Jan

John Hancock Life Insurance Co. v. JPMorgan Chase | JPMorgan Chase Sued by John Hancock Life Over Mortgage-Backed Securities

By 4closureFraud | Bankruptcy, Foreclosure Fraud, News for the Patriot

65558Leave a Comment2012-01-24+15%3A00%3A404closureFraud

JPMorgan Chase Sued by John Hancock Life Over Mortgage-Backed Securities JPMorgan Chase & Co. was sued by Manulife Financial Corp.’s John Hancock Life Insurance unit, which accused the bank of fraud in connection with the sale of residential mortgage-backed securities. The lawsuit, filed today in New York state Supreme Court in Manhattan, seeks unspecified damages … Read more Related posts:

Jan

Dexia v. Bear Stearns | “Egregious Fraud” Dexia Sues JPMorgan Over $1.7 Billion in Mortgage Securities

By 4closureFraud | Bankruptcy, Foreclosure Fraud, News for the Patriot

64831Leave a Comment2012-01-20+19%3A37%3A194closureFraud

Dexia Sues JPMorgan Over $1.7 Billion in Mortgage Securities JPMorgan Chase & Co., the biggest U.S. bank by assets, was sued over mortgage-backed securities sold to Dexia SA (DEXB) because the loans underlying the securities were allegedly riskier than promised. Dexia accused JPMorgan and companies it acquired — Bear Stearns Cos. and Washington Mutual — … Read more Related posts:

Jan

Deutsche Bank Analyst Sounded Alarm When Asked to Alter Numbers RE Mortgage-Backed Securities

By 4closureFraud | Foreclosure Fraud, News for the Patriot

64567Leave a Comment2012-01-19+15%3A05%3A024closureFraud

Deutsche Analyst Sounded Alarm When Asked to Alter Numbers by Carrick Mollenkamp, Special to ProPublica At a time when mortgage-backed securities were imploding and customers were fleeing the market, a junior analyst at Deutsche Bank AG protested when he was asked to alter the numbers in a spreadsheet to make a Deutsche security look less … Read more Related posts:

Jan

Bear Stearns Asset Backed Securities Trust 2005-4 v. EMC Mortgage Corp | JPMorgan Sued for $95 Million Over Mortgage Securities

By 4closureFraud | Bankruptcy, Foreclosure Fraud, News for the Patriot

60995Leave a Comment2012-01-04+18%3A24%3A274closureFraud

JPMorgan Sued for $95 Million Over Mortgage Securities (Reuters) – JPMorgan Chase & Co has been sued for $95 million by the trustee for securities marketed in 2005 by the former Bear Stearns Cos over alleged misrepresentations regarding the underlying mortgage loans. US Bank NA wants to force JPMorgan to buy back the mortgage loans … Read more Related posts:

Nov

The World of the Investor with Attorney Talcott Franklin – A Mandelman Matters Podcast

By Mandelman | HAMP, Housing & Economic Research, Loan Modification, News for the Patriot

47448Leave a Comment2011-11-02+15%3A40%3A44Mandelman

WHAT’S THE DEAL WITH INVESTORS? WHO ARE THEY?
ARE THEY LOSING MONEY ON FORECLOSURES?

What do the investors think about all these foreclosures?

What’s the relationship like between investors and servicers?

Do investors want to modify loans?

Do investors ever stop servicers from approving loan modifications?

Why don’t investors get more involved in this mess?

IF YOU’VE ASKED THESE QUESTIONS, HERE’S YOUR CHANCE TO GET ANSWERS!

Attorney Talcott Franklin knows mortgage-backed securities inside and out. He should… his firm, Talcott Franklin P.C. whose main offices are in Dallas, in dollar terms represents more than half of all the investors in mortgage-backed securities on the planet. Tal’s the co-author of the “Mortgage and Asset-backed Securities Litigation Handbook,” and he’s a very experienced and highly sophisticated litigator.

What makes Tal a pleasure to talk to, however, is that he makes a very complex subject very easy to understand… in fact, every time I talk to him, I feel like come away smarter. Actually, the very first time Tal and I spoke, it was very clear that we couldn’t be more in-sync as to our views on the economy… where it’s headed and why.

Tal sees the foreclosure crisis essentially the same way I do, which I found interesting right from the start because he represents the other side of the foreclosure coin… the investor side. And because of his knowledge and perspective you’re going to find listening to what he has to say absolutely fascinating.

You know how servicers are always saying “the investor says no,” when they want to deny a loan modification… well, Tal explains why that simply isn’t true. And he walks us through the securitization process in a way that you’re likely to remember forever. And you’ll learn all sorts of other things you did not know. I’m telling you, you’re going to love spending an hour with Talcott Franklin on this, A Mandelman Matters Podcast.

The podcast is available in two versions… MP4 and MP3. The MP4 version includes a couple of slides that show diagrams of the basic securitization process, but the MP4 format may not play on some computers. The MP3 version is audio only, and should play on most any computer. Most listeners will have no trouble following along either way.

So, turn up the volume on your speakers, and click the MP4 or MP3 version. I loved recoding this podcast. If you want to know more about the foreclosure crisis, you’re about to learn from an expert on the other side of the foreclosures, the investor side… it doesn’t get any better than this!

CLICK HERE TO PLAY THE ENHANCED MP4 VERSION

… INCLUDES SLIDES ON SECURITIZATION

OR

CLICK HERE TO PLAY THE MP3 VERSION

Mandelman out.

May

If You Think the Meltdown Was the Fault of Homeowners, Think Again…

By Mandelman | HAMP, Housing & Economic Research, Loan Modification, Weidner

26308Leave a Comment2011-05-25+23%3A46%3A15Mandelman

If you’re thinking that our economic crisis was in some way the fault of homeowners who couldn’t afford their mortgages, please consider the following:

At the end of 2007, there were roughly $1.4 trillion in sub-prime mortgages in this country.

If “irresponsible sub-prime borrowers,” caused the meltdown, then $1.4 trillion would have solved the problem in its entirety, right? Because that’s all the sub-prime loans there were.

But, between the Federal Reserve, the FDIC and the Treasury over $13 trillion has been pumped into financial institutions to fix the “housing correction,” which is what Hank Paulson was still calling our economic collapse as of November of 2008.

At the end of 2008, there were $11.9 trillion worth of mortgages in this country. So, with $13 trillion, the government could have paid off every single one… and still had a little over a trillion dollars left over.

But there’s a lot more to the economic problem than that, explains Nomi Prins, my new favorite financial uber-genius and author of “It takes a Pillage.” Wall Street had been playing the leverage game… somewhat like they did in the 1920s, I suppose… but on mega-steroids. Leverage means borrowing on assets, and Wall Street banks were leveraged by 30:1, commercial banks by 10:1, not including their “off-the-balance-sheet” holdings, which could make their leverage ratio significantly higher in many cases.

So… in “Pillage,” Nomi Prins explains in terms anyone can understand that factoring in the leverage at 11:1, we’re looking at a $140 TRILLION economic problem… yes, you read that correctly… that’s trillion, with a ‘T’. Our Wall Street bankers, through the abuse of the securitization process and excessive amounts of leverage, created a potential tab of $140 TRILLION for the people of this country to pick up.

Securitization is the process of packaging loans into securities that are then be sold to investors, called Asset Backed Securities (or ABS). Inside a given ABS, you might find 10% real loans and 90% bonds backed by those real loans. Or there could be only 5% real loans. The mortgage payments we all make are used to make payments that flow through the securities and to the investors who then invest by buying pieces of the ABSs.

“It takes a Pillage” is a book that’s absolutely jam packed with “Aha!” and “OMG!” moments, but one shines above the rest… What caused the financial crisis were the securities, or the “bonds”… not the loans.

We’re talking about a system that took on $140 trillion in debt on the backs of just $1.4 trillion in real loans. And it may be much more than $140 trillion, we don’t really know because we’ve allowed the market to remain unregulated. The $1.4 trillion is based on leverage at 11:1. It could very well be some multiple of that amount.

Issuers of ABSs, who were Wall Street’s investment banks earned about $300 billion for packaging and selling these “assets,” packaging the CDOs we’ve all heard about paid the best. Who bought ABSs? European and the global banks, insurance companies, and pension plans bought a whole lot of them. And they bought them with borrowed money.

They bought them because Wall Street told them they were safe… triple A rated… and even better they could be insured with Credit Default Swaps, too! What was not to love?

Hundreds of trillions in “structured assets”, ABSs, MBSs, CDOs, CDOs Squared, and of course synthetic CDOs, which are entirely, made up of credit default swaps, all deriving their value based on $1.4 trillion in mortgages. All of those structured investments, once demand for them abruptly dried up, are what we came to know as “TOXIC ASSETS.”

Prins makes it very clear that toxic assets are not the same as defaulted sub-prime loans. The fact is, Nomi says, that every single sub-prime loan in the country could have defaulted and all of the homes attached to those loans devalued to zero… neither of which happened… and the banks in this country would not have become insolvent… not even close.

The toxic assets lost their value starting in the summer of 2007, not because sub-prime loans defaulted, but because no one wanted to buy them anymore. After Standard & Poors and Moody’s lowered their ratings on just 1% of the MBSs outstanding on July 10, 2007, investors no longer trusted the triple A ratings. If some bonds were improperly rated, the thinking went, what about all the others?

I’ve read just about every book on the meltdown that’s been published in the last two years. From “Too Big to Fail,” to more recently, “Crash of the Titans,” which is about Bank of America’s acquisition of Merrill Lynch, and “It takes a Pillage” filled in so many blanks for me I couldn’t possibly count them all. Nomi is a very down to earth person too, and it makes reading her easy like Sunday morning. She’s snarky at certain moments, but she delivers it straight most of the time so you won’t get distracted.

I read her book and was on the phone the following morning with my friend in New York, Danny Schechter, who produced the movie, “Plunder – The Crime of Our Time,” which is all about the housing meltdown and foreclosure crisis and if you haven’t see it yet, you really should order a copy on Amazon right away. Nomi appeared in Danny’s film a, so I knew he could put me in touch with her, and she responded to my email right away. (She’s even agreed to an interview, so look for a podcast coming soon, I hope.)

