Homeowners « Livinglies’s Weblog

1,492 Responses

Marcus, on November 11th, 2009 at 4:25 pm Said:

Thank you Allan. I have a person account to NCLC web site. But I could not find one exactly for the state of Georgia.

marcus @ foreclosureProSe.com
Marcus, on November 11th, 2009 at 2:04 pm Said:

Deontos,
Thank you very much for the link; that’s exactly what I was looking for.
__________________________
marcus @ foreclsorueProSe.com
www. foreclosureProSe.com
Deontos, on November 11th, 2009 at 12:33 pm Said:

GOLDMAN SACHS CASTIGATES MCCLATCHY:

Letter to the editor from Goldman Sachs

Sir:

Your recent series of articles on Goldman Sachs (Goldman Sachs’ Secret Bets) is filled with unsubstantiated claims, innuendo and outright falsehoods. This is not investigative journalism but, rather, poorly researched and sensationalist fabrications presented as facts.

As your reporter knows, there is no factual basis for the theories put forward in the articles, and your claim that we misled investors is untrue.

You have done your readers a disservice.

Sincerely,

Lucas van Praag
Managing Director
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004

(Editor’s note: Van Praag is the chief spokesman for Goldman Sachs. McClatchy stands by its reporting, and rejects as untrue his allegation that the reporter knows “there is no factual basis” for the articles.)

Commenters:
#1
JimWhite wrote on 11/10/2009 07:21:49 PM:

My dear Mr. van Praag,

You and I both know that if there were indeed “no factual basis” for what McClatchy has published regarding your firm, your notification would be made to them through the court rather than through a letter to the editor. Please do try to keep up.

And you might want to keep your passport handy. You never know when you and your colleagues might just decide it’s a good time to retire to an island without an extradition treaty with the US.

In the meantime, I eagerly await the next installment of the McClatchy series.

Sincerely

Jim White

#2
FletcherFramer wrote on 11/10/2009 04:59:15 PM:

A typical attack on the messenger that we are supposed to believe is a refutation of the issues raised in the articles. It would have more credibility if it would have addressed the specific issues and shown what specific factual errors they claim.
Deontos, on November 11th, 2009 at 12:24 pm Said:

PATHOS

Man trying to serve legal documents shot in leg

By Kristina Davis, Karen Kucher

Originally published November 11, 2009 at 1:03 a.m., updated November 11, 2009 at 7:44 a.m.

ESCONDIDO — A 50-year-old process server trying to deliver some legal documents at an Escondido home Tuesday night was shot in the leg and a 65-year-old man was arrested, police said.

The shooting occurred near Avenida del Diablo and Red Bark Road after 9 p.m., Escondido police said. The victim ran to his car and drove away before calling 911 on Del Dios Highway.

He was taken to a hospital and is expected to recover.

The man who lived in the home also called police after the shooting. Police arrested Burk Neal Ashford on suspicion of assault with a deadly weapon, said Escondido police Lt. Mike Loarie. He is being held in Vista jail on $75,000 bail.

A .22-caliber revolver was recovered. Two shots were fired in the incident, Loarie said.

It was initially thought that the victim was serving an eviction notice.

http://www.signonsandiego.com/news/2009/nov/11/possible-eviction-notice-server-shot-leg/
Deontos, on November 11th, 2009 at 8:47 am Said:

Marcus,
——————————————————————
Marcus, on November 11th, 2009 at 7:58 am Said:

Hello,
I am looking for a sample TRO and Preliminary Injunction pleading for the state of Georgia. Can someone help?
Thanks
——————————————————————

I am not sure if you wanted a BLANK “TRO Form” to do a pleading or a sample of an actual TRO pleading that someone else has already done.

I found a pleading done regarding a foreclosure action in July 2009.

LINK:
In the state of Georgia:

http://www.scribd.com/doc/18096819/Motion-for-Temporary-Restraining-OrderPreliminary-Injunction
ALLAN in MA & FL (With a reply to MARCUS for pleadings and forms from NCLC ~ National Consumer Law Center), on November 11th, 2009 at 8:18 am Said:

MARCUS, try http://cladv.wssites.com/Login.aspx?ReturnUrl=%2fDefault.aspx

USERNAME: norfolklawlibrary
PASSWORD: patron

Good luck!

ALLAN
B e M o v e d @ A O L . c o m
rick k, on November 11th, 2009 at 8:11 am Said:

just wanted to thank every one here for their contributions to helping others in their time of need. i admire everyone taking a stand to fight the good fight.fight on . what a great community.. i have been fighting for one year. i have since hired an attorney but i started my fight with info here and it was invaluable in helping me see their was hope.thanks again
i hope something i am working on will help those here who need it
Marcus, on November 11th, 2009 at 7:58 am Said:

Hello,
I am looking for a sample TRO and Preliminary Injunction pleading for the state of Georgia. Can someone help?
Thanks
___________________________
marcus @ foreclosureProSe.com
wwwDOTforeclosureProSe.com
ALLAN in MA & FL (WITH 22 STATE FORECLOSURE MEDIATION PROGRAMS from NCLC ~ National Consumer Law Center), on November 11th, 2009 at 1:09 am Said:

22 PROGRAMS for FORECLOSURE MEDIATION and MANDATORY CONFERENCES

Programs for Foreclosure Mediation and Mandatory Conferences

* Summary of Programs

Summary of 22 state/local programs that establish some type of foreclosure diversion program requiring lenders to engage in mediation, conciliation, or a settlement conference. Summaries include a general program description and lender and borrower obligations under the program.

* Programs: Forms and Documents

Links to text of enabling legislation, administrative orders,court rules, forms and other information links related to programs.

* Pending Legislation

Jobs | Unreported Cases | Useful Links | Site Map | Contact Us
National Consumer Law Center, 7 Winthrop Square, Boston, MA 02110

© Copyright, National Consumer Law Center, Inc., All rights reserved.
National Consumer Law Center and NCLC are trademarks of National Consumer Law Center, Inc.
Joe, on November 10th, 2009 at 9:48 am Said:

BlackRock CEO Fink Dismisses Talk Of Possible Bubble
Last update: 11/10/2009 11:31:41 AM

By Daisy Maxey
Of DOW JONES NEWSWIRES

NEW YORK (Dow Jones)–Laurence Fink, chairman and chief executive of BlackRock Inc. (BLK), said there’s all too much talk of a bubble being created in the equities market, and that the economy is now in a period of stability.
“I think things are playing out as they should,” Fink said in discussion Tuesday with Alan Murray, deputy managing editor of The Wall Street Journal and executive editor for the Journal Online. The Wall Street Journal is owned by News Corp. (NWSA), which also publishes this newswire. BlackRock is the largest public asset manager in the U.S.
“We are now seeing record amounts of cash being put to work,” with huge flows even going into hedge funds recently, said Fink, who dismissed talk of a bubble. There are too many articles in today’s newspapers about bubbles, he said, adding that crises occur when they’re not in the rearview mirror.
The financial system needs change, including increased transparency, more derivatives trading on exchanges and regulatory change, Fink said. He also said though BlackRock misjudged the commercial real-estate sector, it’s an area on which it will be refocusing and that the asset-management business is changing dramatically.
Fink also said he didn’t think the U.S. dollar would fall that far, though it will slip lower versus the yuan, the real and other countries’ currencies. “I don’t know if this is a bad thing,” he said. “Hopefully, a weakening dollar will produce more companies willing to manufacture here.”
As for the crisis, the financial system needs to be a lot more responsive to society and make sure this doesn’t happen again, Fink said. “Risk has to be a lot more transparent to investors. I think that is happening.”
The system is dialing back risk substantially, bringing down leverage, Fink said. It also needs more derivative products trading on exchanges and to make sure everything is done on balance sheet, he said. But regulatory change is also in order, Fink said, calling for global consistency in regulation and risk management.
One question that needs to be answered is “where will capital come from to finance America next year?” Fink said. The Obama administration’s theory is that if interest rates are kept low, banks may start lending in the mortgage area, he said. “I hope the private sector will come in,” he said, but noted that there’s currently a reluctance to buy mortgage securities because of the uncertainty around rights as a first lien holder.
In addition, a new ratings system is needed if there’s going to be more private-sector involvement in the mortgage sector, he said.
Fink also launched into a defense of mortgage securitization, calling it “a good thing” that went bad in this decade. “For 30 years, mortgage securitization saved American homeowners 250 basis points” on their mortgages, he said. It was not the structure, but the underwriting and the acceptance of risk which became a problem, he said.
As for commercial real estate, BlackRock “probably had an overzealous view of where real estate was going to go,” Fink said, noting that before 2006, it has been a sector where there had been “tens of years of success.” Commercial real estate hasn’t rallied much, and if you believe that tight spreads and high yields will continue and that the U.S. can grow only about 2% a year, “we are going to have slow healing,” he said.
Nevertheless, it’s an area on which BlackRock will be refocusing, he said, noting that for the first time in a year, an investor has given the asset manager money to be put into the sector “because they think values are now appealing.”
As for the asset-management business, it’s being dramatically redefined, with more and more clients seeking holistic advice and increased use of traditional beta (index-tracking) products, Fink said. BlackRock is helping clients manage large chunks of their portfolios “almost like a fiduciary outsourcing,” he said.
- By Daisy Maxey; Dow Jones Newswires; 212-416-2237; daisy.maxey@dowjones.com
(END) Dow Jones Newswires
November 10, 2009 11:31 ET (16:31 GMT)
Copyright © 2009 MarketWatch, Inc. All rights reserved.
Marcus, on November 9th, 2009 at 4:44 pm Said:

Housing Crisis Redefines Broker-banker Relationships
Source: Houston Chronicles
HOUSTON – Nov. 9, 2009 – In his 17 years as a mortgage broker, Edward Kampf developed long-standing relationships with banks that would provide home loans to his customers.

But when the housing crisis hit, some lenders began turning their backs on brokers – the mortgage middlemen who originated the majority of loans during the boom.

When Kampf started having trouble finding financing for his customers, he converted his business to a mortgage banking operation, joining a growing number of mortgage professionals getting out of the brokerage business and into banking.

“It’s not that it’s a utopia, but you have more confidence in underwriting, longer lines of credit and peace of mind,” he said.

Over the next two years, mortgage bankers are going to gain a significantly larger share of the market, said Scott Norman, vice president of the Texas Mortgage Bankers Association.

He expects the 250-member association to grow another 10 percent over the next year as regulations governing brokers become tighter.

But even in his role representing bankers, Norman said taking brokers out of the equation does a disservice to the marketplace.

“They bring a good sense of competition,” he said. “There’s always going to be a mom and pop mortgage broker down the street who can provide you with excellent service with good rates and good fees. I don’t think that should go away.”

A mortgage broker is someone who matches a borrower with a lender.

The broker earns a commission on the transaction, but once the loan has closed, the broker’s involvement ends.

Alternatively, a mortgage banker typically provides its own funds and therefore assumes more risk.

The number of brokers multiplied during the housing boom when lenders were eager to loan to almost anyone.

Image problems

Their ranks began tapering off when the market cratered and they were painted as greedy and untrustworthy.

To distance themselves from brokers, some large financial institutions ended their wholesale lending divisions that funded loans brought in by third-party brokers.

They began to focus exclusively on retail customers.

Kampf said borrowers seeking second homes, construction loans and jumbo financing were considered high risk – even if they were doctors or lawyers with great credit and plenty of cash in the bank.

Brokers were getting fewer referrals from real estate agents, too.

“It’s easier to market yourself to Realtors as a banker versus broker because of the perception involved,” Kampf said. “From a marketing standpoint, it’s been a benefit.”
______________________________
marcus @ foreclosureProSe.com
www. foreclosureProSe.com
Marcus, on November 9th, 2009 at 4:10 pm Said:

More Walk Away From Homes, Mortgages
Source: US TODAY
PENNINGTON, N.J. ¬– Nov. 9, 2009 – When Sharon Sakson was laid off recently from her job as a television writer and producer, she burned through her savings to pay the $2,400 monthly mortgage on her home. But she soon decided it didn’t make sense: Her home was worth thousands less than the mortgage she carried on it.

The home had been appraised at $390,000 when she refinanced in 2006, but she estimates it’s not worth the $320,000 it initially cost in 2004. So Sakson did what a growing number of homeowners are doing today: She stopped paying and decided to let the bank take her home.

“I’m walking away from my house,” says Sakson, 57, who stopped making payments about six months ago on her home in Pennington, N.J. “The bank can have it.”

What Sakson did is called a strategic default, or a voluntary foreclosure, and it’s fast becoming a major challenge to the government’s $75 billion effort to keep distressed borrowers in their homes. Walking away from a mortgage is serious business – it can knock 100 points off your credit score and make you ineligible for a new mortgage for seven years. Yet, about 588,000 borrowers walked away from homes last year, double the number in 2007, according to a recent study by credit-scoring firm Experian and management consultants Oliver Wyman. While home prices are rising, the increases pale compared with overall drops in home prices since 2005 that threaten to push millions more homeowners into Sakson’s predicament, owing more than their homes are worth and seeing little chance of rebuilding equity soon.

More will walk away, which will hamper the housing recovery, reinforce lenders’ tight credit policies and drag on the economy’s recovery, economists say.

“It’s increasingly a more important factor driving the foreclosure crisis,” says Mark Zandi, of Moody’s Economy.com. “As we move forward, the job market will stabilize, and the big thing will be strategic defaults. People are going to determine it doesn’t make financial sense to hold on to their homes. That’s going to be a significant problem. Strategic defaults mean foreclosures could be high for a long time.”

It’s not just economists who are concerned about strategic defaults.

The mortgage unit of Citigroup says one in five borrowers who defaults does so willingly, even though they’re able to pay the mortgage. “It’s a very large number, and it’s a very, very significant risk to the housing recovery,” says Sanjiv Das, CEO of CitiMortgage, adding that new government programs to curb strategic defaults may be needed.

Waiting for prices to stabilize

How bad the strategic defaults issue gets may depend on how much more home prices fall and whether the government does more to help homeowners with mortgages larger than their homes’ value. Both Zandi and Das suggest further actions to reduce mortgage principal for underwater borrowers.

“A better way to do it may be an incentive to stay current for a period, and after two years of being current, they get a principal reduction,” says Das.

The government’s current Making Homes Affordable program for mortgage modifications disqualifies borrowers whose unpaid mortgages are more than 125 percent of the home’s market value.

Nationally, median prices have fallen about 25 percent from their peak in late 2005, although prices recently have risen compared with prior months this year. The median price in the second quarter – $170,000 – was at roughly the level it was in autumn 2003.

But price declines have been worse in some markets. A closely watched barometer of home prices, the Standard & Poor’s/Case-Shiller 20-City Composite Index, shows they have fallen more than 25 percent in 12 markets and more than 50 percent in two – Phoenix and Las Vegas – from peaks hit in 2006 or 2007.

Fifteen out of the 20 metro areas saw a rise in prices from July to August, but those increases are not anywhere close to the losses that have already occurred.

The number of borrowers who walk away is expected to increase, along with the rise in homeowners who owe more than their homes are worth. An unprecedented 16 million homeowners currently are underwater, according to Moody’s Economy.com. That’s about a third of all homeowners with a first mortgage.

Moody’s Economy.com estimates the number of underwater borrowers will peak at 17.4 million in the third quarter of 2010.

An even higher estimate comes from Deutsche Bank, which predicted in an August study that the number of homeowners underwater will grow from 14 million (or 27 percent of all homeowners with mortgages) in 2009 to 25 million homeowners, or 48 percent of all those with a mortgage, by the time home prices stabilize.

Not coincidentally, strategic defaults have been highest where prices have plunged most, such as California and Florida.

From 2005 to 2008, the number of strategic defaulters went up by 68 times in California, according to the Experian-Oliver Wyman study published in September. During that same time period, the median price for existing, single-family homes in California fell from $522,670 in 2005 to $346,410, according to the California Association of Realtors.

In other geographic regions, the increase in strategic defaulters ranged between 3 times and 18 times more.

The Experian-Wyman study found borrowers with higher credit scores when they applied for their loan were 50 percent more likely than other types of borrowers to walk away from a mortgage only because they were underwater, even though they could afford to pay. The study was based on an analysis of about 12 million borrowers.

No household would default if the equity shortfall is less than 10 percent of the value of the house, according to another study this year, done by the University of Chicago, Northwestern University and the European University Institute. But 17 percent of households would default, even if they could afford to pay their mortgage, when the equity shortfall reaches 50 percent of the value of their house. That means the market value of a mortgage property is that much below the amount of loan taken against it.

There also appears to be a contagion effect. Borrowers who know someone who defaulted are 82 percent more likely to declare their intention to do so.

Growing acceptance

“The most disturbing aspect of this is that it’s becoming acceptable to do,” says Joel Naroff, an economist with Naroff Economic Advisors. “What does that mean down the road for housing and the economy if people are happy to walk away and destroy their credit? They’re saying, ‘Why pay a high amount if they can get something, even a rental, for less?’ “

Because of the time and expense involved in completing a foreclosure, borrowers who decide to walk away often wind up staying in their homes for months after they stop paying their mortgage.

In most states, lenders can go after homeowners for past-due payments, but many fail to take such action when borrowers abandon their properties, because the legal costs are so high.

Short sales, in which lenders agree to the sale of a home for less than the balance of the mortgage, is an alternative to a strategic default. Many lenders are now encouraging them, but Zandi says that alternative may seem too time-consuming for borrowers who want to quickly get out from under their homes.

Janet Speer, 51, isn’t happy to be walking away from her 200-year-old home in Royersford, Pa., but she doesn’t feel ashamed. Speer says she was paying about $1,400 a month for her home, which was appraised at about $155,000.

After getting laid off last year, Speer said, she tried to modify her mortgage to more affordable terms but was denied because her unemployment benefits and alimony didn’t count as income. Speer stopped paying on her mortgage in September 2008.

She is still living in the home and waiting to be foreclosed upon. Speer is saving her unemployment benefits for an apartment once the bank takes over her home.

“I got letters and calls from the bank at first, but they stopped,” said Speer, who now earns commission income from a job in the health care industry. “I have a three-story house. It’s way too big. I just want a little two-bedroom apartment. I don’t want this place anymore. I would never have chosen to do this, but it’s going to work out.”
___________________________
marcus @ foreclosureProSe.com
www. foreclosureProSe.com
Marcus, on November 9th, 2009 at 3:21 pm Said:

I created this document to show how to search the SEC web site for documents about one mortgage trust.
All constructive comments are welcome. It is released under Creative Common License for wider distribution.

www. foreclosureprose.com/storage/forms/HowToFindATrustSECFiling.pdf

marcus @ foreclosureProSe.com
Ella, on November 9th, 2009 at 1:40 pm Said:

Watchdog warns bankers they could go to jail in stinging attack on financial industry

Read more: http://www.dailymail.co.uk/news/article-1226430/Watchdog-warns-bankers-jail-stinging-attack-financial-industry.html#ixzz0WOf3jV98

Why can’t we even “warn” them here in the US?
M.Soliman, on November 9th, 2009 at 7:25 am Said:

Comments: “but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.”
——————————————————————————
Void (vs voidable) from the commencement
By M. Soliman
November 09 2009 6:08 PST

Los Angeles, CA // Filing an action is necessary for keeping your home after determining a wrongful foreclosure claim. I don’t see anyway around it as the state and federal initiatives are like going to court over and over and getting tossed by the trustee every time. (What?)

Until a court rules on the matter it may be the only way you have a way to protect your home.

Yet, real property (e.g. in California) cannot transfer from one party to another where a lien is considered to be defect.

The notion is the sale must fail whereby a transfer or conveyance or real property is near impossible. But a closer look at case law will mandate a good attorney for determining the grounds for calling a Trustees Sale void or voidable and need for understanding the remedies where a tort or material violation does exist.

Even when a fraud takes place we remind clients the court may not necessarily rule your home is yours anymore; even after determining the deed and transfer is unenforceable.

A predatory loan is something that falls under a theorem of “Mutual Consideration”. It is the shared responsibility by both sides for a willful act offered by one and accepted by the other party.

For example, you took the loan under the circumstances as a borrower from a predatory lender and now changed your mind. The courts say Ummmm! I don’t think so.

Courts also are sticking with the notion of equitable consideration. Therefore there is no one to blame according to some courts recent rulings. I don’t know about that where a cause of action can be made by an attorney and claims can be made supporting the deed is potentially defective.

Another type of claim is made where someone committing an unlawful act such as a forgery or a recorded document facilitates the sale. Where fraud or deceptive business practices is proven the deed is considered defect and therefore the sale must fail.

If the subject loan originated through unfair business practices, then your deed or mortgage maybe argued to be subject to a defect. That deed or mortgage will “rest disturbed” even where subject to substantive arguments brought in litigation. Therein your claims may make the transfer of the property impossible and that includes a UD hearing.

In other words the power of sale and right to acceleration in a non judicial matter are rendered unenforceable. You challenge the lenders security which always allows them to claim your home in a judgment. It is unenforceable from commencement or discovery and subject to a void or voidable determination by the court. Here is the catch you need to be aware of. It falls under fraudulent releases, request for reconveyance and forgeries.

Can a bona fide purchaser acquire title to property involved free of the improperly reconvened deed of trust? The answer is yes! Its a judeges call between void and voidable acts and the deeds. It suggest it’s not the forgery but where forgery comes into play that determines the outcome between innocent victims.

Expert.witness@live.com
MSoliman
M.Soliman, on November 9th, 2009 at 7:02 am Said:

Motion to Dismiss…first time. Plaintiff is a no show?

Need more facts! Decision entered is final? If final ask the court to handle it. Your judgement is in favor of …? Done then ? right?

Need more info! (I am pulling for you …)

msoliman
admin@borrowerhotline.com
M.Soliman, on November 9th, 2009 at 6:59 am Said:

Dan

MERS is not a gang …it’s a club.

We would ship (my prior life) collateral packages for over three days. Notes and assignments do get lost in Fed Ex and the warehouse bank would lose stips or we need a new endorsement, jurat, rider, etc.

It would delay wires by a month and I had payroll worry about.

You ever see those RV’s on the road with a happy Sam sticker. Or how about triple AAA. If you join you’re a member and MERS gives members full authorization to sign away . . . and the wire is out the next day.

You can ship after the fact as MERS will insure the collateral. If they dont make every lender an honorary officer of MERS and don’t have the power of attorney ….I am confused here bubs!

Peace

M. Soliman
admin@borrowerhotline.com
jeff, on November 8th, 2009 at 1:40 pm Said:

Does anyone know fo any case law regarding quiet title, specifically as it relates to securitazition. Since I won my Motion to Dismiss, I now have to clear up the cloud on my property. These pretenders caused this problem.

Can I sue for my Attorneys fees? Since they caused the problem, shouldn’t they be responsible to clean it up?

Thanks

Jeff
Dan Edstrom, on November 8th, 2009 at 12:23 pm Said:

Lisa E.,
That is awesome information. Among other things, the misrepresentation is NO CONSIDERATION when the assignment states “FOR VALUE RECEIVED” or similar text from the new assignee to the originator. I am sure California has something similar for recordings at the county or in court cases.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
jeff, on November 8th, 2009 at 8:48 am Said:

Lisa E.

Thanks for the kudos but without everyone here it would not have been possible. SO THANKS TO EVERYONE HERE.

Jeff
Dan Edstrom, on November 7th, 2009 at 8:28 pm Said:

Maher,
You may be correct about the power of attorney. However, my limited view is that the foreclosing attorneys are not that smart either. They do not have it because the servicer does not give it to them (they only tell them). It doesn’t mean smarter attorneys will not include references to some sort of actual “power of attorney”. In the cases I have read (only 2 I believe), the attorneys never provided proof of power of attorney to the court.

Even if they were to provide proof of a power of attorney, the court still needs to determine if the power of attorney was used as provided by the proof.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
M.Soliman, on November 7th, 2009 at 7:53 pm Said:

Dan – Impressed – but no cigar here.

