Aug
29

Lakeside Bank, St. Charles, La — The Way Banking Should Be

Editor’s Comment: Only one Bank has failed in Louisiana since the financial crisis began. And only one bank in the United States has commenced operations in the year 2010 — this one in Louisiana. Despite an unofficial moratorium on new bank charters of 70-year-old retiree, Hartie Spence, managed to navigate the regulations and got the only new start-up bank to open in the country, operating out of a secondhand double wide trailer.

The probable reason for the apparent safety of banks in the state of Louisiana is the rampant poverty. But it shows that even where people have very little money the financial system can be stable as long as outsiders don’t meddle in their financial affairs. Louisiana was a bad target all Wall Street and thus avoided the absurd fraudulent increases in appraisal values that lie at the core of the financial crisis. Landing was based upon the actual value of the property, the willingness of a lender to take the risk, and the ability of the borrower to repay.

For hundreds of years that was the lending model and obviously the only one that makes any sense. For 10 years that model was turned on its head in places other than Louisiana where lenders were not lenders, where inflated appraisal values were a good thing, and where the ability of borrowers to repay a loan was obstructed by layers of unknown entities never disclosed at the time of closing and obstructed by exotic terms and presumptions that were plainly wrong but which work to the benefit of the intermediaries who had arranged for the funding of the loan from investors and the buying of the loan product by unwitting borrowers.

I don’t know anything about this particular bank other than what I have read. I don’t know the people in it and I don’t know their business model. But in an economy where new bank charters are being discouraged, and new start-ups of any kind of business are made increasingly difficult while the government aids the large corporations and financial institutions that got us into this mess, I think this bank deserves the support not only of its own community but anyone who is looking for a new banking relationship. Between the Postal Service, the Internet and the telephone your bank can be anywhere.

August 28, 2010

In Hard Times, One New Bank (Double-Wide)

By ANDREW MARTIN

LAKE CHARLES, La. — The only new start-up bank to open in the United States this year operates out of a secondhand double-wide trailer, on a bare lot in front of the cavernous Trinity Baptist Church. A blue awning covers the makeshift drive-through window.

Called Lakeside Bank, it is run by a burly and balding former tackle for Louisiana State’s football team named Hartie Spence, who doles out countrified humor along with deposit slips and the occasional loan.

“This is the one place where the cause of death is mildew,” he quipped, standing outside the trailer in withering heat.

Asked how his bank in this steaming town of oil refineries and oversize casinos managed to win over federal regulators, Mr. Spence, 70, said, “I’m still thinking it’s my looks that did it.”

The dearth of new banks follows a particularly wrenching period for the industry. As the financial crisis deepened, hundreds of banks and thrifts closed and thousands more were saddled with bad loans and credit card defaults, costing the industry billions of dollars.

As a result, the number of investor groups applying to start a new bank from scratch has dropped precipitously. And for the intrepid few who have tried, regulators — sharply criticized for lax oversight in recent years — are being particularly stingy in granting approval.

So far this year, Mr. Spence holds the privilege of opening the only truly new federally insured bank. (In seven other instances, investors received regulatory approval to buy an existing bank, usually one that had failed, and reopen it).

Of course, many of the nation’s biggest banks were bailed out by the government, and have since rebounded. But since January 2008, more than 280 smaller banks and thrifts have been closed, and many community banks are struggling to recover from the real estate collapse.

Those bank failures have cost the Federal Deposit Insurance Corporation’s fund roughly $70 billion, and not surprisingly, the agency’s regulators are now giving greater scrutiny to new bank applications, according to bankers and industry officials.

Technically, banks obtain charters from their primary regulatory agency, either state banking regulators or, for national banks, the Office of the Comptroller of the Currency. But the charters are contingent on the applicants’ obtaining deposit insurance from the F.D.I.C.

The F.D.I.C. said the reduction in charters simply reflects the effects of the recession on new businesses. “There was considerable interest in forming banks before the economy deteriorated,” said an agency spokesman, David Barr. “In today’s climate we are seeing very little interest.”

However, last year the agency toughened its oversight of new banks, saying banks that had been open for fewer than seven years were “over represented” among failed banks in 2008 and 2009.

The reason, the agency said in a public release, is that many new banks strayed from their approved business plans and ran into problems because of “weak risk management practices,” among other problems.

Ralph F. “Chip” MacDonald III, a lawyer in Atlanta who advises banks on regulatory matters, said he believed the F.D.I.C. had imposed an “unofficial moratorium” on new bank charters, a charge that the agency denies.

Adam Taylor, president of the Bank Capital Group, an Atlanta company that helps investors set up new banks, said he had several recent clients, whom he declined to name, withdraw applications for new banks after it became clear that the F.D.I.C. would not approve them. He said the agency rarely denies charters — a fact confirmed by agency records — but that it places the applications in “purgatory” until the applicants give up.

The number of banks and thrifts — also known as savings and loans — in the United States has been declining steadily for 25 years, because of consolidation in the industry and deregulation in the 1990s that reduced barriers to interstate banking. There were 6,840 banks and 1,173 thrifts last year, down from 14,507 banks and 3,566 thrifts in 1984.

The number of charters has generally declined too, though there have been periodic swings. The lowest number of bank charters granted in any one year was 15, in 1942.

How, then, did Lakeside Bank win this year’s regulatory lottery?

Mr. Spence’s looks aside, he said that regulators were not ready to grant approval until Lakeside had raised enough capital, created a sufficiently conservative business plan and hired an experienced management team.

The initial idea for Lakeside Bank came from a local real estate developer, Andrew Vanchiere, who was dissatisfied with his existing bank. In 2007, he rounded up a group of local businessmen who set about raising $13 million in start-up capital and began looking for someone to run the bank.

The initial candidates were deemed too inexperienced by regulators. When the group contacted Mr. Spence in 2008, he was a few months into retirement and coming to the realization that fishing for trout and redfish just wasn’t enough to keep him occupied.

“I was bored absolutely stiff,” said Mr. Spence, who had successfully run several Louisiana banks during his career. “My response was, ‘Let’s do it!’

“You can manage a good bank in a bad economy, particularly when you are at the bottom,” he said. Noting that he has a clean balance sheet and can be selective about making loans, he added, “I thought it was a perfect time to be starting.”

Lakeside’s application was also helped by the surprising vitality of Lake Charles, a city of 72,000 roughly 30 miles from the Texas border. Lake Charles has gotten a boost from casino gambling and the oil and gas industry, as well as an infusion of new businesses, including liquefied natural gas terminals and a new plant that builds parts for nuclear reactors.

Louisiana, meanwhile, has fared better than many states during the economic downturn because of the petroleum industry and the infusion of government and insurance money to pay for damages from Hurricanes Katrina, Rita and Ike.

Only one bank has failed in Louisiana since the financial crisis began.

Regulators made it clear that Lakeside would not be approved if other banks in town were struggling to stay afloat, Mr. Spence said. But Lakeside, which opened on July 26, sits on a busy boulevard lined with about a dozen or more banks or credit unions, all of which appear to be thriving.

“There’s enough for all of us, and we are no threat to them for many, many years,” Mr. Spence said of his competitors.

Lakeside Bank is promoting itself as an old-fashioned community bank that focuses on customer service and bread-and-butter banking products, even though it also makes them available online.

Whereas loan decisions for many big banks are made in distant cities, Mr. Spence said that Lakeside will make them right there in the double-wide trailer, at least until the bank moves into a more permanent structure in a year or two.

“That’s our motto, ‘The Way Banking Should Be,’ ” he said, adding later, “It got rushed enough yesterday that I had to answer the phones and work the switchboard.”


Filed under: community banks Tagged: ANDREW MARTIN, FDIC, Harties Spence, Lakeside Bank, Louisiana, moratorium, Ny Times, St. Chales
Aug
13

Mortgage bond holders taking collective action

SHELL GAME CONTINUES. WHO HAS THE BOND? WHO HAS THE RECEIVABLE? WHO HAS THE SECURITY INTEREST? WHO IS GETTING PAID? WHERE ARE THE MONTHLY PAYMENTS GOING? FANNIE MAE AND FREDDIE MAC ARE BIG PLAYERS, AS IS THE FEDERAL RESERVE. ARE THEY THE ONES REALLY FORECLOSING UNDER COVER OF SECURITIZATION?

EDITOR’S NOTE: Another entry under the category of “I told you so.” Sooner or later the investors were going to figure out that they had real claims against the investment bankers and other intermediary entities in the illusion of the securitization chain, together with the servicers and other players at the loan closing. Not long ago investors would not talk with each other. Now they are banding together. Things change. This development will lead to further unraveling of the factual constipation that those players arrogantly thought they keep a lid on. The inevitable and only logical outcome here is the entry of real facts portraying the reality of these transactions.

The current reality is very simple: the investors were tricked, the borrowers were tricked, and the intermediaries took all the money. The ONLY way this can be fixed from a National perspective is to bring the borrowers and the investors together, realizing that they both have the same interests — recovery from their financial ruin. Investors need to bring certainty to what is left of their “investments.” They need to know the value of their investments and how best to recover that value. Without that they can’t bring a specific action for damages. Without that they can’t fire the intermediaries and get an honest deal launched with borrowers on property that just isn’t worth what was advertised.