Nomi is smart… I mean scary smart. Like, I’ve always been considered smart too… near the top of my various classes, 1380 SAT scores about a hundred years ago, if that means anything, but Nomi is so far off the charts that I can’t even believe it. I don’t remember anyone like her in college or graduate school. Talking to her is like talking to a walking encyclopedia of the financial history of the United States… but one that speaks English like the rest of us.

By the summer of 2006, the housing bubble had popped. Greenspan had raised interest rates 17 times in a row by then. But, starting on that July day during the summer of 2007, before most people had any idea what was happening, the bond/credit markets froze solid as money stopped moving… banks started hoarding cash and soon no one would be able to get a mortgage or refinance one… and housing prices started to fall fast.

After that, anyone that had bought a home during the preceding years found himself or herself increasingly underwater. One couple I know, with an 850 credit score by the way, lost a home to foreclosure and filed for bankruptcy. He was a very successful dentist and she a hospital administrator. Their crime? They got caught buying a home… and selling one at the worst moment in US history.

So, our government pumped $13 trillion into banks, financial institutions and others in this country since the fall of 2008. We allowed just about any business that wanted to become a “Bank Holding Company,” so they could qualify for the federal bailout programs. (As an example, did you know that American Express Travel Services became a BHC in order to receive $4 billion in taxpayer dollars? Why? What do they do? Arrange vacations for rich people? Were “they too big to fail,” too? Nomi covers it in “Pillage.”)

And today, the only mortgage lending in this country comes from the federal government… Fannie Mae, Freddie Mac and the FHA. So, we’ve already nationalized mortgage lending in this country. We had no choice but to do that because if we didn’t, there would be no mortgage lending in this country. Citibank and Bank of America have been nationalized too… I know we don’t call them “nationalized,” but they ARE both nationalized.

(Citibank, for example, has been given over $400 billion in government loans and loan guarantees. BofA has been received over $200 billion. We still guarantee Goldman Sachs bonds… meaning we are co-signing for their debt. Want to see the numbers in detail, visit the “Reports” tab on NomiPrins.com… you won’t believe it.)

General Motors had to come to congress for a loan at the end of 2008… why? Well, for one thing, in 2008, they missed their forecasts by 2.4 million cars… we couldn’t finance one so we couldn’t buy one. And the bond market was broken, so they couldn’t issue bonds as they normal would. We lost tens of thousands of jobs when they filed bankruptcy.

Unemployment started rising as we stopped spending. And we entered a deflationary spiral… the same one we’re in today. There’s no double dip, it’s the same “dip. The reason they can say that the recession ended was because of the trillions we were pumping into the system. Among other programs, the fed bought $1.5 trillion in mortgage-backed securities between 2009 and 2010, but that’s over now, and the downturn is back in the game.

We’re just about at the end of QE2 now, and we don’t have any more stimulus money to artificially stimulate our economic situation… so things are already returning to their downward slide. Home values nationally have fallen 57 months in a row… and they’ve fallen faster and further than during the Great Depression.

The sooner we face the reality of the situation, the sooner we can start to rebuild our economy. All we’ve done so far is pump money into insolvent financial institutions, while we’ve let the American middle class sink into an abyss from which we will not recover in my lifetime… and I’m turning 50 on Friday of this week.

You see… all that government spending, as we like to call it… is really US… we ARE the government… it’s OUR money the government is spending. All those trillions are coming out of OUR pockets, and the pockets of our children and their children. And a few hundred billion has gone into the pockets of our bankers in the form of bonuses… and no one even seems to care.

And still, all that many people want to talk about is how some homeowner must have been living beyond their means and deserves to lose their home. Don’t bail out irresponsible sub-prime homeowners, right?

Ridiculous. We’ve been lied to. This isn’t a question of wanting the government to take care of everything… they are ready taking care of everything, except the people, America’s middle class. And we didn’t even ask for much… just a modified loan in order to remain in our homes. Because millions losing homes benefits no one.

You’re already paying for bonuses at Citibank, Goldman Sachs, and American Express Travel Related Services… and if you can stomach doing that, you can find it in your heart to be in favor of your neighbor getting his loan modified, if for no other reason, so that you don’t lose your own ass in the next few years. Because don’t kid yourself… none of us is getting out of this one unscathed.

The water is going down in the harbor, are we’re all going down with it. And as long as we have housing prices falling and no middle class spending going on in this country, we’ll have no recovery… except maybe the recovery that they talk about on T.V. but no one can feel. And how long do you think people are going to buy into that fairy tale being told by our politicians?

Arizona’s state senate passed a bill 28-2 that would have slowed the foreclosure and given people a chance to remain in their homes by forcing banks to follow the existing laws. Then the banking lobby made it disappear over weekend. Another similar amendment was to be proposed, but the banking lobby got that one too. And last week lobbyist at a meeting of the Arizona Mortgage Lending Association bragged about his success killing the bills I refer to. Bragged.

“It Takes a Pillage” makes it clear that we need to stop blaming our neighbors because he or she is struggling to keep the family home. Borrowers didn’t cause this crisis, bankers caused it… but the borrowers are losing their homes while bankers get bigger and bigger bonuses?

Since when is an outcome like that what this country is all about?

There are a lot of great books I wish everyone in this country would read. But, if you’ve already read other books about the meltdown, or even if you haven’t… whether it’s a starting place or one in a series, I can’t recommend reading “It Takes a Pillage” strongly enough.

What Nomi Prins has to tells us, needs to be heard.

I’ll go ahead and admit something. I’ve read it once all the way through, and dozens of times in sections… then I bought it on iTunes and I listen to it most nights as I fall asleep… I know… I’m weird… but it’s that good.

(There’s a link below to NOMI’S SITE and then you can get to Amazon from there… and it’s now available in paperback, so it’s only $11.53! For $11.53 you’ll be so much smarter about the meltdown, you’ll thank me.)

Mandelman out.

~~~

CLICK HERE TO VISIT: NomiPrins.com

AND THEN CLICK ON THE BOOK COVER TO GO TO AMAZON

AND ORDER YOUR COPY OF “IT TAKES A PILLAGE.”

~~~

IT TAKES A PILLAGE: AN EPIC TALE OF POWER, DECEIT AND UNTOLD TRILLIONS.

“No one takes Wall Street to task like Nomi Prins. But this book is far more than a pointed attack on how greed and bad regulation created a global economic meltdown-it also offers concrete prescriptions for how to prevent the next crisis. Let’s hope Washington is listening.”

James Ledbetter, Editor, The Big Money

“Nomi Prins has applied her unmatched expertise in Wall Street’s arcane methods of turning your money into their bonuses to mapping the recent crisis. In compelling, scathing prose, she shows how the key players escaped being brought to account, and kept their pet officials in power.”

