The latest foreclosure chapter: lawyers and “robo-signers”

The Wall Street Journal suggests that one particular lawsuit, begun in 2004, helped bring to light the most recent issue in the American foreclosure saga: the use of “robo-signers” by lending firms. Because of these practices, a number of banks have had to suspend foreclosure proceedings to examine the paperwork more closely:

Lillian and Robert Jackson stopped paying on their home in Jacksonville, Fla., in 2004 when business dropped off at their cleaning company. Eviction might have seemed inevitable when they faced a foreclosure hearing two years later.

But their lawyer, James Kowalksi, had the idea of taking a deposition from the signer of the mortgage papers. When a document processor for GMAC Mortgage admitted she routinely signed such papers without being familiar with details of the loans, she was tagged as one of a species now known as robo-signers.

It was a first step in the growth of a legal sub-specialty called foreclosure defense that has sown confusion and turmoil in the housing market. Lawyers in the field now commonly use a technique more identified with corporate litigation: probing depositions, designed to uncover any lapses in judgment, flaws in a process or wrongdoing. In the 23 states where foreclosures entail a court hearing, the bank may be ordered to pay the homeowner’s legal bill if a lawyer can convince a judge that the bank has submitted false documents, such as affidavits saying employees personally reviewed the details of loans when they didn’t.

Ultimately, lenders argue that this sort of legal proceeding doesn’t keep the resident in their home; they still should be evicted from their homes for failing to pay because this is just a paperwork issue. What remains to be seen is if there is some sort of “smoking gun” case where the bank proceeded with foreclosure when it should not have.

But in the mean time, it appears that there are a number of lawyers who see an opportunity here. And in the court of public opinion, revelations like this don’t help the public image of the lenders.