propped up Fannie Mae and Freddie Mac with more than $100 billion since taking control of them in 2008. Any fee levied against them would simply wind up on the taxpayers’ tab.

The negotiations have been going on since at least early summer, and a deal may not materialize until later this year, these people cautioned. Fannie Mae, Freddie Mac and the S.E.C. all declined to comment.

The sprawling investigation into Fannie Mae and Freddie Mac once encompassed both civil and criminal elements, making headlines as one of the most significant cases to stem from the financial crisis. The case also threatened to ensnare some of Fannie and Freddie’s former top officials. Earlier this year, recent chief executives at both companies received so-called Wells notices from the S.E.C., an indication that the agency was considering a civil enforcement action against them.

But three years on, the civil settlement would be the only government action against the companies.

The criminal inquiry has sputtered to a halt. The Justice Department has concluded its inquiry, at least at Freddie Mac, according to a securities filing in August by the company. No charges have been filed against either company.

At the S.E.C., regulators have zeroed in on the fine print of Fannie’s and Freddie’s disclosures, according to those who have been briefed on it. The agency is specifically looking at the way the companies reported their subprime mortgage portfolios and concentrations of loans extended to borrowers who offered little documentation.

While Fannie and Freddie do not offer home loans, they buy up thousands of mortgages from lenders and resell them in packages to investors. The S.E.C.’s case hinges on whether the companies misled the public and regulators by lowballing the number of high-risk mortgages on their books.

One potential weakness of the case is that it hinges on the definition of subprime, which the government itself has struggled to nail down. The term often references loans to borrowers with low credit scores and spotty payment records. But Fannie and Freddie categorized loans as prime or subprime based on the lender rather than on the loan itself.

The path to the current settlement talks at Fannie Mae and Freddie Mac has been a delicate one. While internally, the two companies did not view the government’s case as particularly strong, they said they moved to settle to spare time and precious resources, according to one person close to the talks. In addition, the companies asked that whatever the settlement, it not include a fine or accusations of fraud in the hopes of protecting an already battered morale and an empty purse at the institutions.

In particular, a fraud accusation could cause an exodus of the employees best equipped to dig the institutions out of their current morass, people close to the talks said. A settlement with the mortgage companies would be a first step in wrapping up the S.E.C.’s broader examination. The agency is still pursuing potential claims against at least four former executives at Fannie and Freddie.

This summer, lawyers for Richard Syron, the former chief of Freddie Mac, and Daniel H. Mudd, his counterpart at Fannie Mae, met directly with the S.E.C.’s enforcement chief, Robert Khuzami, according to some of the people briefed on the case.

The S.E.C. has sent Wells notices to Mr. Syron; Mr. Mudd; the former chief financial officer at Freddie Mac, Anthony J. Piszel; and Donald J. Bisenius, executive vice president at Freddie until his recent departure.

None of the individuals have been accused of any wrongdoing.

Mr. Mudd and Mr. Syron are the two most prominent executives swept up in the case. Mr. Mudd is now chief executive of the public traded hedge fund and private equity firm the Fortress Investment Group. Mr. Syron, a former president of the American Stock Exchange, is an adjunct professor at Boston College and serves on its board of trustees.

Through their lawyers, Mr. Mudd and Mr. Syron declined to comment. The S.E.C. could yet decide not to sue the former executives.

Ultimately, the two mortgage companies have larger worries to confront than the potential citations: chief among them is their continuing viability.

Earlier this year, the Obama administration announced plans to wind down the two companies, leaving the fates of the companies unresolved and the future of government-backed housing finance in doubt.

Article source: http://feeds.nytimes.com/click.phdo?i=c7aa5b29abb0c46e8833a73bb4e833fa

Fair Game: The Banks Still Want a Waiver

HOW should banks atone for those foreclosure abuses — all the robo-signing and shoddy recordkeeping that jettisoned so many people from their homes?

It has been four months since a deal to remedy this mess was floated. Not much has happened since — at least not publicly.

Last week, banking executives and state attorneys general met in Washington to try to settle their differences. At issue was how much banks should pay, and how and to whom, to make this all go away. The initial terms, which emerged in March, were said to carry a $20 billion price tag.

But here is a crucial question: to what extent would such a settlement protect banks from future liability? Will the attorneys general strike a deal that effectively prevents them from bringing new, unrelated lawsuits against the banks?

