Jul
12

Why 99% of All “Forensic Audits” are Scams

Ok, it really bothers me… I’ve been wanting to write this post for a very long time. I’ve just been so stinkin’ busy it’s been put on the shelf several times. I’ve just tried to address this issue one by one as homeowners call me. But I cringe every time I hear the words “forensic audit” and I hate having to even say the words but sometimes I  have to in order to help a homeowner or attorney understand what I (and a very select few others) do versus what the vast majority of these other individuals/companies out there are doing. That is why I have a category on this blog called “Forensic Loan Audits…” because the scammers that used to be in the “Loan Modification” business got put out of business by most Attorney Generals around the US after they saw millions scammed on that cottage industry. Nearly overnight, a new cottage industry of “retired” shall we say loan mod experts became “forensic auditors.”

Let me say this from the outset… there is a wide range of people and companies out there (including even some attorneys) who are selling “Forensic Audits.” They vary from outright scam artists to slick salespeople performing some [overly simplistic] level of some sort of a mortgage loan transaction audit but who charge exorbitant prices for the services and, ultimately, the work product they produce rises to the level of a scam as well because their fee and what they produce are universes apart – so I deem that a scam as well – that’s just my humble opinion of course.

There is one fairly high profile retired attorney out there operating a very popular blog selling extremely high-priced garbage [in my opinion]; unfortunately, many of his victims, I mean clients, have purchased this “audit” are left with many pages of virtual nothing-ness that they will never be able to use in a court of law. Quite ironic that it’s coming from an “attorney” or “counselor at law” – so to speak.

But, I don’t think any of you reading this right now are actually surprised of the story of another attorney or ex-banker taking advantage of people because they have a license, degree or bar number and using that “credential” to sell people on a scam. There are many prisons with such people calling those places home for these types of crimes.

So, now that I’ve spent a minute on the soap box, let me get to work to explain the difference between a “Forensic Audit” and a “Mortgage Loan Compliance Analysis” because there is a difference – like night and day. I think it’s a good place to start to say that I come from the mortgage banking industry and I have over a decade in actual experience in the inner workings of this industry and I have had to demonstrate continued competence in the actual compliance with the very laws we are looking into to see if these loans complied with these laws. I challenge you to find a “forensic mortgage loan auditor” out there in or even around the mortgage banking or finance industry. You won’t. You will find compliance officers. You will find fraud investigators. You will find compliance analysts and underwriters and risk managers. The closest thing might be the field of Forensic Accounting. But you will never find a legitimate forensic mortgage loan compliance officer using the term “forensic audit” or “forensic auditor” or even “forensic loan audit.” This is simply some deceptive marketing term invented by slick scammers who could probably sell a lot of people a box of coal and pass it off as a box of diamonds.

“Forensic” literally means “suitable for use in a court of law.” So the layman’s translation means that whatever report or whatever you might get from a “forensic auditor” must, and I mean MUST, withstand the legal scrutiny of a judge, jury and opposing counsel.

So, I’ll just dive right in here and make a point: you can use the word “forensic” if – and only if – your work product is deemed suitable for use in a court of law. So that’s the lens that any and all investigation by YOU as a homeowner MUST use in conducting your due diligence if you’re in the position of needing help to defend yourself from foreclosure or the potential illicit collection of mortgage loan debt.

I will say this… if you see ANYONE pitching a “Forensic Audit,” I would just turn and run. Even the simple use of that title – forensic audit – should set of alarm bells. What is it a forensic audit of? What does that even mean? Really, it doesn’t even tell you anything – other than it’s a slick marketer using a buzz term to sell you something. The question really is or should be – “will it be suitable in a cour of law?”