There is no way to avoid principal reduction in some form because it is already there. The value is down to where it should have been at the beginning and it isn’t going up. Investors, sellers,, buyers and borrowers need to accept this fact and government, including the judiciary, need to realize that this wasn’t normal market movement, this was cornering the market and manipulating it. The investors will prove that in their own lawsuits.

A direct approach from investors to borrowers will eliminate the ridiculous fees being sucked out of what is left of these deals, and allow the investors to recoup far more than  what they are being offered. Most homeowners would be willing to accept a principal reduction that splits the loss fairly between the investors and borrowers if they were able to get fair terms.

The difference is night and day. What would have been zero recovery for the investor could be as much as $100,000 or more in a genuine modified or new mortgage. And with cooperation between borrower and investors the security interest, which is in my opinion completely invalid and unenforceable, could be perfected, title cleared and the marketplace renewed with confidence in contract , property laws and the rights of consumers and investors. Community banks could fund the new mortgages  giving the investors an immediate exist or the investors could hold the paper through REAL special purpose vehicles that were REALLY created and REALLY existing.

Mortgage bond holders get legal edge; buybacks seen

// // //

//

// // //

//

//

Wed Jul 21, 2010 2:44pm EDT

By Al Yoon

NEW YORK July 21 (Reuters) – U.S. mortgage bond investors have quietly banded together to gain the long-sought power needed to challenge loan servicers over losses the investors claim resulted from violations in securities contracts.

A group holding a third of the $1.5 trillion mortgage bond market has topped the key 25 percent threshold for voting rights on 2,300 “private-label” mortgage bonds, said Talcott Franklin, a Dallas-based lawyer who is shepherding the effort.

Reaching that threshold gives holders the means to identify misrepresentations in loans, and possibly force repurchases by banks, Franklin said.

Banks are already grappling with repurchase demands from Fannie Mae and Freddie Mac, the U.S.-backed mortgage finance giants.

The investors, which include some of the largest in the nation, claim they have been unfairly taking losses as the housing market crumbled and defaulted loans hammered their bonds. Requests to servicers that collect and distribute payments — which include big banks — to investigate loans are often referred to clauses that prohibit action by individuals, investors have said.

Since loan servicers, lenders and loan sellers sometimes are affiliated, there are conflicts of interest when asking the companies to ferret out the loans that destined their private mortgage bonds for losses, Franklin said in a July 20 letter to trustees, who act on behalf of bondholders.

“There’s a lot of smoke out there about whether these loans were properly written, and about whether the servicing is appropriate and whether recoveries are maximized” for bondholders, Franklin said in an interview.

He wouldn’t disclose his clients, but said they represent more than $500 billion in securities managed for pension funds, 401(k) plans, endowments, and governments. The securities are private mortgage bonds issued by Wall Street firms that helped trigger the worst financial crisis since the 1930s.

Franklin’s effort, using a clearinghouse model to aggregate positions, is a milestone for investors who have been unable to organize. Some have wanted to fire servicers but couldn’t gather the necessary voting rights.

“Investors have finally reached a mechanism whereby they can act collectively to enforce their contractual rights,” said one portfolio manager involved in the effort, who declined to be named. “The trustees, the people that made representations and warranties to the trust, and the servicers have taken advantage of a very fractured asset management industry to perpetuate a circle of silence around these securities.”

Laurie Goodman, a senior managing director at Amherst Securities Group in New York, said at an industry conference last week, “Reps and warranties are not enforced.”

Increased pressure from bondholders comes as Fannie Mae and Freddie Mac have been collecting billions of dollars from lender repurchases of loans in government-backed securities. With Fannie and Freddie also big buyers of Wall Street mortgage bonds, their regulator this month used its subpoena power to seek documents and see if it could recoup losses for the two companies, which have received tens of billions in taxpayer-funded bailouts.

Some U.S. Federal Home Loan banks and at least one hedge fund are looking to force repurchases or collect for losses.

Investors are eager to scrutinize loans against reps and warranties in ways haven’t been able to before. Where 50 percent voting rights are required for an action, the investors in the clearinghouse have power in more than 900 deals.

Franklin said the investors are hoping for a cooperative effort with servicers and trustees. While he did not disclose recipients of the letter, some of the biggest trustees include Bank of New York, US Bank and Deutsche Bank.

A Bank of New York spokesman declined to say if the firm received the trustee letter. US Bancorp and Deutsche Bank spokesmen did not immediately return calls.

“You have a trustee surrounded by smoke, steadfastly claiming there is no fire, and what the letter gets to is there is fire,” the portfolio manager said. “And we are now directing you … to take these steps to put out the fire and to do so by investigating and putting loans back to the seller.”

Servicers are most likely to spot a breach of a bond’s warranty, Franklin said in the letter.

Violations could be substantial, he said. In an Ambac Assurance Corp review of 695 defaulted subprime loans sold to a mortgage trust by a servicer, nearly 80 percent broke one or more warranties, he said in the letter, citing an Ambac lawsuit against EMC Mortgage Corp.

The investors are also now empowered to scrutinize how servicers decide on either modifying a loan for a troubled borrower, or proceed with foreclosure, Franklin said. Improper foreclosures may be done to save costs of creating a loan modification, he asserted. (Editing by Leslie Adler)


Filed under: bubble, CASES, CDO, CORRUPTION, evidence, expert witness, foreclosure, foreclosure mill, foreign relations, GTC | Honor, HERS, investment banking, Investor, Mortgage, securities fraud, Servicer, trustee Tagged: borrower, disclosure, discovery, foreclosure, foreclosure defense, fraud, HERS, Lender Liability, Mortgage, predatory lending, rescission, securitization
Aug
09

FACTUAL CONSTIPATION: THE URGE TO NOT DISCLOSE

EDITOR’S NOTE:   FACTUAL CONSTIPATION is our current state of reality. It is the universal strategy across the board from Wall Street, the pretender lenders, servicers, and all other intermediaries in the gross illusion known as “securitization” of debt. We can’t get the information in court from Judges who can’t or won’t allow the inquiry, we can’t get the information using federal statutes (TILA, RESPA, UDCPA) that were specifically written with teeth to allow us to find out the identity of the creditor and to get a full accounting of all debits and credits related to our obligation, and we can’t examine the skeletons in the closets of Wall Street investment banking firms, the rating agencies, the counterparties in credit enhancements, or the insurers.

We are left with naked “assurances” from the same sources that created awesome illusions of wealth in the minds of the people they were robbing. No proof required. And if the “creditors” found a way to get paid AND take the house, that’s OK too. And if the actual creditors did not get paid, but their agents collected insurance and other proceeds amounting to multiples of what the investors actually received — that is a matter for the creditors to work out. Obligation extinguished? No problem, enforce it anyway!! Receivables from obligation assigned to multiple sources of cash WITHOUT the mortgage? No problem, foreclose anyway in the name of some party who never had a dime in the deal.

You say you’re a trust but you have no trust documents or any evidence of your existence? No problem! You say the loan was securitized into a pool where the documents show co-obligors added to the obligation. No Problem! Forget those insurance policies whose premiums were paid from proceeds of the investor lending money to the borrower. Why should that count for anything? So what if it is in the note that the borrower signed! So what if it isn’t in the bond that the investor received! So what if all the documents you have were freshly printed  fabricated and forged the morning of the hearing in court? This is big business. The little guy doesn’t get to win, no matter what the law says and no matter what was done to him. And if that undermines our country’s strength and national security, so much the better for those who would take over lock, stock and barrel.

Just how close do we have to get to the legal nightmare of unmarketable title for most residential and commercial property in the United States before we start addressing reality? The Judicial branch of government, the last bastion of protection of the constitution and our whole body of laws has failed miserably in the basic requirements of law, procedure, fairness and equity. A handful of Judges have clearly stated that upon closer scrutiny of the documents submitted to support foreclosure, they don’t hold up to even basic elements of proof or evidence. Some State Supreme Courts have issued opinions on the same thing. Sanctions have been issued against major names like Wells Fargo and Bank of America for misrepresenting themselves as the creditor. Settlements for hundreds of millions of dollars are being paid to investors who advanced the funds for the loans to borrowers. Where is the allocation of that money to reduce the obligation? If they received the money, why is it still owed?

WHAT IS SO DIFFICULT ABOUT THIS? EITHER WE HAVE A CLEARLY DEFINED BORROWER, OBLIGATION, CREDITOR, AND BALANCE DUE OR WE DO NOT. IF NOT, THE BURDEN IS ON THE PARTY SEEKING FORECLOSURE TO CORRECT IT. IF YES, THE FORECLOSURE PROCEEDS. WE ALL KNOW THIS — WHY ARE WE NOT FOLLOWING LAW THAT IS ESTABLISHED FOR CENTURIES?

The fact remains that our government not only regulates these entities and has huge powers of subpoena and other investigation tools, but is now a significant shareholder, if not the major shareholder of most of these entities. The current plans to disengage the US government from ownership in these entities under the guise of giving back to the taxpayers their money, merely enlists the government as a co-conspirator in withholding essential information from both claimants and policy makers.

