No doubt, the five major lenders at the heart of the recent national foreclosure settlement are hoping this represents the end of their troubles.
You can stand with the settlement’s main architects in concluding that even bringing these banking behemoths to the table in the first place is a victory, and that this deal offers millions of struggling homeowners real assistance.
Or you can join the growing ranks of immediate revisionists and complain the deal lets these scofflaws off too easily, that the amount of real assistance offered is inconsequential and that the actual amount to be shelled out in real money by the banks is a drop in the bucket.
Regardless, the deal is done. In the immortal words of New England’s favorite football genius, Bill Belichick, it is what it is.
But, in finally – if reluctantly – signing off on the deal, Massachusetts Attorney General Martha Coakley gave us hope that while the deal is what it is, there are still opportunities for us to explore what it isn’t.
“We all felt, ‘let’s get started on this, put this into practice and see how far it’ll go,’” Coakley said at a formal announcement of Massachusetts acceptance of the settlement. “This is a first step.”
It’s clear at this point, we think, that the deal as it stands does the major lenders several favors. And if nothing else, it allows the matter to be put to rest so local leaders can get down to the business of putting the settlement money to its best use.
But the agreement critically stops short of offering these mistake-prone lenders what it is they probably crave more than anything else: Absolution.
By eliminating certain legal paths from further litigation, it can be argued that the settlement allows prosecutors like Coakley more leverage to focus on the avenues that remain open.
There is still a great deal that can and will be learned from ongoing suits related to allegations of filing foreclosures without possessing the underlying mortgage. And continued investigations into the role of the embattled Mortgage Electronic Registry System (MERS) will tell us much about the processes lenders used to shuffle their paperwork around behind MERS’ shield.
In the case of the latter litigation, pursuing MERS through larger class action suits may yield further local dividends. Bristol, Plymouth and Norfolk Counties recently announced plans to file a class action suit against MERS aiming to recoup land recording fees they believe they are owed. Essex County has been crying foul over lost recording fees for years.
In Bristol County alone, estimates of the value of fees allegedly lost as a result of MERS’ filing practices range between $3.1 million and $6.5 million. In Essex County, Registrar John O’Brien estimates the use of MERS by large lenders has cost his registry upwards of $22 million. And there is no telling how many untold millions may have been taken off the table in other parts of the commonwealth.
Tens of millions of dollars at stake from lost recording fees may sound like a pittance compared to the billions of dollars in play as a result of the national mortgage practices settlement.
But those millions matter to the municipalities depending on that revenue to fund any number of local initiatives. New fire trucks, computers in classrooms, property tax abatement and new parks – these are the kinds of things those millions can buy. They are tangible things that offer real value to real communities composed of real homeowners, rather than the vague promises, big numbers and legal loopholes offered by the big lenders.
And they are the kinds of things Coakley is still allowed to pursue – vigorously – as a result of this settlement. We agree with her, then, when she says that this settlement is not the end, but rather the beginning.