John Dizard, The Financial Times

~~~

Some of Nomi’s Bio…

Before becoming a journalist, Nomi worked on Wall Street as a managing director at Goldman Sachs, and running the international analytics group at Bear Stearns in London.

Her writing has appeared in The New York Times, Fortune, Newsday, Mother Jones, The Daily Beast, Newsweek, Slate.com, The Guardian UK, The Nation, The American Prospect, Alternet, LaVanguardia, and other publications.

Nomi has appeared on numerous TV programs; internationally on BBC World, BBC and Russian TV, and nationally on CNN, CNBC, MSNBC, ABC, CSPAN, Democracy Now, Fox and PBS. She has been featured on hundreds of radio shows globally including for CNNRadio, Marketplace, Air America, NPR, regional Pacifica stations, New Zealand, BBC, and Canadian Programming.

Mar

New York Federal Reserve- Report on Shadow Banking.

By Matthew D. Weidner, Esq. | Weidner

22327Leave a Comment2011-03-06+18%3A29%3A46Matthew+D.+Weidner%2C+Esq.

The suggestion that our banking system is being manipulated and exploited by shadowy, hidden forces is not just the fodder of whacked out internet conspiratorial minded folks. It’s a subject that has been researched and studied by our own federal reserve. I will be the first to admit that I have a simpleton’s view of Wall Street and finance and the crazy economics that seem to be at work in this country right now. The subprime boom did not make sense in 2005, the bank bailouts did not make sense in 2008 and the servicer/modification scam did not make any sense in 2009-2010. Through all of this, I’ve come to believe that if you cannot explain your economics to my simple mind, it’s your economics that are wrong and not my simple mind.

But read the following excerpt from the white papwer, then download the entire report….

The rapid growth of the market-based financial system since the mid-1980s changed the nature of financial intermediation in the United States profoundly. Within the market-based financial system, “shadow banks” are particularly important institutions. Shadow banks are financial intermediaries that conduct maturity, credit, and liquidity transformation without access to central bank liquidity or public sector credit guarantees. Examples of shadow banks include finance companies, asset-backed commercial paper (ABCP) conduits, limited-purpose finance companies, structured investment vehicles, credit hedge funds, money market mutual funds, securities lenders, and government-sponsored enterprises.
Shadow banks are interconnected along a vertically integrated, long intermediation chain, which intermediates credit through a wide range of securitization and secured funding techniques such as ABCP, asset-backed securities, collateralized debt obligations, and repo. This intermediation chain binds shadow banks into a network, which is the shadow banking system. The shadow banking system rivals the traditional banking system in the intermediation of credit to households and businesses. Over the past decade, the shadow banking system provided sources of inexpensive funding for credit by converting opaque, risky, long-term assets into money-like and seemingly riskless short-term liabilities. Maturity and credit transformation in the shadow banking system thus contributed significantly to asset bubbles in residential and commercial real estate markets prior to the financial crisis.

We document that the shadow banking system became severely strained during the financial crisis because, like traditional banks, shadow banks conduct credit, maturity, and liquidity transformation, but unlike traditional financial intermediaries, they lack access to public sources of liquidity, such as the Federal Reserve’s discount window, or public sources of insurance, such as federal deposit insurance. The liquidity facilities of the Federal Reserve and other government agencies’ guarantee schemes were a direct response to the liquidity and capital shortfalls of shadow banks and, effectively, provided either a backstop to credit intermediation by the shadow banking system or to traditional banks for the exposure to shadow banks. Our paper documents the institutional features of shadow banks, discusses their economic roles, and analyzes their relation to the traditional banking system.

FedShadowBankPaper

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Scridb filter

May

NY Judges Slamming Debt Collectors

By LH | Foreclosure Blog News, Homeowner Resources

7163Leave a CommentNY+Judges+Slamming+Debt+Collectors2010-05-08+14%3A47%3A10LH

Eltman, Eltman & Cooper was one of 35 law firms sued last July by the state, which claimed that they had improperly obtained more than 100,000 judgments in consumer-debt cases. Editor’s notes: The dubious “enforcement” of mortgages, notes and “obligations (that have been paid many times over through credit enhancement) is both mirrored and amplified in the debt collection industry. Servicers are merely debt collectors since they are collecting for a third party. In an investigative report coming soon to these pages you will see that servicers are actually the “real trustee” for the investors, separate and apart from the Special Purpose Vehicle. But that is for later.

For now, before you slide into grief and shame over your financial condition, know this: the people hounding you for money are doing so in most cases illegally and Judges are reversing themselves across the country as they take a closer look at the the procedural tricks routinely employed by those who prey upon consumers with “debt” claims have that long since been extinguished, written off, repackaged into resecuritized asset backed securities, with even more credit swaps on top of the old ones.

In this article from the New York Times, the clarity of the scam is being revealed and unraveled. The ultimate conclusion of this mess will take years if not decades, to move us back to a state of equilibrium. In the meantime, the major piece of advice you will probably get from any consumer law advocate or attorney is this: don’t pay anyone unless you are sure you owe THEM the money. The question is not whether you owe money (i.e., the existence of the obligation), the question is the identity of the creditor and whether the obligation, without your knowledge was already paid in whole or in part by credit default swaps, other credit enhancement techniques, etc.

————————

May 7, 2010

In New York, Some Judges Are Now Skeptical About Debt Collectors’ Claims

By WILLIAM GLABERSON

As New Yorkers have tumbled into credit card debt in large numbers during the great recession, bill collectors have inundated the courts to get what they say is due. In turn, the courts have issued hundreds of thousands of orders against residents. Some consumer groups argue that by doing so, the courts have become little more than an arm of the debt collection industry.

Now, a few judges in New York State are suggesting that they agree, at least in part, with the consumer groups. They have fumed at debt collectors and their lawyers, scolding them for interest as high as 30 percent a year and berating them for false statements and abusive practices.

Some of the rulings have even been sarcastic or incredulous. In December, a Staten Island judge said debt collectors seemed to think their lawsuits were taking place in a legal Land of Oz, where everyone was supposed to follow anticonsumer rules invented by some unseen debt-collection wizard.

Last month, a Manhattan appeals court threw out a credit card case, saying a debt collection company had sued the wrong person but pursued the case anyway.

“I think these judges are outraged at the status quo, and they’re trying to change it,” said Janet Ray Kalson, a Manhattan lawyer who is the chairwoman of a City Bar Association committee that has studied the deluge of credit card cases.

Debt-buyer businesses purchase debts — along with lists of names and amounts supposedly due — for pennies on the dollar from credit card companies and sometimes have no real evidence about whom they are suing or why. They then file tens of thousands of suits, often with little to back up their claims.

A Nassau County District Court judge said recently, for example, that one of New York City’s high-volume debt collection law firms, which has close ties to a debt-buying company, did not provide “a scintilla of evidence” that there was even a debt in a case against a Long Island woman.

The suit received an unusual amount of attention. The judge, Michael A. Ciaffa, said that it “regrettably, involves a veritable ‘perfect storm’ of mistakes, errors, misdeeds and improper litigation practices.” Judge Ciaffa said the law firm, Eltman, Eltman & Cooper, ignored court orders, made a “demonstrably false” assertion and harassed the woman for payment even after its suit was dismissed.

The case before Judge Ciaffa ended with an order that is far from typical in a credit card suit. The woman who had been sued, Patricia Bohnet, a bookkeeper and single mother, did not have to pay anything. But Eltman, Eltman & Cooper had to pay $14,800 in sanctions for violating ethical rules at least 18 times. Under the judge’s order, $4,800 is to go to Ms. Bohnet and the remainder to a state fund that works to reimburse clients for dishonest conduct by lawyers.

“They don’t care if you’re sick; they don’t care if you’re poor,” Ms. Bohnet said in an interview at her job in Woodmere. “Their only job is to collect money, and they’ll do it in any way possible.”

In response to questions, the law firm said in a written statement that Judge Ciaffa had not had all the facts but that the firm would not appeal. “As with any firm or business that handles this type of volume,” it added, “there exists a potential for errors or omissions in the normal course of business.”

Eltman, Eltman & Cooper was one of 35 law firms sued last July by the state, which claimed that they had improperly obtained more than 100,000 judgments in consumer-debt cases. Separate files in Federal District Court in Brooklyn show that without admitting fault, the Eltman law firm settled a class-action suit in 2006 that claimed it used “false, misleading and deceptive means” to collect debts.

Privately, some judges say they are embarrassed that in many New York courts, debt-collection lawyers have grown so comfortable that they give the impression they are in charge of the proceedings and do not need prove their claims with strong evidence.

In the recent pro-consumer rulings, skepticism of the debt collectors’ claims has been obvious. A Civil Court judge in Brooklyn, Noach Dear, has written decisions that come close to saying that the collection cases are sometimes based on falsehoods.

In a case in August, Judge Dear observed that there was nothing to substantiate a lawyer’s claim that she somehow remembered mailing a document to the credit card holder that was the foundation of the collection suit. The document, Judge Dear noted archly, had been mailed three and a half years earlier.

Behind the legalese of the credit card suits, some judges have suggested, there is often a disorganized jumble of documentation. A Mount Vernon City Court judge noted that one case was based on little more than “a self-serving computer printout.” A Manhattan judge said one company that bought debt claims from credit card companies had filed suit against a cardholder although it did not own that particular debt.

In the Staten Island case, the judge, Philip S. Straniere, said a credit card company was claiming interest of 28 percent on the balance due, which would be illegal as usury under New York law. The company argued that the credit card issued to a New Yorker that seemed to be from a national company had actually been issued by a one-branch bank in Utah, which had no usury law.

“Like the Land of Oz, run by a Wizard who no one has ever seen,” Judge Straniere wrote, “the Land of Credit Cards permits consumers to be bound by agreements they never sign, agreements they may never have received, subject to change without notice and the laws of a state other than those existing where they reside.”

The judge ruled that the supposed agreement allowing unlimited interest charges was not enforceable in New York.

Industry officials said that tales of abusive collection cases were misleading. “There are certainly colorful stories,” said Joann Needleman, an officer of the National Association of Retail Collection Attorneys. “People think that handful is the rule, not the exception, but it’s not.”

But Ms. Bohnet, the Long Island woman who was sued by a New York law firm, said just one case could be harrowing. When she received a call last year at the charity where she keeps the books for $39,000 a year, the voice on the other end told her the debt collectors had a five-year-old court judgment against her for a $4,861 debt. She had to pay, or they would start taking money out of her salary, she said she was told.