AIG and the rating agencies lie at the root of the mortgage bond and mortgage security ripoff that brought down the economy of the nation, the states, the cities, counties and even neighborhoods. And it was the fraud and nondisclosure at the top that enabled and encouraged the fraud and nondisclosure at the bottom––where unsuspecting borrowers who were totally ignorant of the complexities of Wall Street “innovations” signed documents that in most cases did not represent the deal that was offered to them, nor even a transaction that could ever have been completed. The misinformation leading to the ridiculous valuations of mortgage-backed securities was identical to and part of the plan of misinformation and ridiculous valuations of the underlying property values.

Unless and until the reality of the situation is fully disclosed and we are relieved of the mental and factual constipation that is being perpetuated by the courts and by government policy, we cannot effectuate a remedy to an economic nightmare that continues everyday. Our economy can be fixed, but not by  participating in a cover-up plan. Here is the truth: all the money is sitting on Wall Street, which continues to report high profits, Grant high bonuses, and incredibly comes up with hundreds of billions of dollars to “repay” the American taxpayers out of money stolen from those same taxpayers.

Here is the remedy: restore the American taxpayer and the American homeowner to the positions they were in before the fraud. This means a transfer of wealth back to those who have been reduced to poverty or simply untenable financial condition. It means reducing the clout of Wall Street from being 40% of our GDP back to 16% of our GDP where it belongs. The other 24% was mere illusion covering up the fact that we were in fact producing no goods or services of value.

This restoration is not a gift anymore than returning the purse to a woman from a thief that snatched it. Anything less, will leave us with a perpetual state of unemployment, under employment, lack of innovation and lack of prospects. Anything less will leave us falling further and further behind the other countries of the world and further behind the American dream. The question is whether we allow a twisted ideology and bad politics to award the thief with the purse or decide that we a nation of laws where we punish the thief and return the purse.

August 6, 2010
A.I.G. in Talks to Pay U.S. Debt, Chief Says

By MICHAEL J. de la MERCED

The American International Group has begun talks with the federal government over how to finish repaying its $130 billion taxpayer-financed bailout, its chief executive said on Friday.

Separately, he said, the company was making progress toward a potential sale of its consumer finance unit, one of several divisions it planned to shed as part of its turnaround.

“We’ll make sure taxpayers get paid back in full, and they will,” the executive, Robert H. Benmosche, said in an interview on Friday, as the company reported financial results that seemed to signal progress toward the repayment goal. “They’ll get paid back at a profit.”

The company reported a $2.7 billion loss for its second quarter, but the loss stemmed from a $3.3 billion charge related to the sale of a major international unit to MetLife. Excluding the charge, A.I.G. reported $1.3 billion in profit and $2.2 billion in operating income. Both figures showed improvement over the same time last year.

Mr. Benmosche, approaching his first anniversary as A.I.G.’s chief, has embarked on an aggressive campaign to sell off businesses, making the company much smaller than it was at the height of the financial crisis, when it faced possible collapse.

Along the way, Mr. Benmosche has clashed with some of the company’s overseers, including Harvey Golub, who stepped down as A.I.G.’s chairman last month. The company replaced Mr. Golub with Robert S. Miller, a turnaround expert with whom Mr. Benmosche said he worked well.

A.I.G. has begun holding talks with the Federal Reserve about ways to pay down its credit line, which had $20.5 billion outstanding as of June 30, plus an additional $6 billion in accrued interest and fees.

Already, the company is moving forward with the sale of two units: the American Life Insurance Company, an overseas insurance business, and Nan Shan, a Taiwanese life insurance company. It is also on track to sell American International Assurance, its Asia life insurance business, in an initial public stock offering.

A.I.G. is also accepting bids for its consumer lending unit, American General Financial Services, and hopes to announce a sale sometime this month, Mr. Benmosche said.

The stakes of the turnaround strategy are high: only after shedding its reputation as a ward of the state can A.I.G. again flourish as a company, Mr. Benmosche said. So long as questions remain about its dependence on government borrowings, the insurer could be hard-pressed to tap the stock and credit markets for fresh capital, he said.

Once the debt is paid off, Mr. Benmosche said, the company can hold serious negotiations with the Treasury Department about the government’s shedding of its nearly 80 percent stake in A.I.G. One option is to convert the government’s preferred shares into common stock that can be sold off over time, as is happening with Citigroup. Mr. Benmosche did not give a timeline for any possible sale.

“What’s important is that we have to get it right,” he said. “We have to make sure that we’re not leaving a lot on the table.”

Meanwhile, A.I.G. has made big strides in the businesses it is keeping, Mr. Benmosche said. Investment income in both its general and domestic life insurance operations is up, and while revenue from premiums written has fallen, that was in part because A.I.G. refused to cut its prices too far.

“A year ago, analysts were talking about a potentially enormous erosion of our business,” he said. “We have in fact been very successful in retaining business.”

Mr. Benmosche said that earlier this year, he visited 50 of A.I.G.’s biggest customers, and described the feedback as positive. So long as the company continued to make progress in paying back the government, customers indicated that they would most likely stay put, he said.

Another major A.I.G. business, the aircraft leasing company International Lease Finance Corporation, plans to raise up to $4 billion from the debt markets to help pay off a lifeline extended by the Fed. It also recently named a new management team led by Henri Courpron, a former Airbus executive.

The company is continuing to wind down A.I.G. Financial Products, the unit whose deteriorating credit-default swap business was at the center of the 2008 financial crisis. A.I.G. said on Friday that the unit had reduced the notional amount of its supersenior credit-default swap portfolio by 51 percent from Dec. 31, 2009 to June 30, to $89.5 billion.


Filed under: foreclosure Tagged: AIG, Benmosche, MetLife, RESPA, TILA, UDCPA
Jul
29

No Mediation Without True Lender

EDITOR’S NOTE: It wasn’t so long ago that I had to practically pulled teeth to get her attorneys to agree with the proposition that nearly all of the foreclosures were fake.  Matt Wiedner seems to have his finger on the pulse of what is really happening. I think the most important feature of this article is that mediation is a farce unless the real parties in interest are in the room. It’s really the same issue as we encounter in litigation: STANDING. The fact remains that the great mortgage sting leading to the great recession is still very much in progress. It starts with the servicing companies along with other intermediaries that have no financial interest in either the loan or any mortgage bond purporting to claim ownership of the loan. They have a vested interest in making certain that the home goes all the way through the process of foreclosure because for them that is where the money is. By the time they are done with the foreclosure process they have imposed so many fees, costs and surcharges that there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded.


When these intermediaries intervene in the process of foreclosure, modification, short sale, or mediation they are merely creating the appearance of good faith when in fact they have no business being involved at all. They continue to waste the time of everyone involved in the process. They are successful in creating the illusion that they are the right people to conduct negotiations or litigation. In fact, their only interest lies in obstructing the process long enough to impose fees that eliminate any value of the loan and eliminate any possibility  of a conclusion in which the homeowner is able to achieve a reasonable settlement with the real lender.


Investors, borrowers, and attorneys should aggressively act to enforce the obligation of the party alleging that it is the lender to prove that it is in fact the lender. You can start with a simple question to the company that services the mortgage. To whom have you been paying the borrower’s monthly loan payments? Then ask for proof. Chances are they will do almost anything to avoid answering that question. It is is a simple question. I think that there are many judges that would find it difficult to understand why any “lender” or servicing entity objected to answering that question. It goes to the heart of jurisdiction and to the heart of the illusion which thus far has been successfully created in the minds of most judges and many lawyers.

Matt Weidner Blog
Today, July 28, 2010, 2 hours ago

Fight The Mortgage Servicers Who Bring These Foreclosure Actions
Today, July 28, 2010, 2 hours ago | Matthew D. Weidner, Esq.
The vast majority of foreclosure cases are brought not by the real
parties that have any interest in the outcome of the litigation, but
by nominal, shell Plaintiffs that have been propped up by the
investors or the real parties in interest to pursue the litigation.
Because the vast majority of foreclosures go undefended, this
important point is missed in the vast majority of cases.  While it may
be missed in cases, the consequences of this phenomena are profound
and broad reaching.

The failure to identify what parties are really at risk in litigation
prevents courts, policy makers, investors and the general public from
knowing who stands to win or lose in litigation.  Concealing the
identity of the real party in interest allows those who made bad
decisions to shirk their responsibility in the litigation, a fact that
is more important when their conduct could very well make them
complicit in creating the situation that led to the litigation.  On a
very practical level, litigation pursued by servicers probably
prohibits effective settlement or mediation discussions because they
lack the risk of loss that forces effective resolutions.  The
consequences of this are played out hundreds of thousands of times a
day as homeowners try futilely to negotiate a short sale or
modification with the lender.  This is especially important now that
circuits across the state are rolling out mediation programs.

FORECLOSURE MEDIATION IS NOT GOING TO WORK UNLESS THE REAL PARTIES IN
INTEREST ARE IN THE COURTROOM

The fact that mediations are not going to work until we have real
players at the table will be borne out in the months to come.
Certainly borrowers will share some of the blame for not actively
participating in the mediation and settlement discussions, but at the
end of the day, another bank owned property is a loss for all parties
involved….there are too many of these properties already.