MERS affords the power of attorney to the person assigned the task of executing the documents or instruments. Those documents are drawn on software with a special twist. Therefore the notices are pulled in advance and like some states is part of the original deed of trust.

MERS on the other hand empowers the person in charge to have endorsed the documents by jurat and assignment in blank (there’s an issue). Get MERS on your side and seek an injunction if necessary. So why attack MERS – they and trustee work for the parties’ collectively – yeah right.

Careful here, as your observations (as many attorneys do) lack onsite experience where the real world which is in violation with the procedural “other” world. That is the trustees and attorneys advantage in court.

As for affirmative defenses available to homeowners- one would never believe the vast number of procedural shortfalls and volume of errors and omission evidenced in almost every recovery effort we see. It’s a difficult decision when contemplating defending a home in foreclosure. It can be done successfully and we recommend using an attorney. The market for attorneys with this level of expertise however is concerning.

We believe it safe to assume the industry mandates maintaining tight regulatory control ensured by regulated use of approved software and dedicated documents system where certain instruments (assignment, substitution and deed of trust) shall recorded. Foreclosure recording information must be consistent to ensure valid timeliness.

Altering a document raises concerns for integrity and subjecting the trustee to impossible events and Trustor to unfair business practices and deceptive dealings. The fact most loan originated in 2004 through 2007 are predatory or in error is cause t claim the security is disturbed.

If the Trustor can show in a court of law where the deed has in fact violated civil code it may be rendered defect and therefore cannot ever convey title to real property.

Expert.witness @live.com
http://www.foreclosureinfosearch.
Lisa E., on November 7th, 2009 at 7:25 pm Said:

Dan,

In Florida the FELONY is held in FL Statute §817.545 (2)(d). ASSignment Fraud in any of your cases?

I wonder if other states have similar statutes?

817.545 Mortgage fraud.–

(2) (d) Files or causes to be filed with the clerk of the circuit court for any county of this state a document involved in the mortgage lending process which contains a material misstatement, misrepresentation, or omission.

(5)(a) Any person who violates subsection (2) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Any person who violates subsection (2), and the loan value stated on documents used in the mortgage lending process exceeds $100,000, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
ForeclosureHamlet@gmail.com
Dan Edstrom, on November 7th, 2009 at 8:19 am Said:

Steve Sinacola,
The putative assignment’s are all “FOR VALUE RECEIVED” and of course no value was received

The putative assignment’s are all done by the transferee – the transferor is not present (and in many instances is either in bankruptcy or no longer exists) – this is very much like you allegedly owing me some unknown disputed amount of approx. $100.00 and I take YOUR check and and I have my “friend” John Smith (who isn’t very bright) write it out and sign it using a power of attorney that I told him I had for you.

The putative assignment is done under color of authority

In California, using somebodys personally identifiable information to commit any unlawful act is a FELONY (with or without that persons permission). (see CPC 530.5)

Common law: No good title passes with fraud

I have heard that it is a felony to mess with title to somebodys property (I have not confirmed this)

Many other issues discussed on this site and elsewhere

Now throw into the mix disparagement of title

The judges are typically concerned about “equitable distribution” but it sure seems to me that kicking somebody out of their home and giving it to those committing fraud, felonies and other unlawful acts (fraud upon the court, bankruptcy fraud, etc) is not very equitable.

Just remember – whatever you FAIL to bring up in a lawsuit will typically not be heard or considered by the judge or a jury.

Disclaimer: I am not an attorney and this is not legal advice. Consult with an attorney to determine what is applicable in your circumstances.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
steve sinacola, on November 7th, 2009 at 7:06 am Said:

I’ve learned a new term, “Slander of Title’. From Wki:
In law, slander of title is normally a claim involving real estate in which one entity falsely claims to own another entity’s property. Alternatively, it is casting aspersion on someone else’s property, business or goods, e.g. claiming a house is infested with termites (when it is not), or falsely claiming you own someone else’s copyright (what allegedly occurred in the SCO v. Novell case). Slander of title is a form of jactitation.[1]

Slander of title is a one of the “specialized” Common law intentional torts. The State of California has adopted the definition of slander of title set forth in section 624 of the Restatement of Torts reading as follows: “One who, without a privilege to do so, publishes matter which is untrue and disparaging to another’s property in land, chattels or intangible things under such circumstances as would lead a reasonable man to foresee that the conduct of a third person as purchaser or lessee thereof might be determined thereby is liable for pecuniary loss resulting to the other from the impairment of vendibility thus caused.”

The term slander of title is somewhat of a misnomer as slander refers to that which is spoken yet the tort slander of title requires publication. A more accurate term would be “disparagement of title”

A slander of title suit can be pursued with merit in a variety of circumstances including but not limited to” the filing of an invalid lien against real property or virtually any type of recordable instrument recorded against a property by one without privilege which is untrue….It is not a requirement that it be recorded merely published, and in the broadest sense of the word. Published can ever refer to the placement of a lawn sign in front of someone’s property upon which is conveyed an untrue disparaging statement.

I am curious to know how (if) one could use “Slander of Title” to defend their home. At any rate, due to the “defective sheriff” lawsuit,counter-claims of “Conversion and Slander of Title” are now before the court.
Lisa E., on November 7th, 2009 at 6:58 am Said:

JEFF!!!

May I attend your coronation as KING of LivingLies for the month? Could I perhaps finesse my way into a VIP Invitation!

WOW! That is some MAJOR impact you’ve just had on the world!

Congratulations and a HUGE heartfelt THANK YOU!

Lisa E
http://www.ForeclosureHamlet.org
steve sinacola, on November 6th, 2009 at 11:37 pm Said:

Class action filed AGAINST THE SHERIFF for unlawful forclosure…

Associated Press

4:22 a.m. CST, November 5, 2009

DETROIT – A lawyer who has filed a proposed class-action lawsuit says tens of thousands of foreclosures in Wayne County are unlawful because sheriffs did not follow state law when they conducted foreclosure auctions.

The suit filed in federal court by Bloomfield Hills attorney Paul Nicoletti seeks to set aside the foreclosures of 46 plaintiffs in Wayne County and potentially hundreds of thousands of others statewide.

The suit claims former Wayne County Sheriff Warren Evans was required by law to sign the sheriff’s deeds. But, as in most Michigan counties, the undersheriff signed.

Nicoletti tells The Detroit News it’s a “hyper-technical argument, but it’s due process.”

Evans, now Detroit police chief, and current Wayne County Sheriff Benny Napoleon declined comment
dasmom, on November 6th, 2009 at 5:10 pm Said:

@Alina

The foreclosure mediation program in my state has all of the stipulations you mentioned and a 60 day time limit. My attorney told me that he has heard of mediation cases taking 6 – 9 months without having a final resolution. With the mounting attorney’s fees, interest, etc. the homeowner ends up upside down on the mortgage if they weren’t upside down before. Sometimes this whole process seems hopeless, especially if the homeowner doesn’t have the funds to keep paying their own attorney.
Deontos, on November 6th, 2009 at 2:54 pm Said:

Urgent: GOT TO HAVE A MEMBERSHIP CARD TO GET INSIDE

From:
http://www.imfpubs.com/issues/imfpubs_ima/2009_42/news/1000012647-1.html

** Inside Mortgage Finance Publications **
Inside MBS & ABS

Some Servicers Feel Less Confident about MERS as Courts Increasingly Question Its Ability to Foreclose

Recent court cases that call into question the ownership of a mortgage loan are forcing servicers to alter their practices and making them less likely to foreclose or appear in court in the name of the Mortgage Electronic Registration System, according to Moody’s Investors Service. Non-agency MBS servicers are adjusting their foreclosure and bankruptcy servicing practices due to the outcomes of…
……….. Must be a paying member to see the rest. CAN ANYBODY ACCESS THIS SITE? Could be VERY interesting info here.
bt, on November 6th, 2009 at 12:43 pm Said:

FANNIE MAE- Government-controlled mortgage company Fannie Mae is going to give borrowers on the verge of foreclosure the option of renting their homes for a year. The new “Deed for Lease” program will allow homeowners to transfer title to Fannie Mae and sign a one-year lease.

Isn’t this the easy way out for Fannie Mae? IF the original lender was Big Bank US, loan sold to Fannie Mae…they are trying to solidify the 90% of the public that gives up to foreclosure and avoid the Securitization issue….any thoughts?

IF in default, shouldn’t we take our chances in court, lack of standing..yadda-yadda? thoughts anyone?
Alina, on November 6th, 2009 at 9:46 am Said:

“If the borrower is mediating in bad faith or is really not available or able to engage in a meaningful mediation then we’ve wasted the court’s time,” Townes said.

In my comments submitted to the Florida Supreme Court, I stated the same thing with the exception that “borrower” was “bank.” I also stated that attorneys be required to attend in person the mediation along with someone with authority to negotiate and to bring with them a signed authorization giving them the authority to negotiate. Otherwise, the borrower’s time will be wasted.

I would love to get in touch with this AP reporter and give him some info regarding on who is really negotiating in bad faith.
Alina, on November 6th, 2009 at 9:38 am Said:

Jeff,

WAY TO GO!!!!! this is excellent.
James#, on November 5th, 2009 at 11:40 pm Said:

Jeff,
WELL DONE! ! ! ! ! ! ! ! !
Foreclosure Fraud, on November 5th, 2009 at 7:19 pm Said:

CALL OUT TO LIVINGLIES READERS

Not sure if you all read the hype on Fannie Mae’s new program today but it has been all over the internet.

“This new program helps eliminate some of the uncertainty of foreclosure, keeps families and tenants in their homes DURING THE TRANSITIONAL PERIOD, and helps to stabilize neighborhoods and communities,”

Translation:

Fannie won’t sell the properties immediately because then they would have to recognize the mark. Keep people in the home so it is not abandoned and have them maintained until they are SOLD. Not having to go through the foreclosure process and try to foreclose on a home THEY HAVE NO RIGHT TO in the first place…

WTF?

Here is CNN’s Article on it…

CNN – Avoid foreclosure: Rent your own home…

“YOUR OWN HOME”

Fannie Mae implements deed-for-lease program that allows troubled borrowers who don’t qualify for loan modifications to stay in their homes.

You have to be kidding me!!!

There is so many levels of WRONG in this.

This is nothing other than yet another way to avoid recognition of bad paper Fannie took on their books and has a HUGE embedded loss on.

This is yet another scam, all courtesy of our government who will do anything to avoid admitting the extent of the liabilities that are now in Fannie and Freddie’s portfolio

Post comments here on CNN about the TRUTHS of what is REALLY going on w/ foreclosures that lead them back to this site, the Guide on Scribd, etc…

http://bit.ly/2WbiBF

Look at the comments by the main stream… So brainwashed… So misinformed…

This is getting RIDICULOUS…

4closureFraud
jeff, on November 5th, 2009 at 7:16 pm Said:

Hi to all, sorry I haven’t responded but have been very busy. The following is my case

A BIG WIN FOR ME AND ALL OF LIVINGLIES THANK YOU.

HSBC Bank USA v Miller
2009 NY Slip Op 29444
Decided on October 29, 2009
Supreme Court, Sullivan County
Meddaugh, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 29, 2009

Supreme Court, Sullivan County

HSBC Bank USA, National Association, As Trustee for WFALT 2007-PA02 3451 Hammond Avenue Waterloo, La 50704-5400, Plaintiff

against

Jeffrey F. Miller, Board of Managers, Emerald Green Property Owner’s Association, Inc., JP Morgan Chase Bank, N.A., JOHN DOE, (said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants.

4786-2008

Steven J. Baum, P.C.

By Megan B. Szeliga, Esq.

Attorneys for Plaintiff

P.O. Box 1291

Buffalo, New York 14240-1291

John S. Edwards, Esq.

Attorneys for Defendant

317 Little Tor Road South

New City, New York 10956

Mark M. Meddaugh, J.

The Plaintiff filed a motion to for leave to reargue the Decision and Order of this Court, which granted the motion of the Defendant, Jeffrey F. Miller, dismissing the complaint in the above-referenced matter on the grounds that the Plaintiff lacks standing to maintain this foreclosure action.

The Court found, in its prior decision, that the Assignment of Mortgage attached to the Plaintiff’s papers in opposition to the original motion only referred to the assignment of the mortgage, and made no reference to the note. The Court noted that the Assignment had only the vague reference that “the said assignor hereby grants and conveys unto said assignee, the assignor’s beneficial interest under the mortgage ” which the Court found was insufficient to establish that both the note and the mortgage had been assigned to the Plaintiff.

Upon reargument, Plaintiff’s counsel asserts that the Assignment provides in pertinent part that:

Said assignor hereby assigns unto the above named Assignee the said Mortgage, and the full benefit of all powers and of all covenants and Provisions therein contained, and the said Assignor hereby grants and conveys unto the Assignee, the Assignor’s beneficial interest under the mortgage. (Emphasis added by Plaintiff’s counsel)

Plaintiff’s counsel then relies on language appearing in page 3 of the mortgage as follows:

BORROWERS TRANSFER TO LENDER OF RIGHTS IN THE PROPERTY
I mortgage, grant and convey the property to MERS (solely as nominee for the lender and lender’s successors in interest) and its successors in interest subject to the terms of the Security Instrument. This means that, by signing this Security Instrument, I am giving Lender those rights that Applicable Law gives to Lenders who hold mortgages on real property. I am giving Lender those rights to protect Lender from possible losses that might result if I fail to:
(A)Pay all the amounts that I owe Lender as stated in the Note including, but not limited to, all renewals, extensions, and modifications of the Note;
(B)Pay, with interest, any amounts that lender spends under this Security Interest to protect the value of the Property and Lender’s rights in the Property;
(C)Keep all of my other promises and agreements under this Security Instrument and the Note. (Emphasis added by Plaintiff’s counsel)
Plaintiff counsel also refers to Page 4 of the Mortgage in the section entitled Covenants [*2]under the Mortgage which provides:

I promise and agree with the Lender as follows:
1.Borrower’s Promise to Pay. I will pay to the Lender on time Principal and Interest due under the Note and any prepayment, late charges and other amounts under the Note and any prepayment, late charges and other amounts under the Note. I will also pay all amounts for Escrow Items under Section 3 of this Security Instrument,
Payment due under the Note and this Security Instrument shall be made in U.S. Currency . . . . . (Emphasis added by Plaintiff’s counsel)

Plaintiff argues when the Assignment and Mortgage are read “as a totality they make clear that the Note was transferred along with the Mortgage by and through (sic) the Assignment in this matter.”

It is further argued that the Note holder has standing to maintain a foreclosure action so long as the mortgage and note have been delivered to that party. It is further argued that case law provides that a mortgage can be transferred by delivery, without a written assignment.

The Defendant, Jeffrey Miller, by his attorney, argues that the prior decision was correct in finding that, in the absence of proof that both the Note and the Mortgage sought to be foreclosed have been assigned to the Plaintiff, the Plaintiff is without standing to maintain a foreclosure action. The Defendant further argues that the Plaintiff has again failed to establish that it is the holder of both the mortgage and the underlying debt.

In reply, the Plaintiff’s counsel argues that the Court of Appeals held that where a mortgage is recorded with MERS named as the lender’s nominee and mortgagee on the instrument, the beneficial ownership and servicing rights may be transferred among MERS members, and that a reading of the Mortgage, Note and Assignment “make clear” that both the Mortgage and Note were assigned.

Conclusions of Law
The Plaintiff herein is requesting that the Court reconsider its decision that the Plaintiff failed to establish that it has standing in this action, due to the lack of a reference to the Note in the Assignment of the Mortgage.

The Plaintiff’s Counsel is apparently abandoning the arguments which she made in opposition to the Defendant’s prior motion to dismiss, in which she first cited nonexistent language in the Assignment, claiming that the Assignment explicitly assigned the mortgage “together with the bond or obligation described in said mortgage, and the moneys due to grow thereon with interest” (Emphasis added by Plaintiff’s counsel) (See, Affirmation of Megan B. Szeliga, Esq., affirmed on March 6, 2009). The second assertion made by Plaintiff’s counsel was that “[a]s a matter of course, the note also follows the mortgage,” and that “title to the Note passed upon physical delivery from MERS to the Plaintiff” (See, Affirmation of Megan B. Szeliga, Esq., affirmed on March 6, 2009, ¶16). The assertion that the note follows the mortgage is unsupported any law, and the assertion that the original note was transferred by physical delivery to the Plaintiff is made only in an affirmation by Plaintiff’s counsel and is unsupported by any evidentiary factual support from a person with personal knowledge of the facts.

The Plaintiff’s counsel acknowledges that the Note is a negotiable instrument (See, [*3]Affirmation of Megan B. Szeliga, Esq., affirmed on March 6, 2009, ¶ 19). In Slutsky v. Blooming Grove Inn, Inc., 147 AD2d 208, 542 NYS2d 721 [2nd Dept., 1989], the Court held that when “[t]he note secured by the mortgage is a negotiable instrument ( see, UCC 3-104) [it] requires indorsement on the instrument itself or on a paper so firmly affixed thereto as to become a part thereof’ (UCC 3-202[2] ) in order to effectuate a valid assignment’” of the entire instrument (cf., UCC 3-202[3], [4]).”

In the case at bar, the Note attached to the Plaintiff’s papers contains the following undated, unexplained indorsement on the last page thereof, “Pay to the Order of Wells Fargo Bank, N.A. without recourse by: Real Estate Mortgage Network, Inc., Eric Hahn, Vice President.” It would appear, therefore, that the beneficial interest in the Note was transferred to Wells Fargo Bank, N.A., and that it is Wells Fargo, N.A. who is entitled to receive payments under the Note. No date was provided for that transfer. By contrast, in Mortgage Electronic Registration Systems, Inc. v. Coakley, 41 AD3d 674, 838 NYS2d 622 [2nd Dept., 2007]), the Court outlined the history of indorsement from the original mortgage, to another transferee, followed by an indorsement in blank which was ultimately transferred and tendered to MERS. The Coakley Court concluded that it had been established that MERS was the lawful owner of the promissory note at the commencement of the action, and of the mortgage, that it had standing to bring the action.

The Court notes that the Lender listed on the Note is Real Estate Mortgage Network, Inc. (no reference in contained on the Note to indicate that MERS has become the nominee of the lender on the note), and the Note further provides that anyone who takes this Note by transfer and who is entitled to receive payments under the Note is called the Note Holder.

The Court finds no proof in the papers that the Note was transferred from the Lender described on the Note to MERS as a Note Holder, and even if there was proof of an initial transfer to MERS, there was no proof that the Note was then transferred from MERS to the Plaintiff.

The documentary proof provided by Plaintiff’s counsel supports a finding that the Note at issue was transferred to Wells Fargo Bank, N.A., whereas the Assignment of Mortgage indicates that the mortgage was assigned by MERS, as nominee for Real Estate Mortgage Network, Inc., to the Plaintiff herein.

In Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2nd Dept., 1988] the Court held that the assignment of a mortgage without transfer of the debt is a nullity and a cause of action for foreclosure must fail. In Merritt v. Bartholick, 36 NY 44 [1867] the Court of Appeals held that as a mortgage is but an incident to the debt which it is intended to secure (cites omitted ), the logical conclusion is that a transfer of the mortgage without the debt is a nullity, and no interest is assigned by it. The security cannot be separated from the debt, and exist independently of it. This is the necessary legal conclusion, and recognized as the rule by a long course of judicial decisions.” It should be noted that in MERSCORP, Inc. v. Romaine, 8 NY3d 90, 828 NYS2d 266 [2006], Justice Ciparick, in her concurring opinion specifically notes that the Court’s ruling left for another day the argument made by the County of Suffolk and various amici “that MERS has violated the clear prohibition against separating a lien from its debt and that MERS does not have standing to bring foreclosure actions * * * (see, e.g., Merritt v. Bartholick, 36 NY44, 45 [1867]). [*4]

The Plaintiff’s counsel has argued that the transfer of the note to the Plaintiff is implied by a combined reading of the Assignment and the Mortgage itself, but the Court finds that the Plaintiff has failed to establish that it is a holder of the note by indorsement at the time the foreclosure action was commenced (First Trust Nat. Ass’n v. Meisels, 234 AD2d 414, 651 NYS2d 121 [2nd Dept., 1996]), nor did the language of the assignment explicitly assign “the note or obligation described and secured by said mortgage”(In re Stralem, 303 AD2d 120, 758 NYS2d 345 [2nd Dept., 2003]). Accordingly, the Court shall not alter its prior finding that the Plaintiff failed to establish that it has standing to maintain the instant mortgage foreclosure proceeding.

Wherefore, based on the foregoing, the Plaintiff’s motion seeking reargument is denied.This memorandum shall constitute the Decision and Order of this Court. The original Decision and Order, together with the motion papers have been forwarded to the Clerk’s office for filing. The filing of this Order does not relieve counsel from the obligation to serve a copy of this order, together with notice of entry, pursuant to CPLR § 5513(a).

Dated: October____, 2009

Monticello, New York

ENTER

__________________________________________

HON. MARK M. MEDDAUGH

Acting Supreme Court Justice
erlinda, on November 5th, 2009 at 6:32 pm Said:

because they are not the real party to modify the loan, neither have the right for make any legal arrangement. like what neil always said these are people who are the “pretenders” trying to steal our properties. i don’t make any deal with the devils. i don’t make payment to the wrong parties so the only way we could win this fight is to bring them to court. some judges and lawyers are still can’t get it because this is a new legal crisis that hit america, the biggest “fraud” of all time. believe me time will come that all those who were responsible for this “FRAUD’” and PONZI MORTGAGES WIL BE BEHIND BARS. IT IS JUST A MATTER OF TIME.
dasmom, on November 5th, 2009 at 5:15 pm Said:

“If the borrower is mediating in bad faith or is really not available or able to engage in a meaningful mediation then we’ve wasted the court’s time,” Townes said.

Townes is not considering that the lender could be wasting the court’s time and the borrower’s time. My foreclosure case has been in a mandated court mediation program for over 6 months, with no progress made because the lender always promises to come back with answers or a mod agreement and never does. There are no teeth in mediation
dasmom, on November 5th, 2009 at 4:04 pm Said:

“If the borrower is mediating in bad faith or is really not available or able to engage in a meaningful mediation then we’ve wasted the court’s time,” Townes said.

Townes is not considering that the lender could be wasting the court’s time and the borrower’s time. My foreclosure case has been in a mandated court mediation program for over 6 months, with no progress made because the lender always promises to come back with answers or a mod agreement and never does. There are no teeth in mediation.
Marcus, on November 5th, 2009 at 2:53 pm Said:

Fla. Justices Consider Mediation For Foreclosures
Source: AP

TALLAHASSEE, Fla. – Nov. 5, 2009 – Mediation would be a good way to expedite a flood of mortgage foreclosures, members of a foreclosure task force said Wednesday, but some disagreed on the details in oral arguments before the state Supreme Court.

Florida’s courts are currently trying to cope with more than 290,000 foreclosure cases.

“What this court system has is virtually a tsunami of these filings,” said Justice Barbara Pariente.

A majority on the high court’s Task Force on Residential Mortgage Foreclosures recommended trying mediation on owner-occupied homes before cases go to court, with lenders picking up the tab. Borrowers would be contacted by phone and mail and asked to participate. The high court did not immediately act on the proposal.

“The data that the banks have says the earlier in the process you get into mediation, the better and more likely you are to resolve the case,” task force chair Circuit Judge Jennifer Bailey of Miami said in an interview. She argued for a statewide managed mediation system.

Minority members said mediation should be offered only if ordered by a judge, and the costs – an estimated $750 per case – should be split 50-50 between lenders and borrowers.

Chief Circuit Judge Lee Haworth of Sarasota said borrowers who have the means to pay should have “skin in the game.”