Conversely, a Mortgage Loan Compliance Analysis is EXACTLY what it’s name implies plus a bit more. What do we do? We analyze the mortgage loan documents for actual compliance with Federal Lending Laws. Did the original lender provide the borrower with the mandated loan disclosures from the date the borrower applied for the loan through to the closing or ratification of the mortgage loan transaction and were the material Truth in Lending Disclosures such as the APR, Amount Financed, Finance Charge, Amount of Payments and Payment Schedule were properly and accurately computed – this is a mathematical process that requires a very comprehensive understanding of Regulation Z, Section 226.4 along with the Official Staff Commentary for that section. It’s also an investigation and analysis of the transaction to see if the original lender [and any mortgage broker involved] that may have been involved complied properly with underwriting guidelines and a look into any possible mortgage fraud or predatory lending violations such as bait and switch tactics or even forgery of the borrower’s initials or signature on loan disclosures or loan closing documents. Finally, it’s also an investigation into whether the lender and/or broker was properly licensed. All of these issues are examined, documents analyzed, TILA disclosures re-computed for accuracy and comparison and then all of this is [or should be] rendered in a report or affidavit format along with any and all supporting exhibits such as the loan documents and other components of the investigation.

Now, here’s the clincher… a “Forensic Audit” is almost always going to be a collection of boiler plate fluff with a few specifics strewn throughout the template to pass this garbage off as legitimate. However, any real scrutiny of these documents by someone who knows what to look for – or worse, a judge or creditors rights attorney – will easily reveal the  fact that 99% of these “forensic audits” aren’t worth the paper they’re printed on [ie. utter worthlessness]; which is real shame seeing that the homeowners who get suckered into these scams have precious few economic resources. They deserve a real service and a real work product that will actually stand up in a court of law.

A real mortgage loan compliance analysis and investigation will be highly CASE SPECIFIC. For it to be considered “forensic” in any sense of the word, it MUST be specific to YOUR CASE, not boiler plate. And judges HATE boiler plate, non-specific pleadings and if you try to throw a boiler-plate, template of a “forensic audit” at a judge in your case, you are asking for his/her wrath not to mention being completely discredited which never has a happy ending. I always tell people who are inquiring to hire me that there is no shortcut to these analyses and investigations. A mortgage loan transaction and any corresponding foreclosure case is like a fingerprint… no two of them are the same. Yes, you have a set of laws and guidelines that apply to all transactions but no two transactions are the same, period. Any and all work product must reflect that level of specificity if it is to be considered “forensic” in any way and has any chance of actually helping you make valid claims in a court of law.

So here’s my tip to help any homeowners facing foreclosure reading this: ASK for attorney references even IF they are an attorney. Ask to see their credentials. Ask for actual samples. Ask to see actual court cases their work product has been filed in and/or used in. Ask for customer references. Two words: DUE DILIGENCE… plus four words: DON”T BELIEVE THEY HYPE.  Because your money can either be completely wasted or put to very good use depending on WHO you hire and what they produce. Finally, call or email me… I’ll send you a couple samples with borrower info redacted so you have something to compare the garbage to. Hopefully this helps a bit… Good luck and happy hunting.

Jul
08

Beware of Scam “Forensic” Loan Auditors/Companies

Ok, here we go go again… now the scams have hit the loan auditing industry. Most of these fakers are ex-mortgage brokers who didn’t make it in the mortgage industry and are now looking for a new way to make money. There are a few good auditors out there who have really put in the time, effort and research to actually know the laws and know how to properly state the elements of these violations in a manner that can actually help a homeowner in a foreclosure matter (and can help an attorney bring these violations as affirmative defenses or counterclaims in a foreclosure case).

 TILA or supposed “Forensic” Audits that use standardized check-off lists without providing a mathematical determination of the TILA Disclosure Statement and amounts are NOT Forensic Audits.  A check-off list  or automated/software-driven TILA Audit describing potential violations as “Serious,” or “Moderate” is incompetent and useless.  A Forensic TILA Audit must provide accurate TILA; Regulation Z citations, case law precendent, as well as actual computation of all settlement service fees properly allocated in the TILA Disclosure Statement or the Audit will NOT withstand scrutiny by legal authorities.  Do not be fooled by imitations using standardized check-off lists.

There is absolutely nothing “forensic” about plugging loan data into some software and having it spit out a report. But that is exactly what most of these fakers are doing and they are charging anywhere from $395 to $995 based on what I have seen so far.