The key to addressing this problem is to first attack the Plaintiff’s
capacity.  The first part of the attack is the fact that most
Plaintiffs are never properly identified in the lawsuit.  Courts must
begin to demand knowing just exactly where this company comes from
that is bringing this action.  Courts must begin to ask, “Who am I
about to grant this $250,000 judgment to?”  then not let the case
proceed until they have a very clear answer to that question.

Our State Division of Corporations or Department of Financial Services
must begin to demand registration of all these nominal and real
plaintiffs.  Specific laws are already on the books that demand
registration of foreign corporations and of all trusts, but these
registration requirements are being totally ignored.

OUR STATE IS IGNORING MILLIONS OF DOLLARS IN TAX REVENUE AND FAILING
TO PROVIDE APPROPRIATE REGULATORY OVERSIGHT BY IGNORING THESE LAWS.

Once the nominal plaintiff is properly identified, it’s time to demand
proof that they have the authority to maintain the litigation on
behalf of the real party in interest.  This too is addressed by the
capacity argument, but you must also be thinking about this in the
context of preparing discovery, because the proof demanded will come
in the form of the Plaintiffs responses to the discovery requests.

I have previously attached my capacity Motion to Dismiss and I can
tell you that when the facts support this Motion, it is nearly
impossible for the Plaintiffs to wiggle their way around.  Even the
most bank-friendly judge will have problems denying this Motion and if
the motion is denied, it sets up a very significant summary judgment
or appeal issue. I’m going to work on this motion again to put some
more recent circuit court cases into it, but as I’ve stated before…

CAPACITY IS A CASE KILLER!

Keep up the good fight!


Jake Naumer  Union Capital
Licensed Financial Advisor
3187 Morgan Ford
St Louis Missouri 63116
314 961 7600
Fax Voice Mail 314 754 9086


Filed under: foreclosure
Jul
15

INDYMAC EXECS SUED BY THE FDIC

Well you have to give credit to Sheila Baer> She gets it. Here she is going after the IndyMac executives for making loans to developers that they knew would not be repaid. It is the first time that an important agency has recognized the link between the malfeasance of the originating lenders, the securitization intermediaries and the developers.

It is central to the issue of appraisal fraud. Anyone who moved into a new development knows that the developer was raising prices like crazy to create a a sense of urgency on the part of borrowers. Those prices from the developers were used an excuse to inflate the appraisals ona continual basis, so that a house of exactly the same model and features would be appraised one month for $350,000 and then a month later for $375,000 or more.

The developers knew they could do this because they knew the “lender” would approve it. It was a classic dysfunctional dance in which everyone was lying to everyone else. And everyone, except the borrower and the investor-lender knew it. Thus suits against the developer, especially those with mortgage offices on premises, can be expected to rise by both private actions and public actions from regulatory agencies and law enforcement. It was fraud.

INDYMAC EXECS SUED BY THE FDIC
Posted on July 13, 2010 by Foreclosureblues
latimes.com/business/la-fi-indymac-fdic-20100714,0,4893259.story

latimes.com
FDIC sues four former IndyMac executives
The agency accuses the managers of the defunct bank’s Homebuilder
Division of acting negligently by granting loans to developers who
were unlikely to repay the debts.
By E. Scott Reckard, Los Angeles Times

July 14, 2010

Launching a new offensive against leaders of failed financial
institutions, federal regulators are accusing four former executives
of Pasadena’s defunct IndyMac Bank of granting loans to developers and
home builders who were unlikely to repay the debts.

The lawsuit by the Federal Deposit Insurance Corp. alleges that the
IndyMac executives acted negligently and seeks $300 million in
damages.

It is the first suit of its kind brought by the FDIC in connection
with the spate of more than 250 bank failures that began in 2008.
Regulators said it wouldn’t be the last.

“Clearly we’ll have more of these cases,” said Rick Osterman, the
deputy general counsel who oversees litigation at the agency.

The FDIC has sent letters warning hundreds of top managers and
directors at failed banks — and the insurers who provided them with
liability coverage — of possible civil lawsuits, Osterman said. The
letters go out early in investigations of failed banks, he added, to
ensure that the insurers will later provide coverage even if the
policy expires.

The four defendants in the FDIC lending negligence case, who operated
the Homebuilder Division at IndyMac, collectively approved 64 loans
that are described in the 309-page lawsuit.

They are:

•Scott Van Dellen, the division’s president and chief executive during
six years ending in its seizure;

•Richard Koon, its chief lending officer for five years ending in July 2006;

•Kenneth Shellem, its chief credit officer for five years ending in
November 2006;

•William Rothman, its chief lending officer during the two years
before the seizure.

Through their attorneys, they vigorously denied the allegations.

“The FDIC has unfairly selected four hard-working executives of a
small division of the bank … to blame for the failure of IndyMac,”
said defense attorney Kirby Behre, who represents Shellem and Koon.
“We intend to show that these loans were done at all times with a
great deal of care and prudence.”

Defense attorney Michael Fitzgerald, who represents Van Dellen and
Rothman, said no one at the company or its regulators foresaw the
severity of the housing crash before it struck, and that IndyMac was
one of the first construction lenders to pull back when trouble struck
the industry in 2007.

Fitzgerald added that the FDIC thought Van Dellen trustworthy enough
that it kept him on to run the division after the bank was seized.

The suit naming the IndyMac executives was filed this month in federal
court in Los Angeles, two years after the July 2008 failure of the
Pasadena savings and loan. The bank is now operated under new
ownership as OneWest Bank.

IndyMac, principally a maker of adjustable-rate mortgages, was among a
series of high-profile bank failures early in the financial crisis
that were blamed on defaults on high-risk home loans and the
securities linked to them.

But the majority of failures since then have been at banks hammered by
losses on commercial real estate, particularly loans to residential
developers and builders — and IndyMac had a sideline in that business
as well through its Homebuilder Division.

The suit alleges that IndyMac’s compensation policies prompted the
home-building division to increase lending to developers and builders
with little regard for the quality of the loans.

“HBD’s management pushed to grow loan production despite their
awareness that a significant downturn in the market was imminent and
despite warnings from IndyMac’s upper management about the likelihood
of a market decline,” the FDIC said in its complaint.

An investigation of IndyMac’s residential mortgage lending practices
could lead to another civil suit, potentially naming higher-up
executives, attorneys involved in the case said.

Separately, a criminal grand jury investigation into the actions of
IndyMac executives continues, according to a knowledgeable federal
official who was not authorized to publicly discuss the investigation.

The bank, known mostly for providing home loans without requiring
proof of income from borrowers, had operated its builder-loan division
since 1994.

The lawsuit said IndyMac had about $900 million in land acquisition,
development and construction loans on its books when the bank
collapsed. Losses on the portfolio are expected to total $500 million
— minus whatever the FDIC can recover through litigation.

The FDIC’s Osterman said the government recovered about $5.1 billion
from former bank and thrift executives and their outside professional
advisors after the last major financial crisis devastated the savings
and loan industry in the 1980s. Most of the money came from insurers
that had written policies covering bank directors and officers against
negligence or other misdeeds.

Because the warnings of possible lawsuits are mailed out during the
early stages of investigations, it’s frequently decided later that the
cases aren’t strong enough to bring or aren’t likely to be
cost-effective and so are dropped, Osterman said.

FDIC spokesman David Barr said the agency generally had three years
from the date of a failure to file civil cases.


Filed under: foreclosure Tagged: appraisals, developers, FDIC, INDYMAC, Sheila Bair
Jul
15

New York Presses Banks on Foreclosures

It is gratifying to see state officials taking a proactive stance. As comptroller, Mr. Liu should consider the details, however. The fact remains that modifications are largely a sham. The only lender of record is the usually the originating lender. The parties charged with modification have little or nothing to say or do about modifications.

What is necessary is for Mr. Liu and other officials to study this issue and perhaps read the Big Short by Lewis. Until they realize that this can never be as simple as they want it to be, and that the mortgage mess is a train wreck still in process, it will be impossible to have meaningful modifications of mortgage in which the investors are protected to the maximum possible extent and the homeowners are protected as well. Principal reduction is only a bad thing from the prospective of the intermediaries who actually have been receiving all the money but actually have no financial interest in these mortgages.

From the prospective of those who actually have money at risk that was advanced for the funding of loans principal reduction is the answer for them as well as the borrowers. It is only when the investors step in directly and settle these mortgages that they will get anywhere near what is needed to mitigate their losses. Leaving it to the intermediaries who cheated them in the first place, is only allowing the the diversion of funds and the distracting misapplication of funds and documents to the detriment of the investor-lenders.

July 13, 2010

New York Presses Banks on Foreclosures

By STEVEN GREENHOUSE

Hoping to succeed where Washington has largely failed, New York City’s comptroller, John C. Liu, and six large unions plan to begin a campaign on Wednesday to press the biggest banks to do more to prevent foreclosures in the New York area.