The Florida Bankers Association supports that option. Without making a financial commitment to the mediation process, borrowers may try to use it to delay foreclosure, association lawyer Virginia Townes said in an interview.

“If the borrower is mediating in bad faith or is really not available or able to engage in a meaningful mediation then we’ve wasted the court’s time,” Townes said.

Bailey said the value of getting the cases decided sooner will outweigh the lenders’ upfront costs. If loans can be restructured through mediation those costs would be included and ultimately paid by the borrowers.

Rebecca Storrow, alternative dispute resolution director for the 15th Circuit Court in Palm Beach County, argued for the traditional court-ordered mediation system. She said it is working well in her system and is cheaper than the task force’s proposal.

The justices also heard arguments on proposed emergency rule changes.

One would require lenders to verify they hold mortgages before going forward with cases. Many lenders initially say they have lost the note, which can result in wasted court time because the notes eventually are found in nearly every case, Bailey said.

She said the rule would tell lenders to double-check before filing. Townes argued it would be a costly and needless step.

The other contested rule would require lenders to cite a reason and get a court order to cancel a foreclosure sale. Now all they have to do is not show up at the sale.

Bailey said 65 percent of sales in Miami-Dade County are canceled that way every month, causing delays for all sales.

Marc Ben-Ezra, a Fort Lauderdale lawyer who represents lenders, opposed the rule. He said it would result in unintended sales if lenders settle with borrowers at the last minute or if delayed by a flat tire.

The sale delays can be costly for borrowers who often mistakenly think they must move out before their homes are sold, Bailey said.

“They’re still on the hook for these houses,” she said. “They’re on the hook for the taxes. They’re on the hook for any code violations.”

It’s also costly for condominium and homeowner associations because no one’s paying monthly fees on those properties, Bailey said.

marcus@foreclosureProSe.com
www. foreclosureProSe.com
Marcus, on November 5th, 2009 at 1:56 pm Said:

More info on that NY case.
Court: New York Civil Supreme
Index Number: 110214/2008
Case Name: HSBC BANK USA, N.A. vs. ANDERSON, LYDIA
Case Type: Foreclosure

Do the search by index number.

You can download the case from this link:
www. foreclosureprose.com/case-study/

marcus@foreclosureProSe.com
Abby in CA, on November 5th, 2009 at 1:32 pm Said:

Dan–great.

And that is probably why we are seeing the ‘forgeries’ on the Corp. Deed of Assignments—it is the agents of the transferee’s.
Dan Edstrom, on November 5th, 2009 at 1:17 pm Said:

Abby,
In all cases I have heard of, the transferor is NOT represented. The transferee accomplishes the transfer by using “agents” of the transferee to assign the instrument from the transferor – without their knowledge, consent or even consideration (no consideration = fraud). This putative transfer occurs AFTER the transferee has initiated foreclosure proceedings, which PROVES they had PRIOR knowledge that the instrument was dishonored. In many instances, the transferee also has prior notice that the instrument was defective (for instance, if you already sent in a QWR and/or written demand and/or debt dispute where you specifically pointed out fraud or other unlawful activities).

I am not a lawyer and this is not legal advice. This is my opinion only and how I am proceeding with my case.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
mavslapp, on November 5th, 2009 at 1:08 pm Said:

A QUESTION FOR MICHAEL, LISA E. & OTHER ELITE RESEARCHERS HERE AT LL

Back in 1989 I ‘refinanced’ my 5 Fainwood Circle, Cambridge MA home of four years with Cambridgeport Bank, which later was acquired by Citizens Bank. It was a No Doc loan (but NOT a subprime, I don’t believe).

Citizens is a subsidiary of RBS (Royal Bank of Scotland) which was involved through another of its subsidiaries Greenwich Capital Markets with many subprime lenders (see below).

My Cambridgeport then Citizens loan may have been sold to Dovenmuehle, which serviced it. That’s where I sent my payments the last few years. I suspect Dovenmuehle only serviced it, and it may have been assigned to one of the affiliated subprime lenders. Why? Because following 9/11 when I attempted to modify it under FHA mandated guidelines, they were intent on foreclosing. I thought then their reluctance to work with me was totally counterintuitive.

In light of the recent Judge Long MA decision, I’d like to look back and reinvestigate all assignments, etc related to my loan (paid off in 2005 a year before the market topped). These facts were never produced by Citizens in my repeated requests for production of documents during a hard-fought Chap 13 BK.

The question I have is, HOW might I use assignments and MA state recording requirements to track what was denied me in discovery? My Registry of Deeds is Middlesex County (Southern). I’d like to see if Dovenmuehle was anything more than a servicer AND if my loan got securitized through RBS or its Greenwich Capital Markets.

Also, did Cambridge Trust loans ever get securitized?

THANKS
ALLAN
B e M o v e d @ A O L . c o m

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Some relevant paragraphs from ICP (Inner City Press’s release on RBS

“Update of September 6, 2004 — Annals of preemption: ICP’s review of the list of applications pending before the FDIC finds a series of applications including Charter One Bank, National Association and Citizens’ FDIC-supervised state banks in PA, MA, CT, etc..

Apparently RBS’ Citizens is moving toward an OCC charter and preemption of all states’ consumer protection laws, something for which HSBC, Morgan Chase and other have been criticized. But as usually with RBS Citizens, it’s being done stealthly — sneakily, one might even say…

Update of July 12, 2004: Better late than never, we suppose: after Inner City Press requested under FOIA the withheld portions of Royal Bank of Scotland’s list of funded subprime lenders, the Fed asked RBS to “reconsider” its withholding. Lo and behold on July 9, a longer version arrived, this time listing the following subprime lenders with which RBS does business:

Saxon Mortgage, Inc.; Aames Capital Corp.; Ameriquest Mortgage Company; Argent Mortgage Company; Asset-Backed Funding Corp; BofA, CDC Mortgage Capital; Centex Home Equity Company; CitiFinancial Mortgage Company; Clearwing Capital LLC; Credit Based Asset Servicing and Securitization, LLC; Delta Financial Corporation; Equifirst; Equity One, Inc.; Finance America, LLC; First Franklin; GMAC; Green Tree Investment Holdings II, LLC; Long Beach Acceptance Corporation; Long Beach Mortgage Company; NovaStar Financial, Inc., Option One Mortgage Corporation; Countrywide Correspondent Lending, Fremont Investment & Loan; Washington Mutual Bank; Residential Funding Corporation, Truman Capital Investment Fund LP, etc… We’ve put in a supplemental comment, and are preparing another.

Update of July 5, 2004: from Reuters of July 1, regarding Royal Bank of Scotland’s Greenwich Capital Markets: ” As part of an effort to diversify its bond business, RBS Greenwich Capital Markets is set to raid the ranks of Banc One Capital Markets, a unit of Bank One Corp…

Consumer’s loan was originated by Cambridgeport bank which was acquired by Citizens. Loan was then sold to Dovenmuehle. Dovenmuehle told the consumer they would have to obtain insurance coverage in the amount of the loan. Citizens spoke with Dovenmuehle, who agreed to honor the original amount of flood insurance coverage.” Complaint # 105275, Page 36 of 70.”

from http://www.innercitypress.org/rbs.html
Abby in CA, on November 5th, 2009 at 12:48 pm Said:

Any comments on this regarding the promissory note and the securities trust??

Well that trust has no enforcement rights under UCC 3-203 (b) which states….

• (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.
Deontos, on November 5th, 2009 at 12:19 pm Said:

POWER SHIFT: Massachusetts AG Preliminary Injunction
to halt predatory loan foreclosure
AFFIRMED…….

November 03, 2009 – For immediate release:

Appeals Court Affirms Preliminary Injunction Against Option One and H&R Block Mortgage, Restricting Foreclosures on Unfair Subprime Loans

BOSTON – The Massachusetts Appeals Court has affirmed a preliminary injunction obtained by Attorney General Martha Coakley’s Office against Option One Mortgage Corp. (“Option One”) and H&R Block Mortgage Corp. (“H&R Block Mortgage”), subprime lenders that originated thousands of loans in Massachusetts. The preliminary injunction, issued by then Judge Ralph D. Gants in Suffolk Superior Court last November, prohibited Option One and American Home Mortgage Servicing, Inc. (“AHMSI”) from initiating or advancing foreclosures on mortgage loans that the Court found to be “presumptively unfair.” Under the order, which affects up to 9,700 Massachusetts loans originated by Option One, AHMSI must give the Attorney General’s Office advance notice before it intends to foreclose on any such loan, and if the Attorney General objects, obtain approval from the Court before foreclosing on a loan.

Rest of November 2009 Release:
http://www.mass.gov/?pageID=cagopressrelease&L=1&L0=Home&sid=Cago&b=pressrelease&f=2009_11_03_option_one_injunction&csid=Cago

Appeals Case File:
http://www.mass.gov/Cago/docs/press/2008_11_12_option_one_pi_attachment1.pdf

November 2008 Press Release
http://www.mass.gov/?pageID=cagopressrelease&L=1&L0=Home&sid=Cago&b=pressrelease&f=2008_11_12_option_one_pi&csid=Cago
Deontos, on November 5th, 2009 at 9:29 am Said:

Jeff
By chance……
Do you have a link directly to that
Case File?
jeff, on November 5th, 2009 at 7:44 am Said:

Great New York Case

Possible Tila violations and Fraud

To long to post 13 pages

HSBC Bank USA, N.A. v Anderson
2009 NY Slip Op 32526(U)
September 25, 2009
Supreme Court, New York County
Docket Number: 110214/08
Judge: Michael D. Stallman
Republished from New York State Unified Court
System’s E-Courts Service.
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M.Soliman, on November 5th, 2009 at 5:05 am Said:

Where the Deed is Defect the Conveyance is Unenforcable
Thursday, November 05, 2009 3:26: GMT
By M Soliman

Stan
Your question is – “Can I still rescind the mortgage loan since I started bankruptcy?”

NO! Rescind what? Do you have the difference is cash to fund the recession? [(loan-Costs) =Net to bank)] No I am sure. Said it before and I will say it again and again and again (I don’t stutter!).

Look “Let me say this about that” (JFK). If you have a right to rescind share with me you’re thinking on what grounds (Sonic peanute butter and nuclear jelly and after how many years? The obligation is botched and that’s that due to errors, omission and negligence. Why rely on a government enforced regulation with a statute of limitations? (Who goofed I must know)

A tort or civil violation or better yet criminal act is not limited as a RESPA claim one aniticpates under ACORNCOB….I mean HUD. If there was a right to recission then your attorney should include it as an asset* in the chapter proceeding.

Differentiate yourself from the masses. The Security Instrument is Voidable due to Fraud

(1) You’re not going to get a judge to wipe out a lien. Argue the deal in trial by filing a motion.

(2)You owe the money. Let the court known that and don’t tell them you were looking for a discount of modification. Wrong and don’t forget, the predatory loan is something BK judges are especially keen on reminding us. The debtor and the lender are both parties to a mutually culpable.”bad loan”. (I heard this myself in a Meeting of the creditors with counsel and client while petitioning for an adversary.

(3) Tell the judge your desires to pay everything back to the penny. “Your Honor, problem is, they won’t work with me!”

(4) But the circumstances in the market and likelihood for a predatory loan are further complicated by the E&O , negligent closing issues and requirement for investigating fraud.

In California (most states ) the deed is resting disturbed by virtue of the courts willing nests to identify a predatory loan. This is a fact despite culpable parties and setting consideration aside. So court puts foot in its mouth.

Grasshopper; the pebbles are there four you to snatch from the judges hand. No party can rely on a defective mortgage or deed to execute a security in a recovery. zThe facts are the deed , if determined to be defect will subject the conveyance to become voidable and bank cannot convey the property back to oitself or a (controlled) thrid party. So the deed upon sale is nullified and rescinded back to the date of issuing the Notice of sale. No TRO , no injunction and no consolidation is needed here as these arguments seemed to fit nicely into a decision a Judge can easily make with no fear of being labeled a Boyco defector.

Ever hear a Judge in a detainer matter tell the holdover “great case you got and you should file your claim elsewhere….Now get out!

Well Sire, now he does the same for the creditor….nice case, , good standing…Now gets out!

The conveyance of real property cannot take place where the deed is defect. Where the deed is defect the conveyance is unenforcable and the sale must fail.

So now you owe all that money on the obligation but it is unsecured you see. And the deed can rest thereafter in its state of defectiveness however long necessary and for a life time. The creditor (lender) must bring an action against the pro se on their dime to recover the collateral . There you will have standing to question procedures and errors, demand production and call for interrogatories that can hurt .

Hopefully you will quite title prior to that time and place (24-36 months ) if the come back at all. And that’s not likley anytime soon. It’s in a separate action where if they do bring it – you’re a defendant.
Joshua, on November 4th, 2009 at 10:48 pm Said:

Hello guys,

I purchased a new home 2 yrs ago in a community that was still being developed at the time. When I went in I told the agent I could only afford a $1,000 a month payment, they told me use our preferred lender and we can get you very close to that number. We ended up with a payment of $1028. A year into my mortgage I am now paying $1230 a mo., because of a property tax escrow shortage. This is due to a grossly underestimated county tax assesment from when the house was first being built. Apparently, my estimated taxes were based on an undeveloped concrete slab without a home on it for only $40,000. Little did I know that this was the figure used to calculate my mortgage payment. Long story short, when the county finally realized that I had a home worth $160,000 my taxes quadrupled! I’m now paying an extra $300 a month to make up for the escrow shortage, and am in risk of loosing my home. I feel mislead and that this should have been explained to me when my mortgage payment was being calculated. How can they possibly make an estimate in “good faith” that my taxes would be around $40 a month when they knew full well that their figures were based on an empty lot of land? I feel like this is a case of predatory lending, or maybe even grounds for a rescission. Your thoughts and opinions here would be greatly appreciated here.
Lisa E., on November 4th, 2009 at 9:29 pm Said:

Arpad, there are many options available to you.

Make darn sure that they did not answer your Discovery (check the docket) as they may just have ……….um………..inadvertently left you off the mailing list.

IF no response at all, THAT is your answer!

You actually have the law on your side if FDLG blew off your discovery without even a kiss goodbye. In my case, I got the “kiss goodbye” meaning, “Sorry, no dice! Your questions don’t suit us so we choose not to answer, you silly Pro Se, you!”.

There’s a LOT more, but you first must be sure that there is zero response to your discovery request.

***I am not an attorney***

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
Marcus, on November 4th, 2009 at 9:24 pm Said:

Arpad,
Don’t believe a word of what they said. File an affidavit in opposition to summary judgment. You can find a sample affidavit at this link: www. foreclosureprose.com/pleadings/
If they don’t answer your discovery, file a motion to compel, and schedule a hearing with the judge. Always bring a court reporter with you. Keep pounding them.

marcus@foreclosureProSe.com
www. foreclosureProSe.com
rena, on November 4th, 2009 at 9:16 pm Said:

Some good read about WAMU/CHASE and their Predatory Lending practices and some law suits against them. Also some comments about the articles. I found them interesting hope you all will too.

http://seattletimes.nwsource.com/html/businesstechnology/2010131911_wamu25.html

http://seattletimes.nwsource.com/html/businesstechnology/2010136506_wamu26.html

http://seattletimes.nwsource.com/html/businesstechnology/2010136516_simonson26.html

http://seattletimes.nwsource.com/html/northwestvoices/2010147184_wamuseattletimesspecialreport.html

http://seattletimes.nwsource.com/html/businesstechnology/2010131947_wamuside25.html
usedkarguy, on November 4th, 2009 at 8:53 pm Said:

arpad, do you have any evidence of fraud? It’s hard to give answers or guidance because every case is different. You have to find a cause of action against the lender. If they are foreclosing on you “as trustee”, and somebody else originated the loan (like mine) the judge sides with the plaintiff because your claim is not against the party suing you. look up some state rulings where you live and find a law that says all the parties in interest have to be a party ot the action (FORECLOSURE LAW). If HSBC is suing you as trustee, claim that they have no pecuniary interest; they are just a figurehead, they don’t get the money, how can you have hurt THEM by not paying? If you had an ARM, are you still getting notices of intent to change interest rate letters where the payments show on time, and the note balance continues to decline? It might not matter, my friend. The judge may just say “did you pay?” You say “no”, he says “you lose”. As a pro-se litigant, the judge has no obligation to guide you through the law. YOU NEED TO GET AN ATTORNEY.
Abby in CA, on November 4th, 2009 at 6:59 pm Said:

Arpad-I am not an attorney and you should always consult one. This is what I did when served with MSJ.

I filed a counter motion for summary judgment along with my response and opposition to their MSJ.
(like football…go on the offensive)

I think you may have to provide your undisputed facts and supporting evidence on the counter motion for summary judgement.

Does anyone else have any legal strategy, advice or success on this?
Abby in CA, on November 4th, 2009 at 6:47 pm Said:

article about WAMU and judge who is not letting a multibillion dollar case go.

the employees (former/brave) are providing information about the predatory lending driven by executives.

http://seattletimes.nwsource.com/html/localnews/2010155585_apuswamusecuritieslawsuit1stldwritethru.html?prmid=obnetwork
Abby in CA, on November 4th, 2009 at 5:39 pm Said:

Angela–please check. I think criminal complaints have to be filed by the D.A..

They write them, they file them.

I think you’d have to work with your D.A.
Kalona S B, on November 4th, 2009 at 4:44 pm Said:

Hmmm I wonder if $3.500 is some magic number these people use to scam us again on the modifcation BS. One after the other after the other. Incredibly sneaky about it all. Bluntly lie or come up with BS like 90% gauranteed to modify and then u have ask lots of the questions to get the rest of the plan.

It’s one big trap set up over and over. The bad part is the so called company that has ur loan sends it all over the place. They won’t talk to u. So u have to figure out who is real and who isn’t and the fact is 90% are fakes. I would guess more. How do u fight the ghost and the BSers? Mean while I read these articles how home sales are on the rise. Yeah right.

I wish we had a group here in Hawaii and some legal help. Odd we have countless attorneys but none claim to be able to take these cases and if on rare chance they do, u better be rich. With the money u pay for fees, cost and attorneys, u can most likely buy another home.

OK end vent. Just had to get that out. This stuff is so out of control! So illegal, so down right dirty!
Arpad, on November 4th, 2009 at 3:54 pm Said:

Just received a motion for summary judgment from the HSBC’s attorney.( FDLG) They never answered my discovery motions, and they claim that my affirmative defenses are “legally insufficient” . They also claim they will have the original note at the hearing. Wondering if they are bluffing and if they do have it, what should i do?
Any input Guys?
John, on November 4th, 2009 at 3:30 pm Said:

STOP, in California several laws have just passed that state people cannot take your money for these false promises of fixing modifying whatever your home loan, do you see any blogs on successes, no only people looking for attorneys to help! I spent over $13,000 and I know others who have spen just as much and have nothing for it, I just lined some attorney’s pocket. Do you see any blogs or black list for attorneys that have taken our money, No of course not! lets get real here, this is all good and said but when attorney’s and even judges start out they work for these corporations do you think they don’t remeber who gave them there first jobs! Lets see successful story blogs with case numbers not just names, don;’t get scammed like I did by false promises that the title is wrong, MERS is wrong!!!!!!!!!! You get my house free and clear and I will get a new loan and gladly pay you $50,000! But I pay nothing up front, any takers let wait and see what happens?????????????
Angela Dennis, on November 4th, 2009 at 3:22 pm Said:

Lisa E. I agree with you 100%!!!!! I’m still waiting for an order from the Appellate court. But I’m here thinking that I should go ahead and file the criminal complaint… why the wait???? fraud has been committed. In the meantime, the sneaky attorneys motioned and obtained an order to sell ppty again… imagine that! they motioned the judge who recused himself… so I sent a motion to strike to the appellate court, as well a letter to the administrative judge. So the judge who recused himself and handed down the order voided his order saying he made a mistake. Sure enough, the appellate court vacated the order for sale also!!!!

My partner said he met you!!!! Great!

Let’s keep fighting… we MUST win… huge transfer of wealth coming back to us… right where it belongs.

angela
Fannie Mae and Freddie Mac Roll Out New Deal for Homeowners, on November 4th, 2009 at 3:19 am Said:

[...] estate front; “Fannie Mae and Freddie Mac have directed their network of servicers to halt all foreclosure and eviction proceedings between Nov. 26 2008 and Jan. 9, 2009, meant to give a recently announced [...]
Lisa E., on November 4th, 2009 at 12:26 am Said:

L Fitzgerald!

I’ve come to the same conclusion!

Let’s walk these cases out of civil court into CRIMINAL court where they rightfully belong!

The remedies for us may lie in criminal court with the tax payer funded legal assistance of the Prosecutor and the Attorneys at the Office of the Attorney General. Now, that’s a way of putting TARP funds to GREAT use!

Everyone should look at their state’s Attorney General’s website, looking for information on filing a claim in mortgage fraud or consumer fraud. Present a well reasoned, calm, unemotional (yeah……like I’m one to talk here) case with clear examples of fraud. Point to your fake assignments, forged notes, illegal witnesses signing as reps of many companies, foreclosure mill attorney “misconduct”.

This is an interesting approach!

Perhaps one that might have sharper teeth than “Produce the Note”?

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
Deontos, on November 3rd, 2009 at 3:59 pm Said:

Can we benefit from Plaintiff “Discovery”
in this case”

Can we develop “causes of action”
from their RESPA violations?

Seems to be “in the mix” of fraudulent schemes
that we are here trying to defend against and
overcome.
———————————————————-

3rd Circuit Revives Class Action Against Countrywide Over Alleged Kickback Scheme

In a huge setback for Countrywide Financial Corp., a federal appeals court has revived a national class action brought by homebuyers who accused the lender of concocting a kickback scheme in which buyers were required to purchase mortgage insurance from one of a handful of companies that in turn took out reinsurance policies from one of Countrywide’s wholly owned subsidiaries.

In court papers, the plaintiffs lawyers said the suit was brought to “challenge the payment of illegal kickbacks and unearned fees” that stemmed from a scheme concocted by Countrywide Financial and its subsidiaries — Countrywide Home Loans Inc. and Balboa Reinsurance Co. — to “circumvent RESPA’s strict prohibitions on abusive practices in the provision of home purchase settlement procedures.”

The suit alleged that Countrywide set up a “captive reinsurance” scheme in which Countrywide referred buyers to one of seven primary mortgage insurers that in turn “reinsured” their policies with Balboa — thereby effectively “kicking back” a portion of the premium to Countrywide.

Article:
http://www.law.com/jsp/article.jsp?id=1202435014318&rd_Circuit_Revives_Class_Action_Against_Countrywide_Over_Alleged_Kickback_Scheme

Case File Appeal:
http://www.ca3.uscourts.gov/opinarch/084334p.pdf
David, on November 3rd, 2009 at 12:33 pm Said:

Just a thought – Can I Patent my house, mortgage agreement, and/or property address? Since the lender’s don’t mind rolling the dice with our mortgage loans – without our permission – why can’t we sue them for a slice of the profits earned in their cesspools?

Why couldn’t it become intellectual property rights…? It is our property…! Shouldn’t we be earning royalties or something?

Okay, so maybe it’s a bit on the outer edge, but is it doable? I think it might be kind-a funny to see how they deal with the notion of telling their investors – they owe us 50% of their earnings from the entire cesspooling agreement…?
Adrienne, on November 3rd, 2009 at 10:59 am Said:

Goldman takes on new role: taking people’s homes

By Greg Gordon, McClatchy Newspapers Greg Gordon, Mcclatchy Newspapers
Mon Nov 2, 6:00 am ET

SAN JOSE, Calif. — When California wildfires ruined their jewelry business, Tony Becker and his wife fell months behind on their mortgage payments and experienced firsthand the perils of subprime mortgages.

The couple wound up in a desperate, six-year fight to keep their modest, 1,500-square-foot San Jose home, a struggle that pushed them into bankruptcy.

