Should I Default on my Mortgage?

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Should I Default on my Mortgage?

Posted on January 25th, 2012 by Mark Stopa

I get all sorts of comments on this blog, not to mention inquiries from prospective clients via email. This one, which I’ll paraphrase, really caught my attention, as it presents a situation I suspect a lot of Florida homeowners are facing. Here’s the question, and my response:

Question: My wife and I have always paid our mortgage, but with the economy as it is we’ve struggled to do so recently. Our house is about $150,000 underwater, and for the past year or so, we’ve borrowed money from my parents to make the mortgage payments. Unfortunately, my parents can no longer afford to lend us any more money, so we’re trying to decide what to do.

I’ve been asking the bank for a loan modification for many months. They keep telling me “we’ll get back to you,” but then I never hear anything. Most recently, the bank began insisting that my wife disclose her financial information as well. I argued with them about this, since my wife wasn’t a borrower and did not sign the Note, but they insisted that the only way I would be considered for a loan modification was if my wife submitted her financial information as well.

What should I do? My wife doesn’t want to disclose anything, but if she doesn’t, and we don’t get a modification, then we can’t continue to keep making our mortgage payments for much longer.

Answer: First off, this might sound backwards to you, but I’m glad your parents are no longer giving/lending you money for your monthly mortgage payments. I can understand the logic behind their doing so, don’t get me wrong, and I’m certainly not trying to criticize you or them. However, as I’ve explained on many occasions, including here and here, depleting a 401(k), IRA, or savings account to make monthly mortgage payments on a house you just can’t afford is almost never a good idea.

Please read this post, which I wrote in July, 2010. As I explained there in detail, it’s almost never a good idea to deplete your savings to make monthly mortgage payments, as all that will happen is you’ll run out of savings and then still be facing foreclosure anyway. If you realize you can’t afford to continue making monthly mortgage payments indefinitely into the future, isn’t it better to stop making those payments now, keep whatever money you have in your own pocket, and brace yourself for the impending foreclosure lawsuit, rather than spend all of your savings, then face foreclosure with no money left in your pocket?

The fact that your parents were lending to you, as opposed to you depleting your own savings, doesn’t change my view. In fact, it might make it worse. Your parents are obviously older than you, so they’ll have fewer years in the work force (if any) to recover, and I suspect from your email that you’ve depleted your own savings, too. Nonetheless, you’re still in the same situation you would have been in had you and your parents kept those monies in your own pockets – facing foreclosure.

It’s critical for you, your parents, and all homeowners to realize that any money in your 401(k) or IRA can never be taken by the bank (i.e. to collect on a deficiency judgment) – the only way you’ll ever lose that money is if you take it out voluntarily. Even if you get foreclosed, you’ll still get to keep your 401(k) and IRA monies. Even if you have to file bankruptcy, you’ll still get to keep your 401(k) and IRA monies. Hence, I can hardly imagine a circumstance where it makes sense to dip into these accounts to make mortgage payments. I suppose a temporary reduction in income could justify doing so for a short period of time, but that’s the catch – lots of people think/hope their reduction in income is temporary, but before they know it, they’ve made a year of mortgage payments from their IRA or 401(k) with no end in sight.

More at http://www.stayinmyhome.com/blog/2012/01/should-i-default-on-my-mortgage/

Mark Stopa Esq.

http://www.stayinmyhome.com

 

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106 Responses

  1. me and jack decided mers dint’ pull out. it’s decidedly – duh on me again -the bankster who wants the distance, my first thought: mers who?
    hey, anonymous, in your honor, we’re gonna go listen to ‘eve of destruction’

  2. Please listen up! I read that AZ case linked here. I mean no disrespect to the court which I believe made the decision IT truly believed was the right one, but of course I disagee. And in time, I think it can be demonstrated that the decision cannot stand.

    But here’s the news I hate to write: the banksters are ditching MERS altogether, as if it never existed. No more arguing about assignments, sub of trustees, zilch. There won’t be any assignments to argue about. The bankster will now do the substitution of trustee in its name with no assignment. And where this is ultimately headed, and I’ve seen that, too, is to by-pass the trustee altogether, also: the total obliteration of the deed of trust. Non-judicial foreclosure now known wholley as because I said so.

    They know the writing is on the wall in that deal (MERS), at least to a degree which will cause them some pretty good grief. I don’t think it’s arrogance which makes me want to hang my head and weep for what might have been short-sightedness for my part in putting arguments on display so vocally – anywhere I could – about MERS. Well, I wasn’t alone. Many others here and everywhere made equal or greater efforts in that regard, including in cases we don’t always hear about. Maybe even MERS is saying knock it off. Really, really hard to believe, but it’s possible. And given that the Consent Order may have been no more than a bit of fluff cover story for a knock-it off to MERS, it’s not out of the realm of possiblity. Or even this new deal about warranting who attorneys represent in contested matters might have gotten MERS’ attention. Not likely, given who they have demonstrated themselves to be, but not impossible.
    This ‘setback’, and I’ll call it that while praying to God it will only be temporary, is a bitter, bitter pill. I do believe, and what I believe is I’m getting out the Jack.
    They seek, and have successfully done in AZ if lower courts follow that decision, (and won’t they?) to avoid the deed of trust altogether. MERS? MERS Who? Who cares? We don’t need the collateral instrument at all. One got recorded and that’s all that matters. That is soooo yesterday, let’s just not even go there. E. Tolle said it correctly when he said MERS et al have set the law of agency on its head. But, oh lord, that is the tip of the newest iceburg. In fact, this deal makes that issue look like chump change. The dreadful has happened, at least in AZ.

    Me and Jack are making a resolution to keep a lid on it til we can hit them between the eyes. That stinks if you’re me. The jack’s working its miracles. I need me some e hawkins singers to go with it.

  3. @anon – you’re probably right about the ag deal. Maybe you will
    post email address, mailing address, phone nos. whatever and we can start a call/write campaign? I don’t think we have any choice. Was it z who said he had to believe? I, too, need to believe something can make a difference or I can’t stand it.

  4. @hman – I don’t know if your loans showing in a trust or anything at all is enough to get you what you want and I’m not sure what that is in regard to them. Evidence the current pretender has no interest? My only frame of ref is HAMP. It took quite a bit, but the borrower was ultimately found to be an intended beneficiary of HAMP with a private right of action in at least 3 cases that I know of, which of course is different, might even be apples and oranges. Now, one of MERS claims to fame when it was selling itself was that it was going to make funds more readily available to homeowners by speeding up the securitization process. But that was MERS, not the depositor, et al. Maybe others in the act said that, too. I don’t know a way to tie-in to that. If I were desperate, I would try, tho. Your honor, this whole gang said this securitization business was going to benefit homeowners, but it looks to me like it hasn’t done that since I’m standing here not even knowing who I owe money to. That’s pretty lame. I just don’t know.

    What I also don’t know is why one needs to be a party to a psa or any document / available info to introduce it. That doesn’t make sense to me. Now, one can’t try to win a case based on someone else’s right in or remedy for breach of a contract, but what’s that got to do with the doc as evidence of X? It must depend on what you are saying the doc evidences, how your argument is framed?

    I dont’ want to read that AZ case because I’ll likely get a really big head and heart ache.

  5. I didn’t know until the other day that when MERS first showed up, all deeds of trust headed to MERS were recorded with the real beneficiary in the deed of trust and then an assignment was done
    to MERS. About a year later, MERS got together with FNMA and maybe FHLMC and they all decided heck with that, the coast is clear, (yeah, that’s a spin, but I’ll betcha) let’s just fix this so we don’t have to do those assignments: voila! The “MERS deed of trust”. This tells me their original assessment was that the true beneficiary MUST be shown originally in the public records. Dunno what if anything that’s good for, but we sure should think about it. I’m already thinking that’s just possibly the damn truth.

  6. Mers stopping foreclosures in its name has got to be an admission
    they have no interest in the debt AND that an interest in the debt is necessary. duh on me. I think it’s also an admission something else – not sure what. And a dollar to a donut it’s got something to do with what’s going on with that secret Genpact contract. Somebody has GOT to get the skinny on that. Investigative reporter?

  7. @ a machi – about those condo dues. Now I have to reach waaay back for this one. There are 2 docs which control condo’s. One is the cc & r’s and I’ll be darned if i can think of the name of the other. What can happen if the doc I’ll call ‘doc b’ is that sometimes there is no control on increases to hoa dues put in there. This is not an oversight – it’s deliberate and dangerous to the condo owner . I don’t know a cure. It costs X to run the place (and assuming everyone is honest). When vacancies escalate as they are probably just now, fewer owners are left to pay that X, altho a few things should go down like the water bill. Oh, it may be by-laws, just can’t remember. Anyway, those fees can get crazy. I remember back in 82 when I was working on a condo refi-project mol, I was appauled that people who bought when the dues were 50 a month now had to pay 250 or nearly that. Just about 5 times the original hoa dues. That’s a killer. I don’t know much more than that about those by-laws if that’s what they’re called, except never buy a property with hoa dues without reading absolutely everything. Anyway, those ridiculous hoa dues may have been just what those people had to pay. I can’t know if they were in a “luxury” condo or not.

  8. @zurenarrh – I will find you Hultman’s signature on a court doc so you can check it with yours, fwiw. I know I have one somewhere.

  9. zurenarrh,

    Not as I am currently reading. See post elsewhere by Abby in CA.

    Jokes on us.

  10. My understanding is that the settlement won’t affect legal challenges by individuals. Is that not right?

  11. zurenarrh

    Will not matter. The state AGs are going to sign away your legal rights.

  12. ANONYMOUS,
    You said: “MERS has no authority to assign anything. Not by the PSA, and not by any POA.”

    MERS has admitted this much in my case. They have admitted that their assignment in my county land records was defective, particularly since it purports to assign the note as well as the DOT.

  13. zurenarrh

    Not if the AGs get their way. All victims will remain victims. Their voice never heard. And, all before any real investigation. Investigation, if any, will come too late.

  14. E. Tolle,

    All you post has to do with foreclosure — not assignment. MERS may act as “nominee” agent — but cannot do the assignment themselves. Why? They never owned anything to assign to begin with.

    MERS has no authority to assign anything. Not by the PSA, and not by any POA. Can they foreclosure on behalf of another party? Maybe, but only if they IDENTIFY that party. To date, have never seen MERS identify the real party — ANYWHERE.

  15. Nothing will matter if this AG settlement goes through.
    No one is getting this.

  16. No time….just wanted to let JG know that I went back and looked and he’s right, that deal about MERS being listed as agent was in fact the utterance from MERS counsel, NOT of the DOT.

  17. @carie: I know what you mean, but I believe I’m in the process of making them care. If I didn’t believe that, I’d have given up a long time ago. If this court doesn’t care, then it’s on to the next higher one in the chain.

  18. @z

    Unfortunately, the courts don’t care about any of that…

  19. johngault, you have done an excellent job of deconstructing MERS. So have you, E. Tolle. E. Tolle’s comment that MERS exists to act as “agent” for ALL its members, is exactly right. It’s a game of musical chairs until foreclosure time, and then they settle on who should do the foreclosure.

    In my case, I asked for any and all assignments of my note on the MERS system. That’s what MERS is supposed to track, right–the movement of notes? That’s what they say they do. Well, guess what MERS told me? They don’t have records of ANY assignments of my note on their system. Apparently that means they don’t even have a record of the assignment they recorded in my county land records just prior to the attempted foreclosure.