Mr. Liu said the group would send Citigroup, JPMorgan Chase, Bank of America and Wells Fargo, among others, a letter that criticizes them for dragging their feet on modifying mortgages that are underwater or delinquent, and that urges them to do “everything possible” to avert foreclosures.

Depending on the response the coalition members get, they might move pension funds and bank deposits to other institutions, according to union officials.

“The federal programs in place just aren’t having a desired effect,” Mr. Liu said in an interview on Tuesday. “People are losing their homes. It continues to be a drag on our regional economy.”

In the letter, a copy of which was provided in advance to The New York Times, Mr. Liu and the presidents of six of New York’s most powerful unions will ask the banks to immediately name a high-level official to handle appeals of borrowers who are denied mortgage loan modifications.

Their letter criticizes the banks for “unanswered phone calls, delays in the modification process and multiple requests for homeowners to resend paperwork already submitted.”

“Banks like you can do more,” the comptroller and union presidents write.

The coalition will officially announce the effort a news conference on Wednesday. The unions involved are the United Federation of Teachers, the 1199 health care workers union, the Transport Workers Union, the District Council 37 municipal employees union, the New York Hotel and Motel Trades Council, and Local 32BJ of the service employees union.

The group said that 265,000 mortgages in New York State — 13 percent of all mortgages in the state — are past due or already in the foreclosure process.

The officials ask the banks what efforts they have undertaken to respond promptly to customers’ requests about modifying mortgages and to suspend foreclosures while evaluating a borrower’s eligibility for loan modification.

Michael Mulgrew, president of the United Federation of Teachers, said hundreds of teachers and teachers aides faced foreclosure. “We’re trying to help people who are doing the right thing,” he said. “It seems that the banks are not really doing a lot on this. They’re not trying to negotiate in many instances.”

The letter asks the banks to respond by Sept. 1, with some of the signers suggesting there will be a second letter that demands the banks take specific steps.

Federal officials, from President Obama on down, have tried various techniques to persuade banks to make more loan modifications and take other steps to reduce foreclosures. But so far, those steps appear to have done little to stem the foreclosure flood.

Mr. Liu said that “it’s premature to talk about sticks,” like moving city funds out of banks that are deemed unresponsive.

But Mr. Mulgrew said he had alerted the trustees of his union’s pension fund to the situation, raising the possibility that they might take some action. Union officials say pension funds are hurt by foreclosures because they weaken the economy and hurt bank profits, helping to drive down bank share prices.

Richard Simon, a Bank of America spokesman, said his bank had led the industry in addressing the foreclosure crisis. In an e-mail message, he said, “Bank of America is committed to helping our customers remain in their homes, as demonstrated by 650,000 modifications we have completed since January 2008, including about 160,000 so far this year.”

A Citigroup spokesman, Mark Rodgers, made similar comments. “In the first quarter of 2010, our various modification and extension programs helped many families stay in their homes in New York State, outnumbering those who were foreclosed by approximately 54 to 1,” he said in an e-mail message. “Nationally, from Jan. 1, 2007, through March 31, 2010, Citi has helped more than 900,000 homeowners avoid potential foreclosure.”


Filed under: MODIFICATION, Mortgage Tagged: comptroller, John C. Liu, New York
Jun
12

More Investors Are Suing Chase: Cheer them on!

Submitted by Beth Findsen, Esq. in Scottsdale, Az

Investors-suing-Chase-includes-list-of-mortgage-backed-securities-various-originators-like-New-Century-WAMU-Wells-Fargo-ResMae-Greenpoint-Coun

One of the many things I find interesting in this lawsuit is that FINALLY the pretender lenders are at least being referred to as originators and not banks, lenders or any of the other things that had most people believing.

Here too investors sue the rating agencies, Moody’s, S&P, Fitch paving the way for borrowers to make virtually the same allegations against the appraisers and the pretender lender who hired the appraiser.

The only thing left for the investors is to realize that the only way they are actually going to mitigate losses is by creating an entity that negotiates modifications directly with borrowers. Otherwise these intermediaries in the securitization chain are going to continue cleaning their clocks.


Here are some morsels you too might find interesting

7. The true facts that were misstated in or omitted from the Offering Documents
include:
(1) The Originators systematically disregarded their stated underwriting
standards when issuing loans to borrowers;
(2) The underlying mortgages were based on appraisals that overstated the
value of the underlying properties and understated the loan-to-value ratios
of the Mortgage Loans;
(3) The Certificates’ credit enhancement features were insufficient to protect
Certificate holders from losses because the underwriting deficiencies
rendered the Mortgage Loans far less valuable than disclosed and the
credit enhancement features were primarily the product of the Rating
Agencies’ outdated models. As such, the level of credit enhancement
necessary for the Certificates’ risk to correspond to the pre-determined
credit ratings was far less than necessary; and
(4) The Rating Agencies employed outdated assumptions, relaxed ratings
criteria, and relied on inaccurate loan information when rating the
Certificates. S&P’s models had not been materially updated since 1999
and Moody’s models had not been materially updated since 2002. These
outdated models failed to account for the drastic changes in the type of
loans backing the Certificates and the Originators’ systemic disregard for their underwriting standards. Furthermore, the Rating Agencies had conflicts of interest when rating the Certificates.
8. As a result, Lead Plaintiff and the Class purchased Certificates that were backed by collateral (i.e., the Mortgage Loans) that was much less valuable and which posed greater risk of default than represented, were not of the “best quality” and were not equivalent to other investments with the same credit ratings. Contrary to representations in the Offering Documents, the Certificates exposed purchasers to increased risk with respect to delinquencies, foreclosures and other forms of default on the Mortgage Loans.


Filed under: bubble, CASES, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, trustee, workshop Tagged: Accredited Home Lenders, American Home Mortgage Corp., Chase, Chase Home Finance LLC, countrywide, Depositor, Greenpoint, HERS, Inc., J.P. Morgan Acceptance Corporation I, J.P. Morgan Chase Bank, J.P. Morgan Mortgage Acquisition Corporation, JPMorgan Chase & Co, McGraw-Hill Companies, Moody’s Investor Services, mortgage backed securities, N.A, new century, originators, Ownit Mortgage Solutions, Public Employees’ Retirement System of Mississippi, Registration Statement, ResMae, Sponsor, Standard & Poor’s Financial Services, WAMU, Wells Fargo
Jun
10

AFTER THE SALE: PART III On the Courthouse Steps

Submitted by Charles Koppa

The auctioneer represents the “beneficiary” in the sale.. If there is a “reserve amount minimum” (see below) the auctioneer actually bids up as agent for the unnamed beneficiary! The recipient “beneficial trust” is finally publically identified and documented by the Foreclosing Trustee in the recorded Trustees Deed Upon Sale.  Try to find a human officer for that trust!

Beneficiary makes no personal bid, delivers no cash, and is allowed a credit bid!  PROBLEM: a beneficiary (if known) would be a “party in interest” and could not be a bonafide buyer.  An est. 80% of the Courthouse sales go “Back to Beneficiary” (publicly unknown) and therefore are unlawful.  Lack of Notice and availability of Due Process to meet your accuser are historically common.

Predatory devaluations, plus untitled transfer of foreclosed mortgage notes systematically confiscated by “investment trusts” that were structured by Bank Holding Companies with no skin in the game, plus processing by shadow intermediaries “against the borrower”, equals “Tyranny on the Courthouse Steps!”

Sellers have the option of setting a hidden Reserve Price that is above the minimum starting bid.  If a reserve price is in effect, then the seller does not have sell the item unless the high bid meets or exceeds his reserve.  Auctions with a reserve price will be noted in their listing, describing whether the reserve has been met or not.  The actual amount of the reserve price is not revealed to bidders, until it has been met.

When you submit a bid on a reserve price auction, one of three things might happen:
(1) If the reserve has already been met, then your bid will be submitted at one increment above the next highest competitor, in the same manner as an auction without a reserve price.
(2) If the reserve has not been met, and your maximum bid is also less than the reserve, then your bid will be entered at one increment above the next highest competitor.
(3) If the reserve has not been met, but your maximum bid is enough to meet the reserve, then your bid will be entered at exactly the seller’s reserve price.  If your maximum was above the seller’s reserve, then your proxy will defend your bid, up to your maximum.If you are the highest bidder at auction close but the reserve was not met, then neither you nor the seller are obligated to the transaction.  However, you may wish to negotiate further via email, to see if a mutually satisfactory price can be reached.

EXAMPLES:

No sale:
Item #9999 had a minimum starting bid of $100.00
The seller set a reserve price in his listing of $200.00.
At the end of the auction, the highest bid is $175.00.
In this case, the seller is not obligated to sell for $175.00, but may choose to do so anyway.

Sale:
Item #8888 had a minimum starting bid of $900.00.
The seller set a reserve price in his listing of $1,200.00.
At the end of the auction, the highest bid is $1,225.00.
In this case, the seller is obligated to sell for $1,225.00 to the highest bidder.


Filed under: bubble, CORRUPTION, evidence, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, trustee, workshop Tagged: Auction, auctioneer, Back to Beneficiary, beneficial trust, beneficiary, due process, foreclosing trustee, HERS, lack of notice, notice, party in interest, reserve amount minimum
May
21

Assignments: Why Were They Needed?

