Quite a Stew: Wells Fargo Pressure Cooker for Sales and Fabricated Documents

Wells Fargo Investigated by 4 Agencies for Manual on Fabricating Foreclosure Documents

Wells Fargo is under investigation for a lot of things these days, just as we find in Bank of America and other major “institutions.” The bottom line is that they haven’t been acting very institutional and their culture is one that has led to fraud, identity theft and outright fabrication of accounts and documents.

There can be little doubt about it. Documents that a real bank acting like a bank would have in its possession appear to be completely absent in most if not all loans that are “performing” (i.e., the homeowner is paying, even if the party they are paying isn’t the right and even if the loan has already been paid off). But as soon as the file becomes subject to foreclosure proceedings, documents miraculously appear showing endorsements, allonges, powers of attorney and assignments. According to a report from The Real Deal (New York Real Estate News), these are frequently referred to as “ta-da endorsements” a reference from magic acts where rabbits are pulled from the hat.

Such endorsements and other fabricated documents have been taken at face value by many judges across the country, despite vigorous protests from homeowners who were complaining about everything from “they didn’t have the documents before, so where did they get them?” to luring homeowners into false modifications that were designed to trap homeowners into foreclosure.

After 7 years of my reporting on the fact that the documents do not exist, including a report from Katherine Anne Porter at what was then the University of Iowa that the documents were intentionally destroyed and “lost” it has finally dawned on regulators and law enforcement that something is wrong. They could have done the same thing that I did. I had inquiries from hundreds (back then, now thousands) of homeowners looking for help.

So the first thing I did was I  sent qualified written requests to the parties who were claiming to be the “lenders.” After sending out hundreds of these the conclusion was inescapable. Any loan where the homeowner was continuing to make their payments have no documentation. Any loan where the homeowner was in the process of foreclosure had documentation of appear piece by piece as it seemed to be needed in court. This pattern of fabrication of documents was pandemic by 2007 and 2008. They were making this stuff up as they went along.

It has taken seven years for mainstream media and regulators to ask the next obvious question, to wit: why would the participants in an industry based on trust and highly complex legal instruments created by them fall into patterns of conduct in which nobody trusted them and where the legal instruments were lost, destroyed and then fabricated? In my seminars I phrased the question differently. The question I posed is that if you had a $10 bill in your hand, why would you stick it in a shredder? The promissory note and the other documents from the alleged loan closings were the equivalent of cash, according to all legal and common sense standards. Why would you destroy it?

As I said in 2008 and continue saying in 2014, the only reason you would destroy the $10 bill is that you had told somebody you were holding something other than a $10 bill. Perhaps you told them it was a $100 bill. Now they want to see it. Better to “lose” the original bill then admit that you were lying in the first place. One is simple negligence (losing it) and the other is criminal fraud (lying about it). The banking industry practically invented all of the procedures and legal papers associated with virtually every type of loan. The processing of loans has been the backbone of the banking industry for hundreds of years. Did they forget how to do it?

The answers to these questions are both inconvenient and grotesque. I know from my past experience on Wall Street that bankers did not deserve the trust that everyone seemed to repose in them. But this conduct went far beyond anything I ever saw on Wall Street. The answer is simply that the bankers traded trust for money. They defrauded the investors, most of whom were stable managed funds guarding the pensions of millions of people. Then they defrauded homeowners creating a pressure cooker of sales culture in which banking evolved simply into marketing and sales. Risk analysis and risk control were lost in the chaos.

The very purpose for which banks came into existence was to have a place of safety in which you could deposit your money with the knowledge that it would still be there when you came back. Investors were lured into a scheme in which they thought their money was being used to fund trusts; those trusts issued mortgage bonds that in most cases were never certificated. In most cases the trust received no money, no assets and no income. The fund managers who were the investors  never had a chance.

The money from the investors was instead kept by the broker-dealers who then traded with it like drunken sailors. They pumped up real estate PRICES  far above real estate VALUES, based on any reasonable appraisal standards. The crash would come, and they knew it. So after lying to the investor lenders and lying to the homeowner borrowers they lied to the insurers, guarantors, co-obligors and counterparties to credit default swaps that had evolved from intelligent hedge products to high flying overly complicated contracts that spelled out “heads I win, tails you lose.”

In order to do all of that they needed to claim the loans and the bonds as though they were owned by the broker-dealers when in fact the broker-dealers were merely the investment banks that had taken the money from investors and instead of using it in the way that the investors were told, they created the illusion (by lying) of the scheme that was called securitization when in fact it was basically common fraud, identity theft of both the lenders and borrowers, in a Ponzi scheme. When Marc Dreier was convicted of similar behavior the amount was only $400 million but it was the larger scheme of its kind ever recorded.

When Bernard Madoff was convicted of similar behavior the amount was only $60 billion, but the general consensus was that this was the largest fraud in history and would maintain that status for generations. But when the Madoff scandal was revealed it was obvious that members of the banking industry had to be involved; what was not so obvious is that the banking industry itself had already committed a combination of identity theft, fraud and corruption that was probably 300 times the size of the Madoff scandal.

The assumption that these are just loans that were to be enforced just like any other loans is naïve. The lending process described in the paperwork at the closings of these loans was a complete lie. The actual lender did not know the closing had occurred, never received the note and mortgage, nor any other instrument that protected the investor lenders. The borrower did not know the actual lender existed. Closing agent was at best negligent and at worst part of the scheme. Closing agent applied money from the investors to the closing of the “loan” and gave the paperwork that should’ve gone to the investors to third parties who didn’t have a dime invested in the deal. Later the investment banks would claim that they were suffering losses, but it was a lie, this time to the taxpayers and the government.

The reason the investment banks need to fabricate documentation is simply because their scheme required multiple sales of the same loan to multiple parties. They had to wait until they couldn’t wait any longer in order to pick a plaintiff to file a foreclosure lawsuit or pick a beneficiary who would appear out of nowhere to start the nonjudicial sale of property in which they were a complete stranger to the transaction.

The reason that homeowners should win in any reasonable challenge to a foreclosure action is that neither the forecloser nor the balance has been correctly stated. In many cases the balance “owed” by the borrower is negative! Yes that means that money is owed back to the borrower even know they stopped making payments. This is so counter intuitive that it is virtually impossible for most people to wrap their brains around this concept and that is exactly what Wall Street banks have been counting on and using against us for years.

LA Times Report on Wells Fargo Sales Culture

Florida’s Hardest Hit Fund Becomes Focus for Help to Homeowners

This is the topic for tonight’s Neil Garfield show. Tune in tonight or down load the podcast:

Click in to tune in at The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Thursdays

Tonight’s Show Features Carolyn Trego, Hardest Hit Administrator for the Law Offices of Paul A. Krasker, P.A.

 There are dozens of programs available in many of the states that could help thousands of homeowners. The problem is that nobody is making application to those programs. So I am publicizing facts about those programs in an effort to encourage homeowners and attorneys to do their homework and to make proper application. It is probably a good idea to utilize the services of the law firms that have already started to concentrate on these programs. These firms are willing to cocounsel with other lawyers who have been litigating cases or web clients that might benefit from these programs.

 The following article was written based upon information provided by a member of the staff of the law firm that appears to be doing a very good job of assisting homeowners, accessing all available remedies —  which might include but is not limited to litigation.

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Quite often I run into homeowners who have had a hardship and do not know what help could be available.  Two years ago, the federal government gave an additional $2 billion to the 18 states and the District of Columbia that were hardest hit in the economic downturn.

State of Florida was allocated $1Billion Dollars has a hardship fund available only to Florida homeowners called Florida’s Hardest Hit Fund.    Most of you Floridians have not heard of the Fund – mostly because it is poorly marketed by the State, but it is real and deserves more attention.  I cannot believe others are not screaming this from the rooftops and foreclosure defense attorneys and loan modification companies are not referring all their clients to see if this Fund can solve the deficiency issues (or at least narrow the gap of deficiency).  

The owners are not charged a fee to apply for or to receive the available funds.  Final decisions are usually rendered within 60-90 days.  You can even continue to pursue a long term modification while receiving the funds.

Two types of homeowners are covered: Unemployed and underemployed due to no fault of their own.  The funding is to help pay the mortgage arrearages and to help pay the future mortgage payments of qualified homeowners. 

Florida’s Hardest Hit Fund has in place two programs: UMAP and MLRP.  Homeowners could qualify for one or both programs at the same time.  The homeowners who qualify may receive mortgage assistance for future payments up to 12 months (capped at $24,000), or until the homeowner finds adequate employment to resume paying the mortgage (whichever comes first), with up to $18,000 available to reinstate a delinquent first mortgage prior to payments being made.   That is a total of $42,000 to eligible homeowners at no cost to them and quick turn-around times.  How is it possible that this is not being better advertised and promoted?

Additionally, for a homeowner who is delinquent but is recovering from unemployment/underemployment (who may now have a job) and now can afford their future payments, they can still receive up to $25,000 as a one-time payment toward reinstatement of their delinquent first mortgage balance. 

HHF assistance is paid directly to the loan servicer/lender for those homeowners deemed eligible to participate in the program.  Eligibility depends on 3 things: Household eligibility, Property eligibility, Mortgage eligibility.

While you can apply online directly to the State website.

To further information, you can contact Carolyn Trego at 877-332-1965 and she will be happy to assist you with your questions and needs.  You may also visit the HHF official website at www.FLHardestHitHelp.org to review eligibility criteria and apply. 

When applying; please use Referral Code 70099 when completing your application so that you will be directed to the Law Office of Paul Krasker for further assistance.

Countrywide Found Guilty of Fraud, JPM Criminal Responsibility for Madoff PONZI Scheme

“The words PONZI SCHEME and FRAUD applied to the mortgage meltdown has been largely dismissed by policy makers, law enforcement and regulators. Instead we heard the terms RISKY BEHAVIOR and RECKLESSNESS. Now law enforcement has finally completed its investigation and determined that those who set the tone and culture of Wall Street were deeply involved in the Madoff PONZI scheme and were regularly committing FRAUD in the creation and sale of mortgage bonds and the underlying “DEFECTIVE” loans. The finding shows that these plans were not risky nor reckless. They were intentional and designed to deceive and cause damage to everyone relying upon their false representations. The complex plan of false claims of securitization is now being pierced making claims of “plausible deniability” RISKY and RECKLESS.

And if the loans were defective there is no reason to believe that this applies only to the loans claimed to be in default. It applies to all loans subject to false claims of securitization, false documentation for non existent transactions, and fraudulent collection practices by reporting and collecting on balances that were fraudulently stated in the first instance. At this point all loans are suspect, all loan balances stated are suspect, and all Foreclosures based on these loans were frauds upon the court, should be vacated and the homeowner reinstated to ownership of the property and possession of the property. All such loans should have the loan balance adjusted by the courts for appropriate set off in denying the borrowers the benefit of the bargain that was presented to them.

