For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).
Editors Comment and Analysis: Chorus of whistles around the country and indeed around the world is going over the administration’s handling of the wrongful foreclosure claims and the outright bullying, intimidation and lying that lies at both the root of the false securitization scheme for residential mortgages and the false foreclosure review process supposedly designed to correct the problem. The plain truth, as pointed out in the article below and the Huffington Post, is that the reviews were never intended to work.
Take a step back for perspective. The news is being carefully managed by Wall Street just as Congress is being carefully manipulated by Wall Street. But for the inquiring mind, the data is right there in front of everyone and is being ignored at the peril of the future of the real estate industry which depends upon certainty that the title intended in the transaction is actually conveyed without undisclosed or “unknown” liabilities. The title companies are greasing the rails with their
“Guarantee of Title” but that doesn’t fix the corrupted title records.
We know that every study done shows collectively that
- Strangers to the transaction dominate the foreclosure activity — i.e., entities that are not injured or even involved with eh funding of the original loan or the payment of the price of the loan on assignment, endorsement or transfer of the alleged loan.
- In virtually ALL cases of securitization, regardless of whether the securitization started at the origination of the loan, or later, the use of nominees rather than actual parties was the rule, and the documents misrepresent both the parties and terms of repayment.
- The Banks are slowly prolonging the process to be able to assert the statute of limitations on criminal or civil prosecution but that wouldn’t protect them if law enforcement would dig deeper and find that there was nothing but fraud at the origination and all the way up the “Securitization” chain — all of which transactions were unsupported by consideration.
- We know the Banks know that they are exposed to awesome liability equaling the whole of the mortgage market from 1996 to the present. If that were not true they would be announcing settlements every day where some bank is paying hundreds of millions or billions or tens of billions of dollars “without admitting liability.”
- We know that in ALL foreclosures where a loan was claimed to be securitized or even where it was hidden tactically (like Chase does), the “credit bid” at auction was not submitted by an injured party. Thus the party who submitted the credit bid was not a creditor and everyone of those foreclosures — millions of them — can be and should be overturned.
- We know that at origination the money came from a controlled entity not of the originator but of the aggregator. The originator was not permitted to touch the money nor did the originator ever have any risk of loss. Hence the originator was a nominee with no more rights or powers than MERS. The borrower was left with the fact that he was dealing with unknown parties whose “underwriting process” was designed to get the deal done and allow the originator to proceed.
- We know that without the approval from the aggregator, the originator would not have announced approval of the loan. At no time did the Borrower know that they were actually dealing with Countrywide or other aggregators and that the money was coming through an entity (credit warehouse) set up by Countrywide for the origination of loans, with the caveat being that the money for funding would NOT go through the hands of the originator.
- We know that the mortgage liens were not perfected.
- We know that the note describes a transaction that never occurred — wherein the originator loaned money to the borrower. (No consideration) and that the originator never had any risk of loss.
- We know that the actual transaction was from an aggregate fund in which investments from multiple investors in what the investors thought were discreet accounts for each REMIC trust but where the Trust was ignored just as the requirements of state law or ignored by using nominees without disclosure of the principal on the note, mortgage or deed of trust.
- We know the losses on the bogus mortgage bonds were taken by the injured parties — the investors (pension funds) who put up the money.
- We know that the investment bank, aggregator and Master Servicer were in control of all transactions and that the subservicers were nominees for the Master Servicer whose name is kept out of litigation.
- We know the despite the loss hitting the investors because it was after all their money that funded this PONZI scheme, it was the banks who were allowed to take the insurance, proceeds of credit default swaps and federal bailouts leaving the investors twisting in the wind.
- We know that the investment bank, Master Servicer and aggregators were in privity, owed duties and were agents of the investors when they received the insurance and bailout money.
- We know that the banks kept the money from insurance and bailouts instead of paying the investors and reducing the balance due to the investors.
We know all these things, and much more, with whistle-blowers stepping up every day. The day of reckoning is coming and the announcement of BofA about another hidden earnings hit is only 2-3% of the actual number as shown on their own statements and probably more like 1/10 % of their real liability.