The lender with whom they sparred, however, wasn’t the one that had written their loans. It was an obscure subsidiary of Wall Street colossus Goldman Sachs Group .

Goldman spent years buying hundreds of thousands of subprime mortgages, many of them from some of the more unsavory lenders in the business, and packaging them into high-yield bonds. Now that the bottom has fallen out of that market, Goldman finds itself in a different role: as the big banker that takes homes away from folks such as the Beckers.

The couple alleges that Goldman declined for three years to confirm their suspicions that it had bought their mortgages from a subprime lender, even after they wrote to Goldman’s then-Chief Executive Henry Paulson — later U.S. Treasury secretary — in 2003.

Unable to identify a lender, the couple could neither capitalize on a mortgage hardship provision that would allow them to defer some payments, nor on a state law enabling them to offset their debt against separate, investment-related claims against Goldman.

In July, the Beckers won a David-and-Goliath struggle when Goldman subsidiary MTGLQ Investors dropped its bid to seize their house. By then, the college-educated couple had been reduced to shopping for canned goods at flea markets and selling used ceramic glass.

Theirs is an infrequent happy ending among the hundreds of cases in which subsidiaries of Goldman, better known for sending top officers such as Paulson to serve in top Washington posts, have sought to contain bondholder losses by foreclosing on properties and evicting delinquent borrowers.

Goldman spokesman Michael DuVally declined to comment on individual cases or on the firm’s new role in bankruptcy courts.

Joining other Wall Street firms that bought millions of subprime mortgages, Goldman companies have gone to courts from California to Florida seeking approval to foreclose on the homes of middle- and lower-income Americans who couldn’t keep up with their loans’ soaring monthly payments.

Some borrowers were speculators or homebuyers who exaggerated their incomes on loan applications, thinking they’d always have an escape hatch because housing prices would keep rising. Others, however, were victims of fast-talking mortgage brokers who didn’t explain that the loans’ interest rates could rise to as high as 15 percent. Many borrowers who defaulted on their mortgages may never qualify for a home loan again.

In court encounters, Goldman and other Wall Street firms have faced the impact of their own wheeling and dealing. Many of the families being put on the street never would’ve gotten their big mortgages if investment banks hadn’t provided a seemingly insatiable secondary market for millions of loans to marginally qualified buyers.

Subprime borrowers were supposed to provide a safe income stream for investors who bought mostly high-grade, triple-A-rated bonds from Goldman and bigger subprime players, such as now-defunct Lehman Brothers and Merrill Lynch .

Now, millions of these borrowers have defaulted on mortgage payments, contributing to a historic slump in home prices and depressing the bonds’ value. Half the homes in some California neighborhoods have been subject to foreclosures or short sales, in which a home is sold for less than the mortgage balance, and either the seller or the lender takes a loss.

Earlier this year in Los Angeles , the Wall Street giant took possession of the home of Gladys Aguirre , a housecleaner who’s married to a construction worker. Together, the couple listed monthly earnings of $7,480 , including $3,480 from a job she’d held for two months.

Aguirre originally took a $444,000 subprime mortgage on Sept. 1, 2005 , from Argent Mortgage Co. , a subsidiary of big subprime lender Ameriquest Mortgage Co. , which shut down in 2007. The adjustable interest rate sent her monthly payments zooming to $3,800 from $2,479 , and Aguirre couldn’t keep pace on that loan or a $119,000 second mortgage. She filed for bankruptcy protection.

Aguirre’s Los Angeles lawyer, Eber Bayona , declined to discuss her case, but said that subprime loans amounted to “setting up the person for failure” because interest rate adjustments hit borrowers with “shock payments.”

For example, he said, loan agents promised applicants that they could buy a $600,000 house for payments of $1,200 a month, and the buyers “never read the fine print . . . (and) didn’t know their interest would increase and that eventually they would lose their house and their money.”

In San Fernando, Calif. , Dina Alfero-Pacheo qualified for two mortgages totaling nearly $500,000 , with monthly payments starting at $2,004 . By 2007, the payments had grown to $3,761 . In a bankruptcy filing early this year, Alfero-Pacheo said she was a bartender earning $3,800 a month. Goldman bought her first mortgage from Argent and recently got title to the house, which had sunk in value to $280,000 from more than $500,000 .

In Orlando, Fla. , Adela Mendez seems to be someone who would’ve known the risks when she took a $164,000 mortgage from Argent on her home in 2005 and a $75,000 second mortgage a year later. In a bankruptcy filing this year, she listed her occupation as a loan specialist for Washington Mutual , a leading subprime lender that collapsed last year.

Not only did Mendez fall 11 months behind on her mortgage payments, but her home’s value also plummeted to $100,000 . Goldman Sachs Mortgage, which bought the Argent loan, took the house — and at least a 50 percent loss.

Alfero-Pacheo and Mendez, whose cases are detailed in court records, couldn’t be reached to comment.

The Beckers charged that in their case, Goldman engaged in years of obfuscation and resistance.

“In bankruptcy court, they tried to portray us as incompetent or deadbeats,” said Celia Fabos-Becker , blinking back tears as she sat with her husband in their living room, with boxes of mortgage-related documents surrounding them.

The couple thought they’d made a safe bet in 2000 when they opened a retail jewelry business in two San Diego County areas populated mainly by military personnel.

The wars in Afghanistan and Iraq , however, brought big military call-ups, sapping their market. After a wildfire ravaged much of the area in 2002, the Beckers refinanced their house to generate some $70,000 in cash to prop up their two stores. They wound up with an adjustable-rate, subprime loan from WMC Mortgage Corp. , an arm of General Electric’s GE Money unit, and a 10.75 percent second mortgage with the same lender.

A second wildfire in 2003 all but killed their business and left the couple reeling financially as interest-rate adjustments pushed the mortgage payments higher.

“We’d gotten to the point where I was cutting my own hair. I was cutting his on occasion,” Fabos-Becker said.

“And trolling the Goodwills,” Tony Becker said.

Tony Becker , an engineer, took short-term contract jobs amid the technology bust. Celia Fabos-Becker , meanwhile, found a provision in the mortgages that allowed the borrower to push payments to the end of the loan term in the event of a disaster such as the two fires.

When she wrote to Paulson, however, lawyers for Goldman denied that it owned the Beckers’ mortgages. So did Germany’s Deutsche Bank , a trustee that was holding thousands of subprime mortgages Goldman had converted to bonds.

To stall foreclosure, the Beckers wound up negotiating “forbearance agreements” with Ocwen Loan Servicing, a Florida company, that required the couple to pay several thousand dollars under the threat that their house would be auctioned off in a week or a month, Fabos-Becker said. Their monthly payments rose to nearly $3,300 from $2,650 .

The couple already had taken Goldman and Morgan Stanley , another Wall Street firm, to arbitration over their $325,000 in stock market losses, accusing the investment banks of misleading investors about public offerings.

On the same day in June 2006 , Goldman sued to end the arbitration, and Ocwen filed papers seeking to foreclose on the Beckers’ home.

In desperation, the couple filed for bankruptcy protection. With no money to hire an attorney, they acted as their own lawyers.

As the months dragged on, Fabos-Becker finally found a filing with the Securities and Exchange Commission confirming that Goldman had bought the mortgages. Then, when a lawyer for MTGLQ showed up at a June 2007 court hearing on the stock battle, U.S. District Judge William Alsup of the Northern District of California demanded to know the firm’s relationship to Goldman, telling the attorney that he hates “spin.”

The lawyer acknowledged that MTGLQ was a Goldman affiliate.

That was an understatement. MTGLQ, a limited partnership, is a wholly owned subsidiary of Goldman that’s housed at the company’s headquarters at 85 Broad Street in New York , public records show.

In July, after U.S. Bankruptcy Judge Roger Efremsky of the Northern District of California threatened to impose “significant sanctions” if the firm failed to complete a promised settlement with the Beckers, Goldman dropped its claims for $626,000 , far more than the couple’s original $356,000 in mortgages and $70,000 in missed payments. The firm gave the Beckers a new, 30-year mortgage at 5 percent interest.

That lowered their monthly payment to $1,900 , less than half the maximum $4,000 a month their subprime loans could’ve demanded.

Fabos-Becker, 60, said that the trauma has left her hair “a lot grayer.” Much of the stress would have been alleviated, she said, if a law required lenders to identify themselves, especially to borrowers facing hardships.

“I take solace,” Tony Becker said, “in knowing that I was up against the worst possible opponent — the biggest, strongest investment bank in the world.”

( Tish Wells contributed to this article.)

(This article is part of an occasional series on the problems in mortgage finance.)
Dan Edstrom, on November 2nd, 2009 at 8:44 am Said:

Correction to last posting:

#2 said in the list was:

– The lender proved to the judge you owed the debt

It should have been:

– The opposing attorney convinced the judge you owed the debt to the party they were representing

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on November 2nd, 2009 at 8:41 am Said:

Don-CA,
I agree with this article from Patrick Pulatie 100%. You can make arguments and allegations until you are blue in the face, but when you CONCEDE or the judge DETERMINES that you are going up against your lender, your choices are minimal and your arguments are minimal. In this case you might have the ability to rescind and you might have claims, but if you OWE the money to the other side, you are an ant throwing small pebbles at a fortress. In these cases, one of 3 things happened (many other things could have happened but these are the ones I will focus on):

1) The loan was not securitized
2) The lender proved to the judge you owed the debt
OR
3) You (as PRO SE or PRO PER) or your attorney failed to property object and challange ALL “claims” by opposing counsel.

If you let opposing counsel make unsubstantiated claims without opposition, you will LOSE your case. Anyone can go into court and claim anything they want. This is how the lawyers for those filing foreclosure are winning. They make baseless claims that are not properly challanged. I believe these claims are not challenged because the alleged borrowers are to focused on the defenses raised on this site and are relying on them to get the judge to agree with you. The judge will automatically agree with the other side and will not believe you so you have to go on the offensive against everything the other side says. Objections, Motions to Strike and determining who is a competent witness with the proper foundation to testify are PARAMOUNT to you having any chance of success.

Disclaimer: I am not an attorney and this is not legal advice. This is for educational purposes and is information on how I am working on my own case.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
usedkarguy, on November 1st, 2009 at 6:58 pm Said:

Dan, change your name. Make it DanTwo or something. The fraudulent origination lends to the argument of predatory lending. If they gave you a loan that you really couldn’t afford (based on your actual income) or they used assets (real or made up) to qualify you for the loan, it is predatory. The extension of credit is not supposed to consume your assets. The “speedy closing” was their tool in obtaining your signature on documents that contained errant information. Now you’re in court and the Judge says “YOU signed it, didn’t you?”, very uncomfortable. The loan mod is a ruse. I wouldn’t sign it either. You need to start reading and get up to speed on what’s next. If you are serious about keeping your house, go file bankruptcy and and adversarial action and get your claims in front of a Federal Judge. You need an attorney.

This is just my opinion and doesn’t count for beans, much less legal advice.
Don-CA, on November 1st, 2009 at 5:35 pm Said:

Interesting article about TILA/RESPA:

TILA and RESPA Rescission Ineffective In Real-World Foreclosure Defense

by Patrick Pulatie

When facing foreclosure, the homeowner is always confronted with the difficult task of researching information to acquaint him or her with what to expect in the coming months. This research will include a number of different subjects covering such issues as the foreclosure process, loan modification, legal statutes, and current trends. Somewhere in the process of researching this information, the homeowner will come across the subject of forensic loan audits and TILA and RESPA. The question then becomes, “What is TILA and RESPA and how can it help me?”

TILA and RESPA are the two main pieces of Federal Legislation that govern certain processes regarding lending, and especially so in the mortgage lending arena. TILA stands for the Truth In Lending Act, and RESPA stands for the Real Estate Settlement Procedures Act. These are specific legislative acts designed to protect the borrower.

TILA is the main effort of Congress to ensure fair lending and to protect the borrower. Its purpose is to promote the informed use of consumer credit, the costs of borrowing money, the terms of the loan and other much needed information. It requires the providing of certain disclosures of relevant information for each transaction that is considered, and it provides the legal remedies for each violation of the Act.

RESPA is the “other” main effort of Congress to regulate lending. RESPA is designed to protect the borrower by ensuring (1) fair settlement proceedings through early disclosure of settlement costs, (2) the prevention of “kickbacks” and “illegal referral fees” that increase borrowing costs to the consumer, and (3) the prohibition of certain acts that increase borrowing costs.

There is much more detail to these acts, but the purpose of this article is to provide a basic understanding of the Acts and how courts and lenders are responding to various challenges. It will focus primarily on TILA, so that the reader will better understand the legal options of any TILA violation. (Most foreclosure defenses will be based upon TILA violations.)

Under TILA, when a mortgage transaction is considered, the lender must provide a borrower within three days of receiving a loan application a number of disclosures, of which the main disclosure is the Truth In Lending Disclosure. This disclosure identifies the terms of the loan, APR, Amount Financed, Finance Charge, Total Payments, and the Payment Schedule. These disclosures are to be as accurate as possible. The purpose of providing the disclosures is so that the borrower will be better able to compare loans from different lenders.

When the loan is ready to close, and you have the “final signing”, the lender is required to provide the borrower with a Final Truth In Lending Disclosure. This disclosure, along with the final settlement statement and the Right to Cancel Notice, are the key elements in foreclose defense, when arguing a TILA violation

TILA is a technical statute. This simply means that any “material violation” can invoke the remedies as provide for in the Act. The “material” violations that most frequently invoke potential remedies are:

APR
Finance Charge
Amount Financed
Total Payments
Payment Schedule
Right to cancel violations.
Common Remedies for violations of TILA are

Attorneys’ fees and court costs for successful enforcement and rescission actions.
Statutory damages, a minimum of $200 but no more that $2,000
Actual damages
Double the correctly calculated finance charge (but not less than $100 or more than $1,000 for individual actions).

Rescission

For the homeowner in foreclosure trouble, the most important of the offered remedies is Rescission, and this article will pay particular attention to it. The other remedies do not offer any ability to stop a foreclosure as Rescission can, but Rescission is entirely misunderstood and is often used in the wrong situation.

Rescission is the process of legally canceling a loan. If a violation of material disclosures is severe enough, and the threshold for severity is quite low, then the borrower has the opportunity to “rescind” or “cancel” the loan. At that point, the confusion comes in.

In theory, this is the process of rescission:

Borrower finds violations of the TILA that offer rescission as a remedy.
Borrower notifies lender of rescission by letter.
The security interest (the Note and Deed of Trust) automatically becomes void and the lender has 20 days within which to take any and all actions necessary to reflect the termination of the security interest. The lender is obligated to return any money or property given as earnest money or down payment within those twenty days. The borrower is not liable for any finance or other charges and is entitled to recover all fees incurred in the transaction.

The borrower is obligated to return to the lender any money or property the borrower received as part of the credit transaction within twenty days, as their part of the rescission.

If the lender does not take possession of the property or money within 20 days, then the property is retained by the borrower and is held

Wow! You may get your home free and clear… at least that is what many scandalous loan modification companies and auditor firms say.

But here is the reality of rescission:

In California, since homes are underwater and the borrowers owe more than the home is worth, they cannot tender back to the lender the money that was borrowed, so rescission is not an effective course of action in California, and for that matter, most other states as well.

Courts have the ability to “change the order” in which rescission is tendered, meaning that the borrower must show the ability to make a valid tender, before the security interest in the loan is cancelled.

No ability to tender the amount due means that there is no valid rescission.

In other words, rescission does not do what the homeowner probably wants the most – to remove any financial obligation connected to the house (as before they purchased it) – since the lender is only obligated to take back the original money lent, minus fees, and tear up the contract.

What to Expect when you rescind a loan

When you go to rescind a loan, you need to be aware of what will actually happen. What I write is based upon the experience of having done over 1000 audits, and working with attorneys who do attempt loan rescissions. (In this period of time, I have seen one offer of rescission, and a number of “talks” with lenders about rescission, always after a Restraining Order is granted to a homeowner trying to stop an auction. These “talks” have usually gone nowhere.)

When you and your attorney rescind a loan, here is the actual process:

Your attorney will usually send a “Demand Letter” to the lender. The purpose of the letter is to notify the lender that violations of the TILA have been found in your loan and you are invoking rescission rights as remedy.

The lender will respond in one of two ways: (a) ignore the letter altogether, or (b), send a reply where they deny that there are any violations of TILA and that they refuse to honor rescission.

At this point, the homeowner has only one real option left. That will be to file for a Temporary Restraining Order to stop the sale of the property, and to request a Preliminary Injunction to be granted stopping the sale on a more permanent basis, until the lawsuit that has been filed at the same time can be heard.

When the lawsuit is filed, and prior to the Preliminary Junction Hearing, if there is one Federal Charge alleged in the complaint, the lender will usually have the lawsuit remanded to Federal Court and away from State Court. The purpose will be to request a dismissal of all charges. They have a simple reason for doing this.

The lenders know that Federal Court judges tend to be more receptive to the lender’s side and often will dismiss the case. This appears to happen more often than not. As a result, it is beneficial for lenders to have the case remanded to Federal Court.

If the lawsuit is not dismissed, then the Preliminary Injunction Hearing will be held. This is actually a “mini-hearing” of the case before a judge. Based upon what is presented as evidence, the judge will determine the likelihood of the homeowner prevailing at trial, and if he finds that there is a likelihood of the borrower winning the case, he grants the injunction. Once the Injunction is granted, the lender will usually begin to talk seriously with the homeowner and attorney about resolving the issue.

If talks do not work out, then the homeowner is going to trial. This is a process that will take months to years to reach a conclusion and will become very expensive, especially to the homeowner. (I currently have one client that has been in settlement hearings over a year, and her lawsuit began in Dec 07.)

The homeowner must understand that the lender has a very specific goal in mind during this phase of the lawsuit. The lender wants to stall the entire process, causing extensive costs to the homeowner. It is hoped that the homeowner will simply run out of money or give up and let the home be foreclosed upon, which happens quite often.

It should also be noted that Truth In Lending and RESPA lawsuits have been regularly filed since the mid 1990’s. Case Law is extensive and often contradictory. The lenders know the cases and the rulings and taper their arguments to fit those rulings. Most of the attorneys who are taking on cases do not know these cases, so many of the arguments that they make, the lenders already have the counter arguments ready.

The way to take on the lenders is to use different plans of attack, using statutes other than TILA and RESPA. The problem is that often a lender will attempt to raise the defense of Federal Preemption, whereby Federal Law takes precedent over state law.

Federal Preemption can be fought. In most states, the statutes exist to counter Federal Preemption claims. These statutes are versions of the Federal Trade Commission Act, Section 5, which identifies Unfair and Deceptive Acts and Practices (UDAP). Lenders will claim that that these are not applicable, however, the Office of the Comptroller of the Currency, the Office of Thrift Supervision and the FDIC have all at one time or another, in guidance letters, have asserted that even National Banks could be subject to such state statutes. Case law does indeed support such actions in many instances.
Dan Edstrom, on November 1st, 2009 at 4:49 pm Said:

Dan,
Yes absolutely. Of course this assumes you are within the rescission period and/or you have claims that can “toll” the rescission past this period.

Rescission can be used in BKR and/or foreclosure. When you rescind, by operation of law the original mortgage is extinguished. The debt becomes unsecured. Once unsecured, it can be dealt with in bankruptcy. There is lots of information on this blog regarding rescission. Look it up and post back with any specific questions. Here is a great document you can read regarding Truth in Lending:

Truth-In-Lending
Disclosure Requirements, Violations, and Remedies
By Leslie B. Ng
Dated June 13, 2007

Disclaimer: I am not an attorney and this is not legal advice. This is information provided for educational purposes and based on what I am doing in my case.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan, on November 1st, 2009 at 3:59 pm Said:

Hello Every One,
Would any body know this, I’m in the prccess of filing bankruptcy, its all in the lawyers hands right now we file in a week or so with the courts. My question is can I still recind the mortgage loan since I started bankruptcy? If I can, how do I get the paper work to do this, and what are the steps in doing this? I started with Countrywide now with BoA. They gave me a loan mod. and up my payment $1,000.00, that doesn’t help. I never signed the doc’s. I’m under water in the mortgage. I also was looking through my original doc’s and found out that the lender at the time changed and up my income, which I was not aware of, they rushed us through signing at that time and it slipped past us? But since we did all the paper work through the Fax I have the original app. that I submitted. That’s were I found they changed my income. Any help would be grateful. Thanks
dasmom, on November 1st, 2009 at 2:55 pm Said:

CIT Group Files for Bankruptcy

After months of efforts to stay alive, the company filed for
Chapter 11 — but under a so-called prepackaged bankruptcy
plan that will enable it to emerge from court protection by
the end of the year.

Read More:
http://dealbook.blogs.nytimes.com/2009/11/01/cit-to-file-for-bankruptcy-soon?emc=na
L.Fitzgerald, on November 1st, 2009 at 2:53 pm Said:

HomeOwner comrades ,

Neil Garfield has explained many times in this wonderful blog …about securitization ….and how it is a separate transaction ….from us the innocent borrower .

We borrowed from a ” lender ” not knowing all the facts.behing the deal .
The high commissions , and high sale value that kept on giving to the Wall St. casino players.
They stole, lied ,cheated from everybody… while stuffing their off shore accounts to the rim.Their Banks deposits are so heavy ..they could sink the Island they’re sitting on.

This whole securizitation was fabricated for one thing only .
To Steal ….and get away with it.

So why ? Why are so many people looking inside the Pool and Service agreements , The Depositor, The Server ,the Main server,…the prospectus…on and on and on….Searching for a silver bullet to kill the werewolf.

In my opinion everything concerning this securizitation was a Ponzi scheme made by the Wall Street and is stained with criminal crap.

So why are we looking for a solution’s inside criminal scheme, contracts,agreements ….who cares what the Pool Sevice agreement says ..its all fabricated by ” Tony Soprano” and the Bankers .

To me … Federal ,State Statutes ..the law of the land, the common sense law is supreme here. Black law …..

The same thing happened with MERS. Bankers making their own rules for their own benefit. Cheating the States of the filing fees we all have to pay….but not them..oh no ….

These P.S.A’s and all the other hocus pocus B.S. was made to confuse us and the investors. and They have !??

To me …Federal & State Law are supreme …Public Property Records, Liens,Assignments, Chain of Title …
A Public record office ..where documents can’t be pre dated and fabricated . Its there ..!! Or its Not !!

My opinion is based on my own personal experience ,and is not legal advice ..only my opinion ..

Wall Street Investment Bankers contracts /agreements/ servicers/ etc. etc.

” their… “” Game is Fixed”" ….at the ” Sopranos Casino ” .

LF.
angry&not taking it, on November 1st, 2009 at 8:37 am Said:

Don & Dan
psa..pooling and servicing agreement is where this info is ;

as per Neils statement “NOTICE OF DEFAULT: REAL OR FAKE?”
http://livinglies.wordpress.com/2009/07/20/notice-of-default-real-or-fake/#comments

(Don’t remember off hand which document this is in):
One of the documents discusses the fact that the Trustee has NO knowledge of default on their own. They can only know about a default when notified from the master servicer (or depositor I believe). If this is the case, and the alleged Trustee is foreclosing on you, who is providing the affidavit showing your payments have not been made? My guess is it is the sub-servicer (it was in my case anyway). If this is so, the SEC filings show that this is not enough information to prove the loan is in default. It has to come from the master servicer.
Dan Edstrom, on November 1st, 2009 at 1:31 am Said:

Don,
You said:

Can you elaborate on specifically what kind of information will be useful in me saving my home? Causes of Action? There’s alot of info, but does it apply to saving ones home?