“It is now difficult to imagine a scenario where the finding of the intentional use and creation of defective mortgages will not trickle down to all mortgage litigation. The Countrywide decision is the first that expressly finds them guilty of creating defective loans. It is impossible to believe that Countrywide’s intentional acts of malfeasance won’t spread to the investment banks that used Countrywide as the aggregator of defective loans (using the proprietary desk top underwriting software for originators to get approval). The reality is coming up, front and center. And Judges who ignore the defenses of homeowners who were of course defrauded by the same defective mortgages are now on notice that bias towards the banks simply doesn’t work in the real world.” — Neil F Garfield,www.livinglies.me October 24, 2013

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By Neil F Garfield, Esq. Tallahassee, Florida October 24, 2013. If the mortgages were defective and were used fraudulently to gain illicit profits it is not possible to avoid the conclusions that homeowners are among the victims. By using false appraisals the huge banks created the illusion of rising prices. This was manipulation of market prices just as the banks were found guilty of manipulating stated market rates for interbank lending “LIBOR” and use of the manipulated pricing to trade for further benefit knowing that the reality was different. The banks have continued this pattern behavior and are still doing it, and laying fines as a cost of doing business in the manipulation and ownership of natural resources. They are a menace to all societies on the planet. The threat of that menace must be removed In the face of a clear and present danger posed by the real world knowledge that where an opportunity arises for “moral hazard” the banks will immediately use it causing further damage to government, taxpayers, consumers and investors.

None of it was disclosed or even referenced at the alleged loan closing with borrowers despite federal and state laws that require all such undisclosed profits and compensation to be disclosed or suffer the consequence of required payment to the borrower of all such undisclosed compensation. The borrowers are obviously entitled to offset for the false appraisals used by lenders to induce borrowers to accept defective loan products.

Further, borrowers have a clear right of action for treble damages for the pattern of conduct that constituted fraud as a way of doing business. In addition, borrowers can now be scene through a clear lens — that they are entitled to the benefit of the bargain that they reasonably thought they were getting. That they were deceived and coerced into accepting defective loans with undisclosed players and undisclosed compensation and undisclosed repayment terms raises the probability now that borrowers who present their case well, could well start getting punitive damages awards with regularity. It’s easy to imagine the closing argument for exemplary or punitive damages — “$10 billion wasn’t enough to stop them, $25 billion wasn’t enough to stop of them, so you, members of the jury, must decide what will get their attention without putting them out of business. You have heard evidence of the tens of billions of dollars in profits they have reported. It’s up to you to decide what will stop the banks from manipulating the marketplace, fraudulently selling defective loans to borrowers and pension funds alike with the intention of deceiving them and knowing that they would reasonably rely on their misrepresentations. You decide.”

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U.S. prepares to take action against JPMorgan over Madoff
In what would be an almost unheard of move when it comes to U.S. banks, the FBI and the U.S. attorney’s office are in talks with JPMorgan (JPM) about imposing a deferred prosecution agreement over allegations that the bank turned a blind eye to Bernie Madoff’s Ponzi scheme, the NYT reports.
Authorities would suspend criminal charges against JPMorgan but impose a fine and other concessions, and warn the bank that it will face indictments over any future misconduct.
However, the government has not decided to charge any current or former JPMorgan employees.
The report comes as the bank holds talks with various regulators over a $13B deal to settle claims about its mortgage practices.

Countrywide found guilty in U.S. mortgage suit
A federal jury has found Bank of America’s (BAC -2.1%) Countrywide unit liable for defrauding Fannie Mae (FNMA +22%) and Freddie Mac (FMCC +19.4%) by selling them thousands of defective mortgages.
The judge will determine the amount of the penalty – the U.S. has requested $848M, the gross loss to the GSEs as calculated by its expert witness.
The suit centered on Countrywide’s HSSL – High Speed Swim Lane – program instituted in August 2007, says the government, to keep the music playing as the property market was falling apart.

DOJ probes nine leading banks over sale of mortgage debt
The Department of Justice is reportedly investigating nine major banks over the sale of problematic mortgage bonds, although the probes are for civil infractions rather than criminal ones.
The banks are Bank of America (BAC), Citigroup (C), Credit Suisse (CS), Deutsche Bank (DB), Goldman Sachs (GS), Morgan Stanley (MS), RBS (RBS), UBS (UBS) and Wells Fargo (WFC).
The inquiries span U.S. attorney’s offices from California to Massachusetts, and come as JPMorgan tries to reach a multi-billion dollar settlement over the issue.

Bailout Treachery Sequel?

BUSINESS DAY | Five Years Later, Poll Finds Disapproval of Bailout

The simple answer is yes, there will be another bailout attempt and it appears likely that the Banks will continue to confuse things enough so that it again happens only “this time” there will be some “stern regulations”. The reason is not some esoteric financial mumbo jumbo, nor does it take brilliant economic insight — and shame on Democrats who “concede” the bailout was necessary. A little realism from my fellow Democrats in joining with Republicans on this pervasive issue might just be the stepping stone to loosening the idiotic gridlock being engineered by Republicans, who are dead right about the last bailout, and dead right about the next one.

The reason the attempt will be made is because the last one worked. The banks got trillions of dollars as compensation for creating the illusion that they had lost the entire economy. It was a lie then, it is a lie now and it will be a lie when they try it again. I agree that magicians as entertainers are worth whatever the market will bear. But I don’t agree that Wall Street bankers are entertainers and I agree with the vast majority of Americans who say the bankers or gangsters. They belong in jail. They won’t go to jail because of agreements made by law enforcement under Political pressure.

The last bailout worked because nobody understood securitization other than the investment bank collateral debt obligation (CDO) managers. If your sole source of information, analysis and interpretation is the perpetrator, it should come as no surprise that they lead you down a path that belongs in fiction, not reality. The result was we turned over the control of our currency to the bankers and we have never retrieved it. We gave them the country and indeed the world because our leaders were ignorant of the true facts and failed to ferret out the real ones, and therefore never had a chance to refute or corroborate the narrative from Wall Street.

Things haven’t changed much. Even the witnesses and lawyers for the banks in Foreclosures don’t understand securitization. When they say this is a Fannie Mae loan, everyone but me thinks that is the end of it. Nobody can answer my questions because they don’t understand them. Fannie is not a lender. If the statement is that “this is a Fannie Mae loan”, the question is how did it get that way? There are only one of two possibilities: (1) it was guaranteed by Fannie and then sold into the secondary market to a REMIC pool where in the master Trustee is Fannie and the individual trustee is the manager of the asset pool or (2) Fannie paid the loan or the loss off and is considered to own the loan even though the documents are absent showing the transfer. Either way you want to see reality — the movement of money to determine who is the lender, and to determine the real balance owed rather than the fabricated story of the subservicer.

So as long as ignorance prevails in government, there will be yet another bailout for losses that never happened on fictional transactions. Regulators will see no choice because they see no facts and have learned nothing from the last round of securitization. The new round is already underway and the stealing, lying, and treachery continues while pensioners’ money is flushed down the toilet for processing at the Wall Street money conversion plant where losses are turned into pure profit.

Why Do Subservicers Continue to Pay Investors After Borrower Stops Paying?

It is now common knowledge that subservicers are continuing to pay investors and reporting the loan as “performing” after they have sent a default and right to reinstate notice as required by the mortgage (usually paragraph 22) and by the uniform debt collection laws. The first problem about this is that the actual creditor does not show a default whereas the bookkeeper Servicer is declaring the default. With the investor receiving his regular payments, how can a default exist? This appears to apply to securitized student loans as well.

Bottom line is that the subservicer is reporting to the borrower that the loan is in default but reporting to the investor (the creditor) that it isn’t in default. These payments have gone on for as long as 18 months that I have seen. Which brings us back to the first articles ever written on this blog.

The borrower is only required to make payments that are DUE. The payment isn’t due if it is already been made and there is nothing to reinstate if the creditor has already received his expected payment. The payments are NOT DUE TO THE SERVICER. They are due to the creditor. If the creditor received the payment on that loan as shown in the distribution report to the creditor, then the conditions necessary to declare that the loan is in default are not present. Remember that the presence of a table funded loan, an aggregator, the securitization, the trust was withheld from the borrower. The banks could have covered themselves by adding to the mortgage and note that third party payments to the creditor will not reduce the payments, principal or interest. But if they had done that, they would have required to answer so e uncomfortable questions.

The second issue is the constant question “Why would they continue making payments to the ‘creditor’ when they are not receiving payments from the borrower?” And “Where are they getting the money to pay the creditor?”

After talking with sources from deep inside the industry the answer to why they are paying is primarily to sell more bonds and hide the default issues. The secondary reason is to make the investor complacent about the accounting for what was really received on account of the loans and from whom. That inquiry could lead to a demand from the investor for payment in full and if the REMIC doesn’t pay, then the investors sue the investment banker who was the one playing with OPM (other people’s money).

The answer to the second question is that the money comes from the investment banker. Whether the investment banker is merely using the investor’s money (allowed under prospectus) or using insurance proceeds or payments on CDS (credit default swaps) or even sale proceeds to the Federal Reserve varies. Either way it is an effort to keep money that should go to the investor and reduce the amount payable to the investor and which would reduce or eliminate the debt owed by the homeowner to the investor. It is fraud, theft and probably a bunch of other things.

LAST CHANCE FOR JUSTICE

“We are still in the death grip of the banks as they attempt to portray themselves as the bulwarks of society even as they continue to rob us of homes, lives, jobs and vitally needed capital which is being channeled into natural resources so that when we commence the gargantuan task of repairing our infrastructure we can no longer afford it and must borrow the money from the thieves who created the gaping hole in our economy threatening the soul of our democracy.” Neil Garfield, livinglies.me

We all know that dozens of people rose to power in Europe and Asia in the 1930′s and 1940′s who turned the world on its head and were responsible for the extermination of tens of millions of people. World War II still haunts us as it projected us into an arms race in which we were the first and only country to kill all the people who lived in two cities in Japan. The losses on both sides of the war were horrendous.
Some of us remember the revelations in 1982 that the United States actively recruited unrepentant Nazi officers and scientists for intelligence and technological advantages in the coming showdown with what was known as the Soviet Union. Amongst the things done for the worst war criminals was safe passage (no prosecution for war crimes) and even new identities created by the United States Department of Justice. Policy was created that diverted richly deserved consequences into rich rewards for knowledge. With WWII in the rear view mirror policy-makers decided to look ahead and prepare for new challenges.

Some of us remember the savings and loans scandals where banks nearly destroyed everything in the U.S. marketplace in the 1970′s and 1980′s. Law enforcement went into high gear, investigated, and pieced together the methods and complex transactions meant to hide the guilt of the main perpetrators in and out of government and the business world. More than 800 people went to jail. Of course, none of the banks had achieved the size that now exists in our financial marketplace.

Increasing the mass of individual financial institutions produced a corresponding capacity for destruction that eclipsed anything imagined by anyone outside of Wall Street. The exponentially increasing threat was ignored as the knowledge of Einstein’s famous equation faded into obscurity. The possibilities for mass destruction of our societies was increasing exponentially as the mass of giant financial service companies grew and the accountability dropped off when they were allowed to incorporate and even sell their shares publicly, replacing a system, hundreds of years old in which partners were ultimately liable for losses they created.

The next generation of world dominators would be able to bring the world to its knees without firing a shot or gassing anyone. Institutions grew as malignancies on steroids and created the illusion of contributing half our gross domestic product while real work, real production and real inventions were constrained to function in a marketplace that had been reduced by 1/3 of its capacity — leaving the banks in control of  $7 trillion per year in what was counted as gross domestic product. Our primary output by far was trading paper based upon dubious and fictitious underlying transactions; if those transactions had existed, the share of GDP attributed to financial services would have remained at a constant 16%. Instead it grew to half of GDP.  The “paradox” of financial services becoming increasingly powerful and generating more revenues than any other sector while the rest of the economy was stagnating was noted by many, but nothing was done. The truth of this “paradox” is that it was a lie — a grand illusion created by the greatest salesmen on Wall Street.