    By the way, the MERS responses to my interrogatories and requests for production were signed by someone purporting to be William Hultman.

  20. Wow! Amazing thread we’ve got going here.

    hman, you asked for any and all thoughts. Here’s one…if your promissory note is anything like mine–and surely it is–you “promised to pay” the “person” who meets BOTH of the following criteria: 1) the “person” has taken the note by transfer and 2) the “person” is entitled to receive payments under the note. I don’t have any case law on this, but I’m not sure case law is necessary since the clear words of the note/contract state those two criteria.

    Anyway, what those two criteria mean is that you and I have a contract with the person who meets BOTH of those two criteria, whether that person is the original lender or a group of investors. That means that you and I have an interest in any assignments–whether recorded or not–and any sales of the note, whether or not we are a party to the assignment, PSA, trust documents, or what have you. That’s because the plain language of the note/contract says that our promise to pay hinges on whether or not there even is a person which meets BOTH of those criteria.

  21. e tolle
    That case was in Florida, right? Florida is a lien-theory state for one thing. I thought I understood you to say the bankster attorney
    said that sentence to the court , not that it was taken from a dot. I have never in all this time seen a dot with that language. It’s possible I missed one for Florida, but it seems unlikely given the number I’ve looked at. When I have time, I am going to hunt down the actual doc, and if that language is actually in it, I will kiss your grits in Time Square. Need to go there anyway!
    At first blush, that statute you recited seems to be what you say – a case of a law being changed for the benefit of “MERS”. Expletives here. But I have to think about it some more because it may be
    assailable given that it’s predicated on certain facts / circumstances which may not in fact exist. Sad that poorly, but you get the drift. There ARE changes to laws regarding foreclosure which have been implemented since the deed of trust itself was implemented as a collateral instrument allowing non-judicial foreclosure which have eroded the intent of its use.
    When I see them, I know that banksters have been hard at work and it is one of the most frustrating things to deal with.. Non-j foreclosure was a privilege granted to lenders and what they are doing and still try to do with that privilege makes me furious.
    It’s nothing short of maddening that a special interests group can accomplish these goals without us even having a clue about the activity. It’s unfortunate that we must now be ever vigilant. Maybe that’s always been true but we didn’t want the work. Dunno.
    Nothing has changed my mind that MERS is not an agent. I may feel differently when I find that particular instrument in the florida case, and like I said, until I do, there’s no way I believe that’s its literal recitation.

  22. Anyone, correct me if I am wrong (not that this is what is currently being done in courts). A mortgage is a real property transaction.

    There is a Trustor and a Beneficiary. This is the only important relationship in a “mortgage”. This relationship is not wiped out by complex behind the scenes transactions. All laws regarding Trustors and Beneficiaries remain in place today and cannot be circumvented even if this is what has been happening with securitized mortgages over the past decade.

    All other parties are middle parties with no beneficial interest who exist merely to facilitate the relationship between the Trustor and the Beneficiary.

    In both judicial and non-judicial states the homeowner retains legal and equitable title. In trust deed states the trustee has a bare legal title that can be conveyed back to the owner when paid in full or conveyed to the beneficiary when the note has been dishonored. In judicial states a judge decides when to transfer both the legal and equitable title to the lien holder when there has been dishonor of the note. The lien holder must prove his interest in judicial states. The judge examines the note to determine this.

    In trust deed states there is no judicial review. There is no one reviewing the note. The DOT trustee or substitute trustee conveys full title back to an owner who has paid in full or sells the property and conveys full title to the beneficiary when there has been dishonor of the note.

    Foreclosure proceeds automatically in non-judicial states. There are very strict recording and other real property statutes in place for this reason and they are not to be ignored. When there is a controversy the Trustor must sue and be a Plaintiff and the burden of proof is on him. He needs to present enough proof that there is a true and serious controversy that can be given to the judge who will review it and compel the defendant to produce the proof of his ownership of the mortgage and proof of the amount that is owed him.

    Laws exist to protect homeowners also not just lenders. This has been forgotten. The letter of the law must be applied in determining whether laws have been circumvented in declaring the default or dishonor of the note on in the identity of the party seeking to foreclose and receive title. There can be no doubt about the identity of the Trustor or the Beneficiary and the amount owed the true Beneficiary. If this party has been paid in part or full from any source this must be disclosed. If there is a lawful unsecured debt that remains to some other party this must be disclosed and the amount of this determined to the penny. All homeowners are due this whether they can afford an attorney or not and whether they have paid “someone” or not.

  23. Well said, E.Tolle. They are “winging it”…lying every step of the way…and winning, because God forbid, somebody gets a “free house”. All hell will break loose if the whole truth comes out and some precedent setting decision comes down that changes everything. That is always what it comes down to. The judges are aghast at the idea, so they go along with the insanity…and who cares if you’re kicking out a hard-working family of 4, or a 101 year-old lady whose lived there for 50 years and her son refinanced her house, thinking he would keep his job…the stories are endless…but the foreclosure machine is an equal-opportunity destroyer…for now.

  24. E Tolle & John Gault,

    MERs has seemed to change it’s story over the years. They are no doubt corrupt. The problem I have is with the recent AZ supreme court ruling in Vasquez v Saxon. http://syllabus.arizonalawreview.org/post/14549196974/arizona-supreme-court-holds-narrowly-for-lenders-in

    The Supreme Court stated “The court held that an assignment of a deed of trust does not need to be recorded prior to the filing of a notice of trustee’s sale to enforce the secured obligation against a mortgagor. ” The court further determined that the DOT is automatically assigned when the note is sold and that it doesn’t need to be recorded. The decission states many other inaccuracies however I need to make the best case I can given the case law and statues I have. (Even the AZ attorney General had written in favor of the homeowner on this case but it didn’t seem to matter).

    This is why I’ve asked about agency relation and defunct lenders. I’m thinking of writing a letter to the AG of NY who seems to be homeowner friendly. The PSA stipulates that the Trust is regulated by NY trust law. I’m not certain but I believe NY law states that if the assignments are not done correctly they are invalid.

    I’m hoping to point out the fact that 2 of my properties have been assigned by MERS from my defunct “lender” several years after he went out of business. Several years after they were no lonager MERs members. If I could get clarrification from the NY AG I hope I would be able to use this in my AZ court case.

    The other obstacle I’ve seen is that most judges do not allow the PSA to be used because the borrower is not a party to the contract. However, if my loan #, zip code, and exact loan amount is listed in the PSA (It is, actually all 3 of my loans were in this “trust”) is that enough to make me a party to this contract? I can show that my loans are listed 3 times in the schedule of loans.

    I welcome any and all thoughts. Thanks Everyone!

  25. @ JG, you wrote, “This is, I tell you, at the heart of why MERS avoided the word agent.”

    John, again, this is stripped right out of the loan doc before the judge in the case I’ve been referencing:

    “MERS holds the mortgage lien as mortgagee in an agency capacity for the mortgage lender, its successors and assigns.”

    It’s painfully obvious that any other entity that wreaked so much havoc in any other field would have been stripped of any rights to continue business and its designers imprisoned for life. However, since it’s the insane running the asylum, they continue forward as if nothing’s the matter….business as usual.

    The bottom line is that from a reading of this counsel attorney for MERS Brochin, it is painfully obvious, as it has been from the very start, that they’re winging it at best. They’ll tell the court whatever they think the court needs to hear, seeing as how their whole edifice is simply built on smoke and mirrors.

    What it comes down to as a mortgagor is simply trying to stay above water until some semblance of sanity returns. It’s been a survival mode to hold onto the flotsam of belief in their sea of lies that eventually clear headedness will rule, that someone in authority will come along and save us….that these lies and pretzel-shaped legal arguments would finally be sifted out and be shown for the absolute crap that they are.

    But it hasn’t happened, not at all. Here years later, Congress still hides, Obama still pimps, the courts do with what they have in front of them, and the borrowers go from doorknobs to zippers for entrances.

  26. Said another way, the courts (in my neck of the woods) are ruling that the assignment of the promissory note operates as an equitable assignment of the underlying mortgage, but the right to enforce the mortgage remains with the legal holder of the mortgage, which is MERS or whomever MERS assigns it to/claims it is.

    So, when a MERS member assigns the note (on whose authority?), the mortgage, the legal title, changes hands (the mortgage follows the note). So this gives us MERS pretending to transfer the (copy of) the note, and then assigning the mortgage (just prior to foreclosure) by no authority save its own, or whomever directs it to.

    Any disputes that arise between the mortgagee (MERS) holding legal title (mortgage) and the assignee of the promissory note holding equitable title do not affect the status of the mortgagor for purposes of foreclosure by advertisement. That effectively quarantines the mortgagor off into a little cocoon containing no legal rights to the goings on whatsoever. Shut up and pack, deadbeat!

    But this is just one of the many problems that will undoubtedly occur due to the above; MERS member assigns the note, but due to opacity no one knows who that note holder is. MERS then assigns underlying mortgage and forecloses, or has whoever wants to forecloses with the new assignment. But since this effectively splits the note from the mortgage, the mortgagor is open to future claims from this note (high likelihood it’s in multiple locations) as what’s to keep it from being assigned again in the future? The bank’s superior integrity? MERS stellar track record?

    But all of this is illegal, as the true owner of the note’s true agency agreement achieved through the construct that is MERS and its regulations clearly sets out that whenever the note transfers from member to member, it’s a whole new ballgame. In other words, MERS would like the courts and everyone for that matter to believe that it is ALL AGENCY – ALL THE TIME. It’s not! MERS can act as nominee for only the particular MERS member who holds the promissory note at any particular time and when that promissory note is assigned between members, the member for which MERS acts as nominee, and on whose behalf MERS holds legal title, necessarily changes, IT HAS TO. This would necessitate a re-recording of the underlying mortgage which would destroy their implied agency deal and theft ring.

    How can any of this happen except for the argument that MERS can and does achieve anything it sets out to achieve, i.e. acting as a POA for one and all?

    Just my theories. Please shoot holes in them. I claim no mental acumen whatsoever.

  27. @ Anonymous, maybe read the post prior to commenting?

    I never said MERS had a POA. I said that by their very design and construction they ARE a POA.

    Power of Attorney = power given by one person or party to another authorizing the latter to act for the former.

    Now read the following state statute, and tell me if this is not the very definition of a POA.

    507.413 AUTHORITY OF MORTGAGEE DESIGNATED AS NOMINEE OR AGENT.

    (a) An assignment, satisfaction, release, or power of attorney to foreclose is entitled to be recorded in the office of the county recorder or filed with the registrar of titles and is sufficient to assign, satisfy, release, or authorize the foreclosure of a mortgage if:

    (1) a mortgage is granted to a mortgagee as nominee or agent for a third party identified in the mortgage, and the third party’s successors and assigns;

    (2) a subsequent assignment, satisfaction, release of the mortgage, or power of attorney to foreclose the mortgage, is executed by the mortgagee or the third party, its successors or assigns; and

    (3) the assignment, satisfaction, release, or power of attorney to foreclose is in recordable form.

    The county recorder and registrar of titles shall rely upon this assignment, satisfaction, release, or power of attorney to foreclose to assign, satisfy, release, or foreclose the mortgage.