THE ASSIGNMENT AND ASSUMPTION AGREEMENT
– this shows who they bought the loan from and who they passed it on to. In the old days this would all be recorded with the county. Typically these are true sales (or at least they say this) but mine also says that “even though we said we sold it, we really used seller financing” (meaning they didn’t actually sell it). This would be VERY IMPORTANT to know for saving your house. This section also shows that the assignment they recorded after foreclosure is NOT valid. Much more here also …

THE POOLING AND SERVICES AGREEMENT
Shows the servicers and their responsibility – such as if you don’t make your payments the sub-servicer has to. If the sub-servicer doesn’t make your payments the master servicer has to. If the master servicer doesn’t make your payments, the successor master servicer (Trustee) has to. Don’t you want to know if somebody made your payment WITHOUT your permission and authorization? If they did (up to and past the time foreclosure was filed, how can you be in foreclosure? Much more here also …

THE PROSPECTUS
LOTS of information including issues that could cause the investors to not receive payment – or receive a delayed payment. Such putting the Trust into receivership, problems with MERS, etc. I would use these as defenses on my lawsuit. TONS more information here.

(Don’t remember off hand which document this is in):
One of the documents discusses the fact that the Trustee has NO knowledge of default on their own. They can only know about a default when notified from the master servicer (or depositor I believe). If this is the case, and the alleged Trustee is foreclosing on you, who is providing the affidavit showing your payments have not been made? My guess is it is the sub-servicer (it was in my case anyway). If this is so, the SEC filings show that this is not enough information to prove the loan is in default. It has to come from the master servicer.

As far as I can tell they try to use the securitization to show they can foreclose, then forget everything else and use your mortgage and promissory note to foreclose (and probably with MERS also). But the SEC filings show that they are NOT following the proper procedures and using the correct chain of assignments.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
steve sinacola, on October 31st, 2009 at 11:19 pm Said:

HR 1123
Abby thanks for the info. I would suggest “we” do a little more then write a letter, although thats a good start to your “call for action”. In addition that bill (avail here http://www.govtrack.us/congress/billtext.xpd?bill=h111-1123)needs to be faxed, and emailed to every state atty general, every state congress person, and the Governor within your state. May as well email it to your address book as well. Property law is the domain of the state. The above mentioned state elected servants need to start doing a more then expressing feighned concern.

A simple fax which states “We need U.S. House Bill 1123 enacted on a STATE LEVEL. Please read the bill online here
http://www.govtrack.us/congress/billtext.xpd?bill=h111-1123 and start the process”, or something to that effect.

fax for free at https://faxzero.com/
M.Soliman, on October 31st, 2009 at 7:08 pm Said:

SO WHY ARE WE READING A THREE YEAR OLD REGISTRATION OR OLD FIINANCIALS (10K) INSTEAD OF THE CURRENT ANNUAL REPORT?
Maher Soliman / October31st 2009 GMT

REALLY, NOT AN INSULT. . .ARE YOU CONSIDERING A RECIEVERSHIP PLAY ? OR DERECOGNITION OF PAST EARNING STATEMENTS?

Lon said – it is suppose to be in LEHMAN XS TRUST SERIES 2006 GP-1. (Q) Why do you care – it’s just a registration. Label registered for a Shelf?

You also say the sponsor and seller: LEHMAN BROTHER’S HOLDINGS INC.
Who Cares If In Receivership / Bankrupt? Immaterial.

DEPOSITOR: STRUCTURED ASSET SECURITIES CORPORATION (RED HEARING)
TRUSTEE: US BANK NATIONAL ASSOCIATION
It’s a figurative office and solely administrative position. Desk at a bank

MASTER SERVICER: AURORA LOAN SERVICES LLC
Now you’re getting somewhere. Aurora and good friend Jaime s (lead counsel aurora) will share with you it was acquired by Lehman. ..Then bought it back and is once again healthy. TMI is good for you!

Don’t miss this advantage – their web site brags about aurora are still strong and not part of the Lehman collapse. …. .Here you go…make them pay!

SERVICER(S): GREENPOINT MORTGAGE FUNDING, INC., AURORA LOAN SERVICES AND GAME MORTGAGE CORPORATION. Your smorgasbord of servicers is listed for a reason is for a reason. They got hip to 1122AB TO CONTEND WITH, SARBANNES OXLEY AND GAAP ISSUES UNDER COMMISSION ENFORCMENT. **Servicing the loans made by a less than arms ownership.

Now AURORA SERVICES GREEN STAIN and GREENSTEIN SERVICES AURORA where compliance is fickle these days? You see all three are potentially lacking Joinder (counsel in the house) and participate – don’t believe their stand alone at all. (Check that).

ORIGINATOR(S): GREENPOINT MORTGAGE FUNDING, INC. FIGHTING BANKRUPT STRIKE TWO!
CUSTODIAN(S): US. BANK NATIONAL ASSOCIATION
Ah yes…US NATIONAL BANK…. What’s another word for CUSTODIAN? “WAREHOUSE LENDER” Winner!! Celebration time come on! There is your holder in due course.

Warehouse lender holds the collateral and safeguards the notes …but don’t tell anyone bubba – just say their lost. And Who Collects The Payments – The Servicers For The Trustee, TRUST MASTER SERVICER? No. It Is For the Warehouse Bank to collect – Got It.

How else do they get paid if the cash flow from the note is sold forever to investors – joke does not work? It’s the depositors that makes the payments every month to the master servicers -got it. So let me say in parting the following:

Those are not mortgage payments – there “pillows” I mean “dividends “on preferred and a waterfall of derivatives having no asset base.

One more thing –take Indy Mac bank

Who recieves a security intterest in your home at closing ? ____trustor ____trustee____ beneficiary ____none

You grant title to whom (?) at closing? ____trustor ___trustee___ beneficiary ___none
Don-CA, on October 31st, 2009 at 6:01 pm Said:

Thanks for the info Abby.

Here’s one more for the committee:

No more deed of trusts and discontinue the non-judicial foreclosure procedure. With the advent of securitized mortgages, the non-judicial process should be eliminated.
Abby in CA, on October 31st, 2009 at 5:32 pm Said:

Maybe we should all write letters to get this bill approved and out of the committee!!

Proposed Bill H.R. 1123 “Produce the Note Act of 2009″ would help Prevent Illegal Foreclosures

By Denise Richardson on August 10, 2009

U.S. Representatives John Conyers, Jr (D) Michigan and Marcy Kaptur (D) Ohio recently introduced H.R. 1123, currently dubbed the “Produce the Note Act of 2009″ which if passed would essentially prohibit lenders/servicers from initiating a foreclosure without first proving they are the holder of the homeowner’s note.

The following summary was written by the Congressional Research Service, a well-respected nonpartisan arm of the Library of Congress;

Produce the Note Act of 2009 – Prohibits commencement of any foreclosure in connection with certain residential mortgages unless the person commencing the foreclosure complies with specified prerequisites, including identification of the actual holder of the mortgage note, the originating mortgage lender and all subsequent assignees, and other all parties who have an interest in the real estate subject to the mortgage or in the mortgage or its proceeds.
Requires the person commencing the foreclosure to: (1) notify the mortgagor, in writing, not less than five days before any action is taken to commence foreclosure; and (2) certify to the court, in the case of a judicial foreclosure, or to the office of the state to which notice is required under state law, that such notice has been provided.

The bill was referred to the House Committee on Financial Services on February 23, 2009.

To find the full text, related legislation and track the progress of H.R. 1123, visit GovTrack.us -a civic project to track Congress.
Abby in CA, on October 31st, 2009 at 5:05 pm Said:

Don

I wish I could give a boiler plate answer, but I cannot as each person’s facts are different.

However, a very good and basic place to start is to
review the SEC filings and understand all the ‘players’ as they relate to your loan–for instance, which is the entity identified as the securities trustee? which is the ‘issuing entity’ etc. What is their role with my loan?

You may find, as I did, that the securities trustee, U.S. Bank, N.A. suddenly appears on the NOD, NOS etc. It took me many months before I figured out why this previously unknown entity had appeared on my recordings when I had no prior business dealing with them. At that point I did not even know my loan had been securitized.

The securities trustee, per the pooling and servicing agreement (at SEC), has a role in the foreclosure once the securities have been sold to investors (which includes your loan).

Subsequently, I examined my county recordings carefully and found them to be out of sequence and with forgeries and handwritten backdating.

Thus, as a result of understanding the securities trust and SEC filings, I have a fairly solid count for wrongful foreclosure or set aside illegal foreclosure.

Additionally, one needs to focus on which entity in the securitization schema has the original note and is it the same entity which is foreclosing? Equally important is when the entity had actual physical possession of the original note. ‘Who had it and When did they have it?’

After you get the basic understanding of those areas, then you can delve deeper into things like—were any of the recordings, such as corporation deed of assignment done after the ‘closing’ or ‘cut off’ date of the trust? If so, they may be invalid.

Understand the basics first & how it applies to your loan.

When you have those down pat, then go for a more sophisticated understanding of usury, FASB, UETA, FINRA etc…..

Read a lot!!
Don-CA, on October 31st, 2009 at 4:05 pm Said:

Abby:

“look in the FWPs (free writing prospectus) and the 424B’s (prospectus) and look in the larger sized files.

a wealth of information!!”

Can you elaborate on specifically what kind of information will be useful in me saving my home? Causes of Action? There’s alot of info, but does it apply to saving ones home?
Don, on October 31st, 2009 at 4:05 pm Said:

It is suppoae to be in Lehman XS Trust Series 2006 GP-1.

SPONSOR AND SELLER: LEHMAN BROTHERS HOLDINGS INC.

DEPOSITOR: STRUCTURED ASSET SECURITIES CORPORATION

TRUSTEE: U.S. BANK NATIONAL ASSOCIATION

MASTER SERVICER: AURORA LOAN SERVICES LLC

SERVICER(S): GREENPOINT MORTGAGE FUNDING, INC., AURORA LOAN SERVICES AND GMAC MORTGAGE CORPORATION

ORIGINATOR(S): GREENPOINT MORTGAGE FUNDING, INC.

CUSTODIAN(S): U.S. BANK NATIONAL ASSOCIATION

I think the loans should be here but it states:
SCHEDULE A

MORTGAGE LOAN SCHEDULE

[INTENTIONALLY OMITTED]

I’ve looked through the 8K & 10K numerous times but can’t seem to pinpoint any specific loan information.
Abby in CA, on October 31st, 2009 at 3:49 pm Said:

When looking at your trust docs at the SEC website

look in the FWPs (free writing prospectus) and the 424B’s (prospectus) and look in the larger sized files.

a wealth of information!!
Abby in CA, on October 31st, 2009 at 3:17 pm Said:

Dan & all

re: loans securitized

my loan was securitized in early 2006. some of the SEC docs did not include my name, but did include
my loan #, my zip, amount of loan, current amount due, my credit rating at time of loan, LTV etc.. Actually quite a bit of personal detailed data!!

once i got the trust name, my loan details was easy to find and there were over 4200 loans in the pool
Dan Edstrom, on October 31st, 2009 at 2:19 pm Said:

Rik,
When you say the ink smears are you talking about what you allegedly signed or the actual form itself? This should have been a pre-printed form and that part should NOT smear (my opinion). If the original form smears, I would (almost) guarantee this is a forged document. In that case think about hiring a pro to look at it as part of your court case. Be sure to consult with an attorney to see if you can go after FDLG for fraud (and probably other violations such as identity theft, mortgage fraud, mail fraud, failure to provide a sufficiency of pleadings, etc).

Of course I am not an attorney and this is not legal advice, just what I am doing or would do if that happened to me.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on October 31st, 2009 at 2:14 pm Said:

Rik,
Your loan wasn’t securitized. At least that is what it indicates. I find that highly unlikely. The document is obviously a forgery if it is even slightly off. Who was the originator? When Wells Fargo is foreclosing it could be one of the following (not all inclusive):

– Wells Fargo originated
– Wells Fargo assigned
– Wells Fargo as Trustee
– Wells Fargo as sub-servicer
– Wells Fargo as master servicer (?)

What year did your loan close?

Did you get a substitution of Trustee?
Did you get an assignment?

If you are in a judicial state and they did not mail you a substitution of Trustee or an assignment, did you go to the recorders office to get a copy of all recordings? (or I guess in some cases this is the court house??)

Is MERS on your note? If so it was almost CERTAINLY securitized. If not, securitization is less possible but still could have happened.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Rik, on October 31st, 2009 at 2:07 pm Said:

Hi UsedKarGuy,

Point by point:

What is the title of the foreclosing entity? – Wells Fargo Bank N.A. (Party Foreclosing)

FDLG – Florida Default Law Group (Charlatans)

Made Up Note – The document looks TOO clean and has no folds or anything to indicate that is is a even few years old or was ever filed.

I do have the closing docs, and it looks similar, but not a perfect match, which makes me suspicious. Also the ink smears very easily.

The documents only have the “Original” blue stamp and the “Pay to the Order” stamp to Wells Fargo. No other marks or elements are added, front or back.

Thanks
Dan Edstrom, on October 31st, 2009 at 2:05 pm Said:

I found mine without knowing the trust. My originator (Mortgage Lenders Network) and investor (GMAC) are named together in SEC filings. I found the investor by accident when I was trying to get a loan mod from the servicer (they actually said the investor was GMAC).

I did a search on Mortgage Lenders Network and GMAC and I found 5 securitizations for 2005:

RASC Series 2005-EMX1
RASC Series 2005-EMX2
RASC Series 2005-EMX3
RASC Series 2005-EMX4
RASC Series 2005-EMX5

EMX1, EMX2 and EMX3 closed BEFORE my loan closed (my loan closed on 9/7/2005). So I knew it was EMX4 or EMX5. They ALL had US Bank as the Trustee. It took me 3 months to find my actual loan number. It did not contain my name or address. It did have the loan number, city, original principle balance, interest rate and other information. For some reason this file was NOT indexed and not searchable. I had to find the file and open it to locate this information. That took me 3 months. The SEC filing was from the depositor, not the sponsor or the Trust. I have since heard that 2005 was just about the last year where this was possible. From 2006 and later they did not include this information (I have not been able to substantiate that claim). So, if your loan is 2006 or later you may not be able to easily locate this information.

If all you have is the originator, this is where you start:

– Search google with the following (in quotes):

“secinfo” “Mortgage Lenders Network”

Replace Mortgage Lenders Network with your originator. This may start you on your way. You can find all SEC filings for the year you closed. Hopefully it wil be like mine and there will be only a few entries.

My loan closed on 9/7/2005 and the “securitization” closed on 11/17/2005. So yes it is usually a couple of months. For my car loan, they only do 2 securitizations a year and so the securitization closing was approx. 6 months after I signed my car loan.

Hope this helps. Abby, usedkarguy and others have more info that will help also.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
usedkarguy, on October 31st, 2009 at 2:01 pm Said:

some of those pages left blank contain graphics, logos, etc. How old is your loan, Don? how old is the trust? did you search the 8k and 10k’s? I forgot what filing I found mine in, but I had to go to ownership relationship (WFAssetSecur.Corp)and found all four vintage (2005-1-2-3-4) loan trusts were all depositied to that 1999 trust.
Don, on October 31st, 2009 at 1:34 pm Said:

I was supposedly told the name of the trust the loan is in but when I go to the sec.info site and look up the trust I find MANY pages where the loan numbers should be with pages that state “pages intentionally left blank” How do you get past that short of discovery?
usedkarguy, on October 31st, 2009 at 12:40 pm Said:

RE: Abby–Thanks, but I already found my loan.
RE: Rik–What is the title of the foreclosing entity. Wells Fargo Who? FDLG is a law office, right? Who is the party foreclosing? blahblahblah as trustee for blah asset backed/trust 200?-?? What do you mean by “made-up” note? Is it an exact copy of it or not? Do you have your closing documents (copies from the closing) that you can compare? I’m in Wisconsin, they are (so far) allowed to present a copy of the not. Recorder’s office only has the mortgage (deed of trust, in my state)from Wells and a Lis Pendens from HSBC recorded. You cannot find your loan until you have the trust name. then you can search the “relationships”. therein you will find the actual loan recorded, along with the default insurance purchased, your score, classifications, etc. It took me a while. But throughout the 16 months leading up to the foreclosure they would not disclose the name of the securitization. And I KNOW that MY LOAN TRUST has been shelved (not sold to investors yet), so they are lying to everybody (whose loans are in those trusts) when they say it “didn’t meet investor guidelines”. THERE IS NO INVESTOR! It’s a dead deal in there write-off bucket. But you can’t find anything without a trust name and series. Some states require the foreclosing attorney to act as trustee (right? substitution of trustee? anyone? Buehler?).
ALLAN in MA (with a response to Maher Soliman this week AKA SecondaryTradeDesk), on October 31st, 2009 at 12:19 pm Said:

ALLAN in MA (with a response to Maher Soliman this week AKA SecondaryTradeDesk), on October 29th, 2009 at 10:56 pm Said: Your comment is awaiting moderation.

TO: “Allan
B e M o v e d @ A O L . c o m

Dear Allan

Well Sir, I do appreciate your comments. The time and effort spent to verify our market leading findings is appreciated. It must take away from the valuable time otherwise spent with family, kicking your dog and loved ones.However, we cannot fulfill your request for assistance at this time. Please contact HUD for additional help or ACORN if your in need of counseling. Have you also considered your county’s mental health ward? We look forward to your submissions in the future and ask you to include a return address and contact information.

You will do fine inyour endeavors. And as a judge said in a matter I attended concerning handing down an eight year sentence . . .

“Good bye and good luck”.

expert witness”

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Dear Maher,

It fails me why Neil Garfield doesn’t moderate or block your mean-spirited ad hominem attacks passing as ‘postings.’ Who hurt you, and why are you making everyone here so publicly pay for it? Why so many personae?

As someone who passes himself off as an expert witness, you must be well aware of what is termed PROJECTION, e.g. “Have you also considered your county’s mental health ward?” OR ” It must take away from the valuable time otherwise spent with family, kicking your dog and loved ones.”

Should you be as self-aware as befits the vaunted role you claim to play for others, then you might consider answering your own rhetorical question. I’d gladly find institutional care for you, Maher, as I have extensive experience as a counselor and guardian ‘pink-slipping’ schizophrenics (especially paranoid) and others ‘who’ve lost it.’ Can you believe, one in 25 Americans are sociopaths (have no conscience)? Then, there are psychopaths, who carry their enmity to vile extremes!

This blogsite is a serious place where people are thoughtfully engaged in heroic fights to preserve their homes or get at the truth of what they are experiencing. Why can’t you show some decency and a modicum of respect for this positively engaged and supportive community? Why the slights? Why the ad hominem attacks? Why especially do you attack “Ladies”? Misogyny gone rampant? Forgive the stereotype, is this your cultural heritage?

If you were to re-read my posts, you’d observe I have offered you mostly constructive criticism, though I have been open about my shared annoyance with your defensive hostility and hogging the bully pulpit to pander your unproven services.

Could you furnish a list of and contact info for attorneys who have called upon and successfully implemented your expertise? You can even include those you admitted were wrong to characterize you as a ‘fool.’

Could you provide a list of cases we can view that document your expert testimony? Surely as a businessman out to win more business, you can provide these.

By your irresponsible postings, you invite discord and enmity within a community with little tolerance for either. Why so destructive? This informs how this community perceives your character, and takes away from your possibly worthwhile contributions in the area of securities and accounting expertise.

Is it possible you’re mixing me up with someone else when you state, “However, we cannot fulfill your request for assistance at this time”? Thanks for plugging ACORN and for affirming “You will do fine inyour endeavors.”

Try not to get too close to these criminal cases to which you seem to gravitate. Blurring the lines may come too easily for you. Something might rub off. One may take perverse pleasure in seeing another be punished for transgressions one oneself has committed.

Fittingly, “Good bye and good luck.”

ALLAN

B e M o v e d @ A O L . c o m (in case you missed it when you – assuming the imperial ‘we’ – stated: “We look forward to your submissions in the future and ask you to include a return address and contact information.”)
Abby in CA, on October 31st, 2009 at 11:09 am Said:

UsedCarGuy — read my post of oct. 29…an easier way to find name of trust your loan may be in. At some point prior to foreclosure the securities trustee is recording a power of attorney to the loan servicer. They record this POA at your county recorder. You will never receive a copy of it. It will not have your name on it, but it will have your property id. An example would be securities trustee U.S. Bank, N.A. does a power of attorney to Chase (the servicer) (and this is related to any stamps you may see on your other recordings saying ‘attorney in fact’). At the recorders office you will have to search on U.S. Bank etc….it will never come up under your name. Within the POA recording will be the name of your trust!!! So you may be able to find out cheaply and prior to having to do any discovery.
Rik, on October 31st, 2009 at 9:47 am Said:

Hi UsedKarGuy (All),

I have Wells Fargo / FDLG foreclosing on me, and they have filed what I think is a “made up” note with the court. There are no assignments or allonge attached to it, so I am still in the dark about the Trust, or if there was acutally an assignation.

I have a fixed rate VA loan, which I do not know if this makes any difference, but I was under the impression that all mortgage loans are assigned to a trust or similar type of setup.

I have not been able to find any references to my loan in the SEC filings which I thought by searching by the loan number or my name or address should yield at least some reference.

My loan was closed in Nov 2007, so I assume that the details would be rolled in the reporting for either Nov or Dec 2007?

Any guidance? FDLG is using all of the tactics, and I mean all of them…. that I have read about here and on other sites.

Thanks in advance,

Rik
M.Soliman, on October 31st, 2009 at 9:20 am Said:

COMMENTS: You won’t know the name of the Trust until they foreclose on you.

October 31st 2009 PST
msoliman

Stop please -Stop it …what the …..THERE IS NO TRUST….STOP! GET IT. ITS A REGISTRATION- THATS ALL- GET IT. “FIGURATIVE”, “LISTED” ” SYMBOLIC”, A “REFERENCE” / THATS ALL. IT IS ! THE PRIVATE LABLE FOR AN INVESTMENT. GOT IT. C*O*V*E*R*A*G*E* STOP PLEASE …A TRUST IS A VEHICLE TO PAY DIVIDENDS… GET IT. DIVIDENDS…GOT IT…! STOP NO TRUST… ITS A FICTIONAL ENTITY…STOP… IT IS FOR REGISTRATION PURPOSES ONLY …GET IT.

LOAN FUNDS – Conduit GabbyAsS Inc
HOLDER IN DUE COURSE – unknown -defer to MERS
SUCCESSOR ASSIGNS – GMAC
SERVICER – Homecomings
WAREHOUSE BANK – (GMAC Lines of Credit)
TRUSTEE TO INDENTURE Who Cares!
———————————————————————
DO YOU SEE A TRUST HERE …? WAIT THREE YEARS AND THEN , MAYBE AN ASSIGNEMENT TO A INSIDE “LENDER” SETTLEMENT AGENT ON BEHALF OF A TRUST INVESTMENT (TRUSTEE) WHO KICKS THE BACK TO ITSELF – …….GMAC GOT IT WHERE IT STARTS AND STOPS SO STOP- ABBY -PLEASE!

MSOLIMAN
Admin@borrowerhotline.com
usedkarguy, on October 31st, 2009 at 8:42 am Said:

You won’t know the name of the Trust until they foreclose on you. Once you have the trust name, you can (hopefully) find your loan listed in the SEC recording. But you still don’t know who owns the certificates. My QWR included default provisions, but this has not been tested yet in court (by me).
Deontos, on October 31st, 2009 at 8:24 am Said:

bt,

The Loan Servicers act as a de facto SHIELD to other trust entities.

A few will cooperate and abide by the law. Others ignore YOU and the LAW. You can identify what trust your loan is in by doing research, but you’ll be going into Rabbit Hole trying to get any one to talk to you besides your current loan servicer.

That’s my opinion from reading the experience of the commenters here.

Please share any success you may have

Good luck in your search.
bt, on October 31st, 2009 at 8:07 am Said:

RESPA QWR question?

