Friday, April 13, 2012

BofA sues BofA in Foreclosure Filing: More "Robo foreclosure"?

by Bill McBride on 4/13/2012 03:08:00 PM

Earlier this week, Zach Carter at the HuffPo wrote: Bank Of America Sues Itself In Unusual Foreclosure Case (ht T. Stone)

Over the past two years, the nation's largest banks and the Obama administration have repeatedly vowed to clean up the foreclosure fraud mess. ... But in Florida's Palm Beach County alone, Bank of America has sued itself for foreclosure 11 times since late March, according to foreclosure fraud activist Lynn Szymoniak, who forwarded one such foreclosure filing, dated March 29, 2012, to The Huffington Post.
This sounds like BofA is making a mistake. Nope.

From the article:
"We are servicing the first mortgage on behalf of an investor and we own the second mortgage," Bank of America spokeswoman Jumana Bauwens told HuffPost. "Naming the second-lien holder in the suit is necessary to eliminate the junior interest," Bauwens said.

With a little digging (credit: reader Z dug up the supporting documents, and sent me the following bullet points and more), here are a few details:
• April 28, 2005: property purchased for $210,000 with a BofA purchase mortgage for $192,691.20
• September 29, 2006: BofA second-lien home-equity line-of-credit mortgage for $75,000
• May 27, 2010: condo association lien for delinquent 2010 condo fees ($8,185)
• June 30, 2011: condo association lien for delinquent 2011 condo fees ($9,699)
• March 29, 2012: BofA files lis pendens on the first-lien purchase mortgage and names defendants including, in order, the borrowers, BofA (itself), the condo association, and any tenants (#1-4) that may be present

Here is the BofA filing in Palm Beach, Florida.

There are two reasons this is OK. First, as anyone who read the excellent overview "US mortgage and foreclosure law" by Kimball and Willen, at The New Palgrave Dictionary of Economics, the top priority for BofA as servicer of the first lien is to clear title. Suing the other lien holders is part of the judicial process in Florida. If BofA owned both loans, they could probably avoid suing themselves, but clearing title is priority one - so who cares.

Second, in this specific case, it appears the purchase loan was placed in an MBS and BofA is now only the servicer of the loan. (The BofA spokeswoman said "We are servicing the first mortgage on behalf of an investor and we own the second mortgage"). As the servicer, BofA has a legal obligation to the MBS investors. In this specific case, to clear the publicly recorded second lien that BofA owns, BofA, as servicer of the first lien, is obligated to sue BofA, as holder of the second, to clear title.

This is not evidence of "robo foreclosure" or anything remotely close. Yawn.