The address of the debt-collection firm and its lawyers at Eltman, Eltman & Cooper seemed to be the same, she noticed.

Ms. Bohnet did not know she had ever been sued. She started to cry, she said, worried that with a chunk of money taken every month, she might lose the modest apartment she needed to share custody of her teenage daughter.

“I was in all-out fear,” she said, adding, “After I got off the phone, I realized I didn’t even know what the debt was for.” She might have had an old credit card debt, but she had had some years of problems with alcohol and drugs and tangled financial problems. In recovery, she said, she had worked to clean up her financial affairs.

The next time the collectors called, she said, she told them that she was willing to pay if she owed any money but that she needed to see some proof that they had the right person. Then, without a lawyer, she went to the court, in Hempstead, to check into the order the debt collectors said they had against her.

After some digging, she found the case. The debt-buyer’s lawyers had filed a sworn statement that they said was proof she had been given notice of the suit. A process server for Eltman, Eltman & Cooper claimed she had been given a copy of the suit personally on July 30, 2004.

Judge Ciaffa doubted that. Ms. Bohnet, he wrote, “hadn’t lived at that address since 1998.”

Filed under: CASES, CORRUPTION, foreclosure, foreclosure mill, GTC | Honor, HERS, Motion Practice and Discovery, Servicer, STATUTES, trustee Tagged: debt, Debt Collectors, Eltman, Eltman & Cooper, judges, New York, Obligation, Philip S. Straniere, usury, WILLIAM GLABERSON

Apr

Motion Practice: Arizona Statutes Requires GOOD FAITH and ALL Parties to be Notified

By LH | Foreclosure Blog News, Homeowner Resources

6745Leave a Comment2010-04-25+16%3A43%3A16LH

The statute says that the trustee mails the notice to all affected parties at least three months before the sale date. In a non-judicial sale, then, ALL parties having a potential stake in the outcome must be notified. This is the only way the statute can be constitutional. It’s not up to the Trustee to adjudicate the rights of the parties if he wants to keep his exemption from liability, but if he knowingly fails to notify other parties whom he knows to exist, then it is obvious he is taking an interest in the litigation.

The attack on the trustee sale would simply be a certified letter followed by a lawsuit if necessary directed at the trustee. The letter would be an objection to the sale because the trustee has failed to notify the creditors, has not made adequate inquiry into the identity of all parties, and damages for slander of title. The objection, an early draft of which is contained in the forms on this blog, would also state that the obligation has been satisfied in whole or in part by third party payments from credit default swaps, insurance, guarantees, buy-backs, federal bailouts etc.

The demand would be for proof of inquiry — the “pull-down report” (title report on the property) and all other efforts to identify the parties in what the trustee knows to be a securitized transaction with multiple intermediaries, each of whom appears to claim a stake in the property, and multiple creditors, none of whom have been notified, who have not provided or been asked to provide an accounting for all transactions relating to the their purchase of asset backed securities creating their beneficial ownership in a pool of assets that includes the subject loan, and whether any allocations have been made to account for third party payments.

In the alternative, the demand would be that the foreclosure be conducted in accordance with Arizona statutes governing judicial foreclosures that would then pout the onus on the beneficiary to allege they are they are the creditor, that the obligation is due and to present allegations and , exhibits, witnesses and proof that they are entitled to a judgment in foreclosure. The non-judicial statutes could not have been intended as a direct confrontation with the 5th and 14th Amendment of the United States Constitution requiring no deprivation of life, liberty or property without due process. If that were otherwise, the statute would be unconstitutional on its face.

33-455. Conveyance of absolute title by judicial sale; effect upon rights of persons not parties

Every conveyance of real property by a commissioner, sheriff or other officer legally authorized to sell such property by virtue of a decree or judgment of any court within this state, shall be effectual to pass absolute title to the property to the purchaser thereof, but the conveyance shall not affect the right, title or interest of any person other than the parties to the conveyance, decree or judgment, and those claiming under them.

33-456. Passage of title to real or personal property by judgment

When a judgment directs the conveyance of real property or the delivery of personal property, the judgment shall pass title to such property without any act by the party against whom the judgment is given.

33-458. Resale of realty with intent to defraud; classification

A person who, after selling, bartering or disposing of, or, after executing a bond or agreement for the sale of land, again knowingly and with intent to defraud previous or subsequent purchasers, sells, barters or disposes of, or executes a bond or agreement to sell, barter or dispose of the same land or any part thereof to any other person for a valuable consideration, is guilty of a class 4 felony.

33-705. Purchase money mortgage or deed of trust; priority

A mortgage or deed of trust that is given as security for a loan made to purchase the real property that is encumbered by the mortgage or deed of trust has priority over all other liens and encumbrances that are incurred against the purchaser before acquiring title to the real property.

33-706. Assignment of mortgage; recording as notice

An assignment of a mortgage may be recorded in like manner as a mortgage, and the record is notice to all persons subsequently deriving title to the mortgage from the assignor.

33-708. Release by attorney in fact

An attorney in fact to whom the money due on a mortgage or deed of trust is paid may execute the release provided for in this article. Such acknowledgment of satisfaction or deed of release, duly acknowledged and recorded, showing the docket and page or recording number, releases the mortgage or deed of trust and revests in the mortgagor or person who executed the deed of trust, or his legal representatives, all title to the property affected by the mortgage or deed of trust.

33-721. Foreclosure of mortgage by court action

Mortgages of real property and deeds of trust of a type not included in the definition of deed of trust provided in section 33-801, notwithstanding any other provision in the mortgage or deed, shall be foreclosed by action in a court.

33-722. Election between action on debt or to foreclose

If separate actions are brought on the debt and to foreclose the mortgage given to secure it, the plaintiff shall elect which to prosecute and the other shall be dismissed.

33-741. Definitions

In this article, unless the context otherwise requires:

1. “Account servicing agent” means a joint agent of seller and purchaser, appointed under the contract or under a separate agreement executed by the seller and the purchaser, to hold documents and collect monies due under the contract, who does business under the laws of this state as a bank, trust company, escrow agent, savings and loan association, insurance company or real estate broker, or who is licensed, chartered or regulated by the federal deposit insurance corporation or the comptroller of the currency, or who is a member of the state bar of Arizona.

2. “Contract” means a contract for conveyance of real property, a contract for deed, a contract to convey, an agreement for sale or any similar contract through which a seller has conveyed to a purchaser equitable title in property and under which the seller is obligated to convey to the purchaser the remainder of the seller’s title in the property, whether legal or equitable, on payment in full of all monies due under the contract. This article does not apply to purchase contracts and receipts, escrow instructions or similar executory contracts which are intended to control the rights and obligations of the parties to executory contracts pending the closing of a sale or purchase transaction.

3. “Monies due under the contract” means:

(a) Any principal and interest payments which are currently due and payable to the seller.

(b) Any principal and interest payments which are currently due and payable to other persons who hold existing liens and encumbrances on the property, the unpaid principal portion of which constitutes a portion of the purchase price, as stated in the contract, if the principal and interest payments were paid by the seller pursuant to the terms of the contract and to protect his interest in the property.

(c) Any delinquent taxes and assessments, including interest and penalty, due and payable to any governmental entity authorized to impose liens on the property which are the purchaser’s obligations under the contract, if the taxes and assessments were paid by the seller pursuant to the terms of the contract and to protect his interest in the property.

(d) Any unpaid premiums for any policy or policies of insurance which are the obligation of the purchaser to maintain under the contract, if the premiums were paid by the seller pursuant to the terms of the contract and to protect his interest in the property.

4. “Payoff deed” means the deed that the seller is obligated to deliver to the purchaser on payment in full of all monies due under the contract to convey to the purchaser the remainder of the seller’s title in the property, whether legal or equitable, as prescribed by the terms of the contract.

5. “Property” means the real property described in the contract and any personal property included under the contract.

6. “Purchaser” means the person or any successor in interest to the person who has contracted to purchase the seller’s title to the property which is the subject of the contract.

7. “Seller” means the person or any successor in interest to the person who has contracted to convey his title to the property which is the subject of the contract.

33-807. Sale of trust property; power of trustee; foreclosure of trust deed

A. By virtue of his position, a power of sale is conferred upon the trustee of a trust deed under which the trust property may be sold, in the manner provided in this chapter, after a breach or default in performance of the contract or contracts, for which the trust property is conveyed as security, or a breach or default of the trust deed. At the option of the beneficiary, a trust deed may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property in which event chapter 6 of this title governs the proceedings. The beneficiary or trustee shall constitute the proper and complete party plaintiff in any action to foreclose a deed of trust. The power of sale may be exercised by the trustee without express provision therefor in the trust deed.

B. The trustee or beneficiary may file and maintain an action to foreclose a deed of trust at any time before the trust property has been sold under the power of sale. A sale of trust property under the power of sale shall not be held after an action to foreclose the deed of trust has been filed unless the foreclosure action has been dismissed.

C. The trustee or beneficiary may file an action for the appointment of a receiver according to sections 12-1241 and 33-702. The right to appointment of a receiver shall be independent of and may precede the exercise of any other right or remedy.

D. The power of sale of trust property conferred upon the trustee shall not be exercised before the ninety-first day after the date of the recording of the notice of the sale. The sale shall not be set for a Saturday or legal holiday. The trustee may schedule more than one sale for the same date, time and place.

E. The trustee need only be joined as a party in legal actions pertaining to a breach of the trustee’s obligation under this chapter or under the deed of trust. Any order of the court entered against the beneficiary is binding upon the trustee with respect to any actions that the trustee is authorized to take by the trust deed or by this chapter. If the trustee is joined as a party in any other action, the trustee is entitled to be immediately dismissed and to recover costs and reasonable attorney fees from the person joining the trustee.

33-808. Notice of trustee’s sale

A. The trustee shall give written notice of the time and place of sale legally describing the trust property to be sold by each of the following methods:

1. Recording a notice in the office of the recorder of each county where the trust property is situated.