Since the entire scheme was based upon using money advanced by investors, why are they not the beneficiaries on the mortgage or deed of trust and why were they not the payee on the note?

The investors would not have advanced any money without getting a certificated or non-certificated interest in the pool of assets “purchased” with money from a pool of money collected from a group of investors.

There could be no certificate of asset backed series xxx-2006A without there being something in existence bearing the name asset backed series xxx-2006A.

There could be no entity (SPV) bearing the name asset backed series xxx-2006A without a framework of securitization of money (SIV) and assets (SPV).

That framework could not exist but for the existence of securitization documents including the pooling and service agreement.

Thus all this must be in place before accepting the first application for a loan.

Therefore when the loan closed the true beneficiaries and payees on the note were known and should have been named as such without a nominee (MERS) or any other intermediaries. Of course THAT would have ceded control over the pool of assets to the owners of that investment, something that neither the investment bank nor any of the other intermediaries wanted. It would mean that loans and claims could be modified or settled easily since all parties are known.

It would also mean that if the intermediaries did anything wrong, like for example investing only part of the money into mortgages and keeping the rest, BOTH the investor and the borrower would probably find out. And it would mean that third party payment would be made to the investors and the investors would deduct those payments from the balance due on the obligation and statements sent out to borrowers would reflect the change _ i.e., either a deduction or subrogation of rights, spreading the ownership out to the third parties who made the payments.

And THAT would mean all those illicit profits would be the subject of liability and damages in lawsuits and maybe criminal liability. So the pretender lenders are right. This is a simple matter — or would be — if they had played by the rules and named the right parties to begin with. Maybe they would even have used industry standard underwriting principles since there was real risk involved.


Filed under: foreclosure
May
17

WHY VERY FEW MODIFICATIONS AND SHORT-SALES ARE APPROVED

EDITOR’S NOTES: BASICALLY IT IS ABOUT MONEY:

  • Investment Banks make more money as long as the loans are non performing
  • All the other intermediaries make more money while the loans are non-performing
  • The details of securitization as a scheme to defraud investors and borrowers are kept under wraps
  • Insurance is only paid on loans that are devalued or in default
  • Credit default swap liability by counterparties in only paid when loans are in default or devalued
  • Resecuritization is actually riskier for the investment bank on performing loans than non-performing loans. Nobody asks for an accounting for a loan they know is in default. Modification would convert a loan classified as non-performing, subject to write down or write-off to performing which might create a liability to return third party payments through insurance and credit enhancements.
  • Servicers might lose the major part of their income, since they get paid more on performing loans. Note that deep inside the securitization documents, the servicer ends up with ultimate decision-making authority over the loan, NOT the so-called Trustee.

Lucrative Fees May Deter Efforts to Alter Loans

This week, the Obama administration summoned mortgage company executives to Washington to demand they move faster to lower payments for homeowners sliding toward foreclosure. Treasury officials called on the companies to hire and train more people quickly to field applications for relief.

But industry insiders and legal experts say the limited capacity of mortgage companies is not the primary factor impeding the government’s $75 billion program to prevent foreclosures. Instead, it is that many mortgage companies are reluctant to give strapped homeowners a break because the companies collect lucrative fees on delinquent loans.

Even when borrowers stop paying, mortgage companies that service the loans collect fees out of the proceeds when homes are ultimately sold in foreclosure. So the longer borrowers remain delinquent, the greater the opportunities for these mortgage companies to extract revenue — fees for insurance, appraisals, title searches and legal services.

“It frustrates me when I see the government looking to the servicer for the solution, because it will never ever happen,” said Margery Golant, a Florida lawyer who defends homeowners against foreclosure and who worked in the law department of a major mortgage company, Ocwen Financial. “I don’t think they’re motivated to do modifications at all. They keep hitting the loan all the way through for junk fees. It’s a license to do whatever they want.”

Rich Miller, a governance project manager at Countrywide Financial and Bank of America before he left in January, said Bank of America had been reluctant to modify loans, which hurt the bottom line. The company has been waiting and hoping the economy will improve and delinquent customers will resume making payments, he said.

“That’s the short-term strategy,” said Mr. Miller, who oversaw training programs at Countrywide, which was bought by Bank of America. He now works as an industry consultant.

Bank of America disputed that characterization. “To think that somehow or other we would jeopardize investor relationships and customer relationships for the very small incremental income we would receive by delaying seems ludicrous,” said Robert V. James, the bank’s senior vice president for mortgage operations and insurance. “It’s not the right thing to do.”

Mortgage companies, some of which are affiliated with the nation’s largest banks, are paid to manage pools of loans owned by investors. The companies typically collect a percentage of the value of the loans they service. They extract their share regardless of whether borrowers are current on their payments. Indeed, their percentage often increases on delinquent loans.

Legal experts say the opportunities for additional revenue in delinquency are considerable, confronting mortgage companies with a conflict between their own financial interest in collecting fees and their responsibility to recoup money for investors who own most mortgages.

“The rules by which servicers are reimbursed for expenses may provide a perverse incentive to foreclose rather than modify,” concluded a recent paper published by the Federal Reserve Bank of Boston.

Under the Obama administration’s foreclosure program, a servicer that modifies a loan for a homeowner collects $1,000 from the government, followed by $1,000 a year for each of the next three years. A senior Treasury adviser, Seth Wheeler, said these payments amounted to “meaningful incentives to servicers to help overcome the challenges and competing demands they face in considering and completing loan modifications.” He added that mortgage companies “are contractually obligated to the terms of this program, which require them to offer modifications to qualified borrowers.”

But experts say the administration’s incentives are often outweighed by the benefits of collecting fees from delinquency, and then more fees through the sale of homes in foreclosure.

“If they do a loan modification, they get a few shekels from the government,” said David Dickey, who led a mortgage sales team at Countrywide and Bank of America, leaving in March to start his own mortgage advisory firm, National Home Loan Advocates. By contrast, he said, the road to foreclosure is lined with fees, especially if it is prolonged. “There’s all sorts of things behind the scenes,” he said.

When borrowers fall behind, mortgage companies typically collect late fees reaching 6 percent of the monthly payments.

“For many subprime servicers, late fees alone constitute a significant fraction of their total income and profit,” said Diane E. Thompson, a lawyer for the National Consumer Law Center, in testimony to the Senate Banking Committee this month. “Servicers thus have an incentive to push homeowners into late payments and keep them there: if the loan pays late, the servicer is more likely to profit.”

She cited Ocwen Financial, which reported that nearly 12 percent of its income in 2007 came from fees to borrowers.

Paul A. Koches, Ocwen’s general counsel, said: “We’d prefer that to be zero. The costs associated with our delinquent loans are in every instance in excess of the late fees.”

Data on delinquencies reinforces the notion that servicers are inclined to let problem loans float in purgatory — neither taking control of houses and selling them, nor modifying loans to give homeowners a break.

From June 2008 to June 2009, the number of American mortgages that were 90 days or more delinquent soared from 1.8 million to nearly 3 million, according to the realty research company First American Core Logic. During that period, the number of loans that resulted in the bank taking ownership of the home declined to 245,000, from 333,000.

As a home slides toward foreclosure, mortgage companies pay for many services required to take control of the property and resell it. They typically funnel orders for title searches, insurance policies, appraisals and legal filings to companies they own or share revenue with.

Ocwen established its own title company, Premium Title Services, in part to keep more of the revenue from foreclosures, said Ms. Golant, who helped start it.

“It was hugely profitable,” she said. “Premium Title would charge for the title when it got transferred to Ocwen, then charge again when it got transferred to the new buyer, and then sell title insurance. It was easy money.”

Mortgage companies not only gain this extra business through their subsidiaries, but also collect reimbursement for the payments when the houses are sold.

The investors who own bad mortgages accept whatever is left. Investors typically do not notice how much they give up to the servicers, because fees are embedded in complex sales.

“It’s under the radar,” Ms. Golant said.

Ultimately, the benefits of delinquency erode incentives for mortgage companies to dispose of troubled loans quickly, say experts, allowing distressed houses to decay and fall in value — a fact of little interest to the servicer.

“At the end of the day, it doesn’t matter what the house sells for, because they don’t take that loss,” said Ms. Golant. “Meanwhile, they are collecting all these fees.”


Filed under: foreclosure
May
17

SECURITIZATION If They Did It Right

SECURITIZATION If They Did It Right

Sometimes it IS easier to prove a negative than a positive. Your opposition has far more facts than you do and in due process, should be required to prove them up into a prima facie case using real evidence from competent witnesses, with real documents that nobody played with before initiating foreclosure.

So let’s take a look at how all this WOULD HAVE BEEN DONE, because most judges, even today are seeing the transaction through this lens.

