Christine Ricciardi, January 18, 2011
In the dismissal of hundreds, if not thousands, foreclosure cases initiated by GMAC Mortgage. GMAC’s ability to re-file the foreclosure documents remains intact. Baltimore non-profit Civil Justice, Inc. and the University of Maryland School of Law Consumer Protection Clinic brought what they’re calling the first ever defense class action suit against the mortgage company in October, alleging wrongful foreclosure due to faulty foreclosure affidavits. “We filed a defense class action lawsuit, meaning instead of filing affirmatively, we used the case as a defense for all those individuals being sued or foreclosed upon by GMAC,” defense attorney Tony DePastina told HousingWire. DePastina, alongside partner Philip Robinson and head of the university Consumer Protection Clinic Peter Holland, defended the case on behalf of Kevin Matthews and “a class of similarly situated persons.”
GMAC filed a foreclosure case against Matthews in March 2010. Maryland is a quasi-judicial state with regard to foreclosures, meaning that a foreclosure will only go through the court if a case is filed. Not all foreclosures have a case filed. After reviewing Matthews’ case later in the year, post robo-signing scandal, DePastina said he noticed Jeffrey Stephan signed the foreclosure affidavit. Stephan, an employee of GMAC, said in September that he and a team of 13 others signed an estimated 10,000 foreclosure related documents a month. The issue at the heart of the robo-signing scandal was that those servicers signing foreclosure affidavits either had no previous knowledge of the specific case for which they were signing affidavits, or there was no notary present when the paper was signed.
“These affidavits are to allow banks and foreclosure firms some streamlining of the foreclosure process. It’s not a right the court gives you, but it’s a way to allow banks to move forward with foreclosures without having to fly in or produce witnesses,” said DePastina. “The problem with this case is the banks or their employees circumvent that process.” GMAC Mortgage said in a HousingWire interview that as part of its foreclosure remediation efforts, the company made the decision in November to dismiss and re-file its active foreclosure cases pending in Maryland “where the company believed the case could have been affected by a defective affidavit.” “On Friday, Jan. 14, 2010, one of these cases (Matthews) went before the court and the case was dismissed, with the consent of both parties, on GMAC’s motion and with the ability to re-file the case,” said Jim Olecki, a representative for the mortgage lender.
This one court decision is reportedly affecting many more. Firedoglake, a mortgage industry blog, originally reported that 10,000 GMAC cases in Maryland were being dismissed. However, both Olecki and DePastina said that is a substantial overestimation. GMAC estimates about 250 cases will be dismissed in the state. DePastina said at least 1,000. Whichever cases are dismissed, GMAC maintains the right to reinvestigate, review and re-file the foreclosure affidavits. Olecki said GMAC will review each case before it is re-filed with the court “to ensure that all home preservation options were exhausted.” Of the many cases the firm has reviewed, Olecki said the company has not found any evidence to date, in any state, in which GMAC has pursued a foreclosure action based upon a potentially affected affidavit and the borrower was not in default.