The term “Zombie” is being used to describe many features of our financial landscape. Truth be told it ought to be used to describe our entire financial system. If the actual corrections were made in accordance with existing law and existing equitable doctrines applied in hundreds of millions of other individual cases, we would be working on plans to wind down the mega banks, wind down household debt, falsified by the banks, and wind down the efforts to derail appropriate lawsuits by real injured parties.
The more you understand about what REALLY happened, the more you will see the opportunity for relief. I can report to you that I am receiving daily reports of multiple cases in which the borrower is winning motions. Even a year ago that was unthinkable.
The Judges are starting to catch on and some lawyers are realizing that this is just like any other case — their client is subject to enforcement of an alleged debt or foreclosure action and their answer is to deny the allegations, the documents and make them prove up their status as injured party on a perfected mortgage lien securing the promises on a valid note for a debt created by actual payment of the named party to the borrower.
The assumption by Judges and lawyers that there wouldn’t be a foreclosure if the facts didn’t support it is going down fast. Judges are realizing that title is being corrupted by bad presentations made by pro se litigants and many lawyers in which they admit the essential elements of the foreclosure and then try to get relief. Deny and Discover covers that. Deny anything you can deny as long as you have no reason to believe it to be true beyond a reasonable doubt. Let them, force them to prove their case. They can’t. If you press discovery you will be able to show that to be true. File counter motions for summary judgment with your own affidavits and attack the affidavits of the other side in support of their motions.
More Whistleblower Leaks on Foreclosure Settlement Show Both Suppression of Evidence and Gross Incompetence
No wonder the Fed and the OCC snubbed a request by Darryl Issa and Elijah Cummings to review the foreclosure fraud settlement before it was finalized early last week. What had leaked out while the Potemkin borrower reviews were underway showed them to be a sham, as we detailed at length in an earlier post. But even so, what actually took place was even worse than hardened cynics had imagined.
We are going to be reporting on this story in detail, since we are conducting an in-depth investigation. But this initial report by Huffington Post gives a window on a good deal of the dubious practices that took place during the foreclosure reviews. I strongly suggest you read the piece in full; there is a lot of nasty stuff on view.
There are some issues that are highlighted in the piece, others that are implication that get somewhat lost in the considerable detail. The first, as stressed by Sheila Bair and other observers, is that the reviews were never designed to succeed. This is something we and others pointed out; this was all an exercise in show. The OCC had entered into these consent orders in the first place with the aim of derailing the 50 state attorney general settlement negotiations. This was all intended to be diversionary, but to make it look like it had some teeth, borrowers who were foreclosed on in 2009 and 2010 who thought they were harmed were allowed to request a review. If harm was found, they could get as much as $15,000 plus their home back if they had suffered a wrongful foreclosure, or if they home had already been sold, $125,000 plus any equity in the home. Needless to say, the forms were written at the second grade college level, making them hard to answer. A whistleblower for Wells Fargo reported that of 10,000 letters, harm was found in none because the responses were interpreted in such a way as to deny harm (for instance, if the borrower did not provide dates of certain incidents, those details were omitted from the assessment).
But the results were even worse than that, hard as it is to believe. For instance, even though the OCC stipulated that the banks hire supposedly independent reviewers, they were firmly in control of the process. From the article, describing the process at Bank of America, where a regulatory advisory firm Promontory was supposed to be in charge:
Bank of America contractors were reviewing Bank of America loans at a Bank of America facility under the management of full-time Bank of America employees. They were reporting those results to Promontory, the outside independent consultant, whose employees started their reviews based on what Bank of America contractors had concluded.
As the auditor, Promontory had authority to overrule any conclusion drawn by a Bank of America contractor. Promontory has defended its work as independent from influence by Bank of America. But the Bank of America contractors said it was clear to them that what they noted during their reviews was integral to the process. They continued to do substantive, evaluative review work until a few months ago, they said, when they were told that their job going forward was simply to dig up documents for Promontory.
Of course, Promontory protests that it was in charge. It is hard to take that seriously when no one from Promontory was on premises. And the proof is that the Bank of America staff suppressed the provision of information:
Another contract employee recounted the time he noted in a file that he couldn’t find vital documents, such as notice supposedly sent to a homeowner that a foreclosure was pending. “Change your answer,” he said he was told on several occasions by his manager.