    (b) This section applies to any mortgage, assignment, satisfaction, release, or power of attorney to foreclose executed, recorded, or filed before, on, or after August 1, 2004.

    So while we were busy being equity stripped, the laws were re-written to create a huge POA f/k/a MERS. Oh, and do I need to mention that it was MERS that wrote the above legislation and then paid the legislature to sign it into law? Could there be a better definition of the best government money can buy?

    That bill is nearly impossible to get around using age old agency law arguments. And this is exactly why the courts are handing off houses by the dozens per hour. That bill allows ANY lender to have MERS foreclose on their behalf. There is no need for the principal’s direction or consent. Why? Because MERS is acting on EVERYONE’S behalf! And as Neil has written about before, anyone with MERS authorization can go in and change loan details and status to best suit their crime scene needs.

    The courts are routinely ruling that it doesn’t matter if the original lender is before the court. WTF? How can they do that? Re-read the statute, it’s all right there.

    Or in Anonymous talk….”MERS needs no agency – is agency- courts defying black letter law – must stop , not security investor…..

  28. E. Tolle

    No — MERS does not have POA — they ONLY record assignments. No power to execute them.

  29. John Gault.

    Link to Peterson Law review paper.
    papers.ssrn.com/sol3/papers.cfm?abstract_id=1684729

  30. johngault:

    “@joann – I lost the two psa’s I had in a computer crash. (yeah, I know pretty dumb to let that happen, but there it is. Lost quite a bit before I got a clue). So I’d stilll appreciate a link to the one(s) you have”

    You don’t have to save them – you can link to them online. You can get all the psa’s you want: Google Edgar company search Go to the sec.gov link for Edgar. In the company name search box type Wells Fargo or Washington Mutual or Countrywide or Bank of America ect. All the filings for that company name will come up – you can tell which ones are the mbs trusts Click on the cik number for the one you want and open up the files for that trust. The PSA is in 8-K The prospectus is in 424B5 and the FWP (Free Writing Prospectus) files have more information and sometimes lists of loan numbers and descriptions among other things. I just figured this out myself. I hope this is allright to post here. Neil has links to the SEC also for instance the WAMU trusts open up from his links at the left.

  31. btw, as to this post and the bankster wanting the wife’s financial information: not. The reason which jumps to mind is that there was no reliance on her income when the note was made in the first place and she did not sign the note. But if the guy really wants to go ahead with
    “modification”, then he might learn the formula for the npv and income-driven formulas, and give it them IF it benefits him because his goal is to stay in his home and he doesn’t care about the “rest”.
    I think those formulas are online somewhere.

  32. @e tolle – that was hard to read. Really. It drives me nuts when a question is clearly not answered and what is said is baloney. And what was that new deal attorney ref’d near the end? Some amendment regarding lost notes? What the h amendment? And who managed, if anyone, to get that on us? MERS never ever not once in its dreams took possession of a note and to make a court think otherwise – never mind who owns the thing – just possession, is so false I wanna smack them myself. MERS doesn’t possess a damn thing except a database. It doesn’t do anything, either. Look, you could calmly right a little thing to go with that and send it to the judiciary. They are free to read their mail. Put it on cd. It costs
    1.84 to send 7 cd’s (in those little white cd envelopes) in one padded envelope to a court.

    I just found this in my files (and I still say MERS is not an agent):

    WARSHAUER v. BAUER CONSTRUCTION CO., 179 Cal.App.2d 44 (1960)
    3 Cal.Rptr. 570
    BERNARD L. WARSHAUER et al., Appellants, v. BAUER CONSTRUCTION COMPANY, INC. (a Corporation) et al., Respondents.
    Docket No. 18755.
    Court of Appeal of California, First District, Division One.
    March 21, 1960.

    “[4] The law reasons that where one of two innocent parties
    must suffer, the loss should be accepted by the principal who is
    responsible for the selection of the agent and for the definition
    of his authority. As stated in Eamoe v. Big Bear Land & Water
    Co., 98 Cal.App.2d 370, 374 [220 P.2d 408]: “. . . the agent
    has been negligent in the performance of his duties, and some
    innocent person must be the loser. Should it not be the one who
    gave the agent the power he misused, intentionally or
    unintentionally?”

    This is, I tell you, at the heart of why MERS avoided the word
    agent. The act of the agent goes back to the principal. It’s really really, tweaked because it’s the principal who acts in the name of the alleged agent in this totally, unequivocably, and I say fatally messed up deal.

  33. @ JG, here’s the follow up to your question. This has the judge explaining the criminality that has tossed hundreds of thousands of Floridians to the curb, at the same time letting off thousands of lawyers for fraud upon the courts. It also has this dweeb attorney trying to skirt the legal issues.

    We here at LL all know that the notes, as described by the head of the Fla Banker’s Association were routinely destroyed after scanning. But here, and this is the only other place I’ve seen this besides CW v. Kemp, Brochin who is head counsel of MERS states all matter of fact that the notes (read copies) are kept by the servicers in a repository until needed for foreclosure. And according to our benefactor Neil, the destruction of the originals denies the discovery of multi-pledging into as many trusts as they can get by with. Add insurance payouts and a trillion here and a trillion there starts to add up. Quick and easy money especially considering that the government is running interference for the crimes.

    Exactly what effect would these facts have on perfecting the trusts under NY trust law, short of a total fail? But, it allows for a sale of collection rights none the less to investors, while also allowing for a quickie foreclosure on the servicer end. If that’s not double-dipping I don’t know what is. And this shit is taking place right out in the open, and no one cares. Why? BECAUSE THEY’RE ALL COMPLICIT! AND THEY’RE ALL INSANE! Oh, and let’s not forget the eventual sale of the houses.

    Your question had to do with the judge’s second question, about how they can make a claim for lost note affidavit when they are simultaneously claiming that they never had the note.

    MR. BROCHIN: Just so I make sure I stated
    it accurately. I do want to be clear. I did not
    say in all the foreclosure actions MERS
    necessarily has physical possession of the notes.
    I did say there are times as the case that I
    just discussed where MERS does have physical
    possession. There are also times when MERS files
    actions to foreclose when it does not hold or
    have possession of the note but does so on behalf
    of the entity, usually the servicer, who actually
    holds.

    JUDGE GENDEN: Whoa.

    MR. BROCHIN: I just want to make sure I
    Didn’ t represent –,

    JUDGE GENDEN: You still haven’t answered my
    question. How can you ever state that at the
    time the note was lost or destroyed it was in
    your possession when it was never in your
    possession because we just established there is
    no depository by which all these notes are being
    held? How do you do that? I’m curious.

    MR. BROCHIN: Well, for all those cases I
    don’t know factually each one and how –

    JUDGE GENDEN: Well, trust me. A lot of
    these cases — anyone of these lawyers here can
    tell you 50 percent, 75 percent. What if it’s 30
    percent? There’s a count for reestablishment of
    a lost note which the Florida law requires by
    statute to allege and prove that it was in your
    possession at the time it was lost or destroyed.
    Now explain to me how you can say in a complaint
    and in a lost note affidavit that at the time the
    note was lost or destroyed it was in your
    possession.

    MR. BROCHIN: I do accept your proffer that
    many of them do say that.

    JUDGE GENDEN: Well, I’m sure they will all
    admit to that. They’re sitting here.

    MR. BROCHIN: Maybe ask them how they allege
    it, but —

    JUDGE GENDEN: No, I’m asking you. You’re
    the one that’s arguing on behalf of MERS.

    MR. BROCHIN: I am, Judge. And I’m going to
    try to –

    JUDGE GENDEN: And it’s a legitimate
    question.

    MR. BROCHIN: It is and I am going to try to
    respond. I’m not sure that those pleadings are
    accurate. I’m not confident that there aren’t
    inconsistencies contained in those pleadings. I
    don’t know. I do know that those pleadings get
    amended through the course of the foreclosure
    when those lost notes are recovered and thus
    subsequently proffered to the court. I do know
    judges demand that those notes be produced and
    they in fact are produced. I know Florida law
    allows you to plead by the way two counts
    inconsistent with the others.

    JUDGE GENDEN: Let me make sure that I made
    myself clear to you. I’m not talking about an
    inconsistent position. I’m talking about the
    classic case that all of us have, minimum twice a
    week, ten times a morning, twice a week in which
    almost 50 percent or more are the reestablishment
    of a lost note because the notes are lost.
    Nobody is coming back to us, take my word for it,
    weeks later saying, Judge, by the way we found
    the note. Those cases are they’re defaulted,
    they’re summary judgments, judgments are entered,
    sales are instituted, new buyers take the
    property and that’s the end of it.

    I’m asking two questions. How can these
    lawyers allege that at the time the note was lost
    or destroyed it was in the possession of MERS
    when it’s not true? And if it’s not true, how
    can we even consider going forward with a
    foreclosure? Because you then clearly do not
    have standing because you have violated the
    Florida law by filing a false affidavit that says
    I’m the one who was in possession of this note at
    the time it was lost or stolen.

    MR. BROCHIN: Judge, I don’t know if that’s
    a problem in foreclosure pleadings that’s
    particular to MERS. My understanding is lost
    note affidavits and lost note counts are
    routinely filed by mortgagees and note holders,
    but that doesn’t answer your question.

    JUDGE GENDEN: No, it doesn’t. A lot of
    lawyers appear in front of me and they know, I
    say to them, where is your lost note affidavit
    because, you know” you just can’t file a claim
    for reestablishment of a lost instrument without
    following the Florida statute and if you’re
    filing an affidavit that says it was in my
    possession, me, MERS, the only plaintiff, at the I
    time it was lost or stolen and it’s not true, why
    isn’t that a fraud on the court and why doesn’t
    that stop the whole process right in its tracks?

    MR. BROCHIN: Well, I know the statute on
    lost notes has been recently amended actually
    where the predecessor or the one who held it
    previously could have lost it and you can now
    establish a lost note. No one should file a
    false affidavit saying they have possession of a
    note when in fact they don’t have possession of
    the note.

  34. @joann – thanks. My computer doesn’t like the doc, so I’ll have to think of something else. It keeps trying to download itself as a huge file, (doesn’t stop) which at 12 pages, it isn’t. Can you put it at scribd?

  35. @joann – I lost the two psa’s I had in a computer crash. (yeah, I know pretty dumb to let that happen, but there it is. Lost quite a bit before I got a clue). So I’d stilll appreciate a link to the one(s) you have. Then I have to be locked in a room with at least two others for a weekend or three to try to figure it out.
    Some of the language you cite seems problematic or at least leads to questions of authority. And btw, I have little doubt that sec’n trustees, just as MERS, have no knowledge when a bankster’ attorney purports
    to represent them in a contested matter. No one is being made to evidence authority for anything at all in this mess. This may not change until the judiciary gets it, and moves away from “you’re in default – you lose”. But we’re not totally helpless. The matter of “default” always shouted by the bankster is nothing but a red herring and has nothing whatsoever to do with who has a right to be in the courtroom. That is a threshold issue. Period. For those who don’t know what that is, only those who have actually suffered an injury may cross the “threshold” of the courthouse to seek remedy or restitution for that injury. Someone can get to the issue of default right AFTER demonstrating the injury was to THEM. “Well, your honor, I’m not saying I’m in default or I’m not, and before I do, I’d like to know
    that it’s any of ABC’s business.” Something like that.