So even minimum wage lost 1/3 of its value adjusted for inflation while salaries, profits and bonuses were conferred upon people deemed as financial geniuses as a natural consequence of believing the myths promulgated by Wall Street with its control over all forms of information, including information from the government.

But calling out Wall Street would mean admitting that the United States had made a wrong turn with horrendous results. No longer the supreme leader in education, medical care, crime, safety, happiness and most of all prospects for social and economic mobility, the United States had become supreme only through its military strength and the appearance of strength in the world of high finance, its currency being the world’s reserve despite the reality of the ailing economy and widening inequality of wealth and opportunity — the attributes of a banana republic.

All of us remember the great crash of 2008-2009. It was as close as could be imagined to a world wide nuclear attack, resulting in the apparent collapse of economies, tens of millions of people being reduced to poverty, tossed out of their homes, sleeping in cars, divorces, murder, riots, suicide and the loss of millions of jobs on a rising scale (over 700,000 per month when Obama took office) that did not stop rising until 2010 and which has yet to be corrected to figures that economists say would mean that our economy is functioning at proper levels. Month after month more than 700,000 people lost their jobs instead of a net gain of 300,000 jobs. It was a reversal of 1 million jobs per month that could clean out the country and every myth about us in less than a year.

The cause lay with misbehavior of the banks — again. This time the destruction was so wide and so deep that all conditions necessary for the collapse of our society and our government were present. Policy makers, law enforcement and regulators decided that it was better to maintain the illusion of business as usual in a last ditch effort to maintain the fabric of our society even if it meant that guilty people would go free and even be rewarded. It was a decision that was probably correct at the time given the available information, but it was a policy based upon an inaccurate description of the disaster written and produced by the banks themselves. Once the true information was discovered the government made another wrong turn — staying the course when the threat of collapse was over. In a sense it was worse than giving Nazi war criminals asylum because at the time they were protected by the Department of Justice their crimes were complete and there existed little opportunity for them to repeat those crimes. It could be fairly stated that they posed no existing threat to safety of the country. Not so for the banks.

Now as all the theft, deceit and arrogance are revealed, the original premise of the DOJ in granting the immunity from prosecution was based upon fraudulent information from the very people to whom they were granting safe passage. We have lost 5 million homes in foreclosure from their past crimes, but we remain in the midst of the commission of crimes — another 5 million illegal, wrongful foreclosures is continuing to wind its way through the courts.

Not one person has been prosecuted, not one statement has been made acknowledging the crimes, the continuing deceit in sworn filings with regulators, and the continuing drain on the economy and our ability to finance and capitalize on innovation to replace the lost productivity in real goods and services.

We are still in the death grip of the banks as they attempt to portray themselves as the bulwarks of society even as they continue to rob us of homes, lives, jobs and vitally needed capital which is being channeled into natural resources so that when we commence the gargantuan task of repairing our infrastructure we can no longer afford it and must borrow the money from the thieves who created the gaping hole in our economy threatening the soul of our democracy. If the crimes were in the rear view mirror one could argue that the policy makers could make decisions to protect our future. But the crimes are not just in the rear view mirror. More crimes lie ahead with the theft of an equal number of millions of homes based on false and wrongful foreclosures deriving their legitimacy from an illusion of debt — an illusion so artfully created that most people still believe the debts exist. Without a very sophisticated knowledge of exotic finance it seems inconceivable that a homeowner could receive the benefits of a loan and at the same time or shortly thereafter have the debt extinguished by third parties who were paid richly for doing so.

Job creation would be unleashed if we had the courage to stop the continuing fraud. It is time for the government to step forward and call them out, stop the virtual genocide and let the chips fall where they might when the paper giants collapse. It’s complicated, but that is your job. Few people lack the understanding that the bankers behind this mess belong in jail. This includes regulators, law enforcement and even judges. but the “secret” tacit message is not to mess with the status quo until we are sure it won’t topple our whole society and economy.

The time is now. If we leave the bankers alone they are highly likely to cause another crash in both financial instruments and economically by hoarding natural resources until the prices are intolerably high and we all end up pleading for payment terms on basic raw materials for the rebuilding of infrastructure. If we leave them alone another 20 million people will be displaced as more than 5 million foreclosures get processed in the next 3-4 years. If we leave them alone, we are allowing a clear and present danger to the future of our society and the prospects for safety and world peace. Don’t blame Wall Street — they are just doing what they were sent to do — make money. You don’t hold the soldier responsible for firing a bullet when he was ordered to do so. But you do blame the policy makers that him or her there. And you stop them when the policy is threatening another crash.

Stop them now, jail the ones who can be prosecuted, and take apart the large banks. IMF economists and central bankers around the world are looking on in horror at the new order of things hoping that when the United States has exhausted all other options, they will finally do the right thing. (see Winston Churchill quote to that effect).

But forget not that the ultimate power of government is in the hands of the people at large and that the regulators and law enforcement and judges are working for us, on our nickle. Action like Occupy Wall Street is required and you can see the growing nature of that movement in a sweep that is entirely missed by those who arrogantly pull the levers of power now. OWS despite criticism is proving the point — it isn’t new leaders that will get us out of this — it is the withdrawal of consent of the governed one by one without political affiliation or worshiping sound sound biting, hate mongering politicians.

People have asked me why I have not until now endorsed the OWS movement. The reason was that I wanted to give them time to see if they could actually accomplish the counter-intuitive result of exercising power without direct involvement in a corrupt political process. They have proven the point and they are likely to be a major force undermining the demagogues and greedy bankers and businesses who care more about their bottom line than their society that gives them the opportunity to earn that bottom line.

New Fraud Evidence Shows Trillions Of Dollars In Mortgages Have No Owner
http://thinkprogress.org/economy/2013/08/13/2460891/new-fraud-evidence-shows-trillions-of-dollars-in-mortgages-have-no-owner/

Wall Street banks shifting “profits” from mortgage bonds into natural resources

Wall Street banks know all about leveraging. They need to bring back the huge quantity of money they stole from the U.S. economy that they have secreted around the world (without paying a dime in taxes). The strategy they adopted was to bring the money from the shadow banking sector into the real banking world by “investing” in natural resources. The reason for the choice is obvious — high demand for the raw materials, high liquidity in the marketplace for both the products and the futures and related contracts for “trading profits” (like the “trading profits they created with investor money in the mortgage bond market before any loans were made), and an opportunity for virtually unlimited “leverage” where they could control prices and bet against the very same investments they were selling to their customers.

The leverage comes from a primary investment in the warehousing and transport of raw materials and secondarily taking positions in the ownership of natural resources. This allows them to manipulate the cost of raw materials — like copper and aluminum (see articles below), manipulate the politics in our country so that infrastructure repairs and rebuilding is out off until there is a tragedy of a large collapsing bridge killing thousands, and manipulate the bidding process for natural resources (like the Iraq and Afghanistan wars) so that there is a level of panic that causes the nation to send ten times the price of rebuilding now. The natural resources market is basically the only game they can play because it is the only marketplace that is large enough to absorb trillions of dollars stolen from Americans and people all over the world in the securitization scam.

Just as securitization was an illusion, making the base investment (mortgage loans) non existent at the same moment they were created or acquired, so will be the exotic investment vehicles now being prepared for both institutional and ordinary investors that will cover the multiple sales of the same bundle of commodities. Here we go again! Another boom and bust.

Tue, Aug 13

CFTC subpoenas metal warehouse companies • The Commodity Futures Trading Commission has reportedly subpoenaed Goldman Sachs (GS), JPMorgan (JPM), Glencore Xstrata (GLCNF.PK) and their subsidiaries for documents relating to warehouses they operate for aluminum and other metals. • The agency has requested information dating back to January 2010; it also wants documents relevant to the companies’ relationships with the London Metals Exchange. • The CFTC’s investigation follows allegations that the activities of warehousing companies have artificially boosted the price of metals, particularly aluminum. • Earlier speculation said the CFTC had sent subpoenas to an unnamed metals warehousing firm.

Full Story: http://seekingalpha.com/currents/post/1216972?source=ipadportfolioapp

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ELIZABETH WARREN AND JOHN MCCAIN TEAM UP TO REIGN IN BANKS

Go to http://www.msnbc.com. CONTACT YOUR SENATORS AND CONGRESSMEN AND WOMEN. LET THEM KNOW THEY ALREADY HAVE YOUR SUPPORT FOR THIS LAW AND THAT THEY DON’T NEED TO SELL THEMSELVES TO GET SUPPORT FROM THEIR CONSTITUENCY.

MSNBC had a segment today in which they interviewed Elizabeth Warren about a new set of laws reinstating the old style of Chinese walls. There are probably similar interviews on other channels with Senator Warren or Senator McCain and others. Just go to your favorite news channel and look it up. Their approach has bi partisan support because of its simplicity and its history. Historically it is merely a tune-up of the old laws to include definitions of new financial products that did not exist and were not adequately considered in the 1930′s when EVERYONE AGREED THE RESTRICTIONS WERE NEEDED.

Bottom Line: RETURN TO THE BORING BANK SAFETY WITHOUT BOOMS AND BUSTS FROM 1930′s into the 1990′s: leading republicans and democrats are stepping out of gridlock into agreement. They want to stop Wall Street from access to checking and savings accounts for use in high risk investment banking because that is what brought us to the brink and some say brought us Into the abyss. And it would stop commercial banks that are depository institutions for your checking and savings accounts from using your money on deposit in ways where there is a substantial risk of loss that would require FDIC ((taxpayer) intervention.

Banking should be boring. In the years when restrictions were in place we only had one serious breach of banking practices — the S&L Scandal in the 1980′s. But it didn’t threaten the viability of our entire economy and more than 800 people were serving prison terms when the dust cleared. Of course Bankers saw prison terms as an invasion of their business practices and regulation as unnecessary.

But the simple reason for bipartisan support is that the public is enraged that the mega banks (too big to fail) have GROWN 30% SINCE THE 2007-2008 while the people on Main Street are losing jobs, homes, businesses, families (divorce), thus stifling an already grievously injured economy because credit and cash are now scarce — unless you are a mega bank that made hundreds of billions or even trillions of dollars because they were able to create an illusion (securitization) and at the same time, knowing it was an illusion, they bet heavily using extreme leverage on the illusion being popped.

They made it so complex as to be intimidating to even bank regulators. So no wonder borrowers could not realize or even contemplate that their mortgage was not a perfected lien, so they admitted it. Foreclosure defense attorneys made the same mistake and added to it by admitting the default without knowing who had paid what money that should have been allocated to the loan receivable account of the borrower that was supposedly converted for a note receivable from the borrower to a bond receivable from an asset pool that supposedly owned the note receivable account.

The complexity made it challenging to enforce regulations and laws. The complexity was hidden behind curtains for reasons of “privacy”. The real reason is that as long as bankers know they are acting behind a curtain, they are subject to moral hazard. In this case it erupted into the largest PONZI scheme in human history.

And the proof of that just beginning to come out in the courts as judges are confronted with an absurd position — where the banks “foreclosing” on homes and businesses want delays and the borrower wants to move the case alone; and where those same banks want a resolution (FORECLOSURE OR BUST) that ALWAYS yields the least possible mitigation damages, the least coverage for the alleged loss on the note because they would be liable for all the money they made on the bond. Just yesterday I was in Court asking for expedited discovery and the Judge’s demeanor changed visibly when the Plaintiff seeking Foreclosure refused to agree to such terms. The Judge wanted to know why the defendant borrower wanted to speed the case up while the Plaintiff bank wanted to slow it down.

