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Tainted Foreclosures Concern State Judges

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Tainted Foreclosures Concern State Judges

Tainted Foreclosures Concern State Judges

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Two giant lenders, Bank of America and GMAC, said this week they were resuming foreclosures. They'd put them on hold to review legal documents and procedures to ensure they were sound. But some judges remain concerned that the documents coming into their courtrooms may be tainted. NPR's Wendy Kaufman reports.�

WENDY KAUFMAN: Jonathan Lippman is worried. The chief judge for the New York State courts is troubled by reports of lenders who've cut corners and bent the rules in foreclosure cases. So this week he told lawyers they will have to sign an affidavit, personally vouching for any foreclosure-related documents submitted to the court. The rule applies to both new and pending cases.

It's not enough, he told the lawyers, to just read the documents, they'll have to dig deeper.�

Judge JONATHAN LIPPMAN (Chief judge, New York State courts): And to talk to their clients and people with knowledge of the facts in these cases, and assure the court that the integrity of the court process is being upheld.

KAUFMAN: The key word here is integrity. And Lippman wants to ensure it's preserved in the courts. He believes an extra layer of scrutiny by lawyers will help.

Judge LIPPMAN: Lawyers are going to be very, very careful.

KAUFMAN: Their professional reputation - indeed their license to practice law -could be at stake.

This week, courts in Maryland also adopted rules for additional document scrutiny. And now if there's a problem with the lender's paperwork, the lender has just 30 days to show why the foreclosure should not be dismissed.

Judge KEVIN BURKE (President-elect, American Judges Association): Judges do not react well to being lied to.

KAUFMAN: Minnesota Judge Kevin Burke is president-elect of the American Judges Association. He says, in addition to disliking liars, judges don't look kindly at lenders who are arrogant in their dealings with the court.

Twenty-three states have so-called judicial foreclosures where lenders have to go to court to get a house back. The law here is technical and relies largely on documents. Burke says if the paperwork is accurate and complete, lenders almost always prevail.�

Judge BURKE: I'm aware of the pain that judges feel. Frequently the law puts a judge in the position that you're really sympathetic to the person who's about to lose their house. But legally there's really not much you can do.

KAUFMAN: Sometimes judges can mandate or encourage settlement talks. But in the end, if homeowners don't have the money to pay for their house, the lenders will get it.�

Most homeowners facing foreclosure don't show up in court. And when they do, Burke says, they often know they won't be able to keep their house.

Judge BURKE: The person wants to get up before you and say, Judge, I really tried to make all my payments. I'm not a deadbeat. It's sad, and you want to say something. It's a little bit like a funeral.

KAUFMAN: Indeed, what Burke calls compassion fatigue can begin to set in among judges. It's a risk that's compounded by budget cuts and furlough days - and the sheer volume of cases.�

Professor PATRICK BAUER (University of Iowa): Don't underestimate the effect of case load.

KAUFMAN: Patrick Bauer is a law professor at the University of Iowa. Bauer isn't talking about the emotional toll here, but pointing out that judges are swamped with foreclosures.

Professor BAUER: It's one thing to be able to open up the file and look at it carefully and make everything has been done right, if you have, you know, 20 of those today.

KAUFMAN: But it's a lot harder, he says, if judges have 200 foreclosures. They may not have the time or the energy to go through every document.�And that takes us back to this week's judicial actions, aimed at ensuring the integrity and the accuracy of documents submitted to the court. What's at stake is money, family homes and neighborhoods.

Wendy Kaufman, NPR News.

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