2. Giving notice as provided in section 33-809 to the extent applicable.

3. Posting a copy of the notice of sale, at least twenty days before the date of sale in some conspicuous place on the trust property to be sold, if posting can be accomplished without a breach of the peace. If access to the trust property is denied because a common entrance to the property is restricted by a limited access gate or similar impediment, the property shall be posted by posting notice at that gate or impediment. Notice shall also be posted at one of the places provided for posting public notices at any building that serves as a location of the superior court in the county where the trust property is to be sold. Posting is deemed completed on the date the trust property is posted. The posting of notice at the superior court location is deemed a ministerial act.

4. Publication of the notice of sale in a newspaper of general circulation in each county in which the trust property to be sold is situated. The notice of sale shall be published at least once a week for four consecutive weeks. The last date of publication shall not be less than ten days prior to the date of sale. Publication is deemed completed on the date of the first of the four publications of the notice of sale pursuant to this paragraph.

B. The sale shall be held at the time and place designated in the notice of sale on a day other than a Saturday or legal holiday between 9:00 a.m. and 5:00 p.m. mountain standard time at a specified place on the trust property, at a specified place at any building that serves as a location of the superior court or at a specified place at a place of business of the trustee, in any county in which part of the trust property to be sold is situated.

C. The notice of sale shall contain:

1. The date, time and place of the sale. The date, time and place shall be set pursuant to section 33-807, subsection D. The date shall be no sooner than the ninety-first day after the date that the notice of sale was recorded.

2. The street address, if any, or identifiable location as well as the legal description of the trust property.

3. The county assessor’s tax parcel number for the trust property or the tax parcel number of a larger parcel of which the trust property is a part.

4. The original principal balance as shown on the deed of trust. If the amount is not shown on the deed of trust, it shall be listed as “unspecified”.

5. The names and addresses, as of the date the notice of sale is recorded, of the beneficiary and the trustee, the name and address of the original trustor as stated in the deed of trust, the signature of the trustee and the basis for the trustee’s qualification pursuant to section 33-803, subsection A, including an express statement of the paragraph under subsection A on which the qualification is based. The address of the beneficiary shall not be in care of the trustee.

6. The telephone number of the trustee.

7. The name of the state or federal licensing or regulatory body or controlling agency of the trustee as prescribed by section 33-803, subsection A.

D. The notice of sale shall be sufficient if made in substantially the following form:

Notice of Trustee’s Sale

The following legally described trust property will be sold, pursuant to the power of sale under that certain trust deed recorded in docket or book _______________________ at page __________ records of ______________ county, Arizona, at public auction to the highest bidder at (specific place of sale as permitted by law) _______________, in _______________ county, in or near _______________, Arizona, on ________, ____, at ___________ o’clock ___m. of said day:

(street address, if any, or identifiable

location of trust property)

(legal description of trust property)

Tax parcel number _______________

Original principal balance $________________________

Name and address of beneficiary ______________________________

______________________________

______________________________

Name and address of original trustor _________________________

_________________________

_________________________

Name, address and telephone number of trustee ________________

__________________________________

__________________________________

Signature of trustee _____________________________

Manner of trustee qualification ___________________________

Name of trustee’s regulator _______________________________

Dated this _____________ day of ______________, ____.

(Acknowledgement)

E. Any error or omission in the information required by subsection C or D of this section, other than an error in the legal description of the trust property or an error in the date, time or place of sale, shall not invalidate a trustee’s sale. Any error in the legal description of the trust property shall not invalidate a trustee’s sale if considered as a whole the information provided is sufficient to identify the trust property being sold. If there is an error or omission in the legal description so that the trust property cannot be identified, or if there is an error in the date, time or place of sale, the trustee shall record a cancellation of notice of sale. The trustee or any person furnishing information to the trustee shall not be subject to liability for any error or omission in the information required by subsection C of this section except for the wilful and intentional failure to provide such information. This subsection does not apply to claims made by an insured under any policy of title insurance.

F. The notice of trustee sale may not be rerecorded for any reason. This subsection does not prohibit the recording of a new or subsequent notice of sale regarding the same property.

33-820. Trustee’s right to rely; attorney’s right to act for trustee and beneficiary

A. In carrying out his duties under the provisions of this chapter or any deed of trust, a trustee, shall when acting in good faith, have the absolute right to rely upon any written direction or information furnished to him by the beneficiary.

B. An attorney for the beneficiary shall also be qualified to act as attorney for the trustee or to be the trustee.

Pre-foreclosure Period

Court foreclosures begin when the lender files for foreclosure in court and records a notice of the pending lawsuit (Lis Pendens). The court filing includes the debt and default amount. The borrower and any junior lien holders are notified either in person or by publication. If the borrower does not respond to the court action, the court can rule against them and set the amount owed to the lender. The county clerk then directs the county sheriff to conduct a sale of the property to recover the amount owed.

An out-of-court foreclosure sale may occur if a clause in the trust deed permits the lender to sell the property if a borrower defaults. To start the foreclosure, the trustee records a notice of sale, and the sale occurs at least three months after the notice is recorded. Until 5:00 p.m. the day before the sale, the borrower or any junior lien holders may stop the foreclosure by paying the default amount, fees, and costs.

Notice of Sale / Auction

For court foreclosures, the sheriff conducts the sheriff’s sale about 45 days after the county clerk directs the sale. It is a public auction, and anyone may bid. The bid price must be paid to the sheriff by 5:00 p.m. the day after the sheriff’s sale. After the sale, a certificate of sale is issued. If the property is not abandoned, the redemption period is six months from the sale date. If the borrower does not redeem, any secondary lenders may do so within a specified time. To redeem the property, the total amount owed plus fees and costs must be paid. If no one redeems the property, the sheriff transfers ownership to the winning bidder.

For out-of-court trustee’s sales, the notice of sale contains a property description, and the date, time and place of the sale. The notice is recorded, and the trustee mails the notice to all affected parties at least three months before the sale date. The notice appears in a local newspaper once a week for four weeks, with the last notice published no less than 10 days before the sale date. At least 20 days before the sale, the notice is posted on the property and the county courthouse. Starting the day before the sale and up to the sale, the trustee must provide the opening bid of the sale to anyone who asks or the sale may have to be postponed.

The trustee or the trustee’s agent conducts the sale at the property, the courthouse, or the trustee’s office. All bidders must provide a refundable $10,000 deposit in order to bid; the trustee keeps the deposit of the winning bidder. The sale can be postponed up to 90 days by announcement at the originally scheduled sale. The winning bidder has until 5:00 p.m. the next day to pay the full bid price, after which the trustee transfer ownership of the property within seven days. The proceeds of the sale are paid to the primary lender, then to any secondary lenders. There is no right of redemption for the borrower after an out-of-court foreclosure sale.

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: 33-820. Trustee's right to rely; attorney's right to act for trustee and beneficiary, beneficiary, DEED OF TRUST, good faith, trustee

Mar

Wells Fargo, Option One, American Home Mortgage Relationship

By LH | Foreclosure Blog News, Homeowner Resources

5999Leave a Comment2010-03-31+04%3A47%3A00LH

Wells Fargo Bank, N.A. appears in many ways including as servicer (America Servicing Company), Trustee (although it does not appear to be qualified as a “Trust Company”), as claimed beneficiary, as Payee on the note, as beneficiary under the title policy, as beneficiary under the property and liability insurance, and it may have in actuality acted as a mortgage broker without getting licensed as such.

In most securitized loan situations, Wells Fargo appears with the word “BANK” used, but it acted neither as a commercial nor investment bank in the deal. Sometimes it acted as a commercial bank meaning it processed a deposit and withdrawal, sometimes (rarely, perhaps 3-4% of the time) it did act as a lender, and sometimes it acted as a securities underwriter or co-underwriter of asset backed securities.

It might also be designated as “Depositor” which in most cases means that it performed no function, received no money, disbursed no money and neither received, stored, handled or transmitted any documentation despite third party documentation to the contrary.

In short, despite the sue of the word “BANK”, it was not acting as a bank in any sense of the word within the securitization chain. However, it is the use of the word “BANK” which connotes credibility to their role in the transaction despite the fact that they are not, and never were a creditor. The obligation arose when the funds were advanced for the benefit of the homeowner. But the pool from which those funds were advanced came from investors who purchased certificates of asset backed securities. Those investors are the creditors because they received a certificate containing three promises: (1) repayment of principal non-recourse based upon the payments by obligors under the terms of notes and mortgages in the pool (2) payment of interest under the same conditions and (3) the conveyance of a percentage ownership in the pool, which means that collectively 100% of the ivnestors own 100% of the the entire pool of loans. This means that the “Trust” does NOT own the pool nor the loans in the pool. It means that the “Trust” is merely an operating agreement through which the ivnestors may act collectively under certain conditions. The evidence of the transaction is the note and the mortgage or deed of trust is incident to the transaction. But if you are following the money you look to the obligation. In most transactions in which a residential loan was securitized, Wells Fargo did not work under the scope of its bank charter. However it goes to great lengths to pretend that it is acting under the scope of its bank charter when it pursues foreclosure.

Wells Fargo will often allege that it is the holder of the note. It frequently finesses the holder in due course confrontation by this allegation because of the presumption arising out of its allegation that it is the holder. In fact, the obligation of the homeowner is not ever due to Wells Fargo in a securitized residential note and mortgage or deed of trust. The allegation of “holder” is disingenuous at the least. Wells Fargo is not and never was the creditor although ti will claim, upon challenge, to be acting within the scope and course of its agency authority; however it will fight to the death to avoid producing the agency agreement by which it claims authority. remember to read the indenture or prospectus or pooling and service agreement all the way to the end because these documents are created to give an appearance of propriety but they do not actually support the authority claimed by Wells Fargo.