The servicer for my loan will not tell me the name and contact information of the Securitized Trust that owns my loan. They said it is the Bank of New York and will not provide the exact name of the trust or contact information. We are trying to work a short sale, and they said they will not provide my claims to the investor as the BIG BANK have the decision making control. Trying to avoid a Quiet title suit and do a short sale and move on.

DOES anyone know where it says in the RESPA QWR act that I can request the name and contact information for the owner of my loan and they have to provide it?

FDCPA- I would think as a servicer/third party they are required under the FDCPA to provide the name and contact information for the owner of my loan?

ANY HELP ON THIS FOLKS?
Dan Edstrom, on October 30th, 2009 at 10:08 am Said:

Abby,
That is great information, I will have to go to the recorders office and see what I can find out. Did you actually find this document in your case?

Also be sure to read California Penal Code Section 530.5 and determine if it applies in your case.

I view this as applying because the parties involved are using my identity in an attempt to steal my property. They or others totally messed up on the loan / securities side of the transaction (failure to perfect title, failure to acquire directly or indirectly perfected title) and now they are attempting to unlawfully “fix” what was screwed up. They are committing illegal acts directly or using subornation to get others to do it for them.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Abby in CA, on October 29th, 2009 at 7:13 pm Said:

There may be an easy way to find out the securiites trust name of your mortgage.

Check with your county recorder for any power of attorney’s recorded for your property. Now this recording may not even have your name on it.

It may be between say, U.S. Bank and Chase. So the recorder may have to do a search using the property number, like an APN. This power of attorney recording was more than likely not sent to you ever.

If you get a copy, you should see the name of the securities trust. Then you can go to the SEC website and look it up and search for the Pooling & Servicing Agreement.

These POAs are typically from the securities trustee, say U.S. Bank, granting POA to the servicer, such as Chase.

These POAs usually are notarized.

Sometimes there is an Indemnification clause like:

Servicer hereby agrees to indemnify and hold U.S. Bank, N.A., as Trustee, and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses blah blah blah………

Anyways, this might be a very easy way to find out the name of the securities trust which your mortgage may be in….on your own, without discovery.
UsedKarGuy, on October 29th, 2009 at 5:59 pm Said:

Hello Jeff and good evening fellow travelers. I want to share another NEW experience in this excursion. Got another letter from HOPE NOW, and instead of throwing it away, I opened it to humor myself.
Dear Homeowner,
“HOPE NOW” is a partnership between mortgage companies and non-profit housing counselors. Our mission is simple: we reach out to and attempt to assist homeowners who may be having difficulty paying their mortgages. Your mortgage company, Wells Fargo Home Mortgage, is a member of this alliance.

Through this alliance, homeowners can easily find out about relief options that may include repayment plans, changes that can be made to the terms of the loan, and other alternatives for which homeowners may be eligible. There is NO COST to explore these solutions.

To learn more, a servicing representative is available Monday through Friday from 8 .am. EST to 10 p.m. EST at:

866-480-5004

The announcer starts with:
“In accordance with the Fair Debt Collections Practices Act…..” (I’m thinking….Hmmmmm, that voice sounds familiar) and any information obtained (like my phone number?) will be used to….

It’s BLEEPING Wells Fargo special servicing! WTF! “Uh, excuse me. Who do you represent?” I asked. “This is Wells Fargo Home Mortgage”, she replied. I said goodbye.

Back to the letter….

You may also call the Homeowner’s HOPE HOTLINE (they have applied for a Federally Registered Trademark on this one, REALLY FOLKS, they DID, they’re gonna trademark this stupid hotline name), where representatives are available to speak with you 24 hours a day, 7 days a week at : 1888-995-HPOE (4673). Please call today.

Ringgggg. “Hope Now Alliance, what is your name?”
I gave it to her and asked who she represented. She said they are a nonprofit association helping homeowners obtain loan modifications.
I asked her if they “were having any success?”
“Well, I don’t really know. You would need to speak to a counselor…..” and I said “and supply all my financial information and expense information?”.
“Why, yes, sir. Would you like to speak to a counselor?”
I said: “I have your letter in my hand, YOUR LETTERHEAD, offering help, and I call the first number and it goes right to Wells Fargo. Does that sound like “Unfair Debt Collection Practices to YOU?” “Well, I don’t know about that, sir. Would you like to speak to a counselor?”

I asked if there were any attorneys there.
“No, sir. We don’t offer legal advice”
I said to her “I have loan in foreclosure with lots of fraud claims and predatory lending claims. Do you have anyone I could talk to, like, a lawyer?”
“No, sir. Would you like to speak to a counselor?”
click.

Now, Jeff, I filed an online complaint with the OCC regarding the origination (see previous posts) and the securities violations regarding the appraisal, reworked loan documents, underwriting documents (obtained in discovery), among other things. I was pretty hot when I wrote the complaint (it was the day we lost in court). The OCC assigned a case number and contacted HSBC. They responded as follows:

“Please be aware that HSBC Bank, U.S.A. acts as trustee for certain loan securitization trusts in connection with the issuance of mortgage backed securities. As trustee, the bank has only a nominal role with respect to the properties owned by the trust. Under the agreements that establish the trusts, other companies are designated as the servicers of the loans and those servicers handle matters such as mortgage foreclosures, loan modifications, evictions and sales of foreclosed trust properties. This matter has been forwarded to Wells Fargo Home Mortgage for handling who is the servicer of the trust that owns this property. You may contact Wells Fargo Home Mortgage directly at….

So, you see, I have this letter here, Judge, that says…they hold a “nominal” role, as in NOMINEE. Now, Judge, may I bring your attention to the recent rulings by…..and my question is, Judge, who was the Plaintiff’s counsel really working for? The guys who I have stated my causes of action against? That you dismissed? Because the Plaintiff HSBC Bank, U.S.A., doesn’t seem to want to foreclose on me, according to this letter…….wouldn’t you agree?

Where’s the real party in interest here, Judge? It’s sure not HSBC Bank, U.S.A., now is it, Judge?

We’ll see what happens
Robert, on October 28th, 2009 at 6:38 pm Said:

Finally, a homeowner gets their home free and clear..now if I can just find a good attorney in AZ …

http://www.dailyfinance.com/2009/10/27/who-owns-your-home-lost-paper-trail-allows-borrower-to-keep-her/?icid=main|htmlws-sb-n|dl3|link5|http%3A%2F%2Fwww.dailyfinance.com%2F2009%2F10%2F27%2Fwho-owns-your-home-lost-paper-trail-allows-borrower-to-keep-her%2F
jeff, on October 28th, 2009 at 5:17 pm Said:

Usedkarguy,

Is there a chance you could expound on your OCC complaint. What specifically did you ask for. HSBC trustee is also the Plaintiff in my case.

Thank you.
jeff, on October 28th, 2009 at 5:08 pm Said:

Deontos,

Thanks for the clarification.

Used car guy, my apoligizes.

How did you get HSBC to give you that answer.

Thank you.

Jeff
Deontos, on October 28th, 2009 at 4:01 pm Said:

Jeff,

I think the communication threads are getting a bit confused.

I believe rather than your inquiry regarding a “copy of the letter”; “usedkarguy” was making reference to a prior Maher Soliman post,

likely the one at this
link: http://livinglies.wordpress.com/in-trouble-right-now-press-here/

Titled:
“MSoliman, on October 28th, 2009 at 3:19 am Said:

MERS IS A RECORDING VEHICLE – OK! “
jeff, on October 28th, 2009 at 3:30 pm Said:

usedcarguy,

Is that your answer to my question?

If so, thank you. I didn’t realize that I neded to construct a proper sentence.

I will try harder next time. If nor
usedkarguy, on October 28th, 2009 at 1:06 pm Said:

re:
What I find missing, Neal, is a couple commas, a prepositional verb, and that’s pretty funny in and of itself because I HATED ENGLISH! …
Hey Maher: You’re the best!

RIGHT ON! RIGHT ON! RIGHT ON!
Lisa E., on October 28th, 2009 at 4:18 am Said:

Now Now Maher.

I see you got your secondary market knickers all in a twist.

Aren’t we all on the same side here?

I find your perspective and experience fascinating and unique. Although I do dearly wish your posts weren’t so darned incomprehensible. Know your audience and all that…..

You bring up an interesting point about MERS’s assignments. In my case, Plaintiff has submitted an assignment of dubious authenticity dating to 2/9/09 (case filed on 2/17/09 in judiciary state), but executed & notarized on 5/21/09. It is referred to as “the unrecorded assignment” in Plaintiff’s pleadings, and remains unrecorded to this day.

What’s your take on why this assignment wouldn’t be recorded? Would you recommend that I still seek an injunction to prevent recording of this “assignment”?

Thanks for any insight.

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
Lisa Bep @ gmail . com (remove spaces to email)
MSoliman, on October 28th, 2009 at 3:19 am Said:

MERS IS A RECORDING VEHICLE – OK!

QUESTION: WILL YOU OR COUNSEL SEEK AN INJUNCTION BEFORE THEY *R*E*C*O*R*D A SELLERS ONLY MEANS AND ATTEMPT TO REPURCHASE A LOAN SOLD . MERS WILL RECORD A TRANSFEER OF THE DELAYED ASSIGNMENT. IT’S THE LOANS SELLER COMING BACK TO AVOID A MODIFICATION AND REPURCHASE – GOT IT! (No Whaaaa! ) NOT WHAT YOU WANTED TO HEAR ? HMMMMMM.

RESEARCH YOUR CAUSES OF ACTION: MISJOINDER OF PARTIES AND VIOLATES GAAP FAS 140-3 CONTROLLING INTEREST OF ASSETS BY A SELLER FOR A LOAN DEEMED TO BE SOLD . . .LATCHES, UNLAWFUL ESTOPPLE OTHERWISE. …….This has to stop – […..file a ch 13 or see an attorney or file a ch7 , or no a see an attorney , or no… ah…. yeah ah …let’s see . Im not an attorney and sooo …let’s attack Soliman – wait ! Ahhh start a web site and steal livinglies clients….Yeah! ahhh, no ….ahhh file a 13 and a 7 or adversery …hmmm I m hungry).

MSOLIMAN
admin@borrowerhotline.com
MSoliman, on October 28th, 2009 at 2:18 am Said:

“William Hardin, a real-estate professor at Florida International University, said people have a moral obligation to honor their mortgages when they can.”

Wake up ! Please smell the coffee. Its your obligation and you took it out and your the maker of the note. Stop running from the obligation…..Now, the security – thats a different story and where there is no standing for the deed and enforcement of the power of sale there is no more foreclosure!

You may be saddled with a high cost mortgage – but the deed could be found defect and if so “No sale and no conveyances back to the bank or third parties. TRUST ME –
(Whaaaaaa! Please make him stop! Please!!! )
YOU CANNOT SELL OR CONVEY A DEFECTIVE DEED! Come on in and jump on over – Fight smart!

msoliman
http://www.borrowerhotline.com
admin@borrowerhotline.com
MSoliman, on October 28th, 2009 at 1:44 am Said:

PREPAYMENT SPEED
By MSoliman

prepayment speed is referred to as PSA and it is a familiar securities componant for calculating performance. It was first developed by the Bond Market Association. The PSA prepayment speed definition reflects the velocity of prepayment speed in a model used primarily to derive an implied burn speed for new production loans.

“Chit Chatteres” may not know how the fundamentals were introduced by the Bond Market Association some time ago. It has developed and become instrumental to the need to measure a rate of prepayment for a mortgage loans. A 100% PSA is a variable and assumes yearly prepayment rates of 0.2% It is calclated on the outstanding principal balance on loans immediatly after origination. The rule is an additional 0.2% is added added to each accrual through month 30 and year five.

Call me as we have good historical information on where speed arguments willl becoome critical to the pursuit of your claim. Prepayment speed modeling is flawed and a contention for fraud on Wall Street. Remeber that the PPP CPR is an assumed rate of prepayment each month and based on factors not considering the toxicity of the loans as produced over recet years. We use the unpaid principal balance of a pool of mortgages starting in year five and in each month thereafter,

For example – A 0% PSA assumes no prepayments. while a 100% PSA assumes a constant annual prepayment rate of 6%. Multiples are calculated from this prepayment rate; so a 150% PSA assumes annual prepayment rates will be 0.3% in month one, or calculate at nine percent from month 30 until the repayment is complete. This will be huge as we plan to go into 2010 and continue to argue the borrowers rights against deceptive chit chat and unethical lending practices.

Maher Soliman
admin@borrowerhotline.com
MSoliman, on October 28th, 2009 at 1:10 am Said:

[Editor's Note: This is a pretty good article. What I find missing is that there might not be a default even though the borrower has failed to make a payment. Many of the parties to whom the obligation was actually owed (because they advanced the money as investors) have been paid in whole or in part through federal bailout, insurance and other vehicles. Some payouts were with subrogation and some were not, but what is sure, as the Judge said in a recent case, is that he has a more than 50-50 doubt that if the borrower DID make the payment, he would be paying the wrong party. What is also sure is that the accounting you get from a servicer is only a small part of a bigger picture. That's why we need to know who the REAL LENDER is --- so we can ask for a COMPLETE accounting.]

“Truth will always be truth, regardless of lack of their understanding, disbelief or ignorance.” – W. Clement Stone
———— —————- ——————-
Homeowners in Foreclosure Leave Servicing Agents a Liability Way Out!
Are Servicing Agents Liable or are the Lawyers Throwing Away Opportunity by Failing to Address the Borrower Capacity Issues?
By M.Soliman

Press Release / October 7th 2009 / Los Angeles, Calif – The notion of delinquency as the condition for a a borrower in default to be labled a “deadbeat” is ridiculous. That appears to be the cavalier view of most of servicing agents and ever the trustees who foreclose.

Default once was subject to attribute pertaining to reckless careless spending habits and fiscal laziness. It’s a high risk game of played by the Street of hold or fold whereby the aggregate pool of loans is measured by the something called prepayment speed. Servicing agent and mortgage securitizers rely on the models and other means of measumering defaults and loss to a portfolio and to gauge performance. It’s a foregone conclusion as the majority of subprime loans came out of the gate tainted and doomed to fail.

These are two distinct areas of understandings for why a borrower is in default. The first example is where a borrower’s lack of willingness to pay monthly payments due in a timely manner. It may be for chronic personal issues or reoccurring earnings issues for business reasons. They do not however indicate a problem with the borrower’s earnings.

Default and borrower delinquency is measured in affordability which is actually a product of the wage or income earners capacity. The borrower who lacks capacity to pay is in fact not qualified for the loan they were provided. Their earning is either distorted by the loan application or otherwise insufficient due to post funding problems. Loan affordability has gone from an art form to a science based on statistical and actuarial tables.

Today, current market conditions show the servicers role as a business niether an art or science but more of a complete disaster as evident by the default levels in the current market.

It’s an obvious big issue at the moment and red flag for lenders under the government’s impatient watchful eye. This is concerning as servicing agents maintain their own set of regulatory compliance criteria that establish rules set forth over 40 years ago influenced by conscionable collections efforts.

A borrower mortgage loan origination is bordered (post fundng) by a servicing department but rarely subsequent to any type of post funding evaluation.

A random or even sample review of selected files for measuring integrity is critical before a servicing agent assumes it is collectable. A random sample of loans by a servicing agent can easily determine some gauge for the quality of the assets and likelihood for collectability. No random testing or other means of a verifiable lack of capacity are grounds for shifting the claim from the originator or beneficiary (successor and assigns) to the servicer.

A graduate degree is not required to divide a little number by a big number. A simple method of measuring a borrower’s cost of credit monthly is calculated as a ratio of earnings and affordability or capacity. A borrower who demonstrates adherence to prudent and best lending practices will possess adequate capacity for affordability purposes. That is measures as a ratio of less than 38% percent of the borrower’s verified income for combined principal interest taxes and insurance.

A borrower lacking the ability to pay is differentiated from unwillingness to pay on time or rate paid as agreed. The latter is somewhat of servicing agents delight given the slow history of payment received are due to something other than affordability or perhaps delayed cycle cash flow from earning. The prospects are for added charges from late fees that are a product of a slow pay. It is where we find a lack of absolute and verifiable lack of borrower earnings capacity that we need to develop the arguments for a wrongful foreclosure. A lender with an excessive percentage of borrowers lacking earnings to afford the obligation they were given are obviously unable to meet their mortgage obligation.

Prepayment speed is the measurement of early prepayment subject to more of an art than a discipline. Mortgage securitizers work hard calculating information to determine the rate in which a loan will pay off. The trust indenture must maintain a certain prepayment speed in order to keep the investment intact and to prevent the entre pool of mortgage held from collapsing. The servicing agents therefore will randomly choose which loans to foreclose on with a statutory time frame while other delinquent mortgage loans become abandoned by servicing agents for over 12 months or more. The Wall Street terms used is Constant Prepayment Speed CPR and that is rate of speed at which the loan will be paid off and released. Loans become extinguished from one of four factors. The categories are as follows:

• Reversion (Home Sales)
• Refinance
• Delinquency
• Default Due To Foreclosure.

These elements of early prepayment are the estimated frame from the loan funding whereby a lender can expect to lose the borrower and the subject loan. Move up home purchase and rate and term and cash out refinances are two considerations of prepayment speed. The two other components are delinquency and foreclosure default.
They are cyclical and market driven whereby the reversion and refinance elements of prepayments are evidence of a strong economy and deflation. The seconds is from high cost of funds, poor economy, a recession and unemployment.

A presumption is if the deed to your home is defect the sale of your home in foreclosure must fail. A defective lenders security is labeled defect if it can be shown anything deceptive or willfully negligent was used to settle the transaction. The defective deed will prohibit the conveyance of your home where you cannot convey title under this argument.

Again, I believe the sale of your property in a recovery (foreclosure) must fail under the law if the lenders security is determined to be impaired and the deed is found defect. A claim of a voidable sale by a borrower is something broad and considered at the moment a far reaching argument. Most courts have heard the argument of RESPA and TILA settlement claims with no mention of the impact on the lenders security. I believe the breech and violations, if found to be material will cause the deed to be impaired from commencement. This argument if considered a willful deceptive act or tort is sufficient to argue around the statute of limitation inherent with RESPA violations. A tort or “unlawful act” that is willful and committed by one party against another in a contractual agreement not setting. It is not subject to ‘timing” limitations by the regulatory authority of HUD or a statute offering protection covering only a qualifying real estate transaction or settlement.

A fraudulent mortgage loan origination intended to sell a consumer into an unaffordable loan is a problematic issue for the courts. Equitable distribution of title and consideration on both sides caused a borrower to accept from a lender the excessive funding and convoluted if not deceptive loan terms. Contractually speaking, you will have a difficult time selling a judge on the fact you want out of the deal. This is especially true for loans aged 12 or more months and subject to adjustable rates and a borrower now in default.

A fiduciary is subject to interpretation in the mortgage sector of finance. The fact the loans are produced and intended to be delivered into a securities product and sold to investors changes the fiduciary argument. The fact is the borrower’s rights are defined in over 1,500 pages of investor risks information related to the public’s filings and private placement memorandums of the registrants.

The notion of lender acting as a fiduciary is something recently rejected by the court s in favor s of caveat emptor or buyer beware. The lender has in fact a duty of care no different than a broker dealer selling the securities instruments in the after math of a mortgagors loan funding. This is more and often causes for reversing the fiduciary argument due to non disclosure problems and flat out misrepresentations putting borrower at a further disadvantage for closing the transaction. Consider the message here If not from your perspective, at the very least as to risk and the potential investor to whom the loan is sold.

The court’s rulings and judges’ comments over 2009 are clear that both parties are culpable due to equitable distribution. At closer view and upon investigative scrutiny may allow for you to oformulate the arguments for evidencing the parties to mortgage commit a consumer to a secured “long term “obligation is at an unaffordable rate and payment cycle that is adjustable and unreasonably escalates.
The question we ask here is to what extent is the debtor obligation is a separate matter from the rights and obligations of a fiduciary conducting business through combinations with emphasis upon adhering solely to the commission’s enforcement affording the investor protections at the detriment of the consumer.

Msoliman
Admin@borrowerhotline.com
http://www.borrowerhotline.com

Where there is fear there is hatred…and the need to confuse, guess, react and defend ones right to be heard, to say and to exact retribution. Its with little or any benefit to others and driven by ego not fact. But in the end – only the truth shall illuminate and allow you to prevail.
Gardener J. Doane, on October 27th, 2009 at 7:08 pm Said:

Sorry forgot to let you know I’m in northern California and can be reach at http://www.kash4you2@aol.com.
Gardener J. Doane, on October 27th, 2009 at 7:04 pm Said:

I need any home owner who has First Franklin Financial corp. as there pretender lender to join me with the help of an attorney who gets it, to join together for a class action to save our homes. I have had a forensic audit completed and have found several TILA and RESPA viloations. Trustee sale date #3 will be held on Dec. 10, 2009.
Lisa E., on October 27th, 2009 at 5:50 pm Said:

Please forgive the non-working links.

Here’s the link to the story COUPLE CHARGED WITH TORTURING LOAN MODIFIERS: http://www.businessinsider.com/foreclosed-on-couple-couple-charged-with-torturing-loan-modifiers-2009-10

Although, I admit to a little smirk of satisfaction and a nod of understanding, I ascribe to the Quaker value of nonviolence.

I would love to know the whole story!

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
Lisa E., on October 27th, 2009 at 5:31 pm Said:

Resorting to violence! I hope we can avert this trend.

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
Kalona S B, on October 27th, 2009 at 2:59 pm Said:

Well stated and I am sure the majority of would agree.
I think the majority of us do have very good morals and a genuine integrity for our debt obligations. Most have been scammed and that is the greedy banks and investors who played the immoral crap on too many people. People that have had excellent credit, people with a history of paying their bills on time.
It was the banks and wall street that got greedy and broke the trust and loyalty of many who would have never defaulted had it not been for the blatant and dirty scams.
Many more need to be busted. But will that happen…time will tell but just not fast enough for too many honest people that trusted too much.
They have some nerve being to dare publish such BS.
But then again that is what got us all in this crap to begin with.
Lisa E., on October 27th, 2009 at 1:27 pm Said:

Marcus,

From the Miami Herald article you posted below about “strategic mortgage defaults by borrowers”:

“William Hardin, a real-estate professor at Florida International University, said people have a moral obligation to honor their mortgages when they can.”

I say to Professor Hardin (and I think I’ll actually write the man a little note), “Oh, really, Sir? Yes. Yes. Yes. I WAS one of the responsible ones. Lived well under my income. Dislike shopping. Prefer to read, walk, swim, think, and pray as opposed to any expensive pasttime. Yuppers, I, too, got caught up in an overappraised, untenable mortgage, with frequent strange, unaffordable increases in the escrow due to miscalculations and an unresponsive servicer. Now, you say I defaulted not only on my mortgage, but also my moral obligations? Hmmmmmmmmm, I’ve forged nothing, fabricated nothing, lied to no officer of the court, filed no fake documents, plead no frivolous pleadings, perpetrated no fraud upon the court. I simply ran out of savings and subsequently was unable to match my severely reduced income with my inversely proportional increased expenses. Who exactly is shirking their moral obligations?”

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
Lisa Bep @ gmail . com (remove spaces to email)
Search the Web on Snap.com, on October 27th, 2009 at 1:24 pm Said:

Marcus,

From the Miami Herald article you posted below about “strategic mortgage defaults by borrowers”:

“William Hardin, a real-estate professor at Florida International University, said people have a moral obligation to honor their mortgages when they can.”

I say to Professor Hardin (and I think I’ll actually write the man a little note), “Oh, really, Sir? Yes. Yes. Yes. I WAS one of the responsible ones. Lived well under my income. Dislike shopping. Prefer to read, walk, swim, think, and pray as opposed to any expensive pasttime. Yuppers, I, too, got caught up in an overappraised, untenable mortgage, with frequent strange, unaffordable increases in the escrow due to miscalculations and an unresponsive servicer. Now, you say I defaulted not only on my mortgage, but also my moral obligations? Hmmmmmmmmm, I’ve forged nothing, fabricated nothing, lied to no officer of the court, filed no fake documents, plead no frivolous pleadings, perpetrated no fraud upon the court. I simply ran out of savings and subsequently was unable to match my severely reduced income with my inversely proportional increased expenses. Who exactly is shirking their moral obligations?”