And because of all the multiple sales, the insurance funds, the proceeds of credit default swaps, because the initial money funding mortgages came from depositors (“investors”), and all the money from the Federal Reserve who is still paying off these bond receivables 100 cents to the dollar — all that money amounting to far more than the loans to borrowers — because it related to the bond receivable, the banks think they can withhold allocation of that money to the receivable until after foreclosure and avoid refunding all the excess payments to the borrower the investor and everyone else who paid money in this scheme. And the system is letting them because it is difficult to distinguish between the note receivable and the bond receivable and the asset pool that issued the bond to the actual lender/depositor.

Senators Warren and McCain and others want to put an end to even the illusion that such an argument would even be entertained. Support them now if not for yourselves then for your children and grandchildren.

The Goal is Foreclosures and the Public, the Government and the Courts Be Damned

13 Questions Before You Can Foreclose

foreclosure_standards_42013 — this one works for sure

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Danielle Kelley, Esq. is a partner in the firm of Garfield, Gwaltney, Kelley and White (GGKW) in Tallahassee, Florida 850-765-1236

EDITOR’S NOTE: SOMETIMES IT PAYS TO SHOW YOUR EXASPERATION. Danielle was at a hearing recently where all she wanted was to enforce a permanent modification for which her client had already been approved by Bank of America and BOA was trying to get out of it and pursue foreclosure even though the deal was done and there was no good or valid business reason why they would oppose a modification they already approved — except that they want to lure people into defaults and foreclosure to avoid liability for buy-backs, insurance, and credit default swap proceeds they received.

They need the foreclosure because that is the stamp of approval that the loans were valid and the securitization wasn’t a sham. Without the foreclosure, they stand to lose not only a lot of money in paybacks, but their very existence. Right now they are carrying assets that are fictitious and they are not reporting liabilities that are very real. At the end of the day, the public will see and even government officials whose “Services” have been purchased by the banks will not be able to deny that the nation’s top banks are broke and are neither too big to fail nor too big to jail. When that happens, our economy will start to recover ans the flow of credit and funds resumes and the banks’ stranglehold on government and on our society will end, at least until the next time.

THIS IS WHAT DANIELLE KELLEY WROTE TO ME AFTER THE HEARING:

 At the hearing against BOA on an old case of mine and Bill’s [William GWALTNEY, partner in GGKW] today I moved to enforce settlement. They actually agreed to a trial payment with my client in writing at mediation 2 years ago. The Judge granted the motion and wants a hearing in 60 days on the arrears (which he agreed my client isn’t liable for), sanctions and fees. She made her payment post-mediation and they sent the checks back. I gave him the Massachusetts affidavits from the BOA employees.  The Judge looked shocked. Opposing Counsel argued the Massachusetts case had nothing to do with our case.
Judge said “Mrs. Kelley how about I enter an order telling Plaintiff they have so many days to resolve this?”  I said “with all due respect your Honor BOA hasn’t listened to the OCC and followed the consent order, they haven’t listened to DOJ on the consent judgement and they are violating the AG settlement. I can assure you 100% they won’t listen to this Court either. Once we leave this room we are at the mercy of BOA actually working with us and their own attorney nor this court can get them to.  Their own attorney couldn’t reach them yesterday or today.  My client was to send in one utility bill two years ago. She sent it the day after mediation and they’ve sat and racked up two years of arrears and fees. This court has the power to sanction that behavior under rule 1.730 and should because this was orchestrated. The Massachusetts case is a federal class action which includes Florida homeowners like my client. It says Florida on the Motion for class certification so it does matter in this case. This was a scheme and a fraud.  It was planned and deliberate”.
Opposing counsel wanted to start the modification process over because the mediation agreement said “Upon completion of the trial payments Defendant will be eligible for a permanent modification”. Opposing counsel said “just because they meet the trial payments doesn’t mean they get a permanent mod.”  I said “under the consent judgment they better” and told the judge we were not going through the modification again, my client had already been approved. He agreed and said that the trial would become permanent and ordered BOA to provide an address for payment. He told opposing counsel that the argument that a trial period wouldn’t become permanent wasn’t going to work for him.
I love the 14th circuit. There is a great need from here to Pensacola and in the smaller counties like I was in today you can actually get somewhere.
Now the banks won’t even say impasse at mediation. It’s always “no agreement”.   But they’ll tell you to send in documents the next week only to say they didn’t get them. Now after those affidavits I see why.

Danielle Kelley, Esq.

Garfield, Gwaltney, Kelley & White
4832 Kerry Forest Parkway, Suite B
Tallahassee, Florida 32309
(850) 765-1236

 FOLLOW DANIELLE KELLEY, ESQ. ON HER BLOG

Hawaii Federal District Court Applies Rules of Evidence: BONY/Mellon, US Bank, JP Morgan Chase Failed to Prove Sale of Note

This quiet title claim against U.S. Bank and BONY (collectively, “Defendants”) is based on the assertion that Defendants have no interest in the Plaintiffs’ mortgage loan, yet have nonetheless sought to foreclose on the subject property.

Currently before the court is Defendants’ Motion for Summary Judgment, arguing that Plaintiffs’ quiet title claim fails because there is no genuine issue of material fact that Plaintiffs’ loan was sold into a public security managed by BONY, and Plaintiffs cannot tender the loan proceeds. Based on the following, the court finds that because Defendants have not established that the mortgage loans were sold into a public security involving Defendants, the court DENIES Defendants’ Motion for Summary Judgment.

Editor’s Note: We will be commenting on this case for the rest of the week in addition to bringing you other news. Suffice it to say that the Court corroborates the essential premises of this blog, to wit:

  1. Quiet title claims should not be dismissed. They should be heard and decided based upon the facts admitted into evidence.
  2. Presumptions are not to be used in lieu of evidence where the opposing party has denied the underlying facts and the conclusion expressed in the presumption. In other words, a presumption cannot be used to lead to a result that is contrary to the facts.
  3. Being a “holder” is a a conclusion of law created by certain presumptions. It is not a plain statement of ultimate facts. If a party wishes to assert holder or holder in due course status they must plead and prove the facts supporting that legal conclusion.
  4. A sale of the note does not occur without proof under simple contract doctrine. There must be an offer, acceptance and consideration. Without the consideration there is no sale and any presumption arising out of the allegation that a party is a holder or that the loan was sold fails on its face.
  5. Self serving letters announcing authority to represent investors are insufficient in establishing a foundation for testimony or other proof that the actor was indeed authorized. A competent witness must provide the factual testimony to provide a foundation for introduction of a binding legal document showing authority and even then the opposing party may challenge the execution or creation of such instruments.
  6. [Tactical conclusion: opposing motion for summary judgment should be filed with an affidavit alleging the necessary facts when the pretender lender files its motion for summary judgment. If the pretender's affidavit is struck down and/or their motion for summary judgment is denied, they have probably created a procedural void where the Judge has no choice but to grant summary judgment to homeowner.]
  7. “When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587.” See case below
  8. “a plaintiff asserting a quiet title claim must establish his superior title by showing the strength of his title as opposed to merely attacking the title of the defendant.” {Tactical: by admitting the note, mortgage. debt and default, and then attacking the title chain of the foreclosing party you have NOT established the elements for quiet title. THAT is why we have been pounding on the strategy that makes sense: DENY and DISCOVER: Lawyers take note. Just because you think you know what is going on doesn’t mean you do. Advice given under the presumption that the debt is genuine when that is in fact a mistake of the homeowner which you are compounding with your advice. Why assume the debt, note , mortgage and default are genuine when you really don’t know? Why would you admit that?}
  9. It is both wise and necessary to deny the debt, note, mortgage, and default as to the party attempting to foreclose. Don’t try to prove your case in your pleading. Each additional “explanatory” allegation paints you into a corner. Pleading requires a short plain statement of ultimate facts upon which relief could be legally granted.
  10. A denial of signature on a document that is indisputably signed will be considered frivolous. [However an allegation that the document is not an original and/or that the signature was procured by fraud or mistake is not frivolous. Coupled with allegation that the named lender did not loan the money at all and that in fact the homeowner never received any money from the lender named on the note, you establish that the deal was sign the note and we'll give you money. You signed the note, but they didn't give you the money. Therefore those documents may not be used against you. ]

MELVIN KEAKAKU AMINA and DONNA MAE AMINA, Husband and Wife, Plaintiffs,
v.
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK; U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR J.P. MORGAN MORTGAGE ACQUISITION TRUST 2006-WMC2, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-WMC2 Defendants.
Civil No. 11-00714 JMS/BMK.

United States District Court, D. Hawaii.
ORDER DENYING DEFENDANTS THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR J.P. MORGAN MORTGAGE ACQUISITION TRUST 2006-WMC2, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-WMC2′S MOTION FOR SUMMARY JUDGMENT
J. MICHAEL SEABRIGHT, District Judge.
I. INTRODUCTION

This is Plaintiffs Melvin Keakaku Amina and Donna Mae Amina’s (“Plaintiffs”) second action filed in this court concerning a mortgage transaction and alleged subsequent threatened foreclosure of real property located at 2304 Metcalf Street #2, Honolulu, Hawaii 96822 (the “subject property”). Late in Plaintiffs’ first action, Amina et al. v. WMC Mortgage Corp. et al., Civ. No. 10-00165 JMS-KSC (“Plaintiffs’ First Action”), Plaintiffs sought to substitute The Bank of New York Mellon, FKA the Bank of New York (“BONY”) on the basis that one of the defendants’ counsel asserted that BONY owned the mortgage loans. After the court denied Plaintiffs’ motion to substitute, Plaintiffs brought this action alleging a single claim to quiet title against BONY. Plaintiffs have since filed a Verified Second Amended Complaint (“SAC”), adding as a Defendant U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-through Certificates, Series 2006-WMC2 (“U.S. Bank”). This quiet title claim against U.S. Bank and BONY (collectively, “Defendants”) is based on the assertion that Defendants have no interest in the Plaintiffs’ mortgage loan, yet have nonetheless sought to foreclose on the subject property.

Currently before the court is Defendants’ Motion for Summary Judgment, arguing that Plaintiffs’ quiet title claim fails because there is no genuine issue of material fact that Plaintiffs’ loan was sold into a public security managed by BONY, and Plaintiffs cannot tender the loan proceeds. Based on the following, the court finds that because Defendants have not established that the mortgage loans were sold into a public security involving Defendants, the court DENIES Defendants’ Motion for Summary Judgment.

II. BACKGROUND

A. Factual Background
Plaintiffs own the subject property. See Doc. No. 60, SAC ¶ 17. On February 24, 2006, Plaintiffs obtained two mortgage loans from WMC Mortgage Corp. (“WMC”) — one for $880,000, and another for $220,000, both secured by the subject property.See Doc. Nos. 68-6-68-8, Defs.’ Exs. E-G.[1]

In Plaintiffs’ First Action, it was undisputed that WMC no longer held the mortgage loans. Defendants assert that the mortgage loans were sold into a public security managed by BONY, and that Chase is the servicer of the loan and is authorized by the security to handle any concerns on BONY’s behalf. See Doc. No. 68, Defs.’ Concise Statement of Facts (“CSF”) ¶ 7. Defendants further assert that the Pooling and Service Agreement (“PSA”) dated June 1, 2006 (of which Plaintiffs’ mortgage loan is allegedly a part) grants Chase the authority to institute foreclosure proceedings. Id. ¶ 8.

