Yesterday, I wrote an article titled The Proposed Robo-Mortgage Settlement Might Give Banks A Free Pass. At the time the deadline for states Attorney’s General to sign on to the settlement was today. It has now been pushed back to February 6.

In the article, I wrote that while the banks have insisted for the past several years that the robo-mortgage violations represented minor technical issues, which harmed no one. Recently, a far more grave explanation has emerged: The possibility that the scandal was the back-end of activities that appear to represent tax evasion, the failure to comply with basic rules in securitizing mortgages, and massive fraud on the purchasers of the securitized mortgage bonds.

Now, I have received numerous requests to clarify this extraordinary alternative explanation.

It’s complex, but here goes: First, as Yves Smith at Naked Capitalism explains, it appears the specific mortgages which were the assets comprising the securitized bonds were never actually transferred to the bonds, within the required time period (90 days under New York law).

"By way of background: remember that the big concern about the release was that it would go beyond robosigning and waive other types of liability. The ones observers were most concerned about were what we called chain of title issues, namely that the parties that had put mortgage securitizations together had failed on a widespread basis to take the steps stipulated in their own contracts to transfer the notes (and in lien theory states, to assign the lien) properly. The securitization agreements were rigid, requiring that the transfers through multiple parties be completed by a date certain, typically 90 days after the closing of the trust. Most deals elected New York law as the governing law for the trusts, and New York law allows them to operate only as stipulated. Since the notes were supposed to be transferred in by a particular date, trying to move them in later is a "void act" having no legal effect. That makes attempts to make transfers legally at this juncture a non-starter. Having realized somewhat late in the game that their failure to do what they promised could interfere with trusts' ability to foreclose and create tons of liability, servicers and their various agents have relied on not just robosiging, but widespread document fabrication and forgeries to fix their transfer problem when judges have taken notice. Anyone who has been on this beat knows of numerous cases where foreclosure documents are challenged, say for being too late, not having the right transfers, etc, that new versions of supposedly original documents that tell the right story miraculously show up in court."

Second, Ellen Brown, the President of The Public Banking Institute, explains the implications of this failure to abide by the 90 day deadline:

"Since 1986, mortgage-backed securities have been issued to investors through SPVs [Special Purpose Vehicles] called REMICs (Real Estate Mortgage Investment Conduits). REMICs are designed as tax shelters; but to qualify for that status, they must be "static." Mortgages can't be transferred in and out once the closing date has occurred. The REMIC Pooling and Servicing Agreement typically states that any transfer significantly after the closing date is invalid. Yet the newly robo-signed documents, which are required to begin foreclosure proceedings, are almost always executed long after the trust's closing date."

Third, as Brown also notes, the liabilities associated with a failure to transfer the documents on time came to head when:

"Fannie Mae sent out a memo telling servicers that in order to be reimbursed under HAMP--a government loan modification program designed to help at-risk homeowners meet their mortgage payments--the servicers would have to produce the paperwork showing the loan had been assigned to the trust."

Brown believes that, as a result,

"The hasty solution was a rash of assignments signed by an army of "robosigners," to be filed in the public records..."

This explains why, as noted by Brown above, "the newly filed robo-signed documents" are "almost always executed long after the trusts closing date."

All of this is undoubtedly highly complex. And, I am not in a position to investigate whether it is true. However, the implications of these assertions are grave. If the mortgages were knowingly assigned to the REMICS after the closing date, then the tax benefits of the REMICS appear to be invalid. If so, these transfers (as I understand the law) represent tax evasion by the banks. As part of an ongoing scheme, they also constitute, in all likelihood, conspiracy and fraud on the bond purchasers.

With regard to the bond purchasers, as Yves Smith notes above, the failure to adequately establish the trusts created "tons of liability" for the banks to these purchasers; since the banks then effectively misrepresented the nature of the bonds they were selling.

At the moment, the important question here is not whether these allegations are true. What's important is that their appears to be enough evidence to warrant at least a minimal investigation of these astounding assertions: The possibility that for years the banks have been knowingly misleading the public and the government on the extent to which robo-mortgage scandal activities were merely technical violations versus the back-end of potentially serious criminal activities and an attempt to evade enormous liabilities.

If we are a nation where justice is blind, should we not investigate this possibility before we give the offending financial institutions another free pass?

The essence of an effective capitalist system is rules and accountability. For markets, and our larger economy to work, important players cannot be permitted to make up their own rules. In all likelihood, a settlement next week means these serious questions will never be answered.