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
Lisa Bep @ gmail . com (remove spaces to email)
Marcus, on October 27th, 2009 at 12:05 pm Said:

Credit Disputes Could Bar Home Loans

WASHINGTON – Oct. 27, 2009 – Mortgage loan applicants with a credit dispute on their records may find it impossible to get a loan, even if they have a score above 800 and a large downpayment, consumer watchdogs warn.

The problem stems from a Fannie Mae policy that requires lenders to hand-underwrite these loans, because that practice makes it harder for scammers to use the credit dispute law to hide bad credit experiences.

Denying people who are good credit risks a loan is frequently an unintended consequence, says Christopher Cruise, a mortgage originator and a founder of Responsible Loan Officers. “There’s no question – when there are lots of other applications and business is good,” applications requiring extra time and research “just aren’t going to move.”

The policy is “extremely unfair to honest consumers who are simply doing what they should – challenging misinformation,” says Evan Hendricks, whose newsletter Privacy Times outlined Fannie Mae’s policy in a recent report.

Fannie Mae says it is reviewing the policy and may change it.

Source: Washington Writers Group
Dan Edstrom, on October 27th, 2009 at 11:21 am Said:

Jeff,
I forgot to mention another thing (among many) that I left out. MERS has testified in court that they do NOT keep notes or mortgages.

They are a nominee for the lender (according to my promissory note), which means they are an agent. Can they perform the assignment? Not in my opinion. They have NO beneficial interest (meaning they are not entitled to any of your payments and if they foreclose they will not be entitled to any money.

My SEC filings say specifically that MERS is the nominee for the Trustee (this may be at odds with my promissory note) and it specifically says they hold NO BENEFICIAL INTEREST in the mortgages.

There is lots more info on MERS on this site.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on October 27th, 2009 at 11:16 am Said:

Jeff,
Complicated question (or maybe not). Typically the mortgage is assigned from one company to another. My mortgage was assigned from Mortgage Lenders Network to US Bank as Trustee (in Foreclosure). This was performed by MERS. I have also seen assignments where MERS assigned the note to some company (bank?) but didn’t specify where it came from. They are probably assigning it from themselves to a new company. The problem is that usually the one doing the assigning is a person who works for the company that is being assigned to … So typically even though it says MERS is doing the assignment it is actually a person who works for the “new” company that is doing the assigning (or they are an agent for the “new” company).

If the assignment is invalid, it goes back to its previous state. What does this mean? Typically the lender of record (probably the originator). However, they typically sold the mortgage to somebody else. Therein lies the issue. When they are doing the assignment in foreclosure, they typically “skip” numerous assignments that were done but not recorded. The other parties (that were skipped) might be parties in interest, but many of them sold off the note to others. Since they didn’t record the assignments, you are left in the position of having your title clouded (or slandered?) and left in a state where there is nobody has perfected title. This is why homeowners whose loans were securitized are sueing for quiet title. There are parties out there with an interest in your title, but it has not been perfected. Further, without bringing ALL of the real and indispensible parties together, they cannot foreclose on your or “acquire” perfected title. Of course some of them will try but it is up to you (and your attorney) to stop them and let the judge know what is really going on.

In my case I have identified over 10 parties that may be considered parties in interest and that does not include the “holders of certificates”. Unless they all come together (in my case), none has the right on its own to foreclose.

Hope that helps, but I am not an attorney and do not know what I am talking about. This is for educational purposes only and is what I am looking at for my case. This is a complex issue and you should consult with an attorney to help you with your case.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
jeff, on October 27th, 2009 at 10:46 am Said:

If MERS assigned a mortgage to xyz trust and the assignment is invalid, does the mortgage go back to
MERS?

Thanks for any info.
Dan Edstrom, on October 27th, 2009 at 9:43 am Said:

Arpad,
I would say yes. There are many “holding the note” or allegedly “holding the note”. But they are note the owner. Or they may be a “partial” owner (or have an interest). In my case I have identified over 10 parties in interest not including the “holders of certificates”. Each of these parties has an interest in the title to my house, however, they can only be considered to have perfected interest (putative) when ALL the parties have joined together (JOINDER). In my case the Trustee (US Bank) claims to be a note holder and owner. But, the SEC filings say the following:

US Bank as Trustee is “…owner of mortgage loans on behalf of issuing entity for the benefit of holders of certificates …”

The issuing entity is the Trust.

Remember also that the mortgages were probably “pledged” anyway (they have not actually been “sold” to the Trustee and/or the Trust), so they are not truly the “owner”, but they have an “interest” …

Consider this – the real “lender” and the real parties in interest who receive your actual payments are NOT note holders. For them to foreclose they would have to join together with the “note holders” (the “note holders” are not beneficiaries and do not receive payments.

Remember the note was split from the mortgage (or, in my case Deed of Trust) at inception. But this is not the only “split”. The asset was split from the payments. The asset went to the warehouse lender (specifically to their Federal Savings Bank) so they could use it is collateral to borrow money. The payments payments went into the Trust and on to the holders of certificates.

The “holders of certificates” did not need the asset so the warehouse lender “borrowed” it. And of course the warehouse lender promised the payments to the certificates holders.

Talk about slicing and dicing …

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Arpad, on October 27th, 2009 at 8:11 am Said:

Hi Everyone!
Is there legally a difference between an owner of the mortgage and a holder of the mortgage?
Marcus, on October 27th, 2009 at 6:48 am Said:

Florida Homeowners Walking Away From Underwater Mortgages

Source: Miami Herald

MIAMI – Oct. 26, 2009 – Andres Duque thought he got a real steal when he paid $125,000 for his Little Haiti condo. But four years later, similar units are selling for $35,000 and even less.

And so, faced with the prospect of being underwater on his mortgage – owing more than the unit is worth – for the next 20 years, Duque, 33, made what seemed to him like a rational choice: to cut and run.

He stopped paying the mortgage, basically forcing the lender to take the condo off his hands through foreclosure.

“I was able to pay off all my credit cards,” said Duque, who is biding his time in the condo, waiting until they come and evict him. “In a way, it was the best thing that happened to me because all my income is not being consumed by this freaking monster of a debt.”

Duque’s game plan is known as a strategic default – when borrowers walk away from loans, even if they can afford the payments. Here is a look at the benefits, the risks and the ethics of such a move.

As property values have plummeted by an average of 50 percent, such strategic defaults now make up a sizable chunk of South Florida’s foreclosures. In the fourth quarter of last year, they accounted for an estimated 28 percent of all defaults in Miami-Dade and Broward counties, according to recent research from the credit bureau Experian and Oliver Wyman, a New York-based international consulting firm.

That’s up from 8 percent in the same quarter two years ago. With property values down even further now, researchers are certain the numbers have risen even more.

With the social stigma of foreclosure eroding, experts say it is becoming easier for discouraged borrowers to justify throwing in the towel.

“People are saying, ‘Everyone is doing this, and I do not feel any compunction in fashioning my own bailout,’” said Roy Oppenheim, a Weston real-estate and foreclosure defense attorney who conducts weekly seminars that discuss strategic defaults and other financial options for distressed borrowers.

South Florida is already a veritable Atlantis of underwater borrowers. In September, homeowners here collectively owed $62.7 billion more than their homes were worth, according to an analysis by First American CoreLogic. The analysis found that about half of all outstanding mortgages in Miami-Dade and Broward are underwater.

Among those who bought in Broward in 2006, the median negative equity was $75,000 as of March. In Miami-Dade, the figure was $63,000, the Web-based real-estate service firm Zillow.com reports. Negative equity refers to the difference between a loan balance and the market value of a home.

“I wouldn’t blame borrowers who knew they were facing significant losses even if they could afford to stay,” said Andrea Heuson, a finance professor at the University of Miami. “Every day you wake up, you are reminded how much you paid for something, and then you read every day in the newspaper how much prices have fallen.”

The many consequences

Walking away, however, is fraught with financial, legal and ethical dilemmas. Lenders, government and the credit industry are starting to pay more attention to how strategic defaulters think and behave – in an effort to convince them to tough it out.

“It’s a huge problem, and it doesn’t get addressed in the process right now,” said Ron Kaniuk, a Boca Raton foreclosure and bankruptcy attorney. He said lenders are encouraging the trend by primarily offering loan modifications only to those who have fallen behind or are seriously at risk of foreclosure.

Duque, in fact, said he shunned a modification because it didn’t reduce his balance.

“It’s really a social change in the way debtors think, and it’s taking creditors some time to absorb that,” said Mark King, an attorney with the Miami office of Jones Walker who represents banks in commercial foreclosures. Commercial property owners also have started walking away.

William Hardin, a real-estate professor at Florida International University, said people have a moral obligation to honor their mortgages when they can.

“The vast majority knew what they were doing and were taking a risk, and the fact of the matter is [the mortgage] is a contract. We live in a world where contracts have to be honored. It’s the way our economy works.”

High default rates have already meant higher loan costs and tougher underwriting standards for all borrowers.

Tracking strategic defaults is an inexact science. Experian researchers identified possible strategic defaulters as homeowners who have gone straight from current on their payments to not paying at all, but remained in good standing on other credit obligations. Nationally, Experian estimated 588,000 borrowers defaulted on purpose in 2008.

Also fueling the phenomenon has been a shift from viewing a home as a place to live to an investment, valued insofar as its potential resale price goes up.

Frustration with the tax-funded bailout of banks and Wall Street may have also emboldened depressed borrowers to default out of anger and a desire to stick it to the banks. Duque’s resolve, for example, hardened after watching Michael Moore’s movie Capitalism: A Love Story. In the movie, Moore makes a case that corporations preying on consumers led to the housing crisis and recession.

“In the movie, there were Congress people telling the American public to stay in their homes, to squat and do what you have to do to fight. A lot of it struck home in many, many, many ways, and I am going to stay here until [my bank] comes to get me out,” Duque said.

Aside from the new philosophical justification for stopping his payments, Duque said his decision was fundamentally an economic one. “My mortgage was killing me, even before things went to hell. I was being choked by the property,” said Duque, who works at the Mondrian Hotel in Miami Beach.

Most strategic defaulters find themselves weighing whether the hit to their credit scores is easier to bear than paying underwater mortgages for years to come.

The most optimistic analysts say it could be three years before prices begin to appreciate. Others say prices have another 30 percent-plus to fall before flat-lining.

Prepared for the worst, Duque has been surprised by the seemingly minimal consequences so far. His credit limits on two cards were slashed by a few thousand dollars, but they were not canceled.

“I went to BrandsMart and applied for a card, and they denied me, so my credit score must be pretty low,” he said. “That’s fine with me, as long as I have a couple of credit cards.”

Surprisingly, strategic defaulters with good credit scores who remain current on their other credit lines can quickly rehabilitate their credit scores after foreclosure – faster than many realize, according to Sarah Davies, a senior vice president at VantageScore, a credit scoring and consumer analytics firm owned jointly by the nation’s three major credit reporting agencies. “You can pull yourself out of any major impact from foreclosure in 24 months,” she said.

And five years down the road?

“A foreclosure is going to be very easy to explain, seeing there are thousands of others who have also defaulted. So, there is a safety-in-numbers issue there,” Heuson said, referring to a possible borrower rationale.

Consumers are essentially putting a price on their credit score, said Piyush Tantia, a partner in the retail and business banking practice of Oliver Wyman.

But there are other risks.

Foreclosure defense attorneys warn of the growing threat that lenders will obtain deficiency judgments against borrowers. Such judgments allow them to collect the difference between the loan balance and the market value of the properties. They also allow lenders to garnish wages and seize assets.

While the risk is not great now statistically, Marc Ben Ezra, a Fort Lauderdale attorney who files foreclosures for banks, said it’s possible that lenders may begin pursuing legal rights to collect.

Jim Angleton, senior vice president of Miami-based Republic Federal Bank, estimated lenders are going after borrowers 15 percent of the time. “You know they are not being forthright with you about their assets when they are keeping their credit cards, their very fine cars and other assets current.”

Oppenheim recommends homeowners bulletproof themselves by hiring a lawyer and perhaps an accountant to explore the possible consequences.

Other real-estate experts say walking away may not be worth it in the short term, when you factor in the cost of finding new shelter and the increased consumer interest rates that stem from any foreclosure.

Tactic not for everyone

Defaulting, though, is not for everybody whose mortgage is underwater, and plenty of people stick with their homes out of a sense of financial responsibility, integrity and faith that prices will recover eventually. There are also people who forked over tens of thousands of dollars in down payments and face a real financial loss by walking away.

Analia Vence, who is renting her underwater town house in Homestead to a tenant for less than the monthly mortgage payment, said she has no intention of walking away. She paid $170,000 in 2006, and now nearby foreclosed homes are selling for $80,000.

“We bought the property as an investment, and we never thought to sell it immediately. We’re only paying $200 or $300 for the mortgage, so it doesn’t make sense to hurt our credit for that much,” Vence said.
ALLAN in MA (with a followup to Deontos' Michael Moore quotation), on October 26th, 2009 at 10:25 pm Said:

Deontos, on October 26th, 2009 at 8:07 pm Said:

Just a little side note from MichaelMoore.com,

“Postscript: (me: Post mortem)
In August, WaMu’s former New York Stock Exchange ticker symbol, WM, was adopted by another company: Houston-based trash hauler Waste Management.”

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Wonder to where these toxic assets got hauled! Lehman Bros? USBank?

Seattle Times just did a series on WaMu:

Part one | Reckless strategies doomed WaMu

Part two | WaMu: Hometown bank turned predatory

6 loans in 6 years: How one woman lost her home

Allan
B e M o v e d @ A O L . c o m
Deontos, on October 26th, 2009 at 8:07 pm Said:

Just a little side note from MichaelMoore.com,

“Postscript: (me: Post mortem)
In August, WaMu’s former New York Stock Exchange ticker symbol, WM, was adopted by another company: Houston-based trash hauler Waste Management.”
Abby in CA, on October 25th, 2009 at 10:55 pm Said:

Go Here to Rate Judges!!

http://www.robeprobe.com/index.php
Abby in CA, on October 25th, 2009 at 7:37 pm Said:

Protesters Crash & Storm Bankers Convention in Chicago….breaking coverage on Huff Post

http://www.huffingtonpost.com/2009/10/25/bank-protests_n_333155.html

We all need to put signs out ‘Jail Em, Don’t Bail Em’!!
Deontos, on October 25th, 2009 at 2:48 pm Said:

“usedkarguy, on October 25th, 2009 at 8:26 am Said:

Maher, thanks for the further clarification. It is always helpful to get your side of the story. And I want to say something. I’ve been on this blog since August of 08………..”

usedkarguy,

My gut tells me what your experience tells you.
Hope I can ask the right questions if I need Maher
and I hope I can afford him.
usedkarguy, on October 25th, 2009 at 8:26 am Said:

Maher, thanks for the further clarification. It is always helpful to get your side of the story. And I want to say something. I’ve been on this blog since August of 08 (one of the first). I knew nothing. I’ve heard and read the plea of many a homeowner looking for help. Now, I get calls and e-mails now from strangers seeking advice on how to stop their foreclosure or where to get a lawyer. Rewarding? yes. Do I know what I’m talking about? sometimes. Is there any one person I would point to as a friend and confidant? Besides the great Garfield,? Yes. It’s Maher. You see, Maher and the Kopster took my calls, spoke with me, called me back after I had gone to sleep and woke me up with “Bankruptcy Express” scenarios, and took the time to share. And when I needed some help, what I thought I needed, I went to Maher. I gave him some money, and he gave me some advice. That’s how this business works. The money I spent with Mr. Soliman was for a particular thing, and in hindsight, that particular thing was not really what I needed. But I thought I did, and he provided it. For a fee. I took what he gave me, and somewhat “mis-applied” it. Whose fault was that? Mine or Maher’s? Now, I’m not gonna tell you he got an “A” in spelling in 6th grade. I’m not gonna say he is “grammatically correct and error free 99.9% of the time”. But I am going to say that he is very giving of himself to others. I know what I know because Maher took the time to teach me. I see comments from other people on this site throwing Maher a jab when they can. Somebody said they paid him and didn’t get what they “wanted”. Well, I’m going to tell you he gave me LOTS AND LOTS OF STUFF, AND IT WAS FREE! And then, when I thought I needed what he had, only then did he “sell” it to me. I count him as a friend. Thanks, Maher.
Foreclosure Fraud, on October 24th, 2009 at 3:58 pm Said:

Fair Game
If Lenders Say ‘The Dog Ate Your Mortgage’

By GRETCHEN MORGENSON
Published: October 24, 2009

FOR decades, when troubled homeowners and banks battled over delinquent mortgages, it wasn’t a contest. Homes went into foreclosure, and lenders took control of the property.

On top of that, courts rubber-stamped the array of foreclosure charges that lenders heaped onto borrowers and took banks at their word when the lenders said they owned the mortgage notes underlying troubled properties.

In other words, with lenders in the driver’s seat, borrowers were run over, more often than not. Of course, errant borrowers hardly deserve sympathy from bankers or anyone else, and banks are well within their rights to try to protect their financial interests.

continued here…

http://bit.ly/O3sSy

4closure Fraud
SECONDARYTRADEDESK, on October 24th, 2009 at 4:13 am Said:

UKG Comments:

They are the one who got stuck with loss on your note, but they have no note, and no claim to the collateral.

MSoliman replies:

1) The note is an obligation and collaterals the security and appraised vale of the home.
2) Counterparties deals solely with hedges and swaps???

The obligation is lost to the transaction and not as in a lost set of keys. Look, the lender took your home and showed it on a balance sheet used to pledged it as a wholly owned asset.- they don’t own the home they own an interest (duded securing the obligation) and the amount due from you on the obligation.

They treat the mortgage ike a sucurity deed (look up please) sold the receivable yet keep the collateral with a Bailee or custodian. MERS. Nothing leaves custodial possession until default kicks in and they nonw after six months of accrual you will never catch up. Then its dump time. But dump what. They don’t own the collateral …UNLESS THEY FORECLOSE ON THE HOME – GET IT! SO THEY WERE CORRECT IN SHOWING YOUR LOANS ON THEIR BALANCE SHEET AS WHOLLEY OWNED ASSETS. CONTINGENT WHOLLY OWNED ASSETS.

They are the borrower (as obligor) not you- you sold them your home and never knew it. ***REMEBER*** ITS about the bundle of loans (so stop breaking out your loan as a separate asset) United we stand and . ..

At the member bank level – warehouse billion dollar lines of credit – they keep the note or FDIC auditors will shut them down. MERS maintains the confidentiality of the security holder who is a member bank. COUNSEL – YOU TAKE THEIR MONEY AND NO NOT WHO YOU ARE SUING! WHO ARE YOU SUING?

SUMMARY : So registrant originates loans with reckless abandon made to borrowers from borrower funds and assign the cash flow to themselves (subservicing) and make a monthly LUMP SUM dividend payment on the strength of their name and programs SOLD to clueless capital management firms or “investors” selling nothing tangible other than a high leveraged fraud intended to generate more cash from new issue and Shelf’s consisting of classes of stock and proffered shares while they pay dividends to the parties.

Their stock was flat and boring to investors and this was an optimal way to find new access to the capital markets they lost access to after the crash of early in the decade. It’s about stock and selling securities not mortgage lending and there you should target the causes for predatory lending claims that judges don’t want to hear.

I would venture to say the lenders in hindsight were duped with borrowers while going along with this crap when they signed up for this toxic nightmare. At least the earned a ton of money before losing their companies. And you lose your home.

For all the flack I take intended to discredit me – if you
Only knew what I saw and whom I transacted with …you would see I sold myself out to join the good fight. That industry is lost to me forever and that the chance I took. But now to be rejected here is a once in a lifetime shot to show attorneys and others what they can do and expect. . .Instead I have the Shank off report and email covert chit chatter instigators competeing for business…..and of course Abby Lane to deal with .

I won’t put anyone down here for trying but at times one can be so far off with lost note, MERS and Tandori Chicken cube arguments that are so far off I have to jump in…But not at your expense – to avoid confusion. .

SO HOW ABOUT THAT RESPA AUDIT YOU JUST PAID FOR ….(whats up with that). There is a way out but anyone sane with a similar backround is crazy to get on line here….crazy!

M.Soliman
expert.witness@live.com
James#, on October 23rd, 2009 at 7:18 pm Said:

Lisa E
Criminals are crazy and do really stupid things to do themselves in.
Someday I expect that some part time Bank employee will come forward and reveal that he spent eight hours a day forging notes
Lisa E., on October 23rd, 2009 at 4:16 pm Said:

At the courthouse file room today I, once again, reviewed my file. I highly recommend everyone do that periodically because I found some documents attached to Plaintiff’s pleadings that were not attached to the copies I received in the mail.

The second “copy” of the note (differing from the first “copy of the note”) had white out lines on the bottom of page 1 & 3, small half inch lines of white out tape. They covered up a loan number. The white out was slightly raised, as I could feel it when running my finger across it. Page 2 had the loan number without the white out.

My “copy” of this attachment was copied after the application of this white out, and appears to not have any loan numbers on page 1 & 3. This “copy” had the endorsement in blank with the stamped name of a bank that is neither the Plaintiff nor mentioned on the “assignment” nor referred to in any other way in the Plaintiff’s filings.

The other “copy” of the note had the loan numbers on the bottom of all 3 pages without any white out tape. This “copy” was not endorsed.

It’s all so very strange!

Besides that, attending 45 minutes of hearings, 15-20 homes whisked away per 15 minute block of time. No one defending, no one but foreclosing attorneys, judges, baliffs, and me (until I became overwhelmed with heartsickness, nausea, horror, and disgust).

Maybe for Halloween, dressing up as a foreclosure mill attorney or RJ Arnold (President of MERS) will earn me bragging rights for the scariest costume?

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
Lisa Bep @ gmail . com (remove spaces to email)
Mortgage Auditor, on October 23rd, 2009 at 1:43 pm Said:

Jason,

With regards to same lender refinancing this should help answer your questions:

http://loanaudit.wordpress.com/2008/12/15/right-to-cancel-notice-same-lender-refinance/
Jason in GA, on October 22nd, 2009 at 9:36 pm Said:

I have a question about the right to rescind a mortgage transaction under TILA. I keep hearing from different sources that only a refinanced mortgage that was done with a “different” lender is eligable for a rescision. But when I read the TILA statute, I haven’t found anything that differentiates one credit transaction from the next. Am I missing something? I am about to pursue a quiet title action next week and want to make sure I’ve got all my basis covered.
Kathy/ Oregon, on October 22nd, 2009 at 7:46 pm Said:

Thanks for all the info, waiting to here if any thing is happening in Oregon. Can’t find any lawyers that get it in Oregon or Washington. I still like all the info, best of luck to every one.
Abby in CA, on October 22nd, 2009 at 3:53 pm Said:

http://www.huffingtonpost.com/2009/10/22/elizabeth-warren-speaks-w_n_329425.html

Huff Post has 3 videos of unseen footage from Michael Moore movie of interview with Elizabeth Warren in charge of Congressional Oversight Panel for the TARP Program

Worth a watch!
Lisa E., on October 22nd, 2009 at 2:12 pm Said:

Jeff!!!

I am LOVING that ruling you posted below!

I could print that out and wrap myself up it!

WOWEE!

Progress! Progress!

JUDGE MALTESE: I could give you a big ole’ smoocheroo!

Thank you Jeff & Judge!

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
Lisa Bep @ gmail . com (remove spaces to email)
expert.witness, on October 22nd, 2009 at 1:47 pm Said:

I just lost my UD yesterday (10/19) and have a lockout date for 11/2. The commissioner told me to file a quiet title in civil court. I have not filed my complaint yet in civil court.