If the loan audit will NOT stand up to legal scrutiny then you have wasted your money and someone has scammed you into believing you were paying for something that would help you. Why would  you pay for a loan audit that would not stand up to legal scrutiny?

The software driven report serves a limited purpose and I use a popular banking compliance software for my audits as well but this software-driven report is only a small piece of my actual audit and findings report. A true forensic auditor examines every document relevant to the loan and looks at signatures, dates, parties on the documents, who provided those disclosures or documents and also obtains the story from the client because every loan is a story. It involved people and usually quite a bit of communication between the borrower and the indispensable parties to the transaction.

I have myself setup for Google Alerts on a number of search terms so I go to these other websites pretty frequently. I also get clients who have dealt with some of these fraudsters and now want my help to clean up the mess and the wasted money. Hopefully this post will cause those who read it to really do some good checking before they part with hard-earned money.

Bottom line is to make sure you follow your gut. Do your homework, ask questions, ask for references. A good auditor will most likely have attorneys they work for and consult for.

Feel free to contact me if you have any other questions on this topic or would like a sample of my audit reports. You’ll be able to see the true forensic nature of a good audit vs. these computer-generated reports.

Jan
12

TARP Bailout Funds Being Used to Buy Other Banks, Not Lend to Consumers

 

Well, here’s just another outrageous aspect of the “bailout.”

The Bailout Funds (ie. TARP Funds) were to be used to help “struggling” banks get a cash infusion so that they would continue to lend money to consumers to keep the economy going. At least this is what our pal “Hank” Henry Paulson said to us American citizens and Congress to sell this craziness to us. You know, it was an emergency and in order for the US economy to survive, we gotta get these banks liquid so that they’ll continue to lend. All that…

So here’s the real deal… US Banks are using the money alright but they’re stingier than ever when it comes to lending. Less people are getting approved right now, today than were 6 months ago. FACT. Oh, and the money, you know, the $350 BILLION TAX PAYER DOLLARS that has already been spent… where has that gone. Well, it seems that Congress didn’t see fit to actually mandate how that money could be spent so guess what banks are doing with the money? Buying other banks. Oh yeah, us taxpayers are helping, no not helping, funding banks to buy other banks. Oh, and it also seems that some pretty neat little language was slipped into that bailout bill by our friend Hank that allows any bank which buys another bank to WRITE OFF ALL OF THEIR BAD DEBT. A yeah, they can just take all that bad debt and get a tax write off for it.

Folks, this is beyond criminal. I’m sorry but this just gets me steamin mad and I hope it does the same to you! We have got to put an end to this. We are collectively being  used by government and special interests to make the rich richer. We are being hosed and lied to on a regular basis.

If you want some proof of this, read on. I welcome all comments.

TARP Funds Fueling Global Buyouts, Not Lending (CLICK HERE to link to story)

Bank of American Corp. (BAC), which is getting $15 billion from the U.S. government as part of the Treasury Department’s $250 billion “recapitalization” effort, is doubling its stake in state-owned China Construction Bank Corp., and will hold a 20% stake worth $24 billion in China’s second-largest lender when that deal is finalized.

PNC Financial Services Group Inc. (PNC), which will get $7.7 billion from Treasury’s Troubled Assets Relief Program (TARP), is using that cash infusion to help finance its $5.2 billion buyout of embattled National City Corp. (NCC).

And U.S. Bancorp (USB), which received a $6.6 billion capital infusion from that same rescue package, has acquired two California lenders – Downey Savings & Loan Association, F.A., a subsidiary of Downey Financial Corp. (DSL), and PFF Bank & Trust, a subsidiary of PFF Bancorp Inc. (OTC: PFFB). U.S. Bank agreed to assume the first $1.6 billion in losses from the two, but says anything beyond that amount is subject to a loss-sharing deal it struck with the Federal Deposit Insurance Corp. (FDIC).

While the Treasury Department’s investment of more than $250 billion in U.S. financial institutions has been billed as a strategy that will bolster the health of the banking system and also jump-start lending, buyout deals such as these three show that the recapitalization plan has actually had a much different result – one that’s left whipsawed U.S. investors and lawmakers alike feeling burned, an ongoing Money Morning investigation continues to show.