  36. johngault:

    “I sure would like to read your pdf. Can you put it somewhere and link it? thanks”

    I found another link online to the same poa. It may be in a few places. It is BofA successor to LaSalle (now US Bank successor to BofA) giving power of attorney to chase for certain wamu trusts that are named.

    http://mariokenny.files.wordpress.com/2011/07/boapoa.pdf

  37. Well, Mr. Hess, you do have a way with words, don’t you? The thing is you’re right about discovery generally. Discovery will tell us, or should, if one is a hidc or a mere holder for one thing, which there can be no doubt we have a right to know.
    There is either rule or case law which addresses information which is “singularly in the possession” of someone other than yourself. Even then, tho, we’d probably have to demonstrate a need to know to get it. Not sure, because pursuing it is just one more thing in a long list of to-do’s. People – cough, cough – with research assistants and or access to westlaw could find it faster and maybe just maybe they should.

  38. @ e tolle, for those of us who understand the shyt being flung at us as well as the judiciary, it’s amazing we’re all sane. I come from one of those families where the lie is twice as bad as the act one’s trying to cover. It’s really hard to read this crap and the fact that we don’t burst into tears, but have to absorb it, is probably killing us. I know the reality of the situation with MERS and notes generally, and so , like you, see the lies, the willful mismisrepresentation clearly. MERS very own Wm Hultman has a slightly different spin in his depo in Upke, which is posted at scribd. Actually, he fails miserably to support a
    MERS’ interest in the note. And I repeat, it’s infuriating that at the same time MERS was spewing this sewerage to numerous courts over here, they were swearing the opposite to the court over there in Nebraska. Btw, without re-reading your post, I’d say that attorney
    never even answered the first question.
    I don’t know how they got around the second judge’s logical question about not having the note when it was allegedly lost. LIke to hear that one, fwiw at this point. Send it to Nebraska, too. I am always interested in stuff like this – transcripts, depo’s – but these days, it takes more than one thought to go get them at 8 cents a page – adds up faster than I can ever have believed it would. Had to cool it with exceptions.

    You know what I hope? That the judiciary when they finally, finally get it has the same reaction to a lie my mother did – or worse, and go from there.

  39. Todd Hess’s issues.WOW, talk about a long list. Lets start again.Something is missing.GOT IT. NEIL do you know what it is????? Here is a clue. DISCOVERY!!!!!!!!!!!!!!!!!!!Please people stop. Without discovery your fucked. Your not going to get it no mater what .You may as well reach around and stick it in yourself.

  40. johngault:

    One PSA is as good as another. They all say the same things essentially.

    There should be absolutely no reason for the trustee banks to make POA’s or allow or accept bogus assignments at all except to absolve themselves of liability (for what?) and remain passive non participants even letting servicer attorneys represent them in court. Everyone passes the buck. Homeowners have no principal in more ways than one. Investors have no principal either:

    “the Trustee shall deal with the Depository, Depository Participants and Indirect Participants as representatives of the Certificate Owners of the Book-Entry Certificates for purposes of exercising the rights of holders under this Agreement,…; and…the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository ….”

    “Unless this Certificate is presented by an authorized representative of the Depository Trust Company, … any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof, Cede & Co. has an interest herein.”

    Maybe Depository Trust Company should record it’s interest in the public registry. Depository Trust Company is artificial intelligence. It isn’t a person or a corporation. Who is the real party of interest? Hal?

  41. krakajak – so how about a link to that article?

  42. @joann re: poa in some pdf file. That’s interesting as hell. My first reaction is a party can’t give a right it doesn’t itself have to another.
    I don’t think we’re ever going to see any valid right given to a trustee
    to do those things in any psa or elsewhere whether just sloppy, mess up their deal at the time, or whatever. Someone had to be empowered to do things like that I guess, but I swear, they purposefully didn’t do it or got stoned and missed it. I sure would like to read your pdf. Can you put it somewhere and link it? thanks
    Some commentators here refer to this or that in a psa. Those who do, any links you will make / provide to those psa’s? I’d bet I’m not the only one here who would like to read them.

  43. @E.Tolle

    That is the million (billion) dollar question isn’t it? Who does have beneficial interest? Clearly not MERS. Who does? By law (which they don’t care about), it should be the LENDER. But there is no real lender creditor. That’s why they told me “If you would like to payoff your “loan”, make the check payable to One West Bank, FSB.”
    OWB,FSB is a DEBT COLLECTOR—most certainly NOT my lender, creditor, OR owner of the promissory note—yet THEY get the proceeds??? Isn’t that blatant fraud?

  44. @e tolle – Just re-read your comments. You really are a good writer and have a handle better than most of us on what’s up, well, down as it were. You say it right at eloquently.
    You’re right that all courts see is a “poa”, but it doesn’t exist. That’s an interesting way to frame it and fwiw I’m going to give some thought to that perception. Everyone should? We must know what we’re fighting and if that’s the perception, that’s kind of a big deal.
    At the risk of sounding like a broken record, I’ll say again our comments and points of view cannot be confined to these pages, as informative and beneficial as they are. We have to reach people whose job it is is to give a damn and act.
    Some people hold signs and protest in the street and it’s as important as any form of communication regarding the inanity, injustice, and lawlessness we deal with. That form of communications gets the most press, and we need all the press we can get,. Bad press stinks, tho. I hope those people continue to regroup and keep at it relentlessly, although I didn’t think much of the alleged destruction of property I heard about in Oakland. My own opinion and nothing but.

  45. Ian:

    “the mortgage (security instrument) is held by MERS as nominee. The note borrowers’ promise to pay), split from the mortgage or DOT, was to be sold or negotiated to the trust.”

    Haven’t got MERS. Used to tune out the discussion except general principles. Doesn’t matter not deprived. It translates just fine. Same thing occurs even without MERS and that is the reason for the robo-signing fraud forged docs and banks perjuring themselves in court. It’s the reason for the false “assinments” needed to foreclose.

  46. Ps. It’s also pretty telling that I couldn’t find a reference to this doc anywhere on the web.

  47. @ JG, I didn’t paraphrase a thing. I quoted MERS counsel in the following. If you can get your hands on this particular court transcript, do it. It incriminates the entire bunch. IMO, this guy Robert Brochin as MERS Counsel should be getting three hots and a cot. But of course, he’s the former General Counsel or some such rank to the Gov of Fla, so he’s untouchable.

    The doc that I have in its entirety, and it’s a large deposition, lies from the beginning through to the end.

    MORTGAGE ELECTRONIC
    REGISTRATION SYSTEMS, INC.,
    Plaintiff,
    v.
    ENZO CABRERA, et aI

    PLAINTIFF’S NOTICE OF FILING TRANSCRIPT OF PROCEEDINGS

    A few highlights:

    The COURT: Go back, if you’ would, please,
    to my earlier question. The assertion that MERS
    owns the note. You talked about owning and you
    talked about holding. MERS does not own any of
    these notes, does it?

    Mr. Brochin: It’s been in my head for about 30
    days, so let me give you the answer I think is
    appropriate in the context here. And I don’t
    mean to sound evasive but I do think it’s the
    right answer. It really depends when you say or
    anyone says what we mean by own the note. And I
    have researched this and quite frankly find it a
    vague term and so I answer it this way. If you
    mean owns the note that it has some beneficial
    interest ultimately to the proceeds, I tell you
    MERS does not own the note.

    But ownership can mean something different.
    There’s equitable ownership and there’s legal
    ownership. And I read the cases I think it
    is very fair to say that what ownership means is
    that I have that note or I am acting on behalf of
    somebody who has that note for the purpose of
    enforcing it and the purpose of foreclosing and
    the purpose of collecting on it and therefore I
    am legitimately the right party vis-a-vis these
    debtors to show up and knock on your door and
    demand payment because I , MERS, own the note
    appropriately in the sense of owning and holding.

    That’s from a book scan so it might be all over the place text wise, but you get the drift. This guy squeezes the law so hard as to get every single lie there is available out of it. He goes on to try and convince the judge that there’s nothing really

    A different Judge:

    JUDGE GENDEN: How is it — because you
    clearly don’t possess the note, as you just said,
    until you’re ready to file the foreclosure. How
    can you file a count for reestablishment of a
    lost note which requires you to allege that at
    the time that it was destroyed or lost it was in
    your popsession when it clearly was never in your
    possession? How can you have a count for
    reestablishment of lost note, which a lot of
    these cases have, for which you’re required to
    say that at the time that the note was lost or
    destroyed it was in your possession — your
    possession — MERS — and you’re required to have
    a lost note affidavit signed by somebody that
    says that when you just stated to Judge Gordon
    that at the time that you get ready to file these I
    lawsuits you get the note? Where is the note?
    It was never in your possession at the time it
    was lost because ~ou could never have brought the
    lawsuit under your statement because you would ‘
    not have had it in your possession. Where is it
    at the time it is lost in all of these myriad
    hundreds of cases which allege that it’s in your I
    possession at the time it was lost or destroyed?
    And! secondly! if it wasn’t in your
    possession! how can any of us grant you relief in
    addition to all these other arguments on a
    foreclosure action?

    This is a great read if for nothing more than its comic relief, and as one of the judges says, the counsel should start getting their acts together for USDOJ, the AGs, and regulators, especially as it relates to RICO. Of course we know now that there was nothing to fear, that threats of using law against these guys for filing hundreds of thousands of fraudulent lost note affidavits in MERS name as one of the judges discussed was just an empty threat. Hundreds of thousands of Floridians were and are still expendable thanks to the insanity.

  48. From a psa:

    “With respect to any security backed by a Mortgage Security, the depositor will transfer, convey and assign to the trust all right, title and interest of the depositor in the Mortgage Securities and related property. The assignment will include all principal and interest due on or with respect to the Mortgage Securities after the cut-off date specified in the accompanying prospectus supplement. The depositor will cause the Mortgage Securities to be registered in the name of the trust, the trustee or its nominee, and the trust will concurrently authenticate and deliver the securities. The trustee will not be in possession of or be assignee of record of any underlying assets for a Mortgage Security.”

    (“The trustee will not be in possession of or be assignee of record of any underlying assets for a Mortgage Security.”) Obviously can’t make assignments to itself or any other. Question also arises how can they make a POA to a servicer who then makes assignments back to them? It would be funny if it wasn’t tragic.

  49. Joanne, good point about the ‘trusts’. If there is no trust, then there is no trustee, no servicer, no rights or duties of any kind for any entity. The language of the trust is not a shopping list, whereby entities get to pick and choose what they do or don’t want. It’s all or nothing, and there are reasons why it has to be this way.
    Also, to clarify: right or wrong, the mortgage (security instrument) is held by MERS as nominee. The note borrowers’ promise to pay), split from the mortgage or DOT, was to be sold or negotiated to the trust. A note cannot be assigned it has to be negotiated. Also, an allonge can never be used to transfer (sell) ownership of a note. Again, a note has to be negotiated, and the steps there are; delivery, acceptance, and i forget the other two. but you get the idea

  50. Chris

    If there is no trust there is no trustee and no servicer. Homeowner’s signature was used to create the trust.

    If most of the mortgages are not in the trust anymore (or never were in the “trust”) where did they go, who purchased them and when and why is the trustee foreclosing now in the name of the trust bogus assignment or not?

