More Foreclosure Mischief: Bankruptcy Hijackings

Published on naked capitalims, by Yves Smith, February 21, 2012.

One of the common complaints from banks that the concerns raised by borrowers over robosigning are mere “paperwork” problems, that everyone who is foreclosed on deserved it, and no one was really hurt. That is patently false, as there have been an embarrassing number of instances where someone with no mortgage was foreclosed on, as well all too many cases of servicer-driven foreclosures. And that’s before we get to damage to property records.   

Attorney Timothy Fong called our attention to a below the radar form of chicanery that is predictable when you have nonjudicial foreclosure with no significant oversight and agents who lack incentives to do a good job. To some translate of the account below, MFRS = Motion for Relief of Stay. Even though a bankruptcy is supposed to hold all creditors at bay until the court sorts out what to do (which in a Chapter 13 is to develop a payment plan), servicers typically harass the borrower by filing Motions for Relief of Stay, which is a fancy of saying, “I want the house now.” If the borrower has hired a competent BK attorney, he can beat it back (although this still wastes the borrower’s by definition scarce funds). But a lot of people hire friends or family that are not BK savvy, and the banks hope to trip them up (either by not responding to the filing, or by signing a document in which the servicer agrees not to file future Motions for Relief of Stay, but which includes some innocuous looking but hugely detrimental provisions).

You need to read the part I boldfaced to see how widespread this sort of bankruptcy hijacking has become. And notice further how this works: the fraudsters pretend a person in bankruptcy owns a property that isn’t his. Not only does the financially stressed borrower have to incur costs to clear this up, but he also is at risk of being construed to be a participant in the scheme. From a recent post in Los Angeles Bankruptcy Law Monitor.

Local attorney Gerald McNally, Jr. of McNally and Associates, P.C. explains the mechanics of a bankruptcy hijacking: … (full text).

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