- The Association of Mortgage Investors Laments the AG Foreclosure Settlement Filing; It Fails to Adequately Protect Homeowners; Will Likely Negatively Affect Average Americans, Unions, and Seniors
- Press Advisory | May 23: CA Attorney General Kamala D. Harris Announces Major Initiative to Protect Homeowners from Mortgage Fraud
- Federal National Mortgage Association a/k/a Fannie Mae vs Ben-Ezra & Katz, P.A. | Fannie Mae Tells Lawyer to Get on the Ball
Attention! Attention! | Fannie Mae Now Requires Servicers to Protect the Priority of Mortgage Liens by Clearing ALL Liens for Delinquent Homeowners’ Association Dues
Fraudclosure Settlement? Not So Fast… Bondholders Threatening Legal Action
David Dayen | Foreclosure Fraud Settlement Docs (II): Giving Homes to Charity as a Penalty
David Dayen | Foreclosure Fraud Settlement Docs (III): “Internal Review Group”
- David Dayen | Foreclosure Fraud Settlement Docs Finally Released (DETAILS)
- David Dayen | Foreclosure Fraud Settlement Docs (IV): Association of Mortgage Investors Planning to Challenge in Court
- David Dayen | HUD Secretary Expects “Substantial” Payment of Foreclosure Fraud Settlement with MBS Investor Money
David Dayen | Foreclosure Fraud Settlement Docs (IV): Association of Mortgage Investors Planning to Challenge in Court
The Association of Mortgage Investors Laments the AG Foreclosure Settlement Filing; It Fails to Adequately Protect Homeowners; Will Likely Negatively Affect Average Americans, Unions, and Seniors
Senator Bob Corker, R-Tenn | Principal Reductions or Cash Payments to Homeowners Who did not Pay their Mortgage is un-American, and it is Wrong
- Rep. Lofgren and 115 Reps. Call for Fannie Mae and Freddie Mac to Help Underwater Homeowners Via Principal Reductions
- AG Coakley: Fannie Mae and Freddie Mac Should “Change Course” and Allow Principal Loan Forgiveness for Homeowners
- American Association of Mortgage Investors (AMI) Takes Position against Mortgage Servicing Settlement
American Association of Mortgage Investors (AMI) Takes Position against Mortgage Servicing Settlement
Naked Capitalism | Yes, Virginia, Servicers Lie to Investors Too: $175 Billion in Loan Losses Not Allocated to Mortgage Backed Securities (and Another $300 Billion on the Way)
PONZI | MORTGAGE-BACKED TRUSTS – RUNNING ON EMPTY?
PONZI | MORTGAGE-BACKED TRUSTS – RUNNING ON EMPTY?
Outrageous | Good Deeds Punished: State-Run Mortgage Lender Forecloses on Californians Current on Their Loans
- Brown Reaches Settlement With Wells Fargo Worth More Than $2 Billion to Californians With Risky Adjustable-Rate Mortgages
- Mortgage giants Fannie Mae & Freddie Mac quietly shop $250 billion in bad loans
- Association of Mortgage Investors (AMI) | “Any truly viable solution must address the defective mortgage loans”
California, AG Harris, Reportedly Subpoenas BofA Over Toxic Securities
$1 Trillion in Sour Notes | Banks being Squeezed by Mortgage Investors
Banks May Fight Banks as Mortgage Investors Pursue Class Status
Mortgage Investors Turn to State Courts for Relief
Investors are starting to wake up. First, they are filing suit in any court of competent jurisdiction alleging fraud in the sale of mortgage-backed securities. As discovery proceeds, they will also discover that despite assurances to the contrary not all of the money they advanced was used for the purchase of mortgage loans. In discovery, they will find that a substantial percentage of the money they advanced (by purchasing mortgage-backed securities) was used for fees and profits that were undisclosed to both the investors and the borrowers.
It seems that they’re finding a friendlier reception in state courts. As these investors suits multiply, it will have a dramatic affect on the way state judges view securitized mortgage loans. The allegations of fraud by institutional investors carries far more weight than an individual borrower making the same claims.
Borrowers and the attorneys who represent them would do well to track these cases carefully. I would ask that as you do so, you send copies to me at NGarfield@MSN.com. You will learn a great deal just by reading the complaints. You will learn even more if you keep track of the discovery proceedings in those cases. State judges that are presented with these claims will probably start issuing orders allowing the investors to proceed and discovery. Both the judges and the orders they issue should be tracked.
Mortgage Investors Turn to State Courts for Relief
By GRETCHEN MORGENSON
INVESTORS who lost billions on boatloads of faulty mortgage securities have had a hard time holding Wall Street accountable for selling the things in the first place.
For the most part, banks have said they can’t be called out in court on any of this because they had no idea that so many of these loans went to people who lacked the resources to make even their first mortgage payment.
Wall Street firms were intimately involved in the financing, bundling and sales of these loans, so their Sergeant Schultz defense rings hollow. They provided hundreds of millions of dollars in credit to dubious underwriters, and some even had their own people on site at the loan factories. Many Wall Street firms owned mortgage lenders outright.