In a February 3, 2010 letter, Chase informed Plaintiffs that they are in default on their mortgage and that failure to cure default will result in Chase commencing foreclosure proceedings. Doc. No. 68-13, Defs.’ Ex. L. Plaintiffs also received a March 2, 2011 letter from Chase stating that the mortgage loan “was sold to a public security managed by [BONY] and may include a number of investors. As the servicer of your loan, Chase is authorized by the security to handle any related concerns on their behalf.” Doc. No. 68-11, Defs.’ Ex. J.

On October 19, 2012, Derek Wong of RCO Hawaii, L.L.L.C., attorney for U.S. Bank, submitted a proof of claim in case number 12-00079 in the U.S. Bankruptcy Court, District of Hawaii, involving Melvin Amina. Doc. No. 68-14, Defs.’ Ex. M.

Plaintiffs stopped making payments on the mortgage loans in late 2008 or 2009, have not paid off the loans, and cannot tender all of the amounts due under the mortgage loans. See Doc. No. 68-5, Defs.’ Ex. D at 48, 49, 55-60; Doc. No. 68-6, Defs.’ Ex. E at 29-32.

>B. Procedural Background
>Plaintiffs filed this action against BONY on November 28, 2011, filed their First Amended Complaint on June 5, 2012, and filed their SAC adding U.S. Bank as a Defendant on October 19, 2012.

On December 13, 2012, Defendants filed their Motion for Summary Judgment. Plaintiffs filed an Opposition on February 28, 2013, and Defendants filed a Reply on March 4, 2013. A hearing was held on March 4, 2013.
At the March 4, 2013 hearing, the court raised the fact that Defendants failed to present any evidence establishing ownership of the mortgage loan. Upon Defendants’ request, the court granted Defendants additional time to file a supplemental brief.[2] On April 1, 2013, Defendants filed their supplemental brief, stating that they were unable to gather evidence establishing ownership of the mortgage loan within the time allotted. Doc. No. 93.

III. STANDARD OF REVIEW

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden initially lies with the moving party to show that there is no genuine issue of material fact. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). If the moving party carries its burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forwards with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation signals omitted).

An issue is `genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is `material’ only if it could affect the outcome of the suit under the governing law.” In re Barboza,545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587.

IV. DISCUSSION

As the court previously explained in its August 9, 2012 Order Denying BONY’s Motion to Dismiss Verified Amended Complaint, see Amina v. Bank of New York Mellon,2012 WL 3283513 (D. Haw. Aug. 9, 2012), a plaintiff asserting a quiet title claim must establish his superior title by showing the strength of his title as opposed to merely attacking the title of the defendant. This axiom applies in the numerous cases in which this court has dismissed quiet title claims that are based on allegations that a mortgagee cannot foreclose where it has not established that it holds the note, or because securitization of the mortgage loan was defective. In such cases, this court has held that to maintain a quiet title claim against a mortgagee, a borrower must establish his superior title by alleging an ability to tender the loan proceeds.[3]

This action differs from these other quiet title actions brought by mortgagors seeking to stave off foreclosure by the mortgagee. As alleged in Plaintiffs’ pleadings, this is not a case where Plaintiffs assert that Defendants’ mortgagee status is invalid (for example, because the mortgage loan was securitized, Defendants do not hold the note, or MERS lacked authority to assign the mortgage loans). See id. at *5. Rather, Plaintiffs assert that Defendants are not mortgagees whatsoever and that there is no record evidence of any assignment of the mortgage loan to Defendants.[4] See Doc. No. 58, SAC ¶¶ 1-4, 6, 13-1 — 13-3.

In support of their Motion for Summary Judgment, Defendants assert that Plaintiffs’ mortgage loan was sold into a public security which is managed by BONY and which U.S. Bank is the trustee. To establish this fact, Defendants cite to the March 2, 2011 letter from Chase to Plaintiffs asserting that “[y]our loan was sold to a public security managed by The Bank of New York and may include a number of investors. As the servicer of your loan, Chase is authorized to handle any related concerns on their behalf.” See Doc. No. 68-11, Defs.’ Ex. J. Defendants also present the PSA naming U.S. Bank as trustee. See Doc. No. 68-12, Defs.’ Ex. J. Contrary to Defendants’ argument, the letter does not establish that Plaintiffs’ mortgage loan was sold into a public security, much less a public security managed by BONY and for which U.S. Bank is the trustee. Nor does the PSA establish that it governs Plaintiffs’ mortgage loans. As a result, Defendants have failed to carry their initial burden on summary judgment of showing that there is no genuine issue of material fact that Defendants may foreclose on the subject property. Indeed, Defendants admit as much in their Supplemental Brief — they concede that they were unable to present evidence that Defendants have an interest in the mortgage loans by the supplemental briefing deadline. See Doc. No. 93.

Defendants also argue that Plaintiffs’ claim fails as to BONY because BONY never claimed an interest in the subject property on its own behalf. Rather, the March 2, 2011 letter provides that BONY is only managing the security. See Doc. No. 67-1, Defs.’ Mot. at 21. At this time, the court rejects this argument — the March 2, 2011 letter does not identify who owns the public security into which the mortgage loan was allegedly sold, and BONY is the only entity identified as responsible for the public security. As a result, Plaintiffs’ quiet title claim against BONY is not unsubstantiated.

V. CONCLUSION

Based on the above, the court DENIES Defendants’ Motion for Summary Judgment.

IT IS SO ORDERED.

[1] In their Opposition, Plaintiffs object to Defendants’ exhibits on the basis that the sponsoring declarant lacks and/or fails to establish the basis of personal knowledge of the exhibits. See Doc. No. 80, Pls.’ Opp’n at 3-4. Because Defendants have failed to carry their burden on summary judgment regardless of the admissibility of their exhibits, the court need not resolve these objections.

Plaintiffs also apparently dispute whether they signed the mortgage loans. See Doc. No. 80, Pls.’ Opp’n at 7-8. This objection appears to be wholly frivolous — Plaintiffs have previously admitted that they took out the mortgage loans. The court need not, however, engage Plaintiffs’ new assertions to determine the Motion for Summary Judgment.

[2] On March 22, 2013, Plaintiffs filed an “Objection to [87] Order Allowing Defendants to File Supplemental Brief for their Motion for Summary Judgment.” Doc. No. 90. In light of Defendants’ Supplemental Brief stating that they were unable to provide evidence at this time and this Order, the court DEEMS MOOT this Objection.

[3] See, e.g., Fed Nat’l Mortg. Ass’n v. Kamakau, 2012 WL 622169, at *9 (D. Haw. Feb. 23, 2012);Lindsey v. Meridias Cap., Inc., 2012 WL 488282, at *9 (D. Haw. Feb. 14, 2012)Menashe v. Bank of N.Y., ___ F. Supp. 2d ___, 2012 WL 397437, at *19 (D. Haw. Feb. 6, 2012)Teaupa v. U.S. Nat’l Bank N.A., 836 F. Supp. 2d 1083, 1103 (D. Haw. 2011)Abubo v. Bank of N.Y. Mellon, 2011 WL 6011787, at *5 (D. Haw. Nov. 30, 2011)Long v. Deutsche Bank Nat’l Tr. Co., 2011 WL 5079586, at *11 (D. Haw. Oct. 24, 2011).

[4] Although the SAC also includes some allegations asserting that the mortgage loan could not be part of the PSA given its closing date, Doc. No. 60, SAC ¶ 13-4, and that MERS could not legally assign the mortgage loans, id. ¶ 13-9, the overall thrust of Plaintiffs’ claims appears to be that Defendants are not the mortgagees (as opposed to that Defendants’ mortgagee status is defective). Indeed, Plaintiffs agreed with the court’s characterization of their claim that they are asserting that Defendants “have no more interest in this mortgage than some guy off the street does.” See Doc. No. 88, Tr. at 9-10. Because Defendants fail to establish a basis for their right to foreclose, the court does not address the viability of Plaintiffs’ claims if and when Defendants establish mortgagee status.

Quiet Title Claims Explained

see also http://livinglies.wordpress.com/2013/04/29/hawaii-federal-district-court-applies-rules-of-evidence-bonymellon-us-bank-jp-morgan-chase-failed-to-prove-sale-of-note/
If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Analysis: If you are thinking that with all the publicity surrounding the obvious fatal defects in the millions of foreclosures already completed, quiet title should be unnecessary, you are probably right. The fact is that the real world is more complicated and as Elizabeth Warren and several dozen bloggers and journalists have pointed out the average of $300 per homeowner being paid to settle the matter is not just inadequate it is stupid. No amount of money will actually cure the current title corruption on record in all 50 states due to practice of allowing complete strangers to the transaction to self-anoint themselves as creditors, foreclose on property and submit a credit bid at auction when they were not owed any money and there was no credit relationship between the homeowner and the bidder.

Quiet Title is an effective tool but it is not a silver bullet. It is about what is contained in the county records. If someone accidentally (or on purpose) records a lien against your property and they refuse to retract it, then you are forced to file an action with the Court that says I own the property and my title is clouded by documents that were recorded as liens against my title.

Those liens are not lawful, and they should be declared null and void or at a minimum the court should issue a declaratory statement based upon facts of the case that sets forth the stakeholders in the property and the nature of their claim.

In order to claim the latter, you would need to state that while the lien is unlawful, the party named on the lien, or the party claiming to hold the right to the lien, refuses to cooperate with clearing title or to explain the nature of their claim. Thus the homeowner is left with a lien which is unlawful and a claimant who insists that it is lawful. The homeowner is in doubt as to his rights and therefore asks the Court to quiet title or declare the rights of the parties.

In filing quiet title claims the mistake most often made is that it is being used defensively instead of offensively. The complaint that fails merely attacks the right of some pretender lender to foreclose. That is not a quiet title action. That is a denial of the debt, note, mortgage, default, notice etc.

And the Courts regularly and correctly dismiss such claims as quiet title claims. You can’t quiet tile because someone does not have a right to foreclose. You can only quiet title if you can assert and prove to the Court that the items on record do not apply to you or  your property and therefore should be removed.

AND you can’t get through a motion to dismiss a declaratory action if you don’t state that you are in doubt and give cogent reasons why you are in doubt. If you state that the other side has no right to do anything and end it there, you are using quiet title defensively rather than offensively in a declaratory action.

Stating that the pretender lender has no right to foreclose is not grounds for a declaratory action either. If you make a short plain statement of FACTS (not conclusions of law) upon which the relief sought could be granted you survive a motion to dismiss. If you only state the conclusions of law, you lose the motion to dismiss.

In such a declaratory action you must state that you have doubts because the pretender lender has taken the position and issued statements, letters or demands indicating they are the owner of the lien but you have evidence from expert analyses from title and securitization experts that they are not the owner of the line and they never were.

Remember in securitized transactions you would need to name the original named payee on the note and the secured party(ies) and state that they never should have recorded the lien because they did not perform as required by the agreement (i.e., they didn’t loan you money) and/or because they received loss mitigation payments in excess of the amount due. If you want to get more elaborate, you can say that they now claim to have nothing to do with the loan and refuse to apply loss mitigation payments to the loan even though they were received.

The problem in Florida is that such claims may be interpreted by the Clerk as claims relating to land and title which requires the ungodly amount of $1900 in filing fees alone, which I personally think is an unconscionable and unconstitutional denial of access to the court to all except people with a lot of money.