Those billions have touched off a banking-sector version of “Let’s Make a Deal,” in which the biggest U.S. banks are using government money to get even bigger. While that’s admittedly removing the smaller, weaker banks from the market – a possible benefit to consumers and taxpayers alike – this trend is also having a detrimental effect: It’s reducing the competition that’s benefited consumers and kept the explosion in banking fees from being far worse than it already is.

This all happens without any of the economic benefits that an actual increase in lending would have had. And it does nothing to address the billions worth of illiquid securities that remain on (or off) banks’ balance sheets – as the recent Citigroup Inc. (C) imbroglio demonstrates.

In fact, Treasury’s TARP program has even managed to create a potentially illegal tax loophole that grants banks a tax-break windfall of as much as $140 billion. Lawmakers are furious – but possibly powerless, afraid that a full-scale assault on the tax change could cause already-done deals to unravel, in turn causing investor confidence to do the same.

One could even argue that since this first bailout (the $700 billion TARP initiative) has fueled takeovers – and not lending – the government had no choice but to roll out the more-recent $800 billion stimulus plan that was aimed at helping consumers and small businesses – a move that may spur lending and spending, but that still adds more debt to the already-sagging federal government balance sheet.

At the end of the day, these buyout deals are bad ones no matter how you evaluate them, says R. Shah Gilani, a retired hedge fund manager and expert on the U.S. credit crisis who is the editor of the Trigger Event Strategist, which identifies trading opportunities emanating from such financial-crisis “aftershocks” as this buyout binge.

“Why in the name of capitalism are taxpayers being fleeced by banks that are being given our money to grow their businesses with the further backstop of more of our money having to be thrown to the FDIC when they fail?” Gilani asked. “Consolidation does not mean that bad loans and illiquid securities are somehow merged out of existence. It means that they are being acquired under the premise that a larger, more consolidated depositor base will better be able to bear the weight of those bad assets. What in heaven’s name prevents depositors from exiting when the merged banks continue to experience massive losses and write-downs? The answer to that question would be … nothing.”

Lining Up for Deal Money

In launching TARP, U.S. Treasury Secretary Henry M. “Hank” Paulson Jr. said the government’s goal was to restore public confidence in the U.S. financial services sector – especially banks – so private investors would be willing to advance money to banks and banks, in turn, would be willing to lend.

“Our purpose is to increase the confidence of our banks, so that they will deploy, not hoard, the capital,” Paulson said.

Whatever Treasury’s actual intent, the reality is that banks are already sniffing out buyout targets, while snuffing out lending – and the TARP money is the reason for both.

Fueled by this taxpayer-supplied capital, the wave of consolidation deals is “absolutely” going to accelerate, says Louis Basenese, a mergers-and-acquisitions expert who is also the editor of The Takeover Trader newsletter. “When it comes to M&A, there’s always a pronounced ‘domino effect.’ Consolidation breeds more consolidation as industry leaders conclude they have to keep acquiring in order to remain competitive.”

Indeed, banking executives have been quite open about their expansionist plans during media interviews, or during conference calls related to quarterly earnings.

Take BB&T Corp. (BBT). During a conference call that dealt with the bank’s third-quarter results, Chief Executive Officer John A. Allison IV said the Winston-Salem, N.C.-based bank “will probably participate” in the government program. Allison didn’t say whether the federal money would induce BB&T to boost its lending. But he did say the bank would likely accept the money in order to finance its expansion plans, The Wall Street Journal said.

“We think that there are going to be some acquisition opportunities – either now or in the near future – and this is a relatively inexpensive way to raise capital [to pay the buyout bill],” Allison said during the conference call.

And BB&T is hardly alone. Zions Bancorporation (ZION), a Salt Lake City-based bank that’s been squeezed by some bad real-estate loans, recently said it would be getting $1.4 billion in federal money. CEO Harris H. Simmons said the infusion would enable Zions to boost “prudent” lending and keep paying its dividend – albeit at a reduced rate.