If the releases in any settlement are broad, there will be joy in Bankville. If they are narrow, the banks will probably face more litigation, something they would rather avoid.

A looming issue relates to the potential liability stemming from the Mortgage Electronic Registry Systems, or MERS. This company, owned by the major banks, was set up in the mid-1990s by the Mortgage Bankers Association, Fannie Mae and Freddie Mac. Its goal was to expedite the home loan process.

By eliminating the need to record changes in property ownership in local land records, MERS ramped up profits for lenders. In 2007, MERS calculated that it had saved the industry $1 billion over 10 years. An estimated 60 percent of all home loans were registered to MERS.

But the MERS machine started to sputter during the foreclosure crisis. Lawyers challenged MERS’s ability to bring foreclosure proceedings because the system does not technically own the security or note underlying properties, as required. While some courts have not objected to MERS’s foreclosing in place of banks, others have.

New York courts, for instance, have been increasingly hostile to MERS. In a February 2011 opinion, Robert E. Grossman, a federal judge on in Long Island, wrote: “This court does not accept the argument that because MERS may be involved with 50 percent of all residential mortgages in the country, that is reason enough for this court to turn a blind eye to the fact that this process does not comply with the law.”

Equally troubling for MERS is the fact that its officials have filed questionable documents with courts attesting to ownership of the notes and other significant matters.

These practices have consequences, as described by R. K. Arnold, MERS’s former president, in a 2006 deposition. “We are heavily at risk as far as, you know, having to follow the rules of the court and enforcing our rules that our members must go by,” he said. “We also have jeopardy as far as if we were to fail in the foreclosure realm.”

David Pelligrinelli, president of AFX Title, a title search company, said MERS contributed to the problem of thousands of mortgages lacking a complete ownership chain.

“You can’t go back and redocument all these things, because some of the companies aren’t around anymore,” he said. “Even if they are, the charters for these companies don’t allow for backdating of assignments.”

How MERS and its bank owners will fare with the attorneys general is unclear. The early term sheet for the possible settlement said only this: “Issues relating to the use and performance of MERS are reserved for further discussion.” Those further discussions may be taking place now. It’s a good bet that the banks want a comprehensive release from liability relating to MERS.

Officials at the nation’s top four banks declined to comment on the private talks. A spokeswoman for MERS said it was not participating in the discussions and could not speculate on them.

Lawyers who have examined this issue say it would be unprecedented to grant a broad release from liability to the banks that own MERS from claims that have not been investigated.

WHILE some states are scrutinizing MERS, most have declined to investigate its operations. That might seem surprising, given the apparent conflicts of interest in its business. Employees of law firms representing banks in foreclosures, for instance, are also officers of MERS. They can assign mortgages even though they represent a party with an interest in the outcome.

A broad release would vastly diminish the possibility of an in-depth investigation. Such a release might also make it harder for borrowers to argue that MERS has no right, or standing, to foreclose on them. The United States Trustee has supported this view in a number of recent cases, but exempting banks from future lawsuits on this issue would send a message that questioning MERS’s standing is of no interest to top state officials.

And if the banks are insulated from future state lawsuits, responsibility for any abusive acts by MERS would be pushed onto law firms that did the system’s work. With few assets, these law firms are virtually judgment-proof. The unit of MERS that held title to the mortgages also has few assets and was set up in such a way that lawsuits against it would probably reap little for plaintiffs.

MERS has begun to clean up its practices and paperwork. Officials are furiously assigning mortgages out of MERS’s name and into the banks’ names. One borrower in Pierce County, Wash., combed through records from April 1, 2011, to July 18, and found 1,956 assignments of deeds of trust executed from MERS to banks that service the loans or trustees that oversee mortgage pools.

Sure, the issues surrounding MERS seem mind-numbing. Some officials might want to wash their hands of the whole thing in a settlement. But at least one legal professional is offering to educate attorneys general — at no cost. She is April Charney, a lawyer at Jacksonville Area Legal Aid in Florida and one of the first to question MERS’s standing in foreclosures.

“You need lawyers in each state to be legal consultants to the A.G.’s so they’re on equal footing with the huge industry they are up against,” she said. “It would be an honor to consult on these highly complex, layered and nuanced state-based legal issues. Call it pro bono with bells on.”

It would be telling if no one takes her up on that offer.

Article source: http://feeds.nytimes.com/click.phdo?i=bb6fb0cc6f8a04e4eafe8499724bd7e1