Editor: I heartily agree, having read this page-turner on vacation, earlier in the summer
… goes to Chain of Title, by David Dayen (with apologies to Jennifer Taub, Alyssa Katz, Michael Lewis, and many others, including my co-author, Simon Johnson).
Chain of Title isn’t primarily about the grand narrative of the financial crisis: subprime lending, mortgage-backed securities, collateralized debt obligations, credit default swaps, synthetic CDOs, the collapse of the global financial system in 2008, and the frenzied bailout that followed. Instead, it’s about foreclosure fraud: how mortgage servicers, banks, and the law firms they hired systematically broke the law to force people out of their homes. At the same time, it’s about securitization fraud: the fact that an untold number of securitizations were not properly executed, meaning that they violated the terms of their underlying agreements, meaning that their investors should have been able to force rescission of the entire deal.
The substance of the argument has been well known for years, so I’ll try to pack it into one sentence: The banks creating mortgage-backed securities failed to properly transfer notes (the documents proving a borrower’s obligation) to the trusts that issued the MBS, so not only was the securitization itself faulty, but the trust did not have legal standing to foreclose on homeowners—so the banks paid third-party companies to forge the required paper trail, and lawyers knowingly submitted fraudulent evidence to courts, who usually accepted it.
This has been common knowledge on the Internet since 2009 or 2010. But Dayen does what good writers do: he tells the story of a few real human beings figuring out the workings of this vast fraudulent system on their own, fighting against it … and ultimately, for the most part, losing. The book makes you feel the anger, disbelief, hope, and disappointment of those days over again. Even though I knew how the story ended—in a whimper of liability-eliminating settlements and self-congratulatory back-patting by politicians—it was still painful to read.
As I said earlier, Chain of Title isn’t about the grand narrative of the collapse of the financial system. Because even if the banks had been pushing the paperwork properly, the crisis still would have happened: Washington Mutual still would have paid mortgage brokers to push Option ARMs onto homebuyers who could have qualified for prime loans, AIG still would have sold all those credit default swaps on senior tranches of CDOs, John Paulson and Fabrice Tourre still would have concocted ABACUS, and small towns in Norway still would have bought those MBSs and CDOs. The missing transfers weren’t a cause of the financial crisis.
But Chain of Title is about something bigger and more important: the corruption of our legal system and the political system behind it. The banks and their enablers—their lawyers (including the big-city law firms they hired for the big cases and negotiations) and the document production companies that churned out fraudulent paper—didn’t just forget to sign some documents and mail them to the right place; they covered up those mistakes by going into courtrooms all across the country, submitting documents that in many cases were obviously fake, and lying about where those documents came from. If you are, say, a defendant in a drug possession case, I strongly advise you not to try this. But apparently if you are a bank, it works just fine.
The banks clearly knew what was going on. They were ordering replacement documents from companies like DocX that sold them off a price list (p. 218). In the rare cases that lawyers were called out for submitting obviously fraudulent evidence—for example, a notary stamp used to notarize a signature dated before that stamp even existed—they simply withdrew the evidence and replaced it with a newly forged copy.
Why did they get away with it? Because, as many people have noted, we have two legal systems in this country: one for the wealthy and well connected, and one for the rest of us. You don’t get much better connected than the major banks. Arthur Levitt wasn’t much of an SEC chair, but he did say this back in 2000 (p. 59): “It won’t come out for ten years, and the banks know it. By then they’re already on to the next scam.” Or, as one bank executive said to a lawyer contesting false documents (p. 129), “You’re going to destroy the country. And if you don’t stop, we’ll just go to Congress and get the laws changed.”
Which is more or less what happened, at both the state and federal levels. In Florida, many judges simply refused to entertain defense lawyers’ claims, even though they went to the very core of the foreclosing banks’ case: whether or not they had standing to sue in the first place. Staff members in the attorney general’s office investigating foreclosure fraud were tossed out of their jobs.
In Washington, things were handled much more … professionally, you might say. Barack Obama talked about the importance of helping homeowners, while quietly protecting the banks’ backs. The White House told the IRS not to investigate wholesale violation of tax laws (because the trusts did not hold the mortgages they said they did) (p. 262); the Department of Justice hindered an investigation by a U.S. attorney’s office in Florida (p. 263); and the Department of Housing and Urban Development tried to get state attorneys general to fall in line behind a toothless settlement (p. 266). In the end, the banks paid a few tens of billions of dollars in penalties—most of it fake, as Yves Smith showed long ago—and promised to obey laws they were already supposed to obey, and which they then found new ways to break.
So we have two legal systems: one for banks and law firms, and one for ordinary homeowners. And the reason we have two legal systems is because our political system is, well, rigged—how else would you put it? As Dayen’s story shows, there was widespread evidence of systematic lawbreaking by banks that, by rights, should have cost them hundreds of billions of dollars and should have sent hundreds of people to jail (for knowingly forging evidence or knowingly submitting forged evidence). Yet the political establishment, from Republican attorneys general to a Democratic administration in Washington, closed ranks behind the big banks—at best because they thought it was necessary to keep the economy going, at worst because they were bought and paid for by campaign contributions and promises of private sector jobs.
This is the defining issue of our day. The financial crisis itself was produced by reckless bankers, aided and abetted by credulous or self-interested politicians and regulators. But the bigger scandal is that, in the wake of that colossal example of economic devastation, the powers that be chose to protect the big banks at the expense of ordinary families. They did so because that was the path of least resistance. It was easier to bail out a handful of large banks—overlooking both securitization fraud and foreclosure fraud constituted a far bigger bailout than TARP—than to uphold the law, and it didn’t hurt that bank campaign contributions and lobbying expenses keep Washington afloat. That’s what happens when you have an electoral system dominated by large donors and big corporations and when you have a political class so jaded by the system that it treats rampant lawbreaking as an inconvenient problem to be swept under the rug as a favor to a constituent. That’s the world we live in. And that is the ultimate lesson we should all learn from the financial crisis.