    Who owns a mortgage or even who owns a piece of a mortgage ought to matter when something (anything) gets filed at the courthouse and someone (anyone) is taking a family or a person’s home for non-payment to them. Who got the payments and did the same party get the asset or not? Was their anybody else who was supposed to be paid or who could still take the house? Who is the “trustee” paying with the proceeds of the sale they are empowered to enforce on behalf of a non existent trust? Themselves? The servicer? (both owned by the same” bank”)?

    I don’t know how regulators, AG’s, investigators aren’t asking these questions . Perhaps they are finally getting around to it…..too late. Homeowners should not be in a position to have to go to court to ask who owns their mortgage, who has a right to the benefit of their payments and who has a right to take their home for non-payment. It isn’t somebody (anybody) making assignments to himself just because he can get away with it.

  51. chris,joanne- the ‘trusts’ don’t want to file any more reports, because the pools are empty at the time of filing, if they ever held anything to begin with. No reports mean no prying eyes, if there are any these days. You may find out more by googling the name of the trust + REIT, and then add, lawsuits, overcollateralization proceeds, out-of-business date, stock price,(one at a time,of course) and see what comes up. It is a long haul to search this way, but there are tidbits of info here and there.

  52. Check out a law review paper by Prof
    Peterson ,Utah University law school.
    Details the whole MERs conundrum(screw up),
    with all relevant case law to overturn MERs in
    both Judicial and non Judicial states.
    Easy to read and understand even for a Judge.

  53. MERS not allowing foreclosures in its name might reasonably be
    taken to mean they know their (alleged) status or interest, whatever that might be, in the deed of trust without an interest in the note does not a right to foreclosure make. No right to the debt = no right to the collateral. If you have an alleged interest in the collateral but no interest in the note, for you, it’s as if the note doesn’t exist. So what have you got?
    Further, MERS itself disclaims the accuracy of the information in its
    database (which was entered voluntarily by members with zero oversight by anybody) and says it’s not to be relied on. What’s entered into MERS database is not grounds for an assignment to the party shown there (if any!) with the interest in the note because the info is not reliable. That leaves some other verifiable source of information to demonstrate the interest in the note. What is that?
    Imo the members, when MERS said no more foreclosures by its members in its name, said we don’t give a damn, we’re blaming you for getting us into this mess with no assignments (uh-huh), and we’re going to do these assignments to ourselves in your name then, MERS, and we’re going to foreclose that way, with or without you or your blessing. And while they’re at it, they pretend to represent MERS in contested matters. R.K. Arnold, the former
    ceo or prez, jumped ship in 2010, also imo, saying I’m not doing this, whether as a matter of conscience or liability or both. Or maybe he was forced out if he didn’t want to play dead. If it’s the latter, he probably got some dough and said he’d keep quiet out there on the golf course or high seas.

    Every MERS deed of trust shows MERS in public record as the second party to the instrument, right or wrong. It does not show the original lender with MERS as “nominee” and maybe doing so would require a legal conclusion by the recorder which is not in the job description. But actually, showing MERS as the second party (the borrower being the first) may be a legal conclusion itself by the
    recorder’s office, albeit one made unwittingly because of the (nonsensical) language employed in the dot. Either way, what’s shown in pubic record in regard to this matter is not a fact.
    That, however, does not change the fact that MERS IS listed in
    public record as the second party to the deed of trust (right or wrong). If the MERS’ deed of trust validly grants an interest to anyone at all in the grantor’s home, and I’m starting to believe that is questionable, the next question then is to whom. IF the to whom is not MERS, but rather MERS is merely the nominee for the true beneficiary (which is how the idiots could have languaged this, but doing so would have created other problems and did not and could not put the square peg in the round hole they were trying to fill), the fact would remain that public record lists MERS as
    the other party to the deed of trust, creating or at least endorsing the illusion that MERS is the beneficiary itself. If taken as legitimate, this would necessitate an assignment from MERS to a true beneficiary for numerous reasons, and unravelling that deal just mentally will take some work. But one will never
    solve a problem without first identifying it.
    And beware the red herring taking up your time and energy.
    The investors don’t appear to have purchased the notes themselves; they appear to have purchased merely the rights to payments made by the borrower and maybe plus payments by third parties pursuant to a short or long term guarantee, in the form of something called a derivative, which itself means deriving FROM something, but does not include the something. What may be a clue to ownership is that the depositors (or someone ELSE – I don’t really know who -) was able to have “standing” to get insurance by whatever name which apparently did not benefit the investors. Did the pool insurance benefit the investors? I don’t know. Don’t think so. Now, maybe this ends up meaning nothing in regard to ownership, but it might. Maybe they had no right to that insurance in the first place. Is don’t know insurance law as applicable, if any. Another clue is the notes being endorsed in blank, although that may be related to security law and what anyone can own under those laws, and that is also beyond me. I guess it might not be illegal to make a side bet that the horse I’m selling for a premium will never win a race, but it’s a stinking lousy thing to do. Both acts are: selling me a lame horse and then betting against it. (If you make sure the horse is gonna be lame, though, that’s something else) Maybe the first is what Obama meant last year when saying such and such wasn’t illegal. But,um, dear Mr. Prez, you did so leave out some other ‘activity’ and it IS illegal to sell a lame horse with no disclosure (in the real context of derivatives) and then bet against it, I would imagine. A party with an interest in my failure shouldn’t make me a loan it’s going to sell to some dufus, either. You stick a note in my face wherein you get me to swear I will pay you back, but you really don’t want me to keep the agreement. What do you call that?
    Must be some non-hysterical name for it in legalese. Next time some some bankster attorney calls you a deadbeat, tell the court you ‘re hardly a deadbeat: you performed just as desired. No, don’t do that. A court won’t get it with those words, even though they are as true as any words ever spoken.

    There is a pattern forming here. Short version: “MERS” forecloses. Then members do alleged assignments in MERS name and they foreclose generally on the deed of trust without interest in the note. When, in the course of time, the illegitimate assignments are called out, what will be next? It will be alleged possession of bearer notes and alleged possession and or ownership of notes with phoney endorsements, which is why they’d love it if the dot follows the note (which a “mortgage” might, but not a dot). This will likely involve the use of tons of declarations by banksters. Attorneys and those who give a dang need to hone-up on the rules of evidence to kill these
    bs declarations, something we should have done years ago.
    Subscribing to this argument- dot follows note – for temporary relief could find us in deep doo. ‘Follows note’ to them will equate to no need for the assignments they can’t come up with and which imo the law insists on.
    Their argument does not truly square with other facts and statutes relevant to interests in real property, certainly not to deeds of trust. But let’s not help them make their argument, which is how I see it when subscribing to “the mortgage follows the note” because it appears helpful just now.

  54. To be honest here; I don’t know what the relevance of the amount of investors is and/or how it relates to our mortgages and whether or not the investors/pool has been paid or not?

    Also, don’t get the how the SEC filings relate to any discussion about fraud. Do not know how to connect the dots. Just me. I need some help with the SEC filings and trusts.

  55. What I don’t get – anyone – is how can the 15-15D form showing Rule 12h-3 — Suspension of Duty to File Reports under Section 1(d) be dated and accepted only 8 days after the closing date of the trust and filed four days after that? What could be the reasons for this? I know this has been discussed in various places already on this blog and ohers but it goes over the head until you start to ask the questions yourself. It seems this suspension to report was the case for all the trusts.

  56. Ian, on January 29, 2012 at 4:41 pm said:

    “chris- look for the 15d sec filing for any specific trust, in your case, New Century. This generally states that the number of ‘investors’ has dropped below 300 in the NC trusts”

    Thanks I went right to it for a different family of trusts. I have read it before but this time I searched on the “rule” that was checked in the box.

    Rule 12h-3 — Suspension of Duty to File Reports under Section 1(d)

    a. Subject to paragraphs (c) and (d) of this section, the duty under Section 15(d) to file reports required by Section 13(a) of the Act with respect to a class of securities specified in paragraph (b) of this section shall be suspended for such class of securities immediately upon filing with the Commission a certification on Form 15 if the issuer of such class has filed all reports required by Section 13(a), without regard to Rule 12b-25, for the shorter of its most recent three fiscal years and the portion of the current year preceding the date of filing Form 15, or the period since the issuer became subject to such reporting obligation. If the certification on Form 15 is subsequently withdrawn or denied, the issuer shall, within 60 days, file with the Commission all reports which would have been required if such certification had not been filed.

    b. The classes of securities eligible for the suspension provided in paragraph (a) of this section are:

    1. Any class of securites held of record by:

    i. Less than 300 persons; or

    ii. By less then 500 persons, where the total assets of the issuer have not exceeded $10 million on the last day of each of the issuer’s three most recent fiscal years; and

    2. Any class or securities deregistered pursuant to Section 12(d) of the Act if such class would not thereupon be deemed registered under Section 12(g) of the Act or the rules thereunder.

    c. This section shall not be available for any class of securities for a fiscal year in which a registration statement relating to that class becomes effective under the Securities Act of 1933, or is required to be updated pursuant to Section 10(a)(3) of the Act, and, in the case of paragraphs (b)(1)(ii), the two succeeding fiscal years; Provided, however, That this paragraph shall not apply to the duty to file reports which arises solely from a registration statement filed by an issuer with no significant assets, for the reorganization of a non-reporting issuer into a one subsidiary holding company in which equity security holders receive the same proportional interest in the holding company as they held in the non-reporting issuer, except for changes resulting from the exercise of dissenting shareholder rights under state law.

    d.The suspension provided by this rule relates only to the reporting obligation under section 15(d) with respect to a class of securities, does not affect any other duties imposed on that class of securities, and shall continue as long as either criteria (i) and (ii) of paragraph (b)(1) is met on the first day of any subsequent fiscal year; Provided, however, That such criteria need not be met if the duty to file reports arises solely from a registration statement filed by an issuer with no significant assets in a reorganization of a non-reporting company into a one subsidiary holding company in which equity security holders receive the same proportional interest in the holding company as they held in the non-reporting issuer except for changes resulting from the exercise of dissenting shareholder rights under state law.

    e.If the suspension provided by this section is discontinued because a class of securities does not meet the eligibility criteria of paragraph (b) of this section on the first day of an issuer’s fiscal year, then the issuer shall resume periodic reporting pursuant to section 15(d) of the Act by filing an annual report on Form 10-K for its preceding fiscal year, not later than 120 days after the end of such fiscal year.

    Regulatory History

    49 FR 12689, Mar. 30, 1984, as amended at 51 FR 25362, July 14, 1986; 61 FR 21354, 21356, May 9, 1996; 72 FR 16934, 16956, Apr. 5, 2007; 73 FR 934, 975, Jan. 4, 2008

  57. @ Ian

    I have checked the SEC filings, that’s how I found out the there is a mere 3 investors?

    Good advice, will check the deeds at the court house, I haven’t done that yet. Dear Abby are you out there? I need your help!

    As for Todd Hess…We feel your pain. All of us are in some stage of this shit. Even after foreclosure there are remedies, hang in there. Neil and others just provide some insight. Take all you can, you cannot get this stuff anywhere else. Sorry, about your life, we do get it!

  58. whats Todd Hess Issues ????

  59. chris- look for the 15d sec filing for any specific trust, in your case, New Century. This generally states that the number of ‘investors’ has dropped below 300 in the NC trusts I have looked at. And contact ABBY IN CA for more information about NC. She has info on notary logs, forged docs, the names of those involved etc. Did you look at your courthouse docs’ POA? Sometimes the ‘trusts’ file blanket POAs and leave them on file for any f/c in the future. Sometimes they are expired. Some are forged by DOCX and similar entities.