Because many of the worst lenders are now out of business, investors in search of recoveries have turned to the banks that packaged the loans into securities. But successfully arguing that Wall Street aided lenders in a fraud is tough under federal securities laws. This is largely a result of Supreme Court decisions barring investors from bringing federal securities fraud cases that accuse underwriters and other third parties as enablers.
Where there’s a will, however, there’s a way. And state courts are proving to be a more fruitful place for mortgage investors seeking redress, legal experts say.
In late June, for example, Martha Coakley, the attorney general of Massachusetts, extracted $102 million from Morgan Stanley in a case involving Morgan’s extensive financing of loans made by New Century, a notorious and now defunct lender that was based in California.
Morgan packaged the loans into securities and sold them to clients, even after its due diligence uncovered problems with the underlying mortgages that New Century fed to the firm, Ms. Coakley said. In settling the matter, Morgan neither admitted nor denied the allegations. Her investigation is continuing.
One of the most interesting aspects of this case “is the active role of state regulators relying upon state law to protect investors,” said Lewis D. Lowenfels, an authority on securities law at Tolins & Lowenfels in New York. “This state focus may well fill a void left by the U.S. Supreme Court’s increasingly narrow interpretation of the antifraud provisions of the federal securities laws as well as the relatively few S.E.C. enforcement actions initiated in this area.”
Last Friday, an investment management firm that lost $1.2 billion in mortgage securities it bought for clients filed suit in Massachusetts state court against 15 banks, accusing them of abetting a fraud. The firm, Cambridge Place Investment Management of Concord, Mass., purchased $2 billion in mortgage securities from the banks, and it says the banks misrepresented the risks in the underlying loans — both in prospectuses and sales pitches.
The complaint says the banks misled Cambridge Place by maintaining that the mortgages in the securities it bought had met strict underwriting requirements related to the borrowers’ ability to repay the loans. Cambridge also contends it relied on the banks’ claims of having conducted due diligence to verify the quality of the loans bundled into the securities.
The complaint also details the anything-goes lending practices during the subprime mortgage boom.
Interviews in the complaint with 63 confidential witnesses turned up such gems as Fremont Investment & Loan, which had been based in California, approving loans for pizza delivery men with reported monthly incomes of $6,000, and management at Long Beach Mortgage, also in California, directing underwriters to “approve, approve, approve.”
One Long Beach program made loans to self-employed borrowers based on three letters of reference from past employers. A former worker said some letters amounted to “So-and-so cuts my lawn and does a good job,” adding that the company made no attempt to verify the information, the complaint stated.
Such tales are hardly shockers. But they provide important context when Cambridge moves up the ladder to the banks that bundled and sold the loans.
For example, the complaint contended that Credit Suisse, from whom it bought $88 million of mortgage securities in 2005 and 2006, told Cambridge of its “superior” due diligence, including a performance review of every loan. Three-quarters of these loans are delinquent, in default, foreclosure, bankruptcy or repossession, the complaint said.
Bear Stearns, now a unit of JPMorgan Chase, sold Cambridge $65 million of securities. It owned three mortgage lenders and told Cambridge it sampled the loans it sold to check underwriting procedures, borrower documentation and compliance, the complaint said.
Among others named in the suit are Bank of America, Barclays, Citigroup, Countrywide, Deutsche Bank, Goldman Sachs, Merrill Lynch, Morgan Stanley and UBS. All of those, as well as Credit Suisse and JPMorgan, declined to comment.
CAMBRIDGE’S lawyers brought its case in Massachusetts under laws barring those who sell securities from making false statements about them or omitting material facts. Jerry Silk, a senior partner at Bernstein Litowitz Berger & Grossmann who represents Cambridge, said, “This case represents yet another example of Wall Street banks’ failure to live up to their basic responsibility to investors — to tell the truth about the securities they are selling.”
Mr. Silk’s firm has jousted with Wall Street underwriters before. In 2004, it recovered $6 billion in a suit against banks that underwrote debt issued by WorldCom, the defunct telecom. Denise L. Cote, the federal judge overseeing that matter, concluded that because investors rely so heavily on underwriters, courts must be “particularly scrupulous in examining the conduct,” she said.
It is too soon to tell if investors will recover losses in mortgage securities. But the efforts are reminiscent of those in the mid-90s against brokerage firms that cleared trades and provided capital to dubious penny-stock outfits such as A. R. Baron and Sterling Foster.
For decades, companies that cleared such trades — Bear Stearns was a big one — escaped liability for fraud at these so-called “bucket shops.” But regulators went after clearing firms by accusing them of facilitating such acts; in a 1999 lawsuit, the Securities & Exchange Commission accused Bear Stearns of enabling a fraud at A. R. Baron. Bear Stearns paid $35 million in fines and restitution to settle the case.
If trust in capital markets is to return, investors must be able to believe what they read in prospectuses. Without that minimum standard, how can Wall Street expect the markets to function again?
Filed under: foreclosure
Reg Z TILA Amendment requires new owners and assignees of mortgage loans to notify consumers of the sale or transfer
The Federal Reserve Board has issued an interim final rule under Regulation Z to implement the recent Truth in Lending Act (TILA) amendment that requires new owners and assignees of mortgage loans to notify consumers of the sale or transfer.
