When you go to the polls on September 6, you may not be very excited about the primary for Hampshire County Register of Deeds. You may have forgotten that register of deeds is an elective office, since there hasn't been a race for it here for 23 years.
You may even have to think for a moment to remember what the register of deeds does.
But the official who presides over the Hampshire Registry of Deeds, an agency located off King Street in Northampton that last year took in $4.6 million in recording and copying fees and excise taxes, has a very important job.
That person oversees the recording of all land transactions in the county and the maintenance of all the records of current and past transactions. If those records aren't properly preserved, organized and accessible, transfers of land and homes become nightmares for buyers and sellers. No one can assign or receive a clear title to anything.
These days, the job poses new challenges. For one thing, a switch to electronic recording of documents looms on the horizon for the Hampshire registry. And with the country and the Valley still in the grip of a wave of foreclosures, and complex investment instruments like CDOs (collateralized debt obligations) complicating the matter of ownership, whoever wins the post will have to deal with issues his/her predecessors could hardly have imagined.
One such issue is the matter of how to handle flawed or fraudulent foreclosure documents submitted by lenders. A common form of fraud is the "robosigning" of mortgage documents by signers who, at the height of the era of subprime lending, were paid to put phony signatures on the paperwork for mortages and foreclosures.
Traditionally, elections for register of deeds, a job that here pays $90,000 a year, have tended to be "endorsement races"—contests in which backing and connections often counted for as much as qualifications, or more. The good news is that this year the four candidates bring to the race qualifications that range from presentable to excellent, and an understanding of the changing demands of the job.
Running for the post are Bonnie MacCracken, a professional title searcher based in Amherst; Timothy O'Leary, a real estate lawyer practicing in Easthampton; Mary Olberding of Belchertown, a human resource specialist and Democratic Party activist; and George Zimmerman, an attorney and real estate investment specialist who is currently Northampton city treasurer. Zimmerman is running as an Independent and won't be facing his Democratic opponent until November; the other three are Democrats and will run in the primary Sept. 6.
Mary Olberding, the candidate with the least direct experience at handling real estate documents, is said to be favored by several local Democratic politicians because she is a Democratic activist and worked for the campaign that got David Sullivan elected Hampshire District Attorney. But Olberding says her work as a human resources manager for Schott Fiber Optics in Southbridge and two other firms gives her the skills she needs to do the job as register of deeds. "The foreclosure crisis has highlighted the necessity for competent recordkeeping and management," she told the Advocate. "I've managed staff, I've managed finances, I've managed technology."
On the other hand, Olberding cautions that the registry "is not an enforcement agency. There is a list [of signs that a document is flawed] that is maintained and we would point that out, and we would strongly urge someone to take a second look and check with their attorney. ... It's important to know what the job can do and cannot do. If you are presented, as a register, with a document, if the document meets the recording standards of the registry, you are required to record it. I think the fiduciary duty would be to call attention to it, but it is not up to us to verify it."
Olberding says one of her strengths as a candidate is that she has the skills to supervise the switch to electronic filing. "People will be able to file their documents from their attorneys' offices," she explains. "My work experience includes managing thousands of employee records and I think this experience will enhance the transition to electronic filing. There is some debate in the conveyancing community as to whether electronic filing opens a can of worms for fraud. You have to be sure all the t's are crossed and all the i's are dotted."
Running against Olberding and Mac Cracken in the primary will be Timothy O'Leary, who has now been in practice as a real estate lawyer for nine years. "I've done hundreds of closings on residential and commercial properties," O'Leary told the Advocate. "I've drafted and reviewed thousands of documents for recording. I have a well-rounded view of the process, dealing with my clients and other attorneys, dealing with the lenders, not only catching problems but also anticipating them.
"We just caught a foreclosure that was done incorrectly a couple of years ago. There was a flaw in the process, and now they have to start all over, because essentially the homeowner still has ownership in the property."
O'Leary agrees that the post of register of deeds is "not a policy-making position," but he takes a more proactive view of the office than Olberding. "It's not just a passive taking the documents in and recording them," he says, adding that if a document is robosigned, "you could refuse it. You could tell the person recording it the document is worthless.
"My philosophy is, reject it and tell them to get it done right, because otherwise there will be more problems down the road. Robosigned documents should not be recorded. They're perpetrating a fraud on the family that just lost their home."
Bonnie MacCracken has been examining real estate title documents for 25 years, and is so conversant with the problems the system can pose for homeowners that she recently proposed an addition to a state law that would prevent lenders from foreclosing on a member of the armed services who is deployed overseas. The rule makes the lender responsible to find out if the homeowner is deployed, rather than putting the burden of notification on the homeowner just as he's shipping out; it passed the Legislature late in May.
"Thousands of soldiers have lost their homes during the mortgage crisis, and it's because the banks have gotten so big they don't acknowledge the acceptance of the solders' notices of deployment," says MacCracken. "It places an unfair burden of proof on our soldiers. While their families are dealing with foreclosure, it's very stressful for them."
MacCracken's experience with the registration system and its connection with the Secretary of State's office, she says, gives her the edge in this race. "I've been doing real estate title exams in the registry using the land registration system for over 25 years," she says. "I have extensive background in using the registries in Western Mass., all of them, and Plymouth County, Worcester County, Dukes County. .... I've been part of the whole modernization process of bringing the registry from handwritten documents into our present system."
One of MacCracken's goals, she says, would be "increasing access to the registry, so people can make informed decisions about buying a home, selling a home or refinancing a home. You can determine fair market value, you can determine what banks give the most loans, what bank is foreclosing on the most individuals. You can predict market trends, establish values for your neighborhood."
MacCracken is trained to recognize flawed or fraudulent documents, she says, and she emphasizes that homeowners should get legal help if their lender has given them such documents. If a lender moves to foreclose, she says, "Homeowners do have a statutory right to request that the holder of their mortgage produce their promissory note within 10 days of the request." If the lender can't produce the paper work, or if the documentation is flawed, the homeowner may be able to halt foreclosure proceedings.
George Zimmerman will run in November against the winner of the September primary. Zimmerman, a lawyer with a master's degree in business administration, points out that he has experience both in the private sector and in government, having been treasurer of the city of Northampton for eight years. He is exceptionally knowledgeable about the MERS system—the automatic property transfer recording system set up by a group of the country's largest lenders—which has been an engine of the foreclosure machine.
"I have substantial experience handling private real estate investment," he told the Advocate. "I would go around the country handling $10-, $20- and $30-million properties for Mass Mutual's investment portfolio. What's important about my experience there is, I witnessed firsthand the development of the MERS system.
"The recording system traditionally is a governmental service. MERS was created by Wall Street because you can't make money on narrow margins, despite the huge volume, if you have to record and re-record very time you sell. If you're selling a billion-dollar portfolio and you have to record [at the local registry], it's just too time-consuming. When you're paying that $75 for all these individual transactions, it's just not profitable. They bypass the fees.
"Because of my national-level experience, I can bring this cause forward at not only the state but the national level if the opportunity presents itself. The problem is that what Wall Street has done to investments and banks in general they're doing to homeowners as well. One of my goals is to protect homeowners' equity from Wall Street's predatory practices."