Second is that the OCC was changing the goalposts as the reviews were underway. But was that due to OCC waffling or pushback by the consultants acting in the interest of the banks to derail the process by making the results inconsistent over time? If you do the first month of reviews under one set of rules and then get significant changes in month two, that implies you have to revise or redo the work in month one. That serves the consultants just fine, their bills explode. And the banks get to bitch that the reviews are costing too much, which gives them (and the OCC) a pretext for shutting them down, which is prefect, since they were all intended to be a PR rather than a substantive exercise from the outset.
Consider this section:
From the the consultants’ point of view, it was the government regulators who had some explaining to do. First there was the constant change in guidance, throughout at least the first eight months of the process, as to what they wanted the auditors to do and how they wanted them to do it, they said. The back-and-forth was so constant, one of the consultants involved with the process said that specific guidelines for determining if a mortgage borrower had been harmed by certain kinds of foreclosure fraud still weren’t in place as late as November 2012.
Huh? Tell me how hard it is to determine harm. If a borrower was charged fees not permitted by statue or the loan documents, there was harm. If the fees were in excess of costs (not permitted) there was harm. If the fees were applied in the wrong order, there was harm. If a borrower was put into a mod, made the payments as required in the mod agreement, but they weren’t applied properly and they were foreclosed on despite following bank instructions, there was harm. Honestly, there are relatively few cases where there is ambiguity unless you are actively trying to throw a wrench in the process, and it is not hard to surmise that is exactly what was happening. That is not to say there might not have been ambiguity on the OCC side, but it is not hard to surmise that this was contractor/bank looking to create outs, not any real underlying problem of understanding harm v. not harm.
It looks that some of the costly process changes were also due to the consultants being caught out as being in cahoots with their clients rather than operating independently:
The role of the Bank of America contract employees did not change to simply doing support work for Promontory until near the end of last year. That happened after ProPublica reported that Promontory’s employees were checking over Bank of America’s work, rather than conducting a fully independent review.
Finally, the article mentions (but does not dwell on) the fact that there was considerable evidence of borrower harm:
The reviewer said she found some kind of bogus fee in every file she looked at, ranging from a few dollars to a few thousand dollars. Another who looked for errors that violated state statutes estimated that 30 to 40 percent of loan files contained mistakes.
One reviewer who provided a comment that we elevated into a post was far more specific:
…in one case I reviewed the borrower paid approximately 25K to reinstate his mortgage. Then he began to make his mortgage payments as agreed. Each time he made a payment the payment was sent back stating he had to be current for the bank to accept a payment. He made three payments and each time the response was the same. Each time he wrote and called stating he had sent in the $25K to reinstate the loan and had the canceled check to prove it. After several months the bank realized that they had put the 25K in the wrong account. At that time that notified him that they were crediting his account, but because of the delay in receiving the reinstatement funds into the proper account he owed them more interest on the monies, late fees for the payments that had been returned and not credited and he was again in default for failing to continue making his payment. The bank foreclosed when he refused to pay additional interest and late fees for the banks error. I was told that I shouldn’t show that as harm because he did quit making his payments. I refused to do that.
There was another instance when there was no evidence that the bank had properly published the notice of sale in the newspaper as required by law. The argument the bank made when it was listed as harm to the borrower was “here is the foreclosure sale deed, obviously we followed proper procedure, and you should change your answer as to harm.”
Often there is no evidence of a borrower being sent a proper notice of intent to accelerate the mortgage. When these issues are noted in a file we are told to ignore them and transfer those files to a “special team” set up to handle that kind of situation. You choose whatever meaning you like for that scenario.
To add insult to injury, the settlement fiasco was shut down abruptly without the OCC and the Fed coming with a method for compensating borrowers. So the records have been left in chaos. That pretty much guarantees that any payments will be token amounts spread across large number of borrowers, which insures that borrowers that suffered serious damage, such as the case cited above, where the bank effectively extorted an extra $25,000 from a borrower before foreclosing on him, will get a token payment, at most $8,000 but more likely around $2,000. Oh, and you can be sure that the banks will want a release from private claims as a condition of accepting payment. $2,000 for a release of liability is a screaming deal, and it was almost certainly the main objective of this exercise from the outset. Nicely played indeed.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: | Banana republic, Banking industry, BofA, foreclosure reviews, Master Servicer, Ponzi, Promontory, Real estate, Regulations and regulators, Ridiculously obvious scams, subservicer