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Honor system for foreclosure paperwork has led to illegal Colorado seizures, lawyer surmises

Thousands of Colorado homes were taken in foreclosure in recent years by banks that probably never had the right to do so because no one bothered to challenge the process, said a lawyer who worked for the state's biggest foreclosure law firm.

Lawyers often blindly sign a document attesting that the bank they represent has the right to foreclose — allowable under Colorado law — without ever actually seeing the original loan documents, attorney Keith Gantenbein said. He worked at Castle Stawiarski, where more foreclosure cases originate than any other law firm statewide.

Gantenbein said he and other lawyers signed "tens of thousands" of documents known as statements of qualified holder. The papers certify lenders' right to foreclose, generally with little more than an e-mail from a bank or loan servicer telling the lawyers to file the case.

"The discomfort was you had no way to verify the information they provided, and we found many bank errors, and you're not 100 percent sure you had the right to foreclose," Gantenbein said Monday. "It happened so frequently that there has to be a large percentage of homeowners who lost their homes to the wrong people."

Gantenbein, 31, is expected to appear today before a state House committee taking testimony on a bill designed to end the practice and require banks to provide original loan papers before they can foreclose.

The bill, sponsored by Rep. Beth McCann, D-Denver, also would require judges to certify that foreclosing lenders have the legal right to take a property. Currently, they only attest that a homeowner is in default of a note and is not serving in the military before ordering a foreclosed home to be sold at public auction.

HB 1156 is scheduled to be heard at 1:30 p.m. today in the Economic and Business Development Committee.

Gantenbein is the first lawyer involved in the foreclosure process to speak publicly. He is among a number of attorneys who have told The Denver Post they were uncomfortable with signing documents attesting a bank's right to foreclose without actually knowing whether it was true.

"As an inside attorney, ... Keith describes the pressure to foreclose quickly and efficiently, not always dotting the I's," McCann said. "I admire his bravery in coming forward to help correct a broken and unfair system."

Gantenbein said Colorado's century-old public-trustee system of foreclosures — unique in the nation — has been manipulated so often that it's no longer the unbiased process that was intended.

"I just feel the process is tilted unfavorably to the lender and that borrowers are simply being taken advantage of with a system that isn't transparent," said Gantenbein, who estimates he signed as many as 60 qualified-holder statements each day during the more than two years he worked at the Castle law firm.

Lawrence Castle did not respond for comment.

"The foreclosure process in Colorado is one of blind faith," Gantenbein said. "Colorado's current laws unfairly allow lenders and law firms and attorneys to railroad through the foreclosure process and hide or gloss over substantive issues."

The qualified-holder process is legal, created in 2002 and 2006 in paragraphs buried deep inside legislation designed to shore up Colorado's foreclosure laws.

Castle was among a group of lawyers specializing in foreclosures who helped draft the laws, which were then backed by an association representing the state's public trustees.

In a Denver Post story published in September on how the law was drafted, several trustees said the qualified-holder section was slipped in without their knowledge. Others said they believed the bill related to battling mortgage fraud, which was another aspect to it.

Gantenbein said it was passed "solely to make foreclosures faster and easier." The reason: "To get paid faster. It's all about the money."

Trustees, many appointed by the governor, by law are required to oversee the foreclosure process fairly and without bias.

Before the change, banks were required to file original loan documents, and homeowners had the right to challenge a bank before a judge.

David Migoya: 303-954-1506 or dmigoya@denverpost.com



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