So you might want to go with slander of title seeking money damages or failure to refund over-payments received from sale or mitigation payments relating to your loan. That COULD be the basis of a claim in which the property is already sold at auction, short-sale, or resale. If the pretender lender received the payoff or the property illegally and then fraudulently executed a satisfaction of mortgage even though they were never the lender nor the purchaser of the loan, then you, as the owner of the property are probably entitled to that money plus interest and probably attorney fees.

PRACTICE NOTE: Strategically it seems like it is tough going if you attack the title under correct but unpalatable causes of action (i.e. actions that the judicial system already has decided they don’t like the outcome — a free house to the homeowner). So the other way of skinning the cat is to file actions for damages and that I think is the future of mortgage litigation. The basic action is simple breach of contract (the agreement to enter into the loan transaction and/or the note).

Filing suit for damages AFTER the sale gives you playing field without moving goal posts and allows fairly simple straightforward causes of action which many attorneys will soon realize they can take strictly on contingency or mostly on contingency. The net result may well be either the tender of money and/or the tender of the property back to the homeowner or former homeowner in lieu of payment for damages.It also opens the door to the possibility of punitive, treble, or exemplary damages or some combination of those.

At my firm we are looking hard at closings where the pretender lender took the money and ran on a short-sale or resale. It is clear-cut. They either had a right to the money or they didn’t. IF they didn’t have the right to execute the satisfaction of mortgage or if they fraudulently diverted the money to their own benefit in lieu of the creditor from whom they did receive authority, then you still have a right to refund of the money that unjustly enriched the pretender lender.  The money goes to the former owner/seller and to nobody else. If there is a claimant that wishes to step forward to attack the award, then we will deal with it, but based upon my information such claims will not be made.

More News:

Error Claims Cast Doubt on Bank of America Foreclosures in Bay Area
http://www.nbcbayarea.com/investigations/series/mortgage-mess/Error-Claims-Cast-Doubt-on-Bank-of-America-Foreclosures-in-Bay-Area-204764581.html

Number of homes entering foreclosure plunges in California
http://www.latimes.com/business/la-fi-foreclosure-report-20130424,0,6017958.story

Politics: While Wronged Homeowners Got $300 Apiece in Foreclosure Settlement, Consultants Who Helped Protect Banks Got $2 Billion
http://m.rollingstone.com/?seenSplash=1&redirurl=/politics/blogs/taibblog/while-wronged-homeowners-got-300-apiece-in-foreclosure-settlement-consultants-who-helped-protect-banks-got-2-billion-20130426

Minnesota Supreme Court Affirms That Foreclosing Parties Must Record Mortgage Assignments Prior To Initiating Foreclosure By Advertisement
http://www.jdsupra.com/legalnews/minnesota-supreme-court-affirms-that-for-50369/

Presenting: The Housing Bubble 2.0
http://www.zerohedge.com/news/2013-04-29/presenting-housing-bubble-20

 

Housing Will Make or Break US Economy

Az becomes the second state in recent years to adopt gold and silver coin as legal tender. Utah was first. And over the years several successful experiments have occurred wherein a city or county issued its own currency. This should come as no surprise to sophisticated investors. while there is considerable historical support for leaning on gold and other precious metals to protect one’s wealth and liquidity, we should always be cognizant of the fact that precious metals are only precious if they perceived that way.
The U.S. dollar has been propped up using artificial means employed by the Federal Reserve and market makers. There is little doubt that the dollar has been under intense pressure arising out of decades of foolhardy economic policies.
By substituting debt for wages, the appearance of a healthy economy has been maintained. But a quick look at the underlying fundamentals by anyone capable of arithmetic reveals an economy in trouble and a society in turmoil.
This is the result of two factors: (1) we lost our manufacturing base to third world countries and (2) we are in a state of self delusion. We fail to account for many economic events and transactions when we compute our Gross Domestic Product. And the latest trend is to replace real economic activity with trading activity from the financial services industry.
The trigger for what is now seen as the coming devaluation of the dollar has been the essential housing component. The administration and congress, and now state legislatures are setting the stage for a crash that does not have any bottom. In 1983 the financial services industry contributed about 16% of U.S. GDP. This was a fair representation of actual productivity in the country arising out of tangible goods and services created by banks and insurance companies. Now the figure is around 48% of GDP.
The tell-tale sign is that financial service “revenues” and “profits are going up while median come and household wealth has been declining. The extra 32% of GDP does not come from traditional bank intermediation as a payment service, with hedging and other tools to mimicked risk on the purchase of goods and services. It isn’t fees that have increased the apparent increase of the illusion of economic activity from Wall Street and insurance companies. It is proprietary trading profits claimed by the banks and insurance premiums that are artificially inflated by insertion of both banks and insurance companies into economic activity (such as medical care) into commerce that is essentially utility in nature.
The proprietary profits claimed by the banks were predicted here in 2007-2008 and resulted in a projection of a stock market crash and a prediction of the freezing of the credit markets around the world. It was clear then just as it is clear now that Money was being synthesized by the private sector which only means that banks and insurance companies were in essence printing their own money. The dangers of this predicament were apparent and written about by economists whose credentials far exceed my own.
In plain English the banks were stealing money from the marketplace in off balance sheet transactions. And both the banks and insurance companies have been feeding at the public trough for decades. Thus the sole purpose for the existence of investment banks was turned on its head. They were supposed to create active markets in which liquidity (access to capital) was enhanced; instead they surreptitiously siphoned out the liquidity to off-shore accounts and let the markets collapse when investors stopped buying bogus mortgage bonds issued by non-existent trusts. Like any PONZI scheme the entire marketplace collapsed when investor stopped buying the mortgage backed bonds. The correlation is unmistakable and irrefutable.
The insurance companies have been inserting themselves into markets whey contribute no value like medical services and pharmaceutical products.
The end result is that one-third of our entire economy has been eliminated. Taking into account certain productive activities that are not counted (but should be) the real GDP of the U.S. is around $9 trillion but reported at $14 trillion. Using the same logic I pinpointed in 2007, the DOW is actually worth around 8,000, which is where it will go regardless of any remedial policies put in place.
Throughout the world, which is now heavily if not exclusively monetized, obvious steps are being taken to get out of the dollar and into other currencies or assets. The hyper inflation everyone was worried about a few years back was only delayed. And the economic argument of using the dollar as the world’s reserve currency has not been weaker in recent memory.
Accumulation of gold and fixed assets has been responsible in part for propping up our currency. But for our military strength there would be no basis to refer to the U.S. as a world leader. The remedy is obvious — use the reversal of the PONZI scheme to finance new business, expansion of existing business and job training. If that was adopted as policy we would not face an immediate hit to our GDP, equity indexes, and pentup consumer demand together with actual capacity to consume goods and services without plunging into debt would enable us to create fundamental economic activity that would be the envy of the world.
The banking oligarchy currently running our country has a goal that is the anti thesis of the role of government. The oligarchy has profit and wealth accumulation as its goal. The government is required to assure that the referees stay on the playing field and nobody gets an unfair advantage. Just as separation of church and state protects citizens basic rights under natural, constitutional and statutory law, so too should the separation of the banking industry from the government should be well-guarded, lest the power sought by leaders of church, banking and even military and medical services result in the relinquishment of both our freedoms and our prospects.

Arizona Set To Use Gold & Silver As Currency
http://www.zerohedge.com/news/2013-04-22/arizona-set-use-gold-silver-currency

Courts Tripping Over Themselves Ignoring the Obvious

If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

At the risk of lecturing judges on the law allow me to point out that the transfer of an apparently “negotiable instrument” is not a transaction that can be interpreted or enforced under the Uniform Commercial Code unless it is accompanied by payment or exchange of value, which is to say that there must be money involved. A loan that was originated without any money from the payee under the note or the secured party under the mortgage is not to be interpreted by reference to the Uniform Commercial Code because of the lack of consideration.

That leaves the pooling and servicing agreement. Employing and servicing agreement specifies the precise manner in which loans can be transferred into the asset pool and one of the things that is not allowed is an endorsement in blank. This provides no protection to the investors which is why the provisions in the pooling and servicing agreement require that the endorsement be in recordable form and in order to the benefit of the investors or the asset pool.

The problem is that the judges are searching for a way to rule in favor of the banks instead of searching for a way to simply rule on the admissibility and credibility of evidence.  It often happens that the attorney for the borrower argues that the Uniform Commercial Code does not allow recipients of a transfer of loan documents,  which then leaves the court to say that the transfer occurred pursuant to the terms of the pooling and servicing agreement. Or some courts seeing that the transfer was not performed in accordance with the terms of the pooling and servicing agreement applied the Uniform Commercial Code even though there is a material dispute of fact as to whether or not any consideration was involved in the transfer of the loan.

If the loan was transferred into the pool pursuant to the pooling and servicing agreement then why were the other terms of the pooling and servicing agreement ignored? I have yet to see any pooling and servicing agreement that provided for an endorsement in blank. Such a thing could not possibly exist since the investors thought that they were buying mortgage-backed securities. The pooling and servicing agreement clearly specifies the method of transfer and clearly does not include an endorsement in blank as an approved method.

The object of the investors was to take ownership of the loans by way of the mortgage-backed securities and distribute the risk and income proportionately to their investments. What the banks did was instead of putting the investors first and inserting the name of the asset pool on the loan origination documents or the assignment executed in the manner provided by the pooling and servicing agreement, they used an exotic and completely unnecessary chain of title for what was essentially a very simple transaction. By having the loan originated by the nominee of a nominee acting under power of attorney they created the illusion that the “holder” of the paper was presumptively the creditor. This is the exact opposite of what the pooling and servicing agreement required; had it been known that they were going to operate this way they never would have received their AAA rating, their insurance, or any credit default swaps. It is clear that they inserted themselves or their nominees as the apparent owner of the debt even know the nominee did not make the loan. It is equally apparent that they inserted themselves or their nominee as the apparent owner of the debt even though they paid nothing for the assignment or transfer of the loan.

If the investment banks had intended to operate properly and legally they would have had no need for any nominees much less the parallel title tracking systems including MERS  and all the other entities that pretend to have business interests even know they were so thinly capitalized and covered by layers of entities whose corporate veils need to be pierced. They would simply have placed the name of the asset pool on the mortgage and note making reference to an actual transaction involving actual money that changed hands between the lender and the borrower.

These nominee entities were planned far in advance as “bankruptcy remote” vehicles through which the bankers could channel nonexistent transactions. By creating the illusion that they were the owners of the debt it appeared as though the note and mortgage were valid. But they could never have been the owners of the debt since it was the investors who actually funded the mortgage. No document exists anywhere in which the investors or the asset pool assigned the ownership rights to the loans to the investment banks or any of their affiliates or nominees.

The courts are not clogged because of the volume of litigation. The volume of litigation is bottlenecked in the courts because the courts refused to accept at face value the pleadings and assertions of both parties and because the courts refused to require both parties to prove their claims. For those that assert their claim as a creditor they need only provide proof of payment and proof of loss, which is to say that they have not resold the  loans or mortgage backed securities.

