Archive | September, 2010

Detecting Appraisal Fraud and Property Flipping within Mortgage Audits

I have seen a lot of property flipping fraud, both perpetrated by and against buyers of new homes. The common thread among these cases is a fraudulent appraisal with inflation of the condition and value of a home. While perpetrators of the property flipping fraud may have a copy of the fraudulent appraisal, recruited straw borrowers and victims of property flipping fraud seldom do.

The question then remains how to detect appraisal fraud and property flipping scheme in your mortgage audit without having the actual appraisal in hand; and trying to property jugglingidentify parties involved in the fraud. This is extremely important so that when you are suing to recover losses, you properly identify who was responsible and who was not.

One common sign of property flipping within mortgage audits is a loan amount that is ‘maxed-out’ for that type of loan. This would indicate that a loan originator or other knowledgeable party with lending experience probably had a hand in the fraud. While Fannie Mae and other Government loan limits are widely published, subprime loan limits and pay option arm loan limits are programs that are no longer available and are much more difficult to find, unless one was a loan originator at the time and generally remembers them, or knows specific places to look. Loan to values also play a role in detecting property flipping, but require an auditor with mortgage experience to typically detect in their mortgage audit.

A second common sign of property flipping within mortgage audits is a huge down payment, above and beyond the capabilities of a ‘typical’ borrower for that type of loan. This is an indication that the escrow company was involved as such large amounts of money may never have changed hands. Other indications are amended title reports and title policies, which may have altered or removed relevant information such as past property transfers. The huge down payment means that the new purchase price is huge as well, which is likely identical to the unknown and inflated appraised value. It typically is easier to spot this evidence of property flipping in your mortgage audit if you have read hundreds of title reports.

A third common sign of property flipping within mortgage audits is online listing information and databases. A property listing describing the home as ‘unfinished’ or ‘needing extensive repairs’ with a mortgage to a lender that did not typically provide construction loans is another strong indication of appraisal fraud in the property flip, with the appraiser likely hiding both the condition and value of the property. Other sources may reveal more about the parties involved.

Role of the Appraisal within a Mortgage Audit

The role of appraisals within mortgage audits is to complete an overall picture of what happened. While an experienced mortgage auditor may be able to determine likely appraisal fraud without even seeing the appraisal, it is still highly beneficial to confirm the specificity of the appraisal fraud when the mortgage audit is designed around being the basis for a lawsuit.

The overall mortgage documents and borrower story often paints a picture of what happened, however in cases of inflated sales prices, the appraisal provides both a timeline, a duty, and specific evidence as to how the inflated sales price was justified. The appraisal is the glue that holds everyone else’s plan to sell the home at an inflated price together, and as such, must reflect each party to the plans exact requirements.

The appraisal is used multiple different ways in a purchase transaction.  Such as…

  • To justify the purchase price
  • To value and asses loan risk
  • To double check chain of title from the title company
  • To assess the value of the property by the lender to set the loan limits

When you understand how it is used, you then realize that the appraisal does not stand alone. Our mortgage audit process reflects this and we review the appraisal multiple times with other loan documents.

We have found that inflated appraisal value aside, appraisals in fraudulent transactions are often constructed specifically and exactly as needed to justify other sections the loan application and loan file.

My take on the “Produce the Note Strategy”

Before I go on, let me emphasize these are my thoughts on the “Produce the Note Strategy”, and should not be construed as legal advice. This is purely food for thought! Many different people have heard of the “Produce the Note Strategy” to stop your foreclosure.  Your lawyer attacks the foreclosure rights of whoever is foreclosing on you in this legal strategy.

MERS and its Assigns typically have the right to enforce the mortgage and foreclose regardless of ownership of the note due to clauses in the Deed of Trust and Note that states MERS and its assigns has that authority to enforce the note. (MERS and assigns are effectively Trustees/Attorney in Fact of Note Holder). If MERS or its Assigns are foreclosing, you can still ask MERS to produce the note giving MERS the authority clause to foreclose.

You can then ask MERS and its Assigns where it obtained its information that the loan is in default. They will respond with the Note Holder in due course. You can then contract imagechallenge the legitimacy of the Note Holder in due course’s right to claim loan is in default as they have to prove they are a holder in due course.

This typically results in them having to produce the mortgage note or chain of evidence that they are the note holder in due course. Some jurisdictions have required all foreclosing parties to provide the original note and transfer documentation at the start of any foreclosure proceeding.

Now if the holder in due course (typically your loan servicer or bank) chooses to foreclose then they need to produce a note and proof the note was assigned/indorsed to them as a chain of ownership. This is where they have a problem as many times the notes were never indorsed and were tossed for electronic storage, or tossed by previous holders after transferring ownership via MERS recording system of securities, but not transferred as per state statute (this gets into securities transfers and note transfer law).

In either situation, the note holder in due course must prove they are the note holder to have standing to foreclose, or standing to declare the loan is in default so that the trustee (MERS/its assigns) may foreclose.

Basically, in discovery, a lawyer may ask the foreclosing party to prove they have the standing to foreclose, and the standing of the party who declared the loan in default.

For further reading, please see:
http://mattweidnerlaw.com/blog/wp-content/uploads/2010/02/ordercancellingvacatingsale.pdf
http://www.5dca.org/Opinions/Opin2010/080210/5D09-4035.op.pdf