We just discussed the nightmare situation in Florida, which is likely to spin out nationally. Before I tell you more about what I think about the Florida situation, I’ll tell you I was raised by a family in law enforcement, and as such, I tend to think people who are arrested are usually guilty. And I think that the people who are ending up inside the Florida bankruptcy courts are usually going to be people that shouldn’t be in their homes.
It’s because of the fact that I and others usually believe this to be true that I think due process and the trust in the process of our courts is so incredibly important. It’s necessary to force the parties at hand to marshall evidence that they swear is true, and to present it to an impartial judge to render judgment after full consideration. This is America, where everyone gets a chance before the court. If this breaks, the weak and the innocent are the ones who suffer.
So it’s because of this background that I feel sick to my stomach learning of a random sampling of foreclosure cases conducted by the Florida Bar News has just found “that 20 percent or more of the cases set for summary judgment had some procedural or paperwork problems.”
Think about that. 20%! It’s outrageous, and shouldn’t stand in a country that values the rule of law.
Why is this happening? Again, keeping with what I know about the law, the criminals courts would simply shut down if everyone had a jury trial. Hence the crucial role of plea-bargaining. (If you want to see the role plea-bargaining plays, you should read Courtroom 302, one of my favorite books, by Chicago Reader journalist Steve Bogira.) There’s a plea-bargaining mechanism to be had here in these foreclosure trials: remove the deficiency judgements. People want to be able to hand over their homes, but they don’t want to spend the next decade hounded by JP Morgan for every last dollar that can be grabbed out of their paycheck. From the Florida Bar (my bracketed numbering):
Another hitch in clearing cases, he said, is  sometimes banks put off getting the final judgment so they don’t have to immediately take possession of the property, which makes the banks liable for property taxes and homeowners’ association fees on homes that may take considerable time to resell…
“If we had everyone defending their foreclosure, we’d never get through this.”
She said an unappreciated problem is  that many foreclosed homeowners don’t realize they are still liable for deficiency judgments, which is the difference between what they owed on the mortgage and what the bank gets in a foreclosure auction or a short sale. Those who do understand may fight or try to delay foreclosures, which doesn’t help the courts with the backlog. But it also means that once the foreclosure crisis is over, courts could be hit with a wave of deficiency actions.
Zikakis said of many of her clients, “If they could be relieved of the deficiency, they would hand in the keys immediately.”
Two things. First, in number one, notice that a lot of the backlog is the result of banks not wanting to take over properties. Some estimates place an abandoned property at $20,000 a pop, so a bank leaving three properties abandoned in any given place reasonably costs the municipality a teacher’s salary.
The second is even more important: homeowners are still on the hook for the deficiency judgments. If banks said they wouldn’t chase homeowners to the ends of the earth, garnishing their wages and disrupting their earnings, many years after a bum investment decision went south – if they were able to take at least a share in the downside – there would be a much, much smaller crisis. But because banks are credibly signaling that they will move Heaven and Earth to get every last penny they can out of those who have already been kicked to the curb, those who are about to be kicked out want to have their say in court.
Having mortgage cramdown would have helped alleviate this, FYI. Sure, courts would have gotten more crowded short-term, but it also would have been clearer in the results. And remember, this isn’t about poor people wanting to steal a home from someone; it’s about people wanting to make sure they can negotiate their way out of the housing crash that has left them deeply underwater. The ramifications of the crisis have left people much worse off than their original bad investment would have. People are willing to negotiate. Are the banks?
When you go back and read at Yves Smith’s site about a sample judge, it’s clear he’s moving people as fast as possible into a situation of not wanting to fight, either for their homes or for the negotiated values of them. Those who are falsely being evicted or those who have a credible case to fight are being lost in the shuffle. Meanwhile, banks realized that they could cash out big, especially in fees, by rushing as much as possible through foreclosure, but that doesn’t give homeowners a fair shake, or cause a reasonable negotiation to occur. And that is simply not just.
Start watching this (Naked Capitalism is the clearinghouse of info). The ratings agencies are being put in motion and they are always late to the news. JP Morgan has just fessed up to worries, arguably slowing the foreclosures in the country to a standstill. It’s going to get much worse before it gets better.