  60. @e tolle – I can only surmise you are paraphrasing that thing with MERS agency for the originator, its successors and or assigns, because of course the word “agency” is not to be found in a MERS-crafted dot. MERS was not granted an agency in that instrument. First of all, agency when it comes to real property requires particular expression and the signature of the party granting agency on the document pursuant to the statute of frauds. Had that been done properly, MERS could have been an agent, and because it says or would have said “and successors and or assigns”, it (an assignment) arguably would have been taken subject to that agency by actual successors and or assigns, like any other deed restrictions or right granted. Whether or not the limited “nominee” would /does also require the grantor of nominee statuts to MERS to sign the dot, I don’t know. The language, the various statements, used in the dot are themselves contradictory and nonsensical. In my opinion, this was partly caused by trying to kill too many birds with one stone and trying to get something, “A”, which meant that a “B” would be true and applicable also, but without having “B” being true and applicable, because they didn’t want “B”. “B” had to do with liability in the agent / principal relationship. They also had to craft the document keeping in mind that MERS would only be acting in any regard for its members and not non-members. But that doesn’t work, either, or wouldn’t have
    because the agency, if done correctly, would have flowed to any
    successor or assign like any other right, reservation, restriction, or caveat, regardless of that party’s status as a MERS’ member. I guess they could have said “and MERS-member successor and or assigns” to handle that, but significantly, they didnt. That is worthy of a thesis. An expert, which I’m not, on contract law could have a field day or at least identify some very major problems with the fact that the whole dynamic of MERS is dependant not on one instrument, but in an instrument and also a separate agreement, the membership contract with its members.

    Moving along, then the document purports to give MERS the right to foreclose. For the other nonsensical language on page 1, I dont believe it even does that. (and this may well be behind MERS’ missive to members to cease foreclosures in its name last year) Regardless, no where is the right to assign the deed of trust given to MERS, and if it had, I’m not sure such a ‘right’ therein would hold water, starting with the unassailable fact MERS has no interest in the debt. And since when does an (alleged) nominee status – disregarding the nonsensical language – come with an unexpressed right to execute assignments of interests in real property? It doesn’t. At any rate, it wasn’t even alleged to be given. An assignment, though necessary to establish rights and specifically and mandatorily to evidence (Notice) the right to do anything including take the collateral, is not by any argument an act of foreclosure even if MERS were granted authority to foreclose (which again I say because of the provisions of the statute of frauds it wasn’t.) Even if someone magically, and that’s what it would take, found that MERS could assign a deed of trust, and we know it is the members using their own employees to assign them to themselves, MERS membership agreement only provides that assignments may be done to non-members. Disregarding for the moment that this alleged right to assign a deed of trust is not given to MERS in the first place, and let’s arguendo say it is, any alleged right to assign a deed of trust at all is not ever Noticed to the borrower or any one else with the right to Notice. The members alleged right to execute assignments in MERS’ name is found in a private, separate document which decidedly does not impart mandatory Notice of the alleged right. But more problematic is that MERS has no right to execute assignments in the first place to grant to its members.
    Even if they did, how’s this look: I’m a member. I make you my
    nominee (or even agent) for my interests in a document. Then you as my nominee (or agent) authorize me to act for you about my interests??
    There is an independant issue which I stumbeled on, of whether or not an original grantee (the beneficiary in a dot) is even shown by the MERS’ deed of trust, flowing from, as a result of, the very odd and possibly if not likely legally insufficient language used by MERS on P.1, which at least I have never pursued.

  61. What is the point, you need me to sue you so you can get discovery. Its not going to hapen dont insult me. FUCK YOU NEIL, AND FUCK YOU GEORGE POLTIZER. Very truly yours Todd HESS. There is nothing left of my family I have nothing left to loose. FUCKI YOU.

  62. @ joann

    When in the SEC files I took note of New Century filing a 8k/k8….sorry can’t remember which. Anyway, there was some explanation about the amount of investors being below the original amount needed to have to file with the SEC at all.

    Then checked the audit of New Century for the bk court and found the trust had collapsed in 2005-2006. Having a difficult time digging through paperwork to find out exactly what all that means.

  63. chris!, on January 29, 2012 at 7:46 am said:

    “@ anyone here:
    Tell me about a collapsed trust please? Can you voluntarily collapse or does that happen when the pool is dry or the investor numbers have been reduced to, say 3?
    The trust thing is elusive to me. How does it work?”

    Chris see my previous response to this question below. Further questiion – is there a way to see the investor numbers for trusts that is publically available as in “when the pool is dry or the investor numbers have been reduced to, say 3?”

  64. @Toile,

    I hear you and… look at history! This is not the first time that kind of situation exists in humanity’s history. What happened to France? To the US, to Russia? To China? To many other countries when faced with that kind of inequity and insanity? We know the end if nothing is done.

    We know that it will not be allowed to keep going as is. And because we know what happens in such cases, we have a president trying (finally… and I want to believe that it is what he is trying to do, although the jury is still out about his motives) to do something about it in a “civilized” way.

    Of course, there have been casualties. Way too many casualties. But I’m looking at numbers. That 1% cannot keep on going as is. It simply cannot! Otherwise, maths as a science has to be relegated to the ranks of “myths and legends”.

    I believe that the reason it has taken so long is that we have become complascent and lazy and too many people still have an interest in preserving the status quo. Until everyone has been directly affected (and the maths is there to show that there will come a time when everyone has lost enough to want to go on the attack), we’ll have to wait and see additional casualties pile up. But I am deeply confident that we are getting at the point where action on the part of government is the only response.

    Call me naive… At least, keeping that optic allows me to keep living and fighting. Otherwise, what’s the point?

  65. ANONYMOUS, on January 29, 2012 at 8:26 am said:

    “Have to go into the PSA/Prospectus and see that POA (also called attorney in fact — usually used on assignments) is only granted to the trustee, not to the servicer. Servicers are granted a very limited POA for ministerial duties only — and not for assignments. MERS not granted POA either.”

    Thanks. Since when can anyone other than an individual give a power of attorney to anyone other than an indiviual anyway? Corporation to Corporation?

    I pulled one of these power of attorneys off the web some time ago and saved the pdf. When you search for it now it seems it can’t be found. The trustee for a list of trusts gives the servicer power of attorney and lists the “powers”. One item says: “The assignment of any Mortgage Deed of Trust or any other security instrument or any related Mortgage Note in connection with the repurchase of the mortgage loan secured and evidenced thereby.”

    What does that mean? Is it saying a trust can “repurchase” a mortgage – obviously not possible by the psa?

  66. @ Enraged, You’re all full of piss and vinegar still on the upside of your foreclosure, and I truly hope you stay there. Tell me more about how we hold all the cards after you’ve won, or lost, your case. Neither one of us is counting on the latter as an outcome, but neither were carie and Marie and countless others that I’ve seen come through here over the years. Yes you’ve got your ducks in a row, but judges are knocking over ducks and rows left and right, because they can.

    What about being in the 99% category makes you believe that you’ll get justice? I have as airtight a case as one could get, and I’m doubting my odds of success. Why? They have a lot to protect. Their way of life is at stake. Their pilfer machine suits them just fine.

    But that’s the real problem here. No civilized people would live in 20,000 square foot mansions while their fellow man is starving and homeless. They’re all insane. They believe in million dollar yachts and flying privately to Davos using 20,000 gallons of jet fuel while a widow has no heat. They’re all insane. You can’t fix insane.

  67. chris!, on January 29, 2012 at 7:46 am said:

    “@ anyone here:
    Tell me about a collapsed trust please? Can you voluntarily collapse or does that happen when the pool is dry or the investor numbers have been reduced to, say 3?
    The trust thing is elusive to me. How does it work?”

    Chris I would also like to find out more about this. Perhaps not the same thing as your question about collapsed trusts but this is related. This is a link to an article that lists trusts and shows the remaining performing mortgages (dramatic drop – can’t help wondering – did they all foreclose? – Who foreclosed?). They are going to do countrywide next. I hope they produce a list for all the trusts.

    http://www.frauddigest.com/blog/2011/12/06/rating-residential-mortgage-backed-trusts/

  68. So, no matter how I do it, whether by signing onto google first or directly from my mailbox, I can’t read whatever Neil posted on Kamala Harris.

    So, here is something on the topic.

    http://www.huffingtonpost.com/2012/01/25/kamala-harris-california-national-mortgage-deal_n_1232342.html

  69. E. Toile,

    Let’s be realistic here, shall we?

    We are 7 billions people in the entire world, give or take a few millions, right?

    That 1% thing is rampant everywhere, with a few exceptions. Let’s assume that, maybe, 5 billions of us are stuck in the 1%/99%. It means that there are 4.95 billion of us v. .05 billion of them. Toile, they need people to operate the damn tanks. They people to operate everything. They can “own” anything they want, they can’t go to the fileds and cultivate on their own. They can’t do anything at all without our cooperation.

    We do have the control. We always had it. It’s up to us to take it back. That’s why people invented demonstrations, strikes, refusal to pay taxes, and, when everything else fails, revolutions!

    We are in control. We’ve always been. We just don’t know it!!!

    Monsanto doesn’t scare me. I’ll keep my house to make sure I don’t need to touch Monsanto. Pharma doesn’t scare me. Hey, I just recently fixed a little healthy problem I had with… garlic! I have a little generator of colloidal silver. I Haven’t seen an MD in… Holy smoke, my kid is 26!

    My point is: we already have that control. We never lost it.

  70. Funny,

    I have, in my inbox, a mail from Livinglies stating: “Bribery? CA AG promised 60% of wongful foreclosure settlement. Harris still say No” (or something along those lines…

    Well, I can’t open it. It says: “page not found…”

  71. Good moring Neil and George.Its a good day.Right? Ansvers?HELLOOOOOOOOOOOOOOO just as I thought. IM out guys GOOD BUY.

  72. About that American spring thing….for those of you who say (in your best Truman Capote accent) “I don’t know about occupy, drum circles give me headaches!” Understand that you can’t sit by and await the perfect incarnation of revolt. It doesn’t work that way. The tea party tried that.

    Also think about this, when the shit first hit the fan and Paulson ran into the halls of Congress demanding our checkbook and shouting about how there will be tanks in the streets…..take a moment to reflect on that statement. Which way would those tanks be-a-pointin’? In a just, civil society, they would be pointing first at Wall Street, ready aim-set-fire at that bronze bull and all the electronic terminals that are there for the sole purpose of ridding Main Street USA of its folding cash and loose change.

    Secondly, the tanks should then be pointed at Congress itself, for allowing the aforementioned opacity and rampant criminality to be established protecting not the citizens of the United States, but the criminals of the United States.

    But you and I both know that the reality here is that the tanks would be pointed at us, all Tiananmen Square like, ready to blow us away for not abiding by the rules of plunder that they’ve spent so much of our money chiseling in stone. They’ve spent fortunes establishing their doctrines of supremacy over We the People. They won’t go gently into the night.

    The jokes on us….the turrets point inward at the citizenry, the establishment would gladly do away with us all if it weren’t for the need for some underlying collateral to leverage. We’re cannon fodder. Tank fodder.