  1. A homeowner or prospective homeowner would apply for refinancing or a purchase money first, second or Home Equity Line of Credit (HELOC).
  2. Loan Closing and Disclosures
  3. Details of the loan and loan closing, good faith estimate and closing statement are provided in some form to both the borrower and the investors who acknowledge receipt and acceptance in binding form. Presumably this would be done through the offices of the manager, agent or “Trustee” of the Special Purpose Vehicle, the name of which and contact information was disclosed to the borrower prior to closing and is confirmed at closing.
  4. Assignment of Loan into Pool, acknowledged by Borrower. Intermediaries and Investors disclosed to borrower/debtor. The lender is identified as the group of investors who have provided funding for the loan.
  5. Investors’ representative(s) identified and disclosed, with contact information.
  6. During the life of the loan, Borrower receives same statement as investor — receipts and disbursements allocable to the loan are allocated and applied to payments and loan balance. If third party payments are received for any reason by any of the intermediaries, who are all disclosed, the amount of the receipt and the method of allocation to the borrower’s loan is disclosed.
  7. If the Borrower falls delinquent, the Investors either decide as a group or through their representative, manager, agent or named Trustee whether to offer a workout or to foreclose. A modification or settlement would be negotiated with parties known to Borrower at closing or successors in interest which would have been disclosed immediately upon execution of closing documents between the investors, or part of them, and the successor(s).
  8. Any change in ownership of the loan would be a change in beneficiary and a change of Payee under the note, which would be the same party. Such change would be recorded in accordance with State Law. The change would not, under these circumstances leave the Borrower in doubt as to the amount of the obligation and whether the obligation was or should be affected by the third party transactions. If the third party transaction is intended contemporaneously with the closing with the Borrower, even if the third party is not identified, this fact would also be disclosed to the Borrower and the Investors.
  9. Insurance, credit default swaps, and other credit enhancements are identified and disclosed to the Borrower — pursuant to contractual provisions executed between the Investors as a Group or individually; provided however, the insurer or third party payor would have rights of subrogation in which upon payment under the referenced contract, they have acquired the interests of the insured parties, in order to mitigate their losses, a fact which was identified and disclosed to the borrower at the closing with the borrower.
  10. In this transparent series of transactions that are part and parcel of a single transaction consisting of many steps, the Borrower having accepted all the terms and conditions of the approval of the loan and the securitization of the loan, achieves no greater standing or defense in the event of default. The only exception would be malfeasance or misfeasance by the participants in the securitization chain wherein, disclosed or not, the loan, or part of it, was satisfied by direct or indirect payment to a representative with apparent authority over the loan and to act in the interests of the investor as an agent. If the loan was sold multiple times, neither the Borrowers liability nor the Initial investors’ asset would be effected. Any dispute would NOT include the Borrower whose obligation would be unaffected UNLESS the intermediaries receiving multiple payments for sale of the same loan or percentage interests in the same loan pool were allowed to retain the proceeds of said sale, inasmuch as this would mean that the liability of the borrower would either (a) be diminished by the excess payments or (b) spread out to investors that were not disclosed at the Borrower’s Loan Closing.
  11. In the event that the matter is referred to a foreclosure proceeding, the action (whether private non-judicial sale or public lawsuit in foreclosure) would be brought on behalf of the named investors, through their authorized representative, with a complete statement of accounting and exhibits showing the entire securitization structure and the balance due on the Borrower’s obligation, including any third party payments, whether those were allocated to payments, interest or principal, and what balance of the obligation exists. Also named as foreclosers would be those party who acceded to a subrogated interest in the Borrower’s loan in whole or in part.
  12. Since a judicial allocation would be required to determine the relative interests and priority of interests of the investors, successors and subrogated parties, it is probably not possible to initiate a non-judicial sale unless there existed an agreement between all of the parties as to those matters. Such an agreement would specifically describe the distribution of proceeds of sale, which party was entitled to enter a credit bid, and what would be done with the property if the bid resulted in a Trustee Certificate being issued giving title to the party that initiated the foreclosure.
  13. If the creditor parties were able to satisfy all the prerequisites of a non-judicial foreclosure sale and the sale took place under non-judicial circumstances, the Borrower would lose the right of redemption and the Creditor would lose the right to pursue any delinquency or deficiency resulting from the sale of the home.
  14. If the Borrower was the defendant or re-oriented as the defendant in a foreclosure lawsuit, then the borrower’s right to redemption would be retained, if State Law permits same, and the Creditor would, if State Law permits it, be allowed to pursue a deficiency judgment against the Borrower. The allegation for suing for damages to cover a deficiency would include the fact that the sale price was fair and reasonable under the circumstances. The prima facie case of the Plaintiff Creditor in those circumstances would require evidence from an appraiser or other credible resource that is admitted by the Court as competent testimony and evidence of the fair market value and the sales price. Submission of a written affidavit or document is sufficient to support the allegation, not insufficient to satisfy the requirements of establishment of a prima facie case. A competent witness with personal knowledge and recollection is required to establish the foundation of any document. Business records do not include records regularly prepared after the loan goes into default, if those records are offered to prove facts that relate to events prior to the default. SUCH RECORDS ARE ONLY ADMISSIBLE TO PROVE (WITH FOUNDATION FROM A COMPETENT WITNESS) FACTS, CIRCUMSTANCES OR EVENTS THAT OCCURRED AFTER DEFAULT.

Filed under: foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, STATUTES, trustee, workshop Tagged: business records, CLOSING WITH BORROWER, CLOSING WITH INVESTORS, CLOSING WITH SECURITIZATION PARTICIPANTS, evidence, prima facie case, securitization, SUBROGATION, SUCCESSORS IN INTEREST, third party payments
May
12

Shack; JPM, Trustee Lacks Standing, Vacates Foreclosure

The true answer is that securitization is a process that is still on going and not an event.The Real Party in Interest (and the real amount of principal due, if any) is in a state of flux hidden by obscure, hidden or “confidential documentation.” Don’t make it your problem to unravel it. Use your strength to force THEM to prove their claim whether it is in a judicial or non-judicial proceeding.

Editor’s Comment: In case you haven’t noticed, this case, along with some others I’ve heard about but not received, closes the loop. The Pretender Lenders have now tried to use all the major parties and some of the minor parties in foreclosures and when tested have failed to prove standing. standing is a jurisdictional matter and it basically boils down to “You don’t belong here, you have no rights to enforce, you have no interest in this litigation, so get out of here and don’t come back.”

They tried MERS, Servicers, Foreclosure Specialty processors, Trustees, originating “lenders” and they come up empty. why because they are all intermediaries and as Judge Holloway put it, the note is not payable to them, the mortgage does not secure them, the obligation is not due to them and therefore they can’t proceed. In non-judicial states they get around this requirement unless the homeowner brings suit.

So who is the real party in interest? See the Fordham Law Review article posted on this blog more than two years ago “Will the Real Party in Interest Please Stand Up.”

The answer isn’t easy, but the strategy is very simple — don’t accept responsibility for the narrative or you will be taking on the burden of proof in THEIR case. They have the information and you don’t. The true answer is that securitization is a process that is still on going and not an event. The Real Party in Interest (and the real amount of principal due, if any) is in a state of flux hidden by obscure, hidden or “confidential documentation. Don’t make it your problem to unravel it. Use your strength to force THEM to prove their claim whether it is in a judicial or non-judicial proceeding.

The real reason for them NOT simply bringing in the investors who at least WERE parties in interest is multifold:

  • The meeting of the investor with the borrower will result in comparing notes and the fact that not all the money advanced by investors was actually invested in mortgages will be “problematic” for the investment bankers who put this scheme together.
  • The meeting of the investor and borrower could result in an alliance in litigation in which the shell game would be impossible.
  • The meeting of the investor and the borrower could result in a settlement that cuts the servicers and other intermediaries out of the gravy train of servicing fees, foreclosures with rigged bids, etc.
  • The conflict of interest between the intermediaries and the investors might become evident, and lead to further litigation both from the investors and the SEC, state attorneys general and Department of Justice.
  • The investment vehicle (the “trust” or Special Purpose Vehicle) might have been dissolved with the investors paid off and/or with the “assets” resecuritized into a new BBB rated vehicle. This could lead to the nuclear question: what if any, is the balance due in principal on this OBLIGATION. Warning: If you let the narrative shift to the NOTE (which is merely evidence of the obligation) you risk being entrapped by the simple question “Did you make your payments under this note?” This immediately puts you on the defensive BEFORE they have established THEIR case. Since THEY are the party seeking affirmative relief, THEY should establish the foundation first.
  • And the last thing that comes to my mind is the last thing anyone wants to hear — was this obligation satisfied in whole or in part by third party payments through credit enhancements or federal bailout?

Hon. Arthur M. Schack does it again!

JP Morgan Chase Bank, N.A. v George

2010 NY Slip Op 50786(U)
Decided on May 4, 2010

Supreme Court, Kings County
Schack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2010
Supreme Court, Kings County

JP Morgan Chase Bank, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, Plaintiff,

against

Gertrude George, IVY MAY JOHNSON, GMAC MORTGAGE CORPORATION, DANIEL S. PERLMAN, et. al., Defendants.

10865/06

Plaintiff- JP Morgan Chase Bank
Steven J Baum, PC
Amherst NY

Defendant- Gertrude George
Edward Roberts, Esq.
Brooklyn NY

Defendant- Ivy Mae Johnson
Precious L. Williams, Esq.
Brooklyn NY

Arthur M. Schack, J.