Wells Fargo often claims to be Trustee for Option One Mortgage Loan Trust 2007-6 Asset Backed Certificates, Series 2007-6, c/o American Home Mortgage, 4600 Regent Blvd., Suite 200, P.O. Box 631730, Irving, Texas 75063-1730. Both Option One and American Home Mortgage were usually fronts (sham) entities that were used to originate loans using predatory, fraudulent and otherwise illegal loan practices in violation of TILA, RICO and deceptive lending practices. ALL THREE ENTITIES — WELLS FARGO, OPTION ONE AND AMERICAN HOME MORTGAGE SHOULD BE CONSIDERED AS A SINGLE JOINT ENTERPRISE ABUSING THEIR BUSINESS LICENSES AND CHARTERS IN MOST CASES.

WELLS FARGO-OPTION ONE-AMERICAN HOME MORTGAGE IS OFTEN REPRESENTED BY LERNER, SAMPSON & ROTHFUSS, more specifically Susana E. Lykins. They list their address as P.O. Box 5480, Cincinnati, Oh 45201-5480, Telephone 513-241-3100, Fax 513-241-4094. Their actual street address is 120 East Fourth Street, Suite 800 Cincinnati, OH 45202. Documents purporting to be assignments within the securitization chain may in fact be executed by clerical staff or attorneys from that firm using that address. If you are curious, then pick out the name of the party who executed your suspicious document and ask to speak with them after you call the above number.

Ms. Lykins also shows possibly as attorney for JP Morgan Chase Bank, N.A. as well as Robert B. Blackwell, at 620-624 N. Main street, Lima, Ohio 45801, 419-228-2091, Fax 419-229-3786. He also claims an office at 2855 Elm Street, Lima, Ohio 45805

Kathy Smith swears she is “assistant secretary” for American Home Mortgage as servicing agent for Wells Fargo Bank. Yet Wells shows its own address as c/o American Home Mortgage. No regulatory filing for Wells Fargo acknowledges that address. Ms. Smith swears that Wells Fargo, Trustee is the holder of the note even though she professes not to work for them. Kathy Smith’s signature is notarized by Linda Bayless, Notary Public, State of Florida commission# DD615990, expiring November 19, 2010. This would indicate that despite the subject property being in Ohio, Kathy Smith, who presumably works in Texas, had her signature notarized in Florida or that the Florida Notary exceeded her license if she was in Texas or Ohio or wherever Kathy Smith was when she allegedly executed the instrument.

Filed under: bubble, CDO, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, Investor, Mortgage, securities fraud, Servicer Tagged: 120 East Fourth Street, 2010, 2855 Elm Street, 419-228-2091, 419-229-3786, 45201-5480, 45202, 45801, 45805, 513-241-3100, 513-241-4094, 620-624 N. Main stree, agency agreement, agency authority, America Servicing Company, American Home Mortgage, appearance of propriety, as trustee, Assistant Secretary, bank charter, beneficiary, Cincinnati, co-underwriter, commercial bank, conveyance of a percentage ownership in the pool, creditor, DD615990, Depositor, documentation, Florida Notary, foreclosure, funds were advanced, HERS, HOLDER, holder of the note, homeowner, indenture, investment bank, Irving, JP Morgan Chase Bank, Kathy Smith, lender, LERNER, Lima, Linda Bayless, money, MORTGAGE BROKER, N.A, N.A Trustee, November 19, Obligation, Oh, Ohio, Option One, Option One Mortgage, Option One Mortgage Loan Trust, Option One Mortgage Loan Trust 2007-6 Asset Backed Certificates, P.O. Box 5480, P.O. Box 631730, Payee, pooling and service agreement, presumption, property and liability insurance, Prospectus, repayment of principal non-recourse, Robert B. Blackwel, SAMPSON & ROTHFUSS, securities underwriter, securitization chain, securitized loan, Series 2007-6, Suite 200, Suite 800, Susana E. Lykins, Texas, title policy, trust, Wells Fargo, Wells Fargo Bank

Mar

Wells Fargo, Option One, American Home Mortgage Relationship

By LH | Foreclosure Blog News, Homeowner Resources

5998Leave a Comment2010-03-31+04%3A47%3A00LH

Mar

WHY SECURITISATION IS ILLEGAL UNDER U.S. AND COMMON LAW

By LH | Foreclosure Blog News, Homeowner Resources

5473Leave a Comment2010-03-15+15%3A42%3A37LH

Submitted by Charles Cox, apparently from public domain

Article by Christopher Story to be published by Economic Intelligence Review

conflict of interest inherent in the sponsor also serving as the servicer constitutes fraud and conversion. In the fourth place, in all ‘true-sale’, ‘disguised loan’ and ‘assignment’ securitisations where the Special Purpose Vehicle [SPV] is a trust, the declaration of trust is void, as it exists for an illegal purpose.

The specific R.I.C.O. sections are: Section 1341 (mail fraud); Section 1343 (wire fraud); Section 1344 (financial institution fraud); Section 1957 (engaging in monetary transactions improperly derived from specified unlawful activity) [‘the money you make from the illegal exploitation of my money, is my money’]; and Section 1952 (racketeering).

Illusory promises are not valid consideration for a contract. Such promises may be found in the Subscription/Purchase Agreement, whereby an existing asset is being exchanged for a future asset that does not exist as of the date of the subscription/purchase agreement. To make matters worse, none of the agreements typically signed by the investor as part of his/her purchase of the Special Purpose Vehicle’s Asset-Backed Securities expressly incorporates the (typically illusory) promises embodied in the offering prospectus.

WHY SECURITISATION IS ILLEGAL UNDER U.S. AND COMMON LAW

Securitisation is illegal under US legislation – primarily because it is fraudulent and causes specific violations of R.I.C.O., usury, Antitrust and bankruptcy laws. And it flies in the face of public policy in numerous ways, as is expounded in extensive detail in an analysis to be published in our journal Economic Intelligence Review 2009Q1 (7) with several pages of book, article and case references.

To begin with, securitisation violates US State usury legislation. Secondly, all ‘true-sale’, ‘disguised loan’ as well as ‘assignment’ securitisations are essentially tax evasion schemes, and the penalties for tax evasion in the United States are excessively severe.

Thirdly, in all ‘true-sale’, ‘disguised loan’ and ‘assignment’ securitisations, the conflict of interest inherent in the sponsor also serving as the servicer constitutes fraud and conversion. In the fourth place, in all ‘true-sale’, ‘disguised loan’ and ‘assignment’ securitisations where the Special Purpose Vehicle [SPV] is a trust, the declaration of trust is void, as it exists for an illegal purpose.

In the fifth place, off-balance sheet treatment of asset-backed securities (both for ‘true-sale’ and for assignment transactions) constitutes fraud.

Sixth, all ‘true-sale’, ‘disguised loan’ and ‘assignment’ securitisations involve blatant fraudulent conveyances. In the seventh place, securitisation usurps United States bankruptcy laws and is accordingly illegal, as well as being also demonstrably contrary to public policy.

SECURITISATION ENTAILS GROSS VIOLATIONS OF R.I.C.O. STATUTES
In ‘true-sale’, ‘disguised loan’ and ‘assignment’ securitisations, there are fraudulent transactions which serve as ‘predicate acts’ under US Federal R.I.C.O. statutes.

The specific R.I.C.O. sections are: Section 1341 (mail fraud); Section 1343 (wire fraud); Section 1344 (financial institution fraud); Section 1957 (engaging in monetary transactions improperly derived from specified unlawful activity) [‘the money you make from the illegal exploitation of my money, is my money’]; and Section 1952 (racketeering).

Furthermore, securitisation constitutes violations of American antitrust statutes through market integration, syndicate collusion, price formation, vertical foreclosure, tying, price-fixing, predatory pricing, and the rigging of allocations.

Securitisation also involves void contracts, given the lack of consideration, illusory promises, the absence of any actual bargain, the absence of mutuality – and finally illegal subject matter and the contravention of public policy.

Securitisation is riddled with Fraudulent Transfer, Fraud in the Inducement, Fraud in Fact by Deceit, Theft by Deception (Fraudulent Concealment) and Fraudulent Conveyance: see the US securities regulations routinely breached in such activity, listed at the foot of this report and of most of these reports for THE PAST THREE YEARS, and other laws also routinely flouted in this context.

NOTWITHSTANDING THAT IT’S ILLEGAL, U.S. AUTHORITIES
CONTINUE TO PROMOTE AND ENCOURAGE SECURITISATION
Yet notwithstanding such crystal-clear indications that securitisation is 100% ILLEGAL under US Law, as well as under Common Law generally (so that these findings are largely applicable in all Common Law countries), US authorities from the highest level downwards, financial institutions, intermediaries, Intelligence Power operatives and others are gearing up for what they doubtless hope will be intensified racketeering and trading activity with (corrupt) foreign counterparties.

This behaviour is being fine-tuned ‘as we speak’, despite the reality that the securitisation activity being planned and implemented violates innumerable US statutes in the manner we summarise above, and notwithstanding that such activity is contrary to public policy.

Indeed, it’s as though the Rule of Law did not exist. From the highest level of the US Treasury, the White House, the US State Department and the Central Intelligence Agency and its subsidiaries such as the lethal Office of Naval Intelligence (ONI), the mindset, intention and perverse primary objective has all along been to resume Fraudulent Finance based on securitisation, as quickly and as seamlessly as possible. No wonder the five criminal Presidents DEMANDED immunity from prosecution from the World Bank: did they arrange for key Justices (starting with the American Justice) at the World Court to receive pecuniary reward for granting them their demand?

SUMMARY FORENSIC ANALYSIS PROVING THE ILLEGALITY OF SECURITISATION
From whichever angle securitisation is considered, it is ILLEGAL. For example, the contracts are themselves VOID. This is because the process of securitisation involves several contracts that are either signed simultaneously, or within a short timeframe – many of which are rendered void inter alia because there is no consideration in contracts used in effecting the securitisations.

Many such contracts involve unilateral executory undertakings containing illusory promises. A unilateral executory promise is not a consideration. Such promises typically include a promise made by the Special Purpose Vehicle to pay out periodic interest, whether contingent or non-contingent on whether the collateral pays cash interest.

Collateral-substitution agreements contain a promise whereby the sponsor agrees to substitute impaired collateral. An assignment agreement of future (not yet existing) collateral may well be deemed a unilateral executory promise by the sponsor.

Illusory promises are not valid consideration for a contract. Such promises may be found in the Subscription/Purchase Agreement, whereby an existing asset is being exchanged for a future asset that does not exist as of the date of the subscription/purchase agreement. To make matters worse, none of the agreements typically signed by the investor as part of his/her purchase of the Special Purpose Vehicle’s Asset-Backed Securities expressly incorporates the (typically illusory) promises embodied in the offering prospectus.

OR: The Special Purpose Vehicle’s promise to pay interest and/or dividends on Asset-Backed Securities ‘Interest-Onlys’, Preferreds and ‘Pincipal-Onlys’ are essentially illusory promises because the underlying collateral may not produce any cash flows at all: so there won’t be any interest/dividend payments.

Moreover the lack of mutuality characterising such contracts renders them null and void, by definition. In any such contract, each party must have firm control of the subject matter of the contract and the underlying assets (consideration), and there MUST be a direct contractual relationship between the parties concerned.

But this is not the case, especially as the Special Purpose Vehicle’s corporate documents (trust indentures or bylaws or articles of incorporation) may typically limit the right of each Asset-Back Security investor; while there is typically no mutuality at all between the Special Purpose Vehicle and the sponsor/originator, because both entities are essentially the same, and are controlled by the sponsor before and after the securitisation takes place.

SECURITISATION: A COVER FOR TAX EVASION
In addition to their multiple violations of American State usury laws, all ‘true-sale’, ‘disguised loan’ and ‘assignment securitisations’ are essentially tax evasion arrangements. In the United States, the applicable tax evasion statute is the US Internal Revenue Code Section 7201 7 which reads: “Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution”.