Sounds good, right? Not so fast. During a conference call about earnings, Zions Chief Financial Officer Doyle L. Arnold said any lending increase wouldn’t be dramatic. Besides, Arnold said, Zions will also use the money “to take advantage of what we would expect will be some acquisition opportunities, including some very low risk FDIC-assisted transactions in the next several quarters.”

Buyouts Already Accelerating

With all the liquidity the world’s governments and central banks have injected into the global financial system, the pace of worldwide deal making is already accelerating. Global deal volume for the year has already passed the $3 trillion level – only the fifth time that’s happened, although it took about three months longer for that to happen this year than it did a year ago.

At a time when the global financial crisis – and the accompanying drop-off in available deal capital (either equity or credit) – has caused about $150 billion in already-announced deals to be yanked off the table since Sept. 1, liquidity from the U.S. and U.K. governments has ignited record levels of financial-sector deal making.

According to Dealogic, government investments in financial institutions has reached $76 billion this year – eight times as much as in all of 2007, which was the previous record year. And that total doesn’t include the $250 billion in TARP money, or other deals that Paulson & Co. are helping engineer – JPMorgan Chase & Co.’s (JPM) buyouts of The Bear Stearns Cos. and Washington Mutual Inc. (WAMUQ), for instance.

If You Can’t Beat ‘em… Buy ‘em?

When it comes to identifying possible buyout targets, M&A experts such as Basenese say there are some very clear frontrunners.

“I’d put regional banks with solid footprints in the Southeast high on the list, and for two reasons,” Basenese said. “First, demographics point to stronger growth [in this region] as retirees migrate to warmer climates – and bring their assets along for the trip. Plus, the Southeast is largely un-penetrated by large national banks. An acquisition of a regional bank like SunTrust Banks Inc. (STI) would provide a distinct competitive advantage.

There’s a very good reason that smaller players may be next: Big banks and small banks have the easiest times – relatively speaking, of course – of raising capital. It’s toughest for the regional players. Big banks can tap into the global financial markets for cash, while the very small – and typically, highly local – banks can raise money from local investors.

The afore-mentioned stealthy shift in the U.S. Tax Code actually gives big U.S. banks a potential windfall of as much as $140 billion, says Gilani, the credit crisis expert and Trigger Event Strategist editor. What does this tax-change do? By acquiring a failed bank whose only real value is the losses on its books, the successful suitor would basically then be able to use the acquired bank’s losses to offset its own gains and thus avoid paying taxes.

“While everyone was panicking, the Treasury Department slipped through a ruling that allows banks who acquire other banks to fully write-off all the acquired bank’s bad debts,” Gilani says. “For 22 years, the law was such that if you were to buy a company that had losses, say, of $1 billion, you couldn’t just take that loss against your own $1 billion profit and tell Uncle Sam, ‘Gee, now my loss offsets my profit, so I don’t have any profit, and I don’t owe you any tax.’ It was a recipe for tax evasion that demanded an appropriate law that only allows limited write-offs over an extended period of years.”

Given these incentives, who will be doing the buying? Clearly, the biggest U.S.-based banks will be the main hunters. But The Takeover Trader’s Basenese says that even foreign banks will be on the prowl for cheap U.S. banking assets.

Basenese also believes that Goldman Sachs Group Inc. (GS) and Morgan Stanley (MS) will be “big spenders.” Each will use TARP funds to help accelerate its transformation from an investment bank into a bank holding company. The changeover will require each company to build up a big base of deposits. And the best way to do that is to buy other banks, Basenese says.

“One thing [the wave of deals] does is to restore confidence in the sector,” Basenese said. “It will go a long way in convincing CEOs that it’s safe to use excess capital to fund acquisitions, and to grow, instead of using it to defend against a proverbial run on the bank.”

Not everyone agrees with that assessment. Investors who play the merger game correctly will do well. But the game itself won’t necessarily whip the industry into championship form, Gilani says.

“While consolidation, instead of outright collapses, in the banking industry may serve to relieve the FDIC of its burden to make good on failed banks, it in no way guarantees fewer failures,” he said. “In fact, it may only serve to guarantee, in some cases, even larger failures.”

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