While the Mass Alliance Against Predatory Lending did not get to do the comprehensive interview and voter education process of Register of Deeds Candidates across the state as we discussed – we did send foreclosure questions to the key contested races – which will be determined in the primary TOMORROW, Thurs, Sept. 6th
REMEMBER TO VOTE in the Primary TOMORROW.
In Hampshire county, three Democrats vie for the Register of Deeds – in fairness, we asked our questions very last minute but here are their answers:
Bonnie McCracken:
1. What have you done in the past to help halt or reverse foreclosures?
RESPONSE: Because of my background in foreclosures and real estate law, I have been able to halt several foreclosure because of the errors I found in the recorded documents, i.e., Banks did not hold title to the property they were attempting to foreclose on. I am the co-author of legislation that protects our deployed service members from foreclosure under the Valor Act signed into law on May 31, 2012. My legislation transfers the burden of proof of notice of deployment from the soldier to the Bank. The Bank now has to prove that a soldier is not deployed.
I will remember that although our homes are important, it is the individual, families and communities that have the expectation and right to strong advocacy from the their elected Register.
2. The “robo-signing” of documents to be recorded at the Registry of Deeds is now broadly known – these issues include the signing of affidavits not under personal knowledge, documents not signed by the named signatory, and notarizations not compliant with state law. In South Essex, the Register has publicized questionable signatures and provided homeowners with legal affidavits where he has clear evidence.
RESPONSE: The governor signed legislation on August 3, 2012 making Robo-signing illegal. It is the duty of the Register to uphold and enforce the laws of the Commonwealth as it pertains to the documents recorded at the Registry of Deeds. This illegal activity not only has a detriment impact on individuals and family, the cost can also be felt in our communities. As such, I will work to halt continuing violations as well to recover the cost and losses that our communities has suffered as a result of this illegal practice.
What is your position in regards to how you would plan to handle these situations?
RESPONSE: I have consulted with Register O’Brien’s office about implementing these same affidavits in Hampshire County. This will put all parties on notice of these questionable [signatures] documents. In addition, I would place necessary procedures in place to share this information, where appropriate, with local enforcement agencies.
3. Some of the illegalities in recorded foreclosure documents may begin to be subject of criminal investigations under Chapter 266, Sect 35(a),
A. If these documents are brought to your attention, how would plan to handle them?
RESPONSE: I will work with with the authorities and conduct my own investigation of the records at the Registry of Deeds. I have already started to compile files of [alleged/possible] fraudulently foreclosed properties in Hampshire County.
B. If a D.A. in your area was intending to prosecute such fraud cases and asked your office for research assistance in identifying similar questionable documents, would you immediately put resources at their disposal? If not, under what circumstances would you?
RESPONSE: I have already identified properties with questionable documents and I would bring these to the immediate attention of the D.A. Because the DA office does not include staff attorneys with real estate background this office would need my extensive background and knowledge of foreclosures and robo-signing to be able to take action against these banks. I will be able to expedite this matter because of the research I have already done on properties in Hampshire County.
4. The best means for enforcing compliance with certain municipal ordinances designed to require lenders to follow best practices in resolving mortgage defaults pre-foreclosure and to create local enforcement of health and safety standards on foreclosing properties require Registers to require additional documented compliance by lenders to record a foreclosure -
If elected, would you use the powers of your office to enforce municipal ordinances and bylaws?
RESPONSE: I would not record any foreclosure documents unless there was an affidavit signed by the municipality stating that the bank complied with the ordinance.
5. Legal Rulings are beginning to come down ruling certain widespread practices by the lending industry as illegal in the Commonwealth.
A. Where such rulings demonstrate that certain practices in the creation of documents to be recorded are now adjudicated to be fraudulent, would that change your procedures as a Register? What if you were informed about such a ruling?
RESPONSE: It is time that the Registers of Deeds in the Commonwealth update the recording standards and practices to address this issue making fraudulent documents un-recordable. We should make it clear to financial institutions and their legal representatives that continuing these practices will be costly. As new ruling come down, where appropriate standards and procedure in the Registry should be revised to reflect these changes. The new foreclosure law did not directly address how to address existing defective foreclosure titles. I would work the local bar and legislators to remedy this situation.
B. What if you were shown that such fraudulent documents were still being submitted for recording at your Registry?
RESPONSE: Those who are held responsible for ensuring the integrity and reliability of the land records must also be held accountable for the continued submission of fraudulent documents. REBA has made a strong argument as to the public policy interest and the restriction of conveyancing to persons qualified and trained to protect the integrity and reliability of our land record and system. The SJC has held that analyzing title abstracts and other records to render a legal opinion as to marketability of title –does constitute the practice of law in Massachusetts. However, the Register is in the unique position of identifying continuing violations, educating the public, and holding attorneys [including the Attorney General's office] accountable.
First I would work to clearly establish the authority and power of the Register to reject such documents. Where fraud has been identified [such as by Court rulings], using the authorized powers of the Register, I would reject such documents. And, I would work with the Attorney General, Secretary of the Commonwealth, legislators, and local bar association to improve our land records system to ensure its integrity and reliability.
Timothy P. O’Leary:
1. What have you done in the past to help halt or reverse foreclosures?
I have not done anything.
2. The “robo-signing” of documents to be recorded at the Registry of Deeds is now broadly known – these issues include the signing of affidavits not under personal knowledge, documents not signed by the named signatory, and notarizations not compliant with state law. In South Essex, the Register has publicized questionable signatures and provided homeowners with legal affidavits where he has clear evidence.
What is your position in regards to how you would plan to handle these situations?
Unfortunately, as of this moment, the Register must still record the documents. My goal is to inform the homeowner of their rights to challenge these documents and provide links and information to resources available to stall the process and/or work out potential loan modifications.
3. Some of the illegalities in recorded foreclosure documents may begin to be subject of criminal investigations under Chapter 266, Sect 35(a),
A. If these documents are brought to your attention, how would plan to handle them?
I would alert the DA’s office and keep track of which lenders are suspect.
B. If a D.A. in your area was intending to prosecute such fraud cases and asked your office for research assistance in identifying similar questionable documents, would you immediately put resources at their disposal? If not, under what circumstances would you?
Absolutely.
4. The best means for enforcing compliance with certain municipal ordinances designed to require lenders to follow best practices in resolving mortgage defaults pre-foreclosure and to create local enforcement of health and safety standards on foreclosing properties require Registers to require additional documented compliance by lenders to record a foreclosure -
If elected, would you use the powers of your office to enforce municipal ordinances and bylaws?
Yes.
5. Legal Rulings are beginning to come down ruling certain widespread practices by the lending industry as illegal in the Commonwealth.
A. Where such rulings demonstrate that certain practices in the creation of documents to be recorded are now adjudicated to be fraudulent, would that change your procedures as a Register? What if you were informed about such a ruling?
Any documents determined to be illegal would be rejected as such.
B. What if you were shown that such fraudulent documents were still being submitted for recording at your Registry?
Again, Any documents determined to be illegal would be rejected as such.
Mary Olberding:
I am glad you take an interest in the race for Hampshire Register of Deeds. The foreclosure crisis is indeed a widespread tragedy. If elected, I look forward to working with you, your organization and other community interest groups to follow the law and assist distressed homeowners.
This issue is difficult and complex and deserves more time to it than I am able to give at the moment. With your request coming less than 48 hours before the polls open, I cannot devote the necessary time as I am already committed through Thursday.