Under this statute and related case law, prosecutors must prove three elements beyond any reasonable doubt:

(1): The actus reus (the guilty conduct) – which consists of an affirmative act (not merely an omission or failure to act) that constitutes evasion or an attempt to evade either: (a) the assessment of a tax or (b) the payment of a tax.

(2): The mens rea or “mental” element of willfulness – the specific intent to violate an actually known legal duty. In the case of ‘true sale’ transactions, the tax evasion occurs because:

(a): The sponsor determines the price at which the collateral is transferred to the SPV, and hence, can arbitrarily lower/increase the price to avoid capital gains taxes – it being assumed here that the sponsor is a profit-maximising entity and will always act to minimise its tax liability and to avoid any tax assessment;

(b): The sponsor typically retains a ‘residual’ interest in the SPV in the form of IOs, POs and “junior piece”, which are typically taxed differently and on a different tax-basis compared with the original collateral: hence, the sponsor can lower the price of the collateral upon transfer to the SPV, and convert what would have been capital gains, into a non-taxable basis in the SPV “residual”;

(c): There is typically the requisite “intent” by the sponsor – evidenced by the arrangement of the transaction and the transfer of assets to the Special Purpose Vehicle;

(d): Before securitisation, collateral is typically reported in the sponsors’ financial statements at book value (that is, lower-of-cost-or-market: under both the US and the international accounting standards, loans and accounts receivable are typically not re-valued to market-value unless there has been some major impairment in value) which does not reflect true Market Values, and results in effective tax evasion on transfer of the collateral to the SPV, as any unrealised gain is not taxed;

(e): The actus reus is manifested by the execution of the securitisation transaction and transfer of assets to the SPV;

(f): The mens rea or specific intent is manifested by the elaborate arrangements implicit in securitisation transactions, the method of determination of the price of the collateral to be transferred to the SPV, the aims of securitisation, and the sponsor’s transfer of assets to the SPV;

(g): The unpaid tax liability consists of foregone tax on the capital gains from the collateral (the transaction is structured to avoid recognition of capital gains), and tax on any income from the collateral which is ‘converted’ into basis or other non-taxable forms;

(h): Income (from the collateral) that would have been taxable in the sponsor’s own financial statements, is converted into non-taxable basis in the form of the SPV’s Interest-Only (IO) and Principal-Only (PO) securities: part of the Interest-Spread (the difference between the SPV’s income and what it pays as interest and operating costs) is paid out to PO-holders, and this transforms interest into return-of-capital or just capital repayment, with no tax consequences. [Leaving aside the Ponzi scam dimension here – Ed.].

In cases of ‘disguised loan’ or ‘assignment’ securitisation transactions, tax evasion occurs:
(a): Because the sponsor determines the price at which the collateral is transferred to the SPV, and hence can lower/increase the price of the collateral to avoid capital gains taxes;

(b): Because the sponsor typically retains a ‘residual’ interest in the SPV which is normally taxed differently and on a different tax-basis compared to the original collateral: hence, the sponsor can lower the price upon transfer to the SPV, and convert what would have been capital gains, into non-taxable basis for tax purposes;

(c): Because the transfer of collateral to the SPV and the creation of Interest-Only and Principal-Only securities converts what would have been taxable capital gains into non-taxable basis;

(d): Because gain in the value of the collateral is not recognised for tax purposes, because there has not been any ‘sale’;

(e): Where the ABS is partly amortising, any capital gains are converted into interest payments;

(f): Because actus reus is manifested by the execution of the securitisation transaction and transfer of assets to the SPV;

(g): Because the mens rea or specific intent is manifested by the elaborate arrangements implicit in securitisation transactions, the objectives of securitisation and the sponsor’s transfer of assets to the Special Purpose Vehicle;

(h): Because the unpaid tax liability consists of tax on the capital gains from the transfer of the collateral (the transaction is structured to avoid recognition of a sale, whereas the transfer to the Special Purpose Vehicle is effectively a sale), and tax on any income from the collateral which is ‘converted’ into basis or other non-taxable forms, by securitisation.

SECURITISATION VIOLATES THE U.S BANKRUPTCY CODE
AND THEREFORE ALSO CONTRAVENES PUBLIC POLICY
Any transfer or conveyance of the assets of a debtor that is deemed to be made for the purposes of hindering, delaying or defrauding actual or potential creditors, may be determined by Courts to be a Fraudulent Conveyance under Section 548 of the US Bankruptcy Code or under a relevant theory of Constructive Fraud.

Although each US State has its own laws regarding the appropriate elements of proof of Constructive Fraud, Section 548(a)(2) of the US Bankruptcy Code permits an inference of Constructive Fraud if the following factors exist:

(1): The debtor received less than reasonably equivalent value for the property transferred; and:

(2): The debtor was insolvent or became insolvent as a result of the transfer, or else retained unreasonably small capital after the transfer, or made the transfer with the intent or belief that it would incur debts beyond its ability to pay.

The following theories of Fraudulent Conveyance within the context of securitisation may apply:

• Where the sponsor/originator receives insufficient value for assets transferred.

• Where there is an ‘intent to hinder, delay or defraud’ creditors (representing an implicit pre-petition waiver of one’s right to file for bankruptcy), with regard to the originator’s transfer of assets to the SPV, or the originator’s transfer of assets to the SPV has clearly not been undertaken on an arms’-length basis.

• Where securitisation increases the originator’s bankruptcy risk; and:

• In all instances where securitisation usurps the United States’ bankruptcy laws and is therefore illegal on such a basis alone.

SECURITISATION VIOLATES FEDERAL R.I.C.O. STATUTES
Turning now to the reality that securitisation constitutes a violation of US Federal R.I.C.O. Statutes [see Legal Notes below], we can state without equivocation that the entire securitisation process constitutes violations of Federal R.I.C.O. statutes, because:

(1): There is the requisite criminal or civil ‘enterprise’ – consisting of the sponsor/issuer, the trustees and the intermediary bank. These three parties work closely together to effect the securitisation transaction.

(2): There are ‘predicate acts’ of:

(a): Mail fraud – using the mails for sending out materials among themselves and to investors.

(b): Wire fraud – using wires to engage in fraud by communicating with investors.

( c): Conversion – where there isn’t proper title to collateral.

(d): Deceit: misrepresentation of issues and facts pertaining to the securitisation transaction.

(e): Securities fraud: disclosure issues.

(f): It entails loss of profit opportunity.

(g): It involves the making of false statements and or misleading representations about the value of the collateral.

(h): It entails stripping the originator/issuer of the ability to pay debt claims or judgment claims in bankruptcy court – a state of affairs that may apply where the sponsor is financially distressed and the cash proceeds of the transaction are significantly less than the value of the collateral.

There is also typically the requisite ‘intent’ by members of the enterprise – evident in knowledge (actual and inferable), acts, omissions, purpose (actual and inferable) and results. Intent can be reasonably inferred from:

(a): The existence of a sponsor that seeks to raise capital – and cannot raise capital on better terms by other means;

(b): The participation of an investment bank that has very strong incentives to consummate the transaction on any agreeable (but not necessarily reasonable) terms.

SECURITISATION ALSO VIOLATES U.S. ANTITRUST LEGISLATION
Securitisation further constitutes violations of US Antitrust laws, because the American Asset-Backed Securities and Mortgage-Backed Securities markets are dominated by relatively few large entities such as FNMA (Fannie Mae), Freddie Mac, the top five investment banks (all of which have conduit programs), and the top five credit card issuers (MBNA, AMEX, Citigroup, etc.), etc.. As a consequence, the top five ABS/MBS issuers control more than 50% of the US ABS/MBS market. This constitutes illegal market concentration under US Antitrust legislation.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: assignment, Charles Cox, Christopher Story, conversion, disguised loan, Economic Intelligence Review, fraud, RICO, Securitisation, securitization, tax evasion, true sale, usury

Jan

Banks, Bailout and Billions – The ins & outs of "Securitization"

By LH | Bank/Lender Failures, Corporate Greed & Corruption, Foreclosure Defense Research, Government, Homeowner Resources

731 Comment2009-01-11+03%3A19%3A59LH

Ok, so let’s break this down a bit because the pundits and the politicians are each spinning this in their own direction and one has to have some serious fog lights to eat through the “haze” that these guys spin in. Throw in the fact that no one is really exposing the REAL issues here to see if the actual bailout plan will truly deal with the real issues.

First, we need something to be done. Let’s get past this. It is true our entire financial sector is going through the dry heaves here as there’s not much more it can throw up. The entire financial system is starting to seize up and the constant coverage on these issues is pumping fear into the system and the heart of every American and even the foreign markets. So, if we can all agree that all of us losing our pensions, retirement funds, stocks, money market funds, and more home value is not a good thing then we can move on to what the solution should look like fundamentally because we do need a big solution to right the ship.

To start, one must have a basic understanding of the root of the problem. Yep, you guessed it, the mortgage meltdown which has led to the foreclosure crisis. Financial institutions, mainly the largest banks and investment banks on Wall Street are essentially holding large pools of residential and commercial loans (notes and corresponding mortgages) that are, for all intents and purposes, worthless – right now. Worthless because they cannot find a buyer for these notes (loans) with the current state of affairs. We all know that these “assets” are worth something and probably a lot more than just “something” BUT, if you can’t find a buyer then it’s really hard to place any real value on them currently. The assets are literally “backed” by mortgages and, ultimately, the real estate they’re tied to. We know the homes are worth something. That’s obvious.

Without getting into a lot of complicated explanations, this is the root of the problem. Now, you need to understand the process of the mortgage market because this is EXTREMELY important in the entire crisis. Almost 100% of all residential and commercial loans made since the late ’90′s were made by a “bank” or “lender.” Almost immediately after closing (and often before closing), these lenders sold these loans in “pools” to an “aggregator” of loans. Ok, a little glossary break down here. A pool of loans is two or more loans combined into a package. Smaller lenders might sell a package or pool of 50-100 loans to larger lender. The larger lender might buy 30 pools of 100 loans from 30 different smaller lenders. Now they have 3000 loans that they pool together into one big pool. You with me so far???

Ok, next here’s what happens… a larger bank (Chase, Countrywide, Wachovia, GMAC, Homecomings Financial, Fremont, Option One, etc) then sells these 3000 loans to another entity. This “other” entity is often a subsidiary but sometimes not and this other entity is a “Sponsor” and usually a “Master Servicer” entity. This means that this company is going to be the servicer of these loans. A servicer is the company that is going to collect the monthly payments, manage the escrow accounts, etc. Now, most people think that this is who they owe the money to for the loan they have because they received that notice about 60 days after closing notifying them that the “Servicing” of their loans was being transferred to XYZ Company. Because they make the payments to this servicer they automatically assume that this is now their “lender.” Remember when I just said that these large pools are usually sold to subsidiaries of the large banks? Well, it’s no wonder that these Master Servicing companies have highly similar names. What’s the difference between “America’s Wholesale Lender” and “Countrywide Home Loans, Inc.?” Well, a lot and very little. Both do business as “Countrywide.” One is a lender and one is a Master Servicer. Confusing? Yes. Purposefully? Yes. If there is confusion in Wall Street, it’s on purpose because these guys aren’t “stupid.” Stay with me here…

