Roundup of Recent Bankruptcy Scholarship

"Divided Loyalties: The Attorney’s Role in Bankruptcy Reaffirmations" - Gregory M. Duhl, William Mitchell College of Law, American Bankruptcy Law Journal, Vol. 84, No. 4.

"The Rise in Elder Bankruptcy Filings and Failure of U.S. Bankruptcy Law" - John Pottow, University of Michigan Law School, University of Michigan Public Law Working Paper No. 210

"The Costs of BAPCPA: Report of the Pilot Study of Consumer Bankruptcy Cases" - Lois R. Lupica, University of Maine School of Law, American Bankruptcy Institute Law Review, Vol. 18, 2010

"Is Chapter 15 Universalist or Territorialist? Empirical Evidence from United States Bankruptcy Court Cases" - Jeremy Leong, Wisconsin International Law Journal, Forthcoming

"Committee Capture? An Empirical Analysis of the Role of Creditors' Committees in Business Reorganization" - Michelle M. Harner and Jamie Marincic, Vanderbilt Law Review, Vol. 64, 2011, U of Maryland Legal Studies Research Paper No. 2010-47

House Committee on Financial Services Hearing

The House of Representative's Committee on Financial Services held a hearing today on "Robo-Signing, Chain of Title, Loss Mitigation and Other Issues in Mortgage Servicing."

Among the witnesses were:

• Mr. Adam Levitin, Associate Professor of Law, Georgetown University Law Center
  

• Mr. Anthony B. Sanders, Professor of Finance, Distinguished Professor of Real Estate Finance, School of Management, George Mason University

• Ms. Julia Gordon, Senior Policy Counsel, Center for Responsible Lending

• Ms. Linda Fisher, Professor of Law, Seton Hall School of Law

• Ms. Anne Anastasi, President, American Land Title Association

Also on the witness list were officials from the U.S. Department of Treasury, the Federal Reserve, U.S. Department of HUD, Office of the Comptroller of the Currency, the Federal Housing Finance Agency, Bank of America, Ally Financial Inc, JPMorgan Chase, Wells Fargo Home Mortgage Servicing, Citi Mortgage, and MERS.

American Securitization Forum - White Paper

On November 16, 2010, the American Securitization Forum has posted a white paper on the topic of "Transfer and Assignment of Residential Mortgage Loans in the Secondary Mortgage Market." The white paper was drafted to address "a number of legal theories questioning whether securitization trusts ...have valid legal title ... to the mortgage notes in those trusts."

The white paper asserts as one of its most critical principles is that when ownership of a mortgage note is transferred in accordance with common securitization processes, ownership of the mortgage is automatically transferred pursuant to the centuries old common law rule that "the mortgage follows the note." It further asserts that "this means that the assignment of a mortgage to a trustee does not need to be recorded in real property records in order for it to be a valid and binding transfer."

November Oversight Report

On November 16, 2010, the Congressional Oversight Panel issued its 127 page November Oversight Report - Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation

Another "Robo-Signer" Class Action Suit

Various "Robo-Signer" class action suits have been filed across the country. The case of Geoffrey Huber, et al. vs. GMAC, LLC, n/k/a Ally Financial, Case 10-2458-SCB was filed in the Federal District Court of the Middle District of Florida on November 2, 2010. The complaint alleges that the Defendant engaged in a fraudulent scheme to fabricate and falsify affidavits and other documents to support foreclosure complaints and judgments.

The action is being brought as a statewide class action on behalf of all other similarly-situated obligors who have been obligors on notes and mortgages in the State of Florida served by the Defendant within the previous three years. The relief sought is based on an alleged violation of constitutional rights under color of state law 42 U.S.C. 1983, abuse of process, and unfair and deceptive trade practices pursuant to Fla. Stat. 501.201 et seq.

House Judiciary Committee Sets Hearings on Foreclosures

The House Committee on the Judiciary has set a hearing for Wednesday, November 17, 2010 on "Foreclosure Justice: Causes and Effects of the Foreclosure Crisis." The list of witnesses is not yet available.

Senate Banking Committtee Sets Hearing on Foreclosures

The Senate Banking Committee has announced that it will hold a hearing on Tuesday November, 16 "to investigate allegations of improper and fraudulent mortgage servicing and foreclosure processing." The witnesses scheduled to testify are

• Attorney General of Iowa, Tom Miller
• President of Bank of America Home Loans, Barbara Desoer
• CEO of Chase Home Lending, David Lowman
• CEO of MERSCORP., Inc., RK Arnold
  
• Associate Professor of Law, Adam J. Levitin
• Counsel for National Consumer Law Center, Diane E. Thompson