  73. The judges are getting payoffs from the banksters so we have to make the good judges a better deal. Some cash. This is how the judges will get their pensions back–start calling a scam for what it is–ilegal. Say the judges listen to the homeowners’ attorneys and get trillions in real settlements, start a new county credit union and give the foreclosed homeowners a good mortgage from settlement proceeds. Judges get pensions back, homeowners get to keep their homes, cities and counties prosper. Judges don’t go to jail. Rule of law restored. Come down 99

  74. MERS doesn’t need a POA….it is a POA! That’s the very reason for its existence!

    I know, I’ve said this before, but the inconvenient truth here is that while we were all sleeping, the need for POA’s for assignments or other acts was usurped not only by MERS, but by the courts through their widespread acceptance of practices that clearly turn agency law on its head. MERS is really all the POA that most courts need.

    Whichever MERS member wants your home gets your home, through a twisted logic that makes the senior VP of MERS’ testimony sound just like the “who’s on first” comic routine, although this time around it lacks humor.

    The contract reads, “MERS holds the mortgage lien as mortgagee in an agency (pretzel logic there) capacity for the mortgage lender, its successors and assigns.” That’s how they claim that a long dead and defunct lender is perfectly OK. It doesn’t matter really, the lender who now magically appears before the court has all the rights of the original lender, only without the responsibilities or culpability of the original. That’s a convenient lie for them, and a free pass to pillage us.

    “But that’s wrong!” We proclaim in courts across the land. “They can’t do that!” And of course, we’re right. But they do. It’s only through their newly adopted system of opacity that they’re allowed to rape in broad daylight without being arrested for a crime. Their opacity breeds further misbehavior which breeds more opacity, and even makes excuses for it in our court systems.

    Why else would the investors be hidden from one and all, in a time when wholesale adjustments might stave off financial Armageddon? Why else would millions of lost note affidavits be filed without our courts and regulator’s universal condemnation? Why millions of robo-signatures? Why the widespread substitution of trustee? Why are the Federal courts the go to place to equity strip the soon to be ex-homeowners?

    First MERS held the note and then it didn’t. Then MERS foreclosed and then it didn’t. What happened to all of the people who were tossed out on the streets by these earlier rulings that were obviously wrong? What’s that you say? It’s too opaque? You can’t see what they’re doing? Too smokey? Too many mirrors in this hall?

    Why does the OCC review only consider a fix for people affected during a two year period? Are the people who were tossed to the curb prior or after unworthy of review? Ask Carie. Ask Marie. Does the fact that HAMP 6.0 (or whatever version it’s on) supposedly goes further than HAMP 5.0 or 4.0 or 3.0 reveal that everyone who was HAMPed prior to the newest version were screwed randomly? The smoke gets thicker each day.

    It’s all about opacity. It’s enabling systemic looting on a scale never before witnessed, and it only functions at maximum speed and capacity when the levers and gears are hidden from view. But it also only functions because we allow it to.

    Be prepared fellow citizens. Spring is coming. Screw their austerity. Screw their looting. Be prepared to take it to the streets. A system that allows for and condones these crimes must be exposed for the insanity that it is. We need to clear the smoke.

  75. Have to go into the PSA/Prospectus and see that POA (also called attorney in fact — usually used on assignments) is only granted to the trustee, not to the servicer. Servicers are granted a very limited POA for ministerial duties only — and not for assignments. MERS not granted POA either.

    And, yes, have seen this influential in court. And, have seen mortgage title companies state “invalid.”

    Question for all: Most robo-signing is not done by the big banks who are subject of pending AG settlement. What will happen to all the other robo-signing entities??

  76. @ anyone here:

    Tell me about a collapsed trust please? Can you voluntarily collapse or does that happen when the pool is dry or the investor numbers have been reduced to, say 3?

    The trust thing is elusive to me. How does it work?

  77. @ zurenarrh

    I have a forged POA from Scott Anderson of Ocwen. I know because we have inconsistent dates on the document, at least 7 different signatures errrrr: just letters actually. A copy of the notaries letters, not really a signature, which we have matched to her application to be a notary….not even close.

    As ANONYMOUS speaks of POA’s…if they are forged, then where is your authority to do anything on their, the servicers (investors/owners, Ha,Ha,Ha) behalf?

    You know if I presented a perfect $20.00 bill to the store and they called police I would be arrested. This paperwork in many cases is documented forgery/intent to obtains goods under false pretenses, a Felony. Where the hell are the authorities on this, it is a crime and not some paperwork error, INTENTIONAL! Geez

  78. [...] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND Livinglies’s Weblog [...]

  79. ANONYMOUS,

    Very intrigued by your POA comment. What makes a POA valid or invalid?

  80. You STUPID IDIOT! See your stupidity! They got another 18 mOnths of payments on FRAUDULENT LOANS! You were NEVER, ever,ever, going to OWN ANYTHING!

    REVOLT MY FELLOW CITIZEN AND FOLLOWER!

    REVOLT!

  81. BofA appealed in Federal court where Federal Judge Waddoups ruled in favor of BofA overturning the lower courts injunction. However, ABC 4 in Salt Lake City, Utah began investigating Federal Judge Waddoups and found that he was previously with a law firm that represents Bank of America. The judge, in fact, is still receiving a pension from that firm.

    Happens way more often than not. We need to be forcing recusal on judges. This is a crisis of unparalleled proportion, a crime against humanity, and our legislators need to see the light immediately or be shown the exits. A sign-off similar to what I’ve seen in appellate courts would suffice, signed before each foreclosure case:

    The undersigned certifies that he/she has acted independently and impartially and to the best of his/her knowledge, has no known conflict in serving as a jurist in this proceeding.

    And if they lie, show them the underworld that their courts feed. It’s time to take back civilization.

  82. this is what it would like….

  83. @jg,

    My take on it. I could be wrong but I don’t believe I am.

    Of course you can claim Rico violations in civil court. Look how many attorneys are claiming it in countersuit against JDBs? Search federal court actions against banks and you’ll see that it is starting as well. Rico is as much a statute as Tila, Respa, etc. But Rico allows to seek larger damages.

  84. javagold – here’s my 10, okay 20, bucks – again- for some A-list attorneys for a class action rico action against all of them by all of us. Oh, shoot. We prob can’t prosecute rico in civil court? But there are claims common to all of us against all of them..make them fed claims(?) Let’s go!
    Let’s call it the “Javagold Let’s Go Class Action Law Suit”. (or we could leave out let’s go, but it’s kinda fun.) Need some guys from securities, from contracts,constitution, from real property, major procedural guru’s, and for sure some guys from criminal defense who got the street smarts, know evidence from sh*t on a shingle, and tenacity.

    Wonder if that DE AG needs a better war chest? I’d give him 20 bucks, too.

  85. yes, anon, which is to say i agree. You read that thing on subprime I posted the link to, btw? I gotta plow ahead with what I’m doing, no matter how small if any a contribution. And I’m not unsympathetic to the mandelman folks, but which is it? We believe right to modify OR NOT? Our circumstances dictate? Hmmmm….I don’t think so. Nice note that guy wrote below though. Hey! Dude, you can write I see. Why not turn your pen on / at the AG’s and the judiciary?
    “Under all is the land.” Under the land is the law. And right now, under the law and land are MERS and its WS / banker pals trying to eviscerate both. Any more and there may be no turning back, no chance to save either, at least for a very long time. In the meantime:

    “It is a general rule that courts have power to vacate a foreclosure sale
    when..the sale…is tainted by fraud.”
    B of A et al v. Reidy (1940) (looks like this crap is nothing new for B of what used to be America.) 15 Cal. 2d 243, 248 (101 P.2d 77)

  86. @Papergate,

    I sent one too with the link to Mandelman’s article and a quick message. The idea to innundate them with e-mails and not let them get away with anything.

  87. Yes. Sound advice. We got so low from using our savings and credit that we could not afford an attorney. Also, we paid two attorneys and they both were in cahoots with the banks. Pathetic.

    In my opinion, one shouldn’t have to re-apply for the loan (that does not exist anyway) when one has been faithfully paying on a loan for years and years and is only trying to get a better payment. Rates are so low now, the banks should just automatically adjust everyone’s payment, but NO…they want to make more money on you by refinancing or foreclosing so they can securitize your paperwork all over again.

    The couple is right not to give more personal information than necessary. Because the more info. you give them, the more reason they have to turn you down regardless of your circumstances. They will then say “you don’t qualify.” It’s a lot of BS.

    A while ago a friend told me that her bank automatically lowered her monthly payments!! And, get this. It was an Arab-owned bank.
    I was impressed, to say the least.

  88. We all need to respond to Mandelman’s Doer Alerts – I sent message to John Stumpf, W/Fargo CEO by enraged’s alert:

    “I know you realize that we are all behind these people and sympathetic to them – we also, a lot of us anyhow, realize that corporations are really trying to unravel this mortgage mess – and if you simply admit it’s a mess and do everything in your power to not hold people like the Stover’s hostage – you will only help to resurrect your image and reputation with us, Americans, who have enabled you to be a CEO with one of the world’s largest financial entities. But you are smart enough to also know that it will not take a lot of effort with American media and general chutzpah of the American people to be very unforgiving when the time comes to give you a break when you ask the American people to let you survive . . . remember that. I think of movies like Braveheart and how powerful the seemingly insignificant can be when pushed.

    We all know that the Stovers have been victims of your company’s failure to be properly run and completely responsible for the mess we are all in – do the right thing and handle this matter yourself – I’m sure it will be resolved when you are given a chance to see fully where your company has seriously failed not only the Stovers – but millions of Americans.

    As they say, baby steps – take those baby steps to begin to make your company and image and you personally redeemable or let karma do what she may.”

    Tom Stover & Jeneane Traynor-Stover
    8216 Seeno Ave.
    Granite Bay, CA 95746
    Loan Number #0150299733

  89. Robo-signing agreement will kill home owners. Will not take away private action, but will take away creditability in courts.

    Problem is, robo agreement does not address Power of Attorney. No valid POA in robo signed documents. Invalid. So, supposed to take a meaningless payoff to accommodate a bogus AG settlement?

    No thank you. Change your robo-signing fraud to — lack of valid POA.

  90. @ javagold

    What you say might be the real solution. If we all, on this blog got together and filed a class action suit…there just may be some legs in it. We have some of the most experienced finance people, legal eagles, voracious readers and investigative minds available. We could get this done. I challenge all of you, together, to at least ponder the possibilities here!

  91. Owner who have this common modification problem ,should contact
    the Lawyers Office Edelson in Chicago ,who handle this kind of classaction lawsuit . The also handle CHASE HELOC , what is in the court again on 02/15/2012 .

    http://www.edelson.com/cases/#page_1

    I send more than 200 pages certified mail to the bank ,the never recived it .You think the post has a problem ? I dont think so.

  92. Everyone should default on their mortgage and then fight the fraudsters together

  93. @ all

    I spent over 6 figures from savings, sold all of my treasured personal belongings, (some where given to me from family) and put the property on the market for 1 1/2 years, while watching the values plummet. As I have said in previous emails, my mortgage payment was under $700, with 75k of upgrades, out-of-pocket .

    The bank forced me to wait 4-6 months and intentionally get behind to say they would help at that point. I called repeatedly and sent paperwork, which they say they lost. (no way, Fed Exe’d it) At my wits end I had accumulated $5200 in arrears (included fees, interest and attorneys charges) I offered to pay $2600/$2600 in consecutive months…they stated no, emphatically. Instead they offered me a forbearance of $1570 per month for 18 months ($28,260.00) and only then would they CONSIDER a modification.