Instead, the banks insist on arguing for the presumption that a bona fide transaction took place for value in which money exchanged hands rather than being required to prove that assertion by simply producing a canceled check or wire transfer receipt.  If you were the bank and you had proof of your payment and proof of your loss why wouldn’t you end the litigation in the first couple of months rather than let it stretch out for years? It is clear that the banks need judges to accept the presumption because the banks don’t have the actual proof.

http://www.nakedcapitalism.com/2013/04/foreclosure-review-hearings-show-its-time-to-burn-down-the-occ.html

The Sad Future of Housing According to Zillow

Is housing on a ‘sugar high’?
http://realestate.msn.com/blogs/blog–is-housing-on-a-sugar-high
If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Analysis: The Banks have been paying a lot of money to plant articles around the country and in media generally to give us the impression that the recession is over, they did their job in preventing it, and the housing crisis has turned the corner with prices rising. Housing prices are rising in some places because of a glut of cheap money (see mortgage meltdown 1996-2008); other than that the whole thing is an outright lie. Even their own analysts don’t agree with the articles and statements made on behalf of the megabanks.

You can’t take half the blood out of a person and expect them not to be anemic, weak and dizzy. The megabanks took more than that out of our economic system and parked it around the world out of reach of all but the select few who are members of the club. For the rest of us, earning a living is becoming increasingly difficult, getting approval for a reasonably priced mortgage is difficult unless you go for one of the new deals that are out there at 2.5%, 15 years fixed rate, supposedly. Besides the fact that they are going to steer you into an entirely different loan product in the classic bait and switch, they are restarting the “securitization” scheme that wrecked us in the first place.

Who is making money at 2.5%? How can you even have a budget for advertising much less appear dozens of times per day on TV, radio, magazines and newspapers? The answer to these and other similar questions lies in the fact that on average, the mortgages are going to be at much higher rates than those advertised, the incidence of force-placed insurance on fully insured homes will be increased to become a regular major contributor to income to the megabanks in the form of kickbacks or commissions and simply price gouging, and no doubt someone has come up with a really creative way to make certain the loans, on the whole, go into default decreasing the value of a “portfolio” or “pool” of loans to less than half of the nominal value placed on the note — but increasing the profits from betting against the same mortgages they represented as being underwritten according to industry standards.

The fact is that the Federal Reserve cannot keep rates down indefinitely, and the rush to gold and other currencies shows that the big players who know more than you do are getting ready for a major devaluation of currency in the U.S. The “inflation” that accompanies a devaluation might work to the benefit of the homeowners who owe the old dollars but can pay with the new dollars (if they have any). But increased rates mean higher payments, and higher payments combined with no credit and low wages and low median income spells disaster for the demand side of housing. Simply  put: housing prices are going down again and they are already starting to slip.

The only reason inventories of homes for sale are “low” is because of the shadow inventory of homes set for foreclosure sales, the zombie houses that have been stripped and are worthless and the homeowners who are so far underwater that they can’t make it to the closing table. It is a very unpersuasive recovery. Zillow outlines it chapter and verse.

Working backwards, the reason for all this is simple theft using exotic sounding names of financial instruments that were never funded or used. In the end, the loan was from the investors and the debt was and is between the investors and the homeowners. Everyone else is an intermediary. Those conduits for the loan have no stake in it. They have their agreements for fees but that is about it.

There are only two ways of going on this: (1) do the same thing all over again and kick the can down the road to the next blowout recession or (2) stop kidding ourselves that housing prices are going anywhere but down unless we expose the truth of what happened in these so-called mortgage loans funded with money stolen from investors under the premise that the money would fund a REMIC trust which would then acquire loans and be secured, on record, for their interest. Anyone out there see the trust on any document in any loan closing that didn’t end up in litigation? No?

That’s because the intermediaries were and are asserting ownership stakes in loans that never came out of their pocket, loans for which they have no risk of loss and loans that were acquired on paper by other intermediaries when the debt was at all times material hereto owned by the investor lender. AND THAT is why you must LEAD with the deficiencies in the money trail and NOT with the DOCUMENT trail, which will merely have you running down a rabbit hole dug special for you.

The Future of Home Values – Taking a Closer Look at Price-to-Income Fundamentals
http://www.zillowblog.com/research/2013/04/09/the-future-of-home-values-taking-a-closer-look-at-price-to-income-fundamentals/

Fake Notaries: The Weak Link of Each State

If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Note: All across the country we are discovering that robo-signing and forgery of notarizations have enabled the pretender lenders to assure the court that they own the debt, note and mortgage or deed of trust. Complaints to the state agencies regulating notaries have resulted in a net loss to borrowers. In Arizona, several notaries were suspended or had their licenses revoked only to have them reinstated a short time later. Lending your notary stamp or stealing a notary stamp without the consent of the notary are both subject to administrative and criminal prosecution.

The reason why the notarizations are going nowhere is, I think, purely political. But there is a misconception about finding a fake notarization without finding that the signature that was notarized was also without authorization or was also forged.

The failure to get a proper notarization (like where the signatory signed in Florida and the notary was in Texas), does NOT invalidate the document itself. In most states where I have read the law it only effects the ability to record the document. So if you know about the document and it wasn’t properly notarized so it couldn’t be recorded, you can still be held to have notice of it and it may well be binding on your client even if it was forged. without more, the attack on the notary seems like a technicality to get out of a legitimate debt.

It is at best an add-on to other claims in which you pray the court will enter an order that removes the nullifies the recording of the offending document from the public records. That won’t get you very far since you obviously have notice of the document’s existence. So you need to attack the document itself and even there, Judges are very reluctant to enter orders granting relief where the borrower has essentially admitted the debt, note, mortgage and the default. How would you like it if you loaned money to someone for real and then were prevented from collection because of some minor technicality? It’s a windfall for the borrower.

This is why I encourage people to start with the money trail instead of the documentary trail. The documentary trail tells a story ABOUT a transaction which is presumed to be true especially if your client’s signature is on it. But the money trail reveals what SHOULD be on the documentary trail and it is by reference to transactions that were real, where money exchanged hands, that you can say that the documents upon which the other side places reliance are wrong.

Tactically the pretenders lenders are relying on the documentary trail. Don’t go there. It’s a trap. Go for the real transactions in which money is supposed to have changed hands. Then you can ask in discovery two alternative lines of questioning: explain why the documentary trail does not reflect the actual money trial and where are the receipts and disbursements (cancelled checks and wire transfer receipts) to support your documentary trail?

The last items that closes the book on them is to show that there was no privity or authorization for them to take the consideration from an independent third party transaction and apply it to their documents.

I can’t take my neighbor’s auto loan and say that proves he owes me money. I have to actually loan him the money and if his documents say that he borrowed money from a finance company, then THEY have to show the same thing I do — that they really loaned the money or really bought the loan with cash. If neither of us can prove we paid anything then the fact that he got money as a coincidence with our paperwork is not going to help either the finance company or me. It must be presumed that the money came from someone else, resulting in voiding the purported transactions and allowing for whoever actually parted with money to come forward and stake his claim.

So fake notarizations are indeed a bad thing and that should be cause for concern in the property records of each county where title is supposed to be recorded. But wasting your time on that attack is not likely to produce much in the way of results in the form of real relief for your client.

Eric Holder Doctrine: Decriminalize Big Crimes

see also Guest Post: Why The Government Is Desperately Trying To Inflate A New Housing Bubble
http://www.zerohedge.com/news/2013-03-25/guest-post-why-government-desperately-trying-inflate-new-housing-bubble

The problem with the theory that criminal prosecution of the banks could have a negative effect on the world economies is that the banks have already had their effect on the world economy. Along with their own well-deserved hit to their reputations they took the U.S. reputation and probably the whole Eurozone with them.

Refusing to prosecute is like saying we should not prosecute organized crime — or even the same crimes committed by smaller institutions — because someone might get killed or jailed or swindled out of more money than they already lost.
Our rating has dropped by all accounts in all the rating services — a consequence of not getting our house in order and not controlling institutions whose importance is obviously parallel to that of a water or electric utility. And people are still losing wealth and homes, thus undermining any prospect of a true economic recovery.
Eric Holder’s logic is simply not sustainable and the people of Maryland are doing the best they can to keep criminal banks out of their state. We should all do that, and do what the State of New York came close to doing — revoking the license of criminal banks to ply their snake oil financial products within their state. Now that does something to protect the public and puts everyone on notice that doing business with criminal mega-banks is risky business no matter what the smiling bank representative tells you.
The biggest flaw in Holder’s so-called logic about the banks being too big to jail is that an important part of justice has been thwarted. In fraud cases the victim receives some restitution from a receiver appointed after the culprit’s assets are seized. That can’t happen as long as we avoid criminal prosecution. And until there is criminal prosecution judges will continue to think that borrowers are deadbeats instead of victims.
Investors is the fake mortgage backed bonds issued by empty REMIC trusts that were never funded and thus never entered into a transaction in which they acquired loans deserve restitution. Clawing back the money held in the Cayman’s, Cyprus and other places can never happen as long as criminal prosecution is avoided.
The trust we earned from world central bankers,investors and borrowers has been destroyed and that is what is causing economic problems all over the world. Nobody knows where to put their money or even what currency will ultimately survive. This uncertainty is undermining our claim to moral superiority across the board in matters of state as well as commercial activity. We have opened the door to allowing Chinese firms to take the lead, like Alibaba which has quietly become larger than Amazon and EBay combined and is on track to become the world’s first trillion dollar company.
If we truly want to survive and prosper we can show the world that we know how to do the right thing rather than become an accessory during and after the fact of a continuing crime that ranks as the greatest fraud in human history. When investors get a check from a court-appointed receiver in a criminal case, when we see bankers go to jail, and when the amount demanded from borrowers is reduced by payments to the banksters, THEN confidence will be restored along with wealth, investment and employment.
We are pursuing a going out of business strategy. By holding back on the basis of the Holder Doctrine we are confirming that we lost our moral high ground. Someone will fill that void and don’t think for a minute that the Chinese are not acutely aware of their opportunity.
Remember when we made fun of Japanese products as cheap unreliable imports? They fixed that, didn’t they. The Chinese are now spreading out creating new standards of morality in the marketplace such as not releasing money to an online seller until the buyer is satisfied.

It won’t be long before Chinese currency and currencies pegged to Chinese currency become the standard medium of value replacing western currencies, unless we change and start running a country that controls and disciplines its players domestically and on the world stage.

Money-laundering firm should get no welcome in Maryland
http://www.baltimoresun.com/news/opinion/oped/bs-ed-hsbc-20130325,0,1565911.story

What to Do When the “Original” Note is Proferred

If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
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There are two issues when the other side presents original documents. First is that they say these are originals and they do not accompany it with an affidavit from someone with actual personal knowledge of the transactions or the high bar for business records exceptions to hearsay. My experience is that 50-50, the documents are original or fabricated by use of Photoshop and a laser printer or dot matrix printer. So what you need to do is to go down to the clerk’s office and see what they filed. It would not be unusual for them to file a copy saying it was the original. Second, on that same point, the original can be examined. When the signatures are heavy there should be indentations on the back. Also a notary stamp tends to bleed through the paper to the back.

The second major point is the issue of holder v owner. The owner of the debt is entitled to the ultimate relief, not the note-holder unless the other side fails to object. So along with the proffering of the “originals” they must tell the story, using competent foundation testimony, how they came into possession of the note. In discovery this is done by asking to see proof of payment and proof of loss. Which is to say that you want to see the canceled check or wire transfer receipt that paid for the “transaction” in which the possessor of the note became a holder under UCC and is entitled to a rebuttable presumption that they are the owner. If there is no transaction for value, then the note was not negotiated under the terms of the UCC.

Since they possess the note there is a hairline allowance that they may sue for the collection on a note in which they have no financial sake but there is no ability to win if the borrower denies they received the money or that the possessor of the note obtained the note for purposes of litigation and is not the creditor — i.e., the party who could properly submit a credit bid at auction by a creditor as defined by Florida statutes, nor are they able to execute a satisfaction of mortgage because even upon the receipt of the money they have no loss, and under the terms of the note itself the overpayment is due back to the borrower.