While mostly helpful in foreclosure defense, the rule leaves open the question of ownership of the loans. Because of the practice of “assignment” of the loans to a special purpose vehicle, the Fed stopped there in its inquiry. If it had taken one step further it would have seen that the indenture to the mortgage backed bond conveyed an ownership interest in the loans supposedly assigned. it also leaves open the problem of whether the loans were accepted into the pool or were time-barred or were defective for failure to meet the requirements of recordation or recordable form set forth in the enabling documents.
The TILA requirement has been in effect since the May 20, 2009, enactment of the Helping Families Save Their Homes Act of 2009. Compliance with the specifics of the new rule is optional until January 19, 2010. As a result, new owners may (but need not) rely on the new rule immediately to ensure they are in compliance with TILA. Violations give rise to liability for statutory damages, including up to $4,000 per violation in individual actions or up to $500,000 in a class action.
The transfer notice requirement applies to all closed-end and open-end consumer-purpose mortgage loans secured by a consumer’s principal residence. It requires any person that acquires more than one mortgage loan in any 12-month period to provide a transfer notice without regard to whether the new owner would otherwise be a “creditor” subject to TILA. Mere servicers of mortgage loans and investors in mortgage-backed securities or other interests in pooled loans do not acquire legal title to loans and are not subject to the new rule. However, trusts or other entities acquiring legal title to the securitized loans are subject to the rule. The notice requirement is triggered by a transfer of the underlying loan, regardless of whether the assignment is recorded. Thus, assignees are not exempt from the duty to provide notice merely because the mortgage (as opposed to the note) is in the name of Mortgage Electronic Registration Systems (MERS), for example.
The new rule does not affect the separate notification requirement under the Real Estate Settlement Procedures Act (RESPA) for servicing transfers on mortgage loans. Accordingly, new owners who acquire both legal title to a mortgage loan and the servicing rights will need to satisfy both the TILA and RESPA notification requirements.
- The notice must be given on or before the 30th calendar date after the date the new owner acquires the loan, with the acquisition date deemed to be the date that the acquisition is recognized in the new owner’s books and records. In the case of short-term repurchase agreements, the acquirer is not required to give the notice if the transferor has not treated the transfer as a loan sale on its own books and records. However, if a repurchase does not occur, the acquirer must give the notice within 30 days after it recognizes the transfer as an acquisition on its books and records.
- The notice must be given even where the new and former owners are affiliates, but a combined notice may be sent where one company acquires a loan and subsequently transfers it to another company so long as the content and timing requirements are satisfied as to both entities.
- The notice must contain the information specified by the new rule, including contact information for any agents used by an owner to receive legal notices and resolve payment issues.
- The required information also includes a disclosure of the location where ownership of the debt is recorded. If a transfer has not been recorded in the public records at the time the notice is provided, a new owner may satisfy this requirement by stating that fact.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, expert witness, Fannie MAe, foreclosure, HERS, Investor, MODIFICATION, Mortgage, securities fraud, Servicer Tagged: agents, AGGREGATOR, consumer protection, contact information, creditor, foreclosure defense, legal notices, MERS, mortgage backed securities, mortgage loans, principal residence, Real Estate Settlement Procedures Act, Reg Z, resolve payment issues, RESPA, secured, statutory damages, TILA, violation
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:
- Mortgage modifications may come to a halt again
- Attorney’s and anyone supposedly “helping” with modifications should be very, very wary
- The federal court in Manhattan is recognizing a couple very important issues:
- Servicers are NOT the owners of the loans (in the case of a securitized loan)
- Investors own the loans
- 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.
* 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)
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Fannie, Freddie and Ginnie Issuance Climbs in June
“Government-sponsored mortgage investors Fannie Mae (FNM: 0.5755 -0.78%) and Freddie Mac (FRE: 0.6018 -1.34%) along with Ginnie Mae saw issuance increase in June along with rising delinquency rates.”
THE RIGHT TO CHOOSE YOUR LENDER
By LH | Foreclosure Blog News, Homeowner Resources, Weidner
Leave a Comment
I’m not in the same dire situation as so many commenters on this page, having paid off my mortgage before the s*^t hit the fan.
However, I did try to object to the clause in my mortgage that allowed my bank to split my mortgage via securitization to other investors. My reasoning was that not only should a lender be able to choose their borrowers, but a borrower should be able to choose their lender, even if the terms ostensibly don’t change. In fact, I specifically chose (what I thought) was a reputable lender, based on size, reputation (at the time), and, finally, terms. I specifically did not want any of the fly-by-night lenders that flooded my spam folder in those days (thankfully, these seem to have disappeared).
However, my RE lawyer said I had no right to object to securitization because “they all do that.” So, reluctantly, I signed the contract with that clause. It turns out that the bank did, indeed, securitize my loan, and virtually all others, but I paid it off in full shortly after anyway.
I still maintain that a borrower has a full right to decide to borrow from one party and not another.
Filed under: foreclosure