So here’s what happens to this pool of 3000 loans. The Master Servicer then sells these same 3000 loans to a “Depositor.” What really and actually happens is a bona fide sale of all of these loans. Now, here’s an EXTREMELY important point, pay attention right here. When a “loan” is sold, what is really sold is the “Note.” The Note is sometimes called the “Promissory Note.” The Note is the only and real evidence of the debt. The ORIGINAL Note that is. That’s why you’ll sometimes here this called “selling the paper.” The paper debt, the NOTE, is the debt and has an actual value because you, the homeowner and borrower, have signed that note with your signature and pledged (promised) to pay that debt back. The MORTGAGE is what you give to the original lender (and any subsequent purchase of the Note) as “security” in case you don’t pay the debt back. The mortgage gives the owner of that Note the security (the home or property) and thus the right to foreclose if you don’t pay it back.

Now, this is important… the Mortgage doesn’t give just <i>anyone</i> the right to foreclose, It gives the actual OWNER of the Note the right to foreclose. The owner of the actual and original Note. Not a copy of the Note but the ORIGINAL note. This is a very important point that must be understood and grasped, by everyone, including the US Government. I think that it’s highly possible that this bailout package might be relieving financial institutions of defaulted debt even thought that same institution may not even have the actual Notes to evidence the defaulted debt. And, is it really defaulted? How do we know that these entities weren’t already paid for these Notes? It depends on exactly WHO they are bailing out but if it’s any entity other than the Trust, those entities have already been paid for the Notes!

Back to this pool of 3000 loans… so the Master Servicer has sold the 3000 loans to a Depositor for about 102.5% of the face value of these Notes. When a sale of these 3000 loans is made, the Depositor literally pays the seller of the loans a lump sum of money and the Master Servicer in turn hands over the Notes for that payment of money. And then this same Depositor sells the 3000 loans to a Trust and “deposits” (hence the name “Depositor”) these Notes into the Trust. The Trust pays the Depositor a lump sum of money and in return receives the Notes. The Master Servicer or “Servicer” gives the Notes, receives a lump sum payment and then promises to “pay” the trust a monthly payment on the money that the Trust paid it. This large monthly payment to the Trust is usually guaranteed by the Servicer and is an aggregate or sum of all of the individual 3000 borrowers who paid their monthly payment to that Servicer. The servicer collects all of those monthly payments, takes off their fees, disburses some of it to escrow accounts, etc. and then makes the payments to the Trust. The Servicers also have multiple layers of insurance that insure them against borrower defaults because the Servicers do in fact make representations and warranties on the monthly payments to the Trust that really owns these Notes.

This whole process is called “Securitization.” This is a simplified explanation of what happens. Through this Securitization process, these Notes are packaged into what’s called “Asset Backed Securities” or “Mortgage Backed Securities” in what’s called a CDO (Collaterlized Debt Obligation) and are sometimes called ABS or MBS Pools. The Depositor creates something called a “Special Purpose Vehicle” (SPV) to deposit these Notes into the SPV and then these Notes are sold and deposited into the Trust. The Trust is owned by all sorts of investors, individual and companies, pension funds, foreign investors. etc. They collectively own these Trusts. A “Trustee” acts as an Agent for the Trust and on behalf of the Trust in a fiduciary relationship.

So, now that you’re a securitization guru, let’s get the rubber to meet the road in all of this.

Here’s the real rub. I told you that, legally speaking, the only evidence of this debt (the loan) is the actual and original Note; and this makes sense! If not, anyone could create a Note, get a copy of your signature (which they can get in public records on the mortgage you signed and was subsequently recorded in public records), paste it on that created Note and allege that you owe them this money. Also, because this Note is changing hands some 3-6 times in the securitization process, everyone touching it can create a copy and allege you owe them the money even though they’ve already sold the original Note and have been paid for it by the new buyer! Just like a personal check, the Note has to be “Endorsed” to the new buyer of the Note by the Seller of that Note. They literally need to stamp on the last page of the Note, “Pay to the Order of Without Recourse” and then stamp or write in the name of the new buyer. On a bona fide Note, this is EXACTLY what you will see and find. Everytime this Note changes hands, it needs an actual endorsement.

So here’s what literally happening with ALL of these foreclosures… the Trusts are the actual owners of the majority of all of these Notes. Yes, the Trusts. A trust has a funky name such as Harborview Mortgage Loan Trust 2006-5 or Meritage Loan Trust 2007-2. There’s no such Trust named Countrywide Home Loans or Chevy Chase Bank or Citimortgage or GMAC Mortgage Co. or Residential Funding Corporation or Amtrust Bank or Fremont Investment and Loan or Option One Mortgage Co. – you get the point. All of these entities are either lenders or servicers. Period. They are NOT the Trusts that your loan and everyone’s loans were sold to. Don’t let anyone fool you. Over 98% of all loans made since 2000 were securitized in just the fashion I described above.

Now, I can only speak to the 100 or so foreclosure cases I have personally read the complaints on in Florida and a few in Ohio. In 100% of these foreclosure cases, the suit is being brought NOT by the Trust but by the servicer or the trustee. Both of these entities are agents for the Trust but they are NOT the owners of these Notes unless they show that they re-purchased that Note from the Trust. In about 70% of the foreclosure cases we have seen, the Plaintiff (usually the servicer) is also alleging that they have LOST THE NOTE or that is has been destroyed. No, that was NOT a typo or mistake. Well, if the Note is actually lost, they don’t have any actual evidence of the debt anymore.

So here’s the question to start asking your Congressman or Congresswoman, your State Senators, your Governor and every other politician that has any influence and may want to be re-elected… if the Federal Government is going to buy all of these non-performing or defaulted loans (ie. Notes), who are they actually going to buy them from? The Trusts or the Servicers?

And, if they can actually tell us this in plain language, are they actually going to buy the original Notes? Not a copy and not some affidavit from some $15/hour employee who is swearing that they saw the original note before it was actually lost or destroyed but the original Note?

I’m not kidding here. I’m seeing 70% of the cases allege a Lost Note! When they produce the Note, what this Servicer alleges is the original note is, in fact, only a COPY of the note and is NOT the original. Want to know how I know it’s NOT the original?

This is easy folks. The entire securitization process that any and all Notes are involved is and must be disclosed in filings with the SEC. Yes, every Note is involved a securitization. And this MUST be filed with the SEC. And in these filings with the SEC, these companies MUST disclose all of the parties involved in that process and what that “chain” of securitization actually follows. That chain MUST be evidenced on every single Note on the last page of that Note in the form of an endorsement. “Pay to the order of…” Every Note should have at a minimum of 2 endorsements and more likely, 4-5 endorsements. If a Servicer or an attorney for that Lender or Servicer produces a copy of a Note that they allege is the original Note, all one needs to do is look for those endorsements. If the endorsements don’t follow EXACTLY what they have already filed with the SEC, they got real problems folks. Either they are lying to the court (called fraud) or that Note is faulty in that the proper endorsements aren’t there and most likely, both are real legal issues.

Also, in these foreclosure cases, the Plaintiff (a Servicer or Trustee) is actually alleging that they have the RIGHT to foreclose and that they are the <u>owner and holder of the Note</u> (which gives rise to the right to foreclose). Now, us folks and attorneys who are wise to this charade know that they are NOT the owner of these Notes because they actually disclose these facts right in their SEC filings! But no judge in this country is going to or has the time to go and do fact checking on these issues and hold these Plaintiffs accountable to what they are alleging in their foreclosure lawsuits. 98% of all foreclosure filings go uncontested by the borrower. This means that 98% of the time, the foreclosure process is nothing more than a rubber stamp process with judges defaulting borrowers who don’t show up to defend themselves. The Servicing companies are getting away with highway robbery – rather, home robbery. Yes, this is happening. Entities like large banks and servicing companies are taking the homes of hard-working citizens and they do NOT own the mortgages or notes secured by that home. Yes, these homeowners owe the money to someone but that someone is NOT the actual owner of that Note. And, if I’m the homeowner, I’d like the opportunity to have a meaningful chance to work something out with the real owner. Because what happens in foreclosures is that the wrongful party gets the home in a foreclosure sale, puts it back on the market for sale and sells it for about 80-90% of its CURRENT VALUE! Now, why not keep that same homeowner in the house and let them pay 80-90% of it’s current value??? Heck, make it 100% of current value. Granted this won’t work 100% of the time but I’m betting at least 50% of the time and probably closer to 70% is realistic. We have large financial institutions wrongfully foreclosing, kicking people out of their flippin homes and flipping those homes to someone else for a bargain while the hard working homeowner goes down the block to rent another foreclosed home from an institution that wrongfully kicked that homeowner out most likely! What the heck is wrong with us folks? We gotta take stand on this. This is the definition of absurdity ten times over!

So, to bring this full circle in relation to the latest talk of Banks, Bailout and the 700 Billion to do it, I want to know exactly what our taxpayer dollars are actually going to buy? I think we have the right to know this. I want to make sure that the Federal Gov’t is going to buy actual Notes and yes, the originals, not some fraudulent copy. I don’t trust one of these banks… These guys have bilked billions out of us and after what I have seen in what they file, what they are alleging in these foreclosures, etc. I put nothing past them including purposefully “losing” notes so that they can sell them multiple times to multiple Trusts or investors. And now they’re whining for a bailout to the madness they’ve brought on us all. I can’t tell you how many people I’ve talked to that have tried desperately and in good faith to work something out with these thieves and they don’t even answer the phone! You wait on hold for 30 minutes to talk to someone half way around the world who tells you to fill out 10 pages of information, fax it in and someone will get back to you – which never happens!!!

Folks, knowledge of these facts and issues is what we all need to make sure we can and do hold our government and these politicians to some sort of order and accountability before we just bail out one more flippin company!

Hope this helps educate you on the real happenings in this big convoluted mess we’re all in. If nothing else, you can now impress your cohorts at the water cooler with some sophisiticated mortgage speak.

Lane Houk

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ARE THEY LOSING MONEY ON FORECLOSURES?

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