And just as importantly, they cannot modify the mortgage so any submission to them for modification is futile without them showing proof of payment, proof of loss and/or authority to speak for and represent the interests of an identified creditor.

An identified creditor is not merely a name but is a report of the name of the owner of the debt, the contact person and their contact information. Then you can contact the owner and ask for the balance and how it was computed. So the failure to identify the actual owner is interference with the borrower’s right to seek HAMP or HARP modifications — potentially a cause of action for intentional interference in the contractual relations of another (asserting that the note and mortgage incorporated existing law) or violation of statutory duties since the Dodd-Frank act includes all participants in the securitization scheme as servicers.

The key is the money trail because that is the actual transaction where money exchanged hands and it must be shown that the money trail leads from A to B to C etc. The documents would then be examined to see if they are in fact relating to the transaction or a particular leg of the chain.

If the documents don’t conform to the actual monetary transaction, then the documents are refuted as evidence of the debt or any right to enforce the debt. What we know is that in nearly all cases the documents at origination do NOT reflect the actual monetary transaction which means they (a) do not show the actual owner of the debt but rather a straw-man nominee for an undisclosed lender contrary to several provisions of the Truth in Lending Act. The same holds true for the false securitization” chain in which documents are fabricated to refer to transactions that never occurred — where there was a transfer of the debt on paper that was worthless because no transaction took place.

One last thing on this is the issue of blank endorsements. There is widespread confusion between the requirements of the UCC and the requirements of the Pooling and Servicing Agreement. It is absolutely true that a blank endorsement on a negotiable instrument is valid and that the holder possesses all rights of a holder including the presumption (rebuttable) of ownership.

But hundreds of Judges have erred in stopping their inquiry there. Because the UCC says that the agreement of the parties is paramount to any provision of the act. So if the PSA says the endorsement and assignment must be in a particular form (recordable) made out to the trust and that no blank endorsements will be accepted, then the indorsement is an offer which cannot be accepted by the asset pool or the trustee for the asset pool because it would violate an express prohibition in the PSA.

And that leads to the last point which is that a document calling itself an assignment is not irrefutable evidence of an actual transfer of the loan. If the assignee does not agree to take it, then the transaction is void.  None of the assignments I have seen have any joinder and acceptance by the trustee or anyone on behalf of the pool because nobody on the trustee level is willing to risk jail, even though Eric Holder now says he won’t prosecute those crimes. If you take the deposition of the trustee and ask for information concerning the trust account, they will get all squirrelly because there is no trust account on which the trustee is a signatory.

If you ask them whether they accepted the assignment of a defaulted loan and if so, what was the basis for them doing so they will get even more nervous. And if you ask them specifically if they accepted the assignment which you attach to the interrogatory or which you show them at deposition, they will have to say that they did not execute any document accepting that assignment, and then they will be required to agree, when you point out the PSA provisions that no such assignment or endorsement would be valid.

Prommis Holdings LLC Files for Bankruptcy Protection

I have not followed Prommis Holdings closely but I can recall that some people have sent in reports that Prommis was the named creditor in some foreclosure proceedings. The reason I am posting this is because the bankruptcy filings including the statement of affairs will probably give some important clues to the real money story on those mortgages where Prommis was involved. I’m sure you will not find the loan receivables account that are mysteriously absent from virtually all such filings and FDIC resolutions.

And remember that when the petition for bankruptcy is filed it must include a look-back period during which any assignments or transfers must be disclosed. So there is a very narrow window in which the petitioner could even claim ownership of the loan with or without any fabricated evidence.

US Trustees in bankruptcy are making a mistake when they do not pay attention to alleged assignments executed AFTER the petition was filed and sometimes AFTER the plan is confirmed or the company is liquidated. Such an assignment would indicate that either the petitioner lied about its assets or was committing fraud in executing the assignment — particularly without the US Trustee’s consent and joinder.

The Courts are making the same mistake if they accept such an assignment that does not have US Trustees consent and joinder, besides the usual mistake of not recognizing that the petitioner never had a stake in the loan to begin with. The same logic applies to receivership created by court order, the FDIC or any other “estate” created.

That would indicate, as I have been saying all along, that the origination and transfer paperwork is nothing more than paper and tells the story of fictitious transactions, to wit: that someone “bought” the loan. Upon examination of the money trail and demanding wire transfer receipts or canceled checks it is doubtful that you find any consideration paid for any transfer and in most cases you won’t find any consideration for even the origination of the loan.

Think of it this way: if you were the investor who advanced money to the underwriter (investment bank) who then sent the investor’s funds down to a closing agent to pay for the loan, whose name would you want to be on the note and mortgage? Who is the creditor? YOU! But that isn’t what happened and there is nothing the banks can do and no amount of paperwork can cover up the fact that there was consideration transferred exactly once in the origination and transfer of the loans — when the investors put up the money which the investment bank acting as intermediary sent to the closing agent.

The fact that the closing documents and transfer documents do not show the investors as the creditors is incompatible with the realities of the money trail. Thus the documents were fabricated and any signature procured by the parties from the alleged borrower was procured by fraud and deceit — causing an immediate cloud on title.

At the end of the day, the intermediaries must answer one simple question: why didn’t you put the investors’ name or the trust name on the note and mortgage or a “valid” assignment when the loan was made and within the 90 day window prescribed by the REMIC statutes of the Internal Revenue Code and the Pooling and Servicing Agreement? Nobody would want or allow someone else’s name on the note or mortgage that they funded. So why did it happen? The answer must be that the intermediaries were all breaching every conceivable duty to the investors and the borrowers in their quest for higher profits by claiming the loans to be owned by the intermediaries, most of whom were not even handling the money as a conduit.

By creating the illusion of ownership, these intermediaries diverted insurance mitigation payments from investors and diverted credit default swap mitigation payments from the investors. These intermediaries owe the investors AND the borrowers the money they took as undisclosed compensation that was unjustly diverted, with the risk of loss being left solely on the investors and the borrowers.

That is an account payable to the investor which means that the accounts receivables they have are off-set and should be off-set by actual payment of those fees. If they fail to get that money it is not any fault of the borrower. The off-set to the receivables from the borrowers caused by the receivables from the intermediaries for loss mitigation payments reduces the balance due from the borrower by simple arithmetic. No “forgiveness” is necessary. And THAT is why it is so important to focus almost exclusively on the actual trail of money — who paid what to whom and when and how much.

And all of that means that the notice of default, notice of sale, foreclosure lawsuit, and demand for payments are all wrong. This is not just a technical issue — it runs to the heart of the false securitization scheme that covered over the PONZI scheme cooked up on Wall Street. The consensus on this has been skewed by the failure of the Justice department to act; but Holder explained that saying that it was a conscious decision not to prosecute because of the damaging effects on the economy if the country’s main banks were all found guilty of criminal fraud.

You can’t do anything about the Holder’s decision to prosecute but that doesn’t mean that the facts, strategy and logic presented here cannot be used to gain traction. Just keep your eye on the ball and start with the money trail and show what documents SHOULD have been produced and what they SHOULD have said and then compare it with what WAS produced and you’ll have defeated the foreclosure. This is done through discovery and the presumptions that arise when a party refuses to comply. They are not going to admit anytime soon that what I have said in this article is true. But the Judges are not stupid. If you show a clear path to the Judge that supports your discovery demands, coupled with your denial of all essential elements of the foreclosure, and you persist relentlessly, you are going to get traction.

FDCPA Strikes Again: West Virginia Slams Wells Fargo

YARNEY v. OCWEN LOAN SERVICING, LLC, Dist. Court, WD Virginia 2013

SARAH C. YARNEY, Plaintiff,

v.

OCWEN LOAN SERVICING, LLC, ET AL., Defendants.

No. 3:12-cv-00014. United States District Court, W.D. Virginia, Charlottesville Division.

March 8, 2013

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

The Plaintiff Sarah C. Yarney (“Plaintiff”), pursuant to Fed. R. Civ. P. 56, seeks summary judgment as to liability on all claims asserted in her complaint. Plaintiff alleges that Defendants Wells Fargo Bank N.A., as Trustee for SABR 2008-1 Trust (“Wells Fargo”), and its loan servicer, Ocwen Loan Servicing, LCC (“Ocwen”), attempted to collect on her home mortgage loan after she had settled the debt with Wells Fargo.

III. DISCUSSION

A. Plaintiff’s FDCPA Claims as a Matter of Law

In summary, mortgage servicers are considered debt collectors under the FDCPA if they became servicers after the debt they service fell into default. At the time Ocwen became the servicer on Plaintiff’s home loan, the loan was already in default. Therefore, Ocwen is a debt collector seeking to collect an alleged debt for the purposes of FDCPA liability in this case.[4]

1. Defendants’ Liability under 15 U.S.C. § 1692e(2)(A)

Given the contents of the monthly bills and notices sent to Plaintiff directly, along with the continued calls she received from collection agents, I find that the least sophisticated consumer in Plaintiff’s position could believe that she still owed a debt. Thus, Plaintiff is entitled to summary judgment on her count that Ocwen violated § 1692e(2)(A) of the FDCPA.
2. Defendants’ Liability under 15 U.S.C. § 1692c(a)(2)

Because Plaintiff continued to directly receive bills, statements and phone calls from Ocwen representatives seeking to collect on an alleged debt obligation, despite notice that she was represented by counsel, Plaintiff is entitled to summary judgment that Ocwen violated section 1692c(a)(2).

B. Plaintiff’s Breach of Contract Claim as a Matter of Law

Plaintiff contends that Wells Fargo breached its agreement with Plaintiff, through the action of its agent, Ocwen ….
plaintiff contends, Wells Fargo failed to comply with its obligations, due to the actions of Ocwen, its servicer.
By attempting to collect payments from Plaintiff on behalf of Wells Fargo, Ocwen acted as Wells Fargo’s agent with respect to the original mortgage loan.[10] Further, the undisputed facts in this case demonstrate that Ocwen continued to behave in all respects towards Plaintiff as Wells Fargo’s agent after the March 18, 2011 settlement agreement.[11] While a party may delegate the performance of its duties under a contract, it retains the ultimate obligation to perform….
[11] While Defendants argued during the February 25, 2013 motion hearing that Wells Fargo shouldn’t be held liable for Ocwen’s conduct from now until eternity, Ocwen’s actions at the center of this case constituted collection efforts in connection with the same mortgage loan debt for which Ocwen had been assigned to service, and that Plaintiff and Wells Fargo had attempted to resolve under the March 18, 2011 settlement agreement. Thus, given the facts of this case, Ocwen continued to act as Wells Fargo’s agent with respect to Plaintiff following the settlement agreement.
Due to Ocwen’s subsequent attempts to collect mortgage loan payments from Plaintiff, Wells Fargo neither absolved Plaintiff of her possible deficiency nor properly accepted the deed in lieu of foreclosure.
. . .
“… and thus, due to the actions of its servicer, Plaintiff is entitled to summary judgment that Wells Fargo breached the March 18, 2011 contract agreement.
IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for partial summary judgment is granted. This case is scheduled for a jury trial on April 9, 2013, at 9:30 a.m. in Charlottesville, VA, at which time Plaintiff will have the opportunity to testify in regards to any damages she may be entitled to in this matter.[12] An appropriate order accompanies this memorandum opinion

 

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