_______________________________________________

Accordingly, it is
ORDERED, that the order to show cause of defendant IVY MAE JOHNSON, to vacate the January 16, 2008 judgment of foreclosure and sale for the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings), pursuant to CPLR Rule 5015 (a) (4), because plaintiff, JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, lacked standing to commence the instant action and thus, the Court never had jurisdiction, is granted; and it is further

ORDERED, the instant complaint of plaintiff JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4 for the foreclosure on the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings) is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

Hon. Arthur M. SchackJ. S. C..


Filed under: CASES, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Servicer, STATUTES, trustee Tagged: Arthur M. SchackJ. S. C, Fordham Law Review, George, GMAC MORTGAGE CORPORATION, JPM, lender, loan originator, MERS, NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, non-judicial, originator, Precious L. Williams, REAL PARTY IN INTEREST, SERIES 2004-AR4, servicer, shack, standing, Steven J Baum, trustee, vacate, Vacate foreclosure judgment
Apr
25

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

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 agentmeans 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
13

Pro Se Litigant’s Eloquence on MERS Split of Note and Mortgage

A pattern with Wells Fargo that we have seen is that they make the representation that they are the holder of the note and the investor,which is a blatant lie in most cases. Then AFTER they get the order they want, they admit that through “inadvertence” they misrepresented the facts to the court. Then they say it is not a material misrepresentation and they produce some additional fabricated documents like a limited power of attorney which upon close reading grants nothing to anyone, is subject to many conditions that are not readily determinable and is signed by party of dubious authority and dated under questionable circumstances (if the document existed before why didn’t they use it?).Editor’s Note: I think the following addresses the MERS and nominee issue very well. The entire proceedings can be seen at delasallemtdargument.

The very basic question that ought to be asked is why any of these intermediaries exist. When you think about it, there can only be one reason: to hide what they are really doing and to provide a mechanism to diminish the possibility of multiple claims from multiple participants in the securitization chain. Nobody needed MERS or any of these other foreclosure entities when the identity of the creditor/lender was clear.

Now they don’t want it clear. The success of foreclosure in both non-judicial and judicial states depends entirely on creating the appearance of propriety through a maze of unnecessary entities whose sole purpose is to provide plausible deniability to the pretender lenders if and when it comes to light that the wrong party is attempting to foreclose and they are doing it contrary tot he interests of the real creditors (investors) and contrary to the interests of the homeowners who are now subject to financial double or multiple jeopardy.

A pattern with Wells Fargo that we have seen is that they make the representation that they are the holder of the note and the investor,which is a blatant lie in most cases. Then AFTER they get the order they want, they admit that through “inadvertence” they misrepresented the facts to the court. Then they say it is not a material misrepresentation and they produce some additional fabricated documents like a limited power of attorney which upon close reading grants nothing to anyone, is subject to many conditions that are not readily determinable and is signed by party of dubious authority and dated under questionable circumstances (if the document existed before why didn’t they use it?).

“The note and the mortgage are inseparable. The former as essential, the latter as an incident. An assignment of the note carries the mortgage with it. An assignment of the latter is a nullity.”
MERS, Your Honor, has corrupted this basic black letter law of mortgages that makes a split of the security instrument from the note impermissible.
First, it names itself as the beneficiary of the deed of trust, thus splitting the deed of trust from the note, and then it attempts to rectify the split by stating that it is acting in some form of restricted agency relationship solely as the nominee for the lender.
In doing this, MERS attempts to do two things that are inconsistent at the same time, and it is this ambiguous contradictory language that fails the title. Why?
First, because as the beneficiary of the deed of trust, MERS has suffered no default. Only the current holder of the note has suffered a default, and only the current holder can enforce the note.
And secondly, even if it could be argued that MERS is the agent for the original lender, America’s Wholesale Lender — and Your Honor, it is important to note that within the four corner of the document, within the four corners of the deed of trust, there is nothing that establishes that agency relationship.
But again, even if you argue that it exists, there’s nothing that establishes an agency relationship between MERS and the alleged current owner of the note according to the bank servicer, Bank of America; U.S. Bank as trustee for the structured adjustable rate mortgage, 19 excess 2005. They are apparently, allegedly, they are the current holder of the note.
Yet, MERS takes the position that through the deed of trust all of these agency relationships are implied, and that it can go forward based upon these implications and foreclose even though the four corners of that document, of the deed of trust, carries only one signature, mine, not the signatures of MERS, nor its principals.
They seem to contend that with this implied agency agreement that is in violation of the statute of fraud that the U.S. Supreme Court ruling of Carpenter v. Longan prohibiting
the splitting of a mortgage from the note can somehow be ignored.
Your Honor, it cannot. It cannot be ignored without the U.S. Supreme Court going back and reversing Carpenter v. Longan.


Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: agency, assignment of mortgage, assignment of note, Bank of America, Carpenter v Longen, DEED OF TRUST, MERS, splitting note and mortgage, Supreme Court, trustee, U.S. Bank
Oct
16

Judge Long Massachusetts Foreclosure Decision Throws Securitization Intermediaries into Chaos, REO Sales Stopped

A
Aug
20

Bank of America loses in Federal Ruling – Judge says investors own the loans

The report of the ruling below by this Federal Judge has several implications:

  1. Mortgage modifications may come to a halt again
  2. Attorney’s and anyone supposedly “helping” with modifications should be very, very wary
  3. The federal court in Manhattan is recognizing a couple very important issues:
    1. Servicers are NOT the owners of the loans (in the case of a securitized loan)
    2. Investors own the loans
    3. Servicers MAY be liable to buy back modified loans (subject to the terms of the PSA)

This ruling could ultimately end up being the demise of ALL foreclosure actions involving securitized loans. One thing is clear in that the federal court identifies the investors as the owners of the loan and is so doing the court also recognizes that the servicer/intermediaries/pretender lender have no authority to do ANYTHING in the way of enforcement, modification, collection through legal means such as a  foreclosure action because they simply have no standing (the alleged debt is not owed to anyone other than the investors).

Just because a secret deal between Wall Street, servicers, banks and MERS occurred to obscure the ownership and the transfers of mortgages doesn’t mean their deal will hold up under the careful eye of diligent judge who understands AND cares about the law being upheld.


Source: Reuters
BofA’s Countrywide loses court ruling on mortgages

Thu Aug 20, 2009 7:37am EDT

* Federal judge lacks jurisdiction, moves case to states

* Loan modifications can hurt mortgage investors

NEW YORK, Aug 20 (Reuters) – A federal judge has ruled that Bank of America Corp (BAC.N: Quote, Profile, Research, Stock Buzz) cannot have a lawsuit by investors seeking to force it to buy back mortgages heard in federal court, saying he lacks jurisdiction to decide the case.

Tuesday’s ruling by Judge Richard Holwell of the U.S. District Court in Manhattan means the case will move to state court. Holwell did not decide the merits of the case.

“Congress passed two statutes within a year of each other to address the mortgage crisis,” the judge wrote. “In neither of these statutes did Congress federalize the case.”

The ruling is a win for investors, to the extent that Holwell rejected a claim by the bank’s Countrywide Financial Corp unit that new federal laws to encourage loan modifications to help struggling borrowers stay in their homes govern this case.

Countrywide had argued that the laws negated obligations it might have had to buy back modified loans. In 2008, Countrywide agreed with some 11 state attorneys general to modify $8.4 billion of loans made to roughly 400,000 borrowers.

Investors who own mortgage securities typically receive interest and principal payments. If servicers modified the underlying loans to reduce borrower obligations, investors would be harmed because they would receive lower payments.

Holwell did rule that investors bear the burden of showing that pooling and servicing agreements for their loans, taken “as a whole,” require Countrywide to buy back the loans.

Bank of America could not immediately be reached for comment. A published report said a spokeswoman agreed that the court did not rule on the merits of the plaintiffs’ claims.

The current case was brought by two investment funds holding Countrywide mortgages, Greenwich Financial Services Distressed Mortgage Fund 3 LLC and QED LLC.

These investors complained they would be harmed if Countrywide shifted the burdens of loan modifications to 374 trusts into which loans had been repackaged and securitized.

These investors would rather Countrywide repurchase modified loans for the full unpaid amounts.

Countrywide had been the largest U.S. mortgage lender before Bank of America acquired it last July for $2.5 billion.

The case is Greenwich Financial Services Distressed Mortgage Fund 3 LLC and QED LLC v. Countrywide Financial Corp, U.S. District Court, Southern District of New York (Manhattan), No. 08-11343. (Reporting by Jonathan Stempel, with additional reporting by John Tilak in Bangalore)

© Thomson Reuters 2009. All rights reserved. Users may download and print extracts of content from this website for their own personal and non-commercial use only. Republication or redistribution of Thomson Reuters content, including by framing or similar means, is expressly prohibited without the prior written consent of Thomson Reuters. Thomson Reuters and its logo are registered trademarks or trademarks of the Thomson Reuters group of companies around the world.

Thomson Reuters journalists are subject to an Editorial Handbook which requires fair presentation and disclosure of relevant interests.