    This is part of the reason I am suing them. And for the record the property is over 100k less in value, but I am still willing to try and retain it. I spent my lives work and savings, with the same outcome. Had I kept the money in my pocket and walked I could have bought another home for cash.

    My advice: do not trust them. They have no authority and no money in the game. That is why they are lying to you. The foreclosure will yield them money they have not loaned so it is a win-win for them, they have already cheated the investors and have no pony in the race!

  94. http://www.nydailynews.com/new-york/mortgage-fraudster-aaron-hand-admits-plot-kill-chief-cooperating-witness-helped-put-article-1.1010567

    Here is a guy in prison (maybe next to Maddof?) and his real crime seems to be that he wasn’t too big to fail.
    I’d like to find his case and see exactly what he was charged with that we might compare it to well, you know. Joann? You’re good at sleuthing. Which reminds me, what happened to nancy drewe? Has tnharry had it? I miss him!

  95. Sale of my home (countrywide/boa) Moday. Last week judge would not hear my attorney. One more free house. Damn it.

  96. Imo it also passes by folly and goes right to madness to ignore what is going on with MERS and that 7-year contract with Genpact (out-sourced out-of-this-country), again something being carried out while we sleep thru it. We can’t afford that again, not that we obviously ever could. If we understood what is going on there, what might we reasonably argue is being admitted there as well? Dave K, you around? If so, what say ye?

  97. @jg,

    I know! And it is maddening to keep reading that “reckless behavior, yes! Illegal activities? No”.

    I really believe that neither democrats nor republicans want to take the responsibility of letting banks collapse. We’re looking at two parties that are so afraid of the unknown that they would rather keep on throwing money at the problem in the hope that, when things do unravel completely, it will be the other party’s hot potato.

    Pathetic!

  98. When the various other agencies were looking into MERS and which look resulted in the Consent Order in April 2011, which in turn resulted in no more foreclosures in MERS’ name by its members (which btw is not stated in the consent order),
    I have no or at least little doubt those agencies had a grasp of the
    racket. So what assumptions can we take from that? They decided to play it ‘It’s not a racket’? “It is a racket, but golly what if we call it what it is? Have an awful big mess on our hands, wouldn’t we?” There’s no way a real look could arrive in a conclusion it isn’t a racket, so that wasn’t a real option. Without hysterics, why did they enter into a consent order which said MERS should get its racket-act together and basically fix a few little leaks? Were those people just cowards? What was the cost or perceived cost of doing otherwise, and will that same perception of cost or even real cost derail this alleged task force?

    I think it’s very important to look at why MERS then stopped allowing foreclosures in its name. Of what is this a tacit admission? WHAT?
    MERS is not the beneficiary, MERS is not an agent, MERS can’t foreclose? MERS is no one? What? Imo it passes folly and goes right into madness to ignore this What and Why, especially in view of the fact that millions and millions of foreclosures had been done in its name. That is a big change, which cannot be chalked up to an insignificant policy change. WHAT does this change admit?

  99. @Alessandro,

    I didn’t write it. I took it right out of Naked Capitalism. I found the perspective interesting and, to be honest, I didn’t particularly feel impressed by Obama’s announcement on Tuesday. That confirms me in what I believe: Obama wants to (again) “appease” every side of the problem.

    Troubles me a great deal.

  100. Enraged, when you wrote.. That’s one hundred times the number of people working on a scandal that is about forty times larger and far more complex.

    I think you meant ” That’s one hundred times the number of people working on a scandal back then versus one now that is about forty times larger and far more complex.

  101. There are some occasions when I side with the banks, this is one of them. If the wife’s income is going to put you out of reach of the HAMP program, isn’t that good news?

    Around a year and a half ago I recall someone else on another website complaining because the bank did not accept their monthly condo fee as being a legitimate expense. I recall the condo was charging an association fee of somewhere between 800 dollars to 1,200 a month for each owner!

    If I were the bank, I would have rejected that figure as well as it seems ridiculously high.

  102. None other than Mitt Romney has given “LIP SERVICE” to the statement “if your lender refuses to work with you just walk away”. Of course Mitt talks like a bird sh*ts but that is another story. I can tell you that if Obama settles under any circumstances BEFORE a thorough investigation, I won’t vote for him OR any of the Neanderthals the GOP is serving up.

    http://www.dylanratigan.com/2012/01/24/ratigan-and-spitzer-mitt-romneys-state-of-the-union-challenge-on-the-mortgage-crisis/

    “My own view is you recognize the distress, you take the loss and let people reset. Let people start over again, let the banks start over again. Those that are prudent will be able to restart, those that aren’t will go out of business. This effort to try and exact the burden of their mistakes on homeowners and commercial property owners, I think, is a mistake” – F-ing Mitt Romney (too bad he doesn’t mean it and represents the party who is still telling us that the entire debacle is because of “minority lending and a queer congressman”! (rednecks love that theory)

  103. Lanny Breuer, Task Force Leader, Doesn’t Bother Showing Up For Mortgage Fraud Press Conference

    By Matt Stoller, the former Senior Policy Advisor to Rep. Alan Grayson and a fellow at the Roosevelt Institute. You can reach him at stoller (at) gmail.com or follow him on Twitter at @matthewstoller.

    Eric Holder has come out with details on the task force. But first, let’s look at a smoke signal. At this press conference announcing the task force, Holder had to apologize for Lanny Breuer, Assistant Attorney General for the Criminal Division, one of the key leaders of the investigative unit. Breuer, you see, couldn’t make it to the press conference because he was traveling. That’s how important this task force is to Breuer, so important that his travel schedule couldn’t brook interference. Such a bureaucratic snub has been no doubt noticed by the various underlings at the DOJ and the US Attorney offices.

    Ok, let’s go to the substance.

    I am pleased to report that this Working Group has considerable Department resources behind it as it builds on activities that have been underway through the broader Task Force. Currently, 15 attorneys, investigators, and analysts – here at Main Justice and throughout our U.S. Attorneys’ Offices – are supporting the investigative efforts that this Working Group will be focusing on going forward. And the FBI has assigned 10 agents and analysts to work with the group immediately. In the coming weeks, another 30 attorneys, investigators, and support staff from U.S. Attorneys’ Offices will join the Group’s work.

    So that’s a total of 55 people, 10 of whom are FBI agents. Let’s do a few comparisons. During the Savings and Loan crisis, Bill Black reminds us that there were about a thousand FBI agents working on the various cases. That’s one hundred times the number of people working on a scandal that is about forty times larger and far more complex.

    To put it another way, let’s say that this scandal cost the American public $5-7 trillion in lost home equity. That’s about $100 billion of lost home equity per person assigned to this task force. If someone stole $100 billion a corporation, like say, if somehow Apple’s entire cash hoard which is roughly that amount, suddenly disappeared, I’m guessing that the FBI would assign more than one person to the case.

    Another comparison might be Enron, which had 100 FBI agents assigned to the case. Or the stress tests. Remember this?

    For the last eight weeks, nearly 200 federal examiners have labored inside some of the nation’s biggest banks to determine how those institutions would hold up if the recession deepened.

    Yup, roughly four times as many people were assigned to conduct sham stress tests as are assigned to investigate the causes of the financial crisis and prosecute the people responsible. So we see that this is a not a serious deployment of government resources to unmask a complex economy-shaking financial scheme. It just isn’t. And as if to emphasize this, Breuer didn’t even show up to the press conference announcing it.

    And finally, the fissures I warned about are already beginning to appear. Here’s more of what Holder said.

    On Tuesday night, the President referenced this initiative, asking us to, “hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans.”

    That is precisely what we intend to do. And the good news is that we aren’t starting from scratch.

    Over the past three years, we have been aggressively investigating the causes of the financial crisis. And we have learned that much of the conduct that led to the crisis was – as the President has said – unethical, and, in many instances, extremely reckless. We also have learned that behavior that is unethical or reckless may not necessarily be criminal. When we find evidence of criminal wrongdoing, we bring criminal prosecutions. When we don’t, we endeavor to use other tools available to us – such as civil sanctions – to seek justice. My number one to commitment to the American people is that we will continue to devote significant resources to combating financial fraud and be as aggressive and creative as we can be in holding accountable those who, in violating the law, contributed to the financial crisis.

    For example, in just the last six months, the Department has achieved prison sentences of 60, 45, 30, and 20 years in a variety of financial fraud cases charging securities fraud, bank fraud, and investment fraud. And, just last month, I announced the largest fair lending settlement in history, resolving allegations that Countrywide Financial Corporation and its subsidiaries engaged in a widespread pattern or practice of discrimination against minority borrowers from 2004 through 2008.

    I keep coming back to this point – the administration and its cabinet members truly believes they have worked hard to get to the bottom of the financial crisis, and has done so as best as anyone possibly could. To them, “mortgage fraud is a top priority”, and has been for years. They might think they have mishandled the politics, but as Holder makes clear, they have brought criminal cases where they felt they could, and they settled where they thought they needed to. Even the anecdote about Countrywide is weak – note he says they resolved “allegations”, because Countrywide didn’t even have to admit wrongdoing!

    There are reasons Schneiderman wants to have Federal resources to bear on this problem, but this is a drop in the bucket compared to what is needed, and the leadership with whom Schneiderman needs to work simply doesn’t believe they have done anything wrong. To them, this is business as usual.

    Now on to the other news of the week, which is a $25 billion settlement for foreclosure fraud, which is supposedly done along the lines of a narrow release just for robosigning. I haven’t seen the language, and until I do, I wouldn’t be comfortable describing it as a narrow release. But if it is, then it isn’t a real shift in the landscape. The banks simply don’t want to pay that much for so little, and they’ll probably end up gaming the financing so that they claim to have paid $25 billion by engaging in loan modifications and principal write-downs they would have engaged in already. And if it’s a broader release, it seems unlikely to be something the recalcitrant state AGs would agree to.

    The real anchor in our financial system is the heavy burden of unpayable mortgage debt, as well as rampant servicer conflicts that render modifying this burden impossible. We need to find a way to cut that debt through a negotiated workout, which can’t happen without a real investigation of the people who are grabbing as much as they can. There are ways Schneiderman and the state AGs can force movement even without a big commitment of Federal resources by better leveraging the people on the ground who are fighting foreclosure fraud on a regular basis. And depending on how it’s organized, this task force gives state AGs more jurisdiction, access to the investigative resources and documents done by the Feds so far, and a few FBI agents and lawyers. Still, that’s not nearly enough. The administration saw this as a way of co-opting the issue for the reelection and stopping the bitter undercurrent from the Democratic base (similar to floating the rumor that Geithner won’t come back in term two). Will it work? I’d expect a few semi-significant actions in the months ahead, complaints or indictments perhaps. We’ve already seen some subpoenas. But without a major figure investigated and prosecuted (like if Vikram Pandit were really prosecuted for Sarbox violations), the administration’s policy of preserving the existing banking structure is the dominant policy framework.

  104. Time to send another e-mail and help someone in trouble again.

    http://mandelman.ml-implode.com/2012/01/doer-alert-wells-fargo-this-is-unnecessary-unreasonable-and-unthinkable/

    Every little bit counts…

  105. Good, solid and sound advice. I wish I had thought about that before liquidating my own 401K!

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