[I am stunned that someone in government is standing up for the rule of law. This one is for Mary Malone.]
John O’Brien isn’t camping out on the streets of New York with Occupy Wall Street, but he might as well be. O’Brien, the embattled register of deeds for Southern Essex (Salem), has been carrying on his own fight with the big banks, which, he says, have ruined his registry of deeds by swamping it with fraudulent documents and victimizing registry users.
O’Brien, who has been waging his war with the banks since before OWS first camped out in Zuccotti Park, says his registry is “a crime scene because of Bank of America, Wells Fargo, JP Morgan Chase.” The big banks, he says, have left the registry awash with more than 30,000 robo-signed or otherwise fabricated documents.
O’Brien calls the flooding of registries across the U.S. with falsified documents “the largest scandal to affect the integrity of the land recordation system in this country since its inception.” He uses the services of a mortgage fraud analyst to help identify false documents, and he and his staff maintain a list of people they know to be robo-signers not actually working for the lenders they sign for. He invites people to bring him paperwork they believe is fraudulent, and he supplies them with affidavits they can take to court attesting that the documents are suspect.
The militant register is angry not only at the chaos the phony documents are creating, but at the use to which they’re being put.
“I don’t record robo-signers,” O’Brien told the Advocate. “These banksters should be sitting across the table from people, saying, ‘How can we help you stay in your house?’
“I see people come into my registry—they’re losing their homes, they don’t have a job, and nobody’s helping them. I’m giving them a sworn affidavit saying that the documents are fraudulent and they’ve been signed by a robo-signer.”
And O’Brien goes farther than that. Since last April, he’s been trying to get the state to let him take his registry’s deposits—which he estimates have grown by $15 million since the spring—out of Bank of America, and put the money in a local bank.
Why, he asks, should Bank of America profit from a registry in which it, along with Wells Fargo and other “too big to fail” institutions, has made a mess of the recording process?
“I really and truthfully do not think we should be depositing any taxpayer money in a bank that has infected my registry with thousands of fraudulent documents,” O’Brien insists.
It used to be that registers in the commonwealth, including O’Brien, who has been at his post since 1977, could place registry deposits in whatever institutions they chose. O’Brien deposited his registry’s revenues in Bank of Boston, but after a series of mergers the money landed with Bank of America. Meanwhile, in 2000 the state took over the registries.
Now O’Brien has to ask permission to move the money, which amounts to some $25 million a year. From April until last week he was bounced back and forth between the Massachusetts Secretary of State and the state Treasurer, he says, and has been unable to get a clear statement about whether he can move the money or not.
In particular, O’Brien wants his registry’s money out of any bank that’s part of the Mortgage Electronic Registration System (MERS), a system used by a number of large lenders. Touted as a system that streamlines the technicalities of deed and mortgage transfer and recording, MERS has faced many court challenges because it blurs roles—acting, for example, both as mortgage assignee and agent for the assignee—in ways that muddy the question of who actually owns a mortgage and has the right to foreclose. Among other things, it can circumvent state land transfer recording rules. Earlier this year, the network was served with a cease and desist order by federal regulators for “deficiencies and unsafe or unsound practices.”
At press time, state treasurer Steve Grossman had issued an invitation to banks to bid for the registry’s deposits. But in a letter transmitted to the Advocate by the treasurer’s office, Grossman wrote O’Brien that the treasurer’s office could not exclude any potential bidders because it was obliged to look for the best deal for the commonwealth, and because the state could be sued for “arbitrarily excluding” possible bidders.
But O’Brien, who moved the registry’s money half a dozen times before the state takeover in 2000, wants it in a local bank that does not belong to MERS and that follows the commonwealth’s protocols for recording deeds.
In the Valley, registers of deeds are also concerned about falsified documents; as Franklin County register Joseph Gochinski put it, “It’s frustrating. Sometimes I feel that my hands are tied.”
But they’re waiting for guidance from state Attorney General Martha Coakley on exactly what they should do when they are presented with suspect documents by registry users. “Once we get an opinion, we will have the legal process to reject these documents,” said Hampshire County Register Patricia Plaza.
“We have listed the names we thought were robo-signings and the AG is investigating it,” said Hampden County Register of Deeds Donald Ashe, whose website posts an invitation to registry users to check with their lenders about who holds their mortgages, and to consult the registry about anything suspicious.
For his part, O’Brien isn’t waiting for anything. He’s determined to mobilize registers around the country, and has made a start by holding Webinars to educate them. Squarely in his camp is Jeff Thigpen, the register of deeds for Guilford County, N. C., who has found his own registry contaminated with forged documents.
“I’ve got registers across the country joining with me,” says O’Brien. “I’m trying to get registers every single day. I have to defend the integrity of the land recordation system despite the fact that these banksters think it’s a joke.”