• I just lost my UD yesterday (10/19) and have a lockout date for 11/2.
o WELCOME TO THE TRAP CALLED JURISDICTION

• The commissioner told me to file a quiet title in civil court.
o NICE WAY OF SAYING “DONT COME AROUND HER NO MORE!

• I have not filed my complaint yet in civil court. ?
o WHY NOT? WHAT ARE YOUR ALLEGATIONS?

Our attorneys fight the UD in order to reverse the sale. It’s not that hard if a tort linked to the sale can show an illegal conveyance

The argument has merit if argued citing a deceptive business practices evidenced in documents you must pull from the county recorder’s. You got gold in them noodles and may not even know it. You’re Notices and other documents affecting title will support unlawful point of transfer and a title claim that will survive a UD hearing and compel the request for consolidation.

Here the judge is not interfering with a decision made in another department, branch or lower courts authority when issuing the TRO and hopefully granting an injunction.

expet.witness@live.com.
Abby in CA, on October 22nd, 2009 at 1:39 pm Said:

OHHHHHHHHHHHHH YEAAAAAAAAAH

I like what the court said about the ‘retroactive assignments being invalid’…..I have some of those!!

That was in the Deutsche Bank v Abbate posting of NY Case.
Marcus, on October 22nd, 2009 at 1:37 pm Said:

Massive Amounts of Foreclosures Clogging County’s Civil Courts

Source:The Miami Herald

MIAMI – Oct. 22, 2009 – Most everyone involved in a foreclosure says they never wanted to go through the process in the first place: Not the homeowners at risk of losing their houses, not the banks that loaned them the money, not the judges who must rule on the cases.

Still, court clerks say more than 135,000 foreclosures could be filed in Miami-Dade, Broward and Monroe counties this year – compared to a tri-county total of about 17,500 in 2006.

The avalanche of filings has overwhelmed the civil courts and prolonged the pain of foreclosure for all: Homeowners are living in limbo; banks are losing money; and the ripple effects are felt from condo associations that can’t collect dues to municipal governments that must spend scarce resources to shutter or maintain abandoned houses.

“Everybody’s getting burned in this thing,” says Judge Jennifer D. Bailey, who oversees civil courts for the 11th Judicial Circuit, which covers Miami-Dade County. “The bank’s not going to come out of this in one piece. The people who owned the property, whether they’re homeowners or investors, are not going to come out in one piece.”

Even the courts are struggling to hold together, as foreclosures crowd the calendars of judges who also must tend to traffic, probate and other non-criminal cases.

“We’re sort of built to handle 25,000 to 35,000 cases a year,” Bailey says of Miami-Dade civil court. “We have almost 35,000 by the end of June that are foreclosures alone, out of a total of 50,000 cases filed.”

Statewide, about 17 percent of the more than 3.5 million mortgages in Florida are somewhere in the process of foreclosure – the highest rate in the nation, according to a second-quarter report of the Mortgage Bankers Association, a real estate finance industry group.

Foreclosures that once took three to five months to complete in Miami-Dade and Broward counties now take nine months to one year to move from initial filing to final judgment and auction. The system comes painfully close to mirroring a Monopoly game gone awry: Miss a court date, cancel an auction, go back three months and start all over again.

The crisis is more than a matter of volume. A labyrinth of rules that vary by judicial circuit is causing confusion among plaintiffs, and many borrowers have gone AWOL, forcing lenders to pursue more time-consuming methods.

Even in less harried times, foreclosure is a paperwork-intensive process, requiring lenders’ attorneys to file loan notes, affidavits and other documents – and clerks to issue summonses, process servers to serve defendants, and judges to review and verify each file.

In this crisis, foreclosing on a property has become even more cumbersome. Because many mortgages involve complex financial transactions, where the original note has been passed from one investor to the next, judges can have a difficult time discerning who has the legal standing to foreclose.

“With securitization and exotic loans, things have gotten much more complicated,” Bailey says. “It makes resolution of the case much more difficult.”

Then there are underwater borrowers who walk away from homes that have lost so much value that they are worth less than what they owe. Some of these borrowers never respond to a foreclosure summons – forcing lenders to pursue default and prove that they’ve made good faith efforts to contact the borrower, such as publishing a notice in the newspaper for 60 days.

Courthouse confusion

Lenders also add to the delay. Many simultaneously negotiate loan modifications with borrowers while also pursuing foreclosure, causing confusion in the courthouse.

“You have a huge problem with the left hand not knowing what the right hand is doing on the plaintiff side of the litigation,” Bailey says. “I will frequently have a borrower saying, ‘I have a deal with the bank’ and the lawyer standing in front of me doesn’t know anything about it.”

Though local property auctions aren’t held on the courthouse steps – here, they’re in air-conditioned rooms – they, too, can create delays. Banks frequently cancel at the last minute, forcing judges and clerks to repeat the steps required to schedule a sale. Under Florida statute, a lender can cancel a sale simply by not showing up, without any notice or explanation.

Because of sales cancellations, auctions in Miami-Dade County are being set 200 days or more after final judgment, compared with 60 days or more in Broward County. Frustrated judges are now adding orders to final judgments, forbidding sales from being canceled.

Even the courts have contributed to delays, though indirectly.

In Florida, two law firms control about 60 percent of foreclosure cases, according to a report by the Florida Supreme Court Task Force on Residential Mortgage Foreclosure Cases, a 15-member panel of judges, attorneys, mediators and state officials.

You might expect those attorneys to be so familiar with the process that glitches would be rare. But because judges across the state’s 20 judicial districts have adopted different administrative procedures to manage their caseloads, attorneys are forced to navigate a complex patchwork of rules – causing them to frequently file unnecessary documents, or to omit required forms.

“What that does is that wastes valuable time,” Bailey says.

Limited resources

And Florida judges cannot afford to waste time, she adds, because there simply aren’t enough of them, not after state budget cuts forced civil court judges to lay off personnel and switch more resources to the criminal courts to guarantee timely trials for defendants.

The state’s Clerk of Courts offices, where foreclosure cases enter the courts and are guided through resolution, also slashed their budgets by 18 percent, eliminating 140 jobs in Broward and 225 in Miami-Dade.

“We have less people and we have more foreclosures,” says Broward Clerk Howard Forman, who projects his office will receive nearly 60,000 new foreclosures this year.

In Miami-Dade, Clerk Harvey Ruvin is staring at a projection of 75,000 new foreclosure filings by year’s end.

Miami-Dade’s civil court received nearly 9,800 foreclosures in 2006, compared with 56,000 in 2008 – a 471 percent increase. The number of foreclosures filed in Miami-Dade through Sept. 30 is 49,325.

Monroe County received 323 foreclosures in 2006, compared with 1,441 in 2008 – a 346 percent increase. The number of foreclosures filed in Monroe through Aug. 6 is 1,197.

Kriz Mazzeo, the Broward clerk’s director of circuit civil division, says the court’s administrative operations have slowed under the crush of new foreclosures and the tasks required to move those cases through court.

“Everything is taking longer,” she says, “just by virtue of the fact that we have so many more foreclosures than we’ve had in the past.”

The 17th Circuit, which covers Broward County, received 7,400 foreclosures in 2006, compared with 46,000 in 2008 – a 521 percent increase. The number of foreclosures filed in Broward through Sept. 30 is 39,691, Mazzeo says.

“This has been really crushing,” she says.

One of the most intensive aspects of foreclosure for the clerk’s office is mailing judgments, notices of sale, certificates of disbursements and other official documents to every defendant in a suit – from the borrower to the tenant and any lien holder on a house.

“We have buckets and buckets of work that we do just to get ready to do the mailings,” Mazzeo says.

As delays build in the foreclosure process, the volume of new filings shows little sign of easing.

Many mornings, pick-up trucks loaded with boxes of new foreclosures arrive at the Broward courthouse for filing, Mazzeo says. Process servers unload the cargo onto hand trucks, and file cases by bulk.

“Sometimes they sit there all day and we just file case after case after case,” Mazzeo says. “We do it as fast as we can. But there’s always more.”

Solutions murky

What to do? The solutions are not yet clear.

Some proposals, such as mandatory mediation, are focused on the long term, and would apply across the breadth of Florida’s 20 judicial circuits; others are more immediate, such as the hasty assembly of special teams to clear backlogged cases in local courts. All are designed to streamline the foreclosure process and to move the unprecedented number of cases through the courts in a timely manner.

“There’s just a lot of chaos,” says Bailey, who chaired the Florida Supreme Court Task Force on Residential Mortgage Foreclosure Cases, the panel charged with finding solutions to the crisis.

The task force delivered its findings in August. Among its recommendations is mandatory mediation for cases involving homesteaded properties – primary residences.

Bailey says too many lenders are foreclosing while simultaneously negotiating with borrowers, with many reaching settlement just as a case nears closure. The result: “A case settles, but not until it’s consumed every bit of judicial resource necessary to push that case through the system.”

Among the task force’s other recommendations: standardize a patchwork of incongruous rules adopted by judges struggling to manage growing caseloads, and create a Web-based repository for the many documents required for foreclosure.

The Florida Supreme Court will schedule public hearings on the task force’s report and then will determine whether to implement, decline or modify the recommendations.

Mediation

The issue likely to receive the most attention is mandatory mediation for residential mortgage foreclosures, which is now the rule in three judicial circuits, including Miami-Dade’s.

Since mandatory mediation was adopted in May, lenders foreclosing on homesteaded properties in those districts have been required to meet with borrowers who want to stay in their homes – before a judge will hear the case. (In Broward and Monroe counties, mediation is not mandatory.)

The 11th Circuit Homestead Access to Mediation Program (CHAMP) in Miami-Dade is managed by the nonprofit Collins Center for Public Policy, and has achieved a nearly 78 percent success rate.

In the three judicial circuits where mediation is mandatory, the program has achieved a 76 percent success rate – leading to settlements in 1,072 of the 1,401 cases scheduled for mediation through Oct. 12.

“It’s been one of the most successful models,” says Program Director Ned Pope.

Under the program, borrowers are required to disclose their financial status, and to attend credit counseling before meeting with the lender and a neutral mediator. The lender is required to pay the $750 fee for mediation, and to provide a representative with the authority to amend a loan.

Pope says the number of eligible cases has grown each month, from 261 in May, to 1,300 in June, 1,800 in July and more than 2,200 in August. Collins Center mediators are charged with contacting borrowers, but often that can be difficult, particularly if a debtor has walked away from a home.

Many bank executives disagree with mandatory mediation, says Barb Godin, a vice president for Regions Bank.

“It’s rather sad,” Godin says, “that someone thinks we need this in the industry.”

Regions, which holds about $5.5 billion in mortgages in Florida, launched a program in October 2007 to help customers that were falling behind on loan payments.

The program began with about 10 employees helping customers in the 16 states where Regions operates. There are now about 60 employees dedicated to the program, Godin says.

“We’ve talked to roughly 200,000 customers across country,” she says. “Of those, in Florida, we have helped 5,356 customers.”

The foreclosure rate for Regions’ Florida mortgages is about 3.3 percent, Godin says, compared to about 17 percent statewide. In the cases where Regions has modified a loan, as opposed to short selling for less than the mortgage value or taking a deed in lieu of foreclosure, the default rate is about 12 percent, she says.

But most of Regions’ Florida mortgages are for second homes, Godin says. So they don’t qualify for mandatory mediation.

Ed Wilburn, managing director of Great Florida Bank’s residential lending division, says some lenders had been hesitant to invest in loan modification efforts because, “It’s a losing proposition for most companies to engage in the process.”

But, Wilburn says, lenders now see value in dedicating staff and dollars to helping borrowers keep their homes.

“They are looking at it now from a different perspective,” he says. “They can save money by being more proactive in looking for solutions.”

When banks work with borrowers, the foreclosure process moves faster. An adversarial relationship often leads to delays as homeowners ignore summonses, and lenders file motions for default and cancel sales.

Still, some attorneys and condo associations allege lenders are deliberately delaying foreclosing to avoid the costly hit to their balance sheets, as well as the expense of association fees, insurance and maintenance costs.

Inaction

Florida lawmakers have tried at various times to address the foreclosure crisis, but little has come of their efforts.

Gov. Charlie Crist named a foreclosure task force in February 2008, which included elected officials and bankers and Realtors. But the panel issued just one recommendation to the state Legislature: Increase protections for people with subprime loans. Lawmakers did not adopt it.

Lost in legislation

During the state Legislature’s spring session, lawmakers introduced 15 bills to address foreclosure issues. But 10 bills never received a hearing, including several that would have required mediation between lenders and borrowers.

Lawmakers also approved two foreclosure-related bills – one to comply with new minimum federal regulations for lenders, and another to increase court costs for foreclosure cases from $300 to as much as $1,900.

Still, new foreclosures continue to roll in.

To tackle the mountain of mortgage foreclosures, Miami Dade Clerk Ruvin assembled in early August a “Dream Team” of about 40 managers pulled from the clerk’s traffic, recording, accounting and other divisions to work exclusively on the foreclosure backlog.

Ruvin also negotiated an overtime pay waiver with the employee union, allowing about 100 volunteers to work nights and weekends on foreclosure cases for compensatory time. There is no money in the budget to pay overtime, Ruvin says.

In a six-week span, the team buzzed through a backlog of 6,600 default cases and converted more than 1,000 filings into new cases.

“Everybody at every level is putting their shoulder to the wheel, and it’s turning,” says Ruvin, who expects to keep the team in place until December.

Long-term plans

But these are stop-gap measures. Ruvin’s long-range plan is to implement an electronic filing system for all civil cases, reducing the amount of paperwork required of clerical staff.

He also plans to hold foreclosure auctions online beginning in December, which will allow the clerk’s office to hold about 200 to 250 sales per auction, compared to 150 to 200 now.

Online auctioning also is expected to reduce the need for time-consuming manual tasks, such as scheduling.

Broward Clerk Howard Forman also plans to use online auctions for foreclosure sales by January. Broward is setting sales about 60 days after final judgment, but Forman expects that electronic filing will speed the process. “That’s going to free up eight or nine employees,” he says. “This will help a great deal.”
Abby in CA, on October 22nd, 2009 at 1:30 pm Said:

California News
Governor signed the SB94, so effective October 11, 2009 it is illegal for anyone to collect advance fees from consumers seeking loan modifications.

It closed a loophole allowing state licensed real estate brokers and attorneys to collect advance payments for loan mod services.

According to State Attorney Jerry Brown “homeowners should avoid any person charging upfront fees for foreclosure relief services.”

Any advance payments collected prior to Oct. 11, 2009 are not impacted by the law BUT NO ADDITIONAL fees can be collected going forward.

SB94 only allows fees to be collected after the promised work is finished.

There were 3 other important CA laws which will go into effect on Jan. 1, 2010
AB 260, AB 329, AB 852
jeff, on October 22nd, 2009 at 1:22 pm Said:

Here is another New York case.

I think the NY Judges are ” GETTING IT”

Deutsche Bank National Trust Company, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CARRINGTON MORTGAGE LOAN TRUST 2005-OPT2, ASSET-BACKED CERTIFICATES, SERIES 2005-OPT2, Plaintiff

against

Debra Abbate, CARMELA ABBATE, KIM FIORENTINO, BOCCE COURT HOMEOWNERS ASSOCIATION, INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK CITY PARKING VIOLATIONS BUREAU, and “JOHN DOE No. 1″ through “JOHN DOE #10,” the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the Mortgaged premises described in the Complaint, Defendants.

100893/07

Plaintiff was represented by the law firm of Frenkel Lambert Weiss & Weisman.

Defendant was represented by Robert E. Brown, Esq.

Joseph J. Maltese, J.

The defendants Kim Fiorentino, Debra Abbate, and Carmella Abbate’s motion to dismiss the plaintiff’s complaint is granted in its entirety.

This is an action to foreclose a mortgage dated February 24, 2005, upon the property located at 25 Bocce Court, Staten Island, New York. The mortgage was originated by Suntrust Mortgage Inc. (“Suntrust”) and was recorded in the Office of the Clerk of Richmond County on April 26, 2005. The plaintiff filed the Summons, Complaint, and Notice of Pendency on March [*2]1, 2007.[FN1] However, Suntrust assigned the first mortgage on this property to Option One Mortgage Corporation, which was executed on July 6, 2007. Another assignment to plaintiff Deutsche Bank National Trust Company (“Deutsche Bank”) was executed on March 7, 2007. Both assignments, which were recorded on July 23, 2007, contained a clause expressing their intention to be retroactively effective: the first one to date back to February 24, 2005, and the second one to February 28, 2007.[FN2] On November 19, 2007, this court issued an order of foreclosure and sale on the subject property. This court also granted two orders to show cause to stay the foreclosure on January 9, 2008 and April 8, 2008.[FN3]

Discussion

The Appellate Division, Second Department ruled and reiterated in Kluge v. Kugazy the well established law that “foreclosure of a mortgage may not be brought by one who has no title to it . . . .”[FN4] The Appellate Division, Third Department has similarly ruled that an assignee of a mortgage does not have a right or standing to foreclose a mortgage unless the assignment is complete at the time of commencing the action.[FN5] An assignment takes the form of a writing or occurs through the physical delivery of the mortgage.[FN6] Absent such transfer, the assignment of the mortgage is a nullity.[FN7]

Retroactive Assignments of a Mortgage are Invalid
The first issue this court must resolve is whether the clauses in the July 6, 2007 and March 7, 2007 assignments setting the effective date of the assignment to February 24, 2005 and February 28, 2007 respectively are permissible. This court rules that, absent a physical or written transfer before the filing of a complaint, retroactive assignments are invalid.

Recently, trial courts have been faced with the situation where the plaintiff commenced a [*3]foreclosure action before the assignment of the mortgage.[FN8] In those cases the trial courts have held,

. . . where there is no evidence that plaintiff, prior to commencing the foreclosure action, was the holder of the mortgage and note, took physical delivery of the mortgage and note, or was conveyed the mortgage and note by written assignment, an assignment’s language purporting to give it retroactive effect prior to the date of the commencement of the action is insufficient to establish the plaintiff’s requisite standing. . .[FN9]

In this case, the plaintiff failed to offer any admissible evidence demonstrating that they became assignees to the mortgage on or before March 1, 2007; as such, this court agrees with its sister courts and finds that the retroactive language contained in the July 26, 2007 and March 7, 2007 assignments are ineffective. This court therefore rules that it lacks jurisdiction over the subject matter when the plaintiff has no title to the mortgage at the time that it commenced the action.

The next issue this court must resolve is whether the defendants waived subject matter jurisdiction because they did not raise that issue in their prior applications to this court.

Affirmative Defense of Standing

At the outset of any litigation, the court must ascertain that the proper party requests an adjudication of a dispute.[FN10] As the first step of justiciability, “standing to sue is critical to the proper functioning of the judicial system.”[FN11] Standing is a threshold issue; if it is denied, “the pathway to the courthouse is blocked.” [FN12]

The doctrine of standing is designed to “ensure that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable [*4]of judicial resolution.”[FN13] “Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.”[FN14] Where the plaintiff has no legal or equitable interest in a mortgage, the plaintiff has no foundation in law or in fact.[FN15]

A plaintiff who has no standing in an action is subject to a jurisdictional dismissal since (1) courts have jurisdiction only over controversies that involve the plaintiff, (2) a plaintiff found to lack “standing is not involved in a controversy, and (3) the courts therefore have no jurisdiction of the case when such plaintiff purports to bring it.”[FN16]

On November 7, 2005, in the case of Wells Fargo Bank Minn. N.A. v. Mastropaolo ["Mastropaolo"], this court found that “Insofar as the plaintiff was not the legal titleholder to the mortgage at the time the action was commenced, [the Bank] had no standing to bring the action and it must be dismissed.”[FN17] Erroneously, this court “[o]rdered, that the plaintiff’s summary judgment motion is denied in its entirety and that this action is dismissed with prejudice.”[FN18]

This Court should have ordered that this matter was dismissed without prejudice, which would have given the plaintiff the right to start the action again after it had acquired title to the note and mortgage. Unfortunately, the plaintiff, did not seek a motion to reargue that error, which would have been corrected promptly. Instead, the plaintiff appealed the decision to the Appellate Division, Second Department, which rightfully reversed the decision 18 months later on May 29, 2007 based upon the dismissal with prejudice as opposed to a dismissal without prejudice to refile the action. However, in what appears to be dicta, the court went on to discuss whether lack of standing is tantamount to lack of subject matter jurisdiction. The court further stated that the failure of the initial pro se defendant to make a pre-answer motion or a motion to dismiss, the defense of lack of standing would be waived. But the Appellate Division did not address the issue of subject matter jurisdiction, which may not be waived. [*5]

In the instant case, this court is again faced with similar facts, which raise the issue that the Bank must have title to the mortgage before it can sue the defendant. Clearly, having title to the subject matter (the mortgage) is a condition precedent to the right to sue on that mortgage. This has always been the case, but since the Appellate Division, Second Department’s comments in Mastropaolo, that issue has been clouded.

At the time that the plaintiff improperly commenced the action, the pathway to the Courthouse should have been blocked. Deutsche Bank had no legal foundation to foreclose a mortgage in which it had no interest at the time of filing the summons and complaint. Lack of a plaintiff’s interest at the beginning of the action strips the court’s power to adjudicate over the action.[FN19] Lack of interest and controversy is protected by the umbrella of subject matter jurisdiction. Whenever a court lacks jurisdiction, a defense can be raised at any time and is not waivable.[FN20] In other words, for there to be a cause of action, there needs to be an injury. At the time that the action was commenced, the instant plaintiff suffered no injury and had no interest in the controversy. Since the plaintiff filed this action to foreclose the mortgage before it had title to it, there was no controversy between the existing parties when the action commenced. Therefore, the court lacked subject matter jurisdiction to adjudicate the present case. The defendants are consequently entitled to a dismissal without prejudice because the court lacked jurisdiction over a non-existent controversy.

Accordingly, it is hereby:

ORDERED, that the defendants Kim Fiorentino, Debra Abbate, and Carmella Abbate’s motion to dismiss the plaintiff’s complaint is granted, without prejudice to the plaintiff having the right to refile within the time provided by the Statute of Limitations; and it is further

ORDERED, that the parties and counsel shall appear before this court to further conference this matter on November 20, 2009 at 11:00AM.

ENTER,

DATED: October 6, 2009

Joseph J. Maltese

Justice of the Supreme Court
Dan Edstrom, on October 22nd, 2009 at 1:06 pm Said:

Nice going Jeff!
Everyone involved with Wells Fargo take note. The Supreme Court of the State of New York has confirmed that the attorney for Wells Fargo made a “misstatement” … To me this is an outright lie. Would it not be considered a perjury or fraud?

excerpt:

In the verification, Wells Fargo’s attorney affirmed the complaint to be true to the best of his knowledge, and his belief as to matters stated to be alleged on information and belief was based upon “correspondence, memoranda and statements of account in affirmant’s possession.” The complaint included a paragraph that stated Wells Fargo was “now the sole, true and lawful owner of record of the bond(s), note(s) and mortgage(s) securing the Mortgaged Premises.” This averment was not based on information and belief and could not have been true on the date of the verification, November 29, 2007, since the actual execution of the assignment did not take place until December 4, 2007. Thus, the complaint contained a misstatement of a material fact which is not excused simply because the attorney was the one who verified the complaint.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
jeff, on October 22nd, 2009 at 12:16 pm Said:

WELLS FARGO LOSES ANOTHER ONE

Decided on October 20, 2009

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
ARIEL E. BELEN, JJ.

2008-02775
(Index No. 24456/07)

[*1]Wells Fargo Bank, N.A., etc., appellant,

v

Vincent Marchione, et al., respondents, et al., defendants.

APPEAL by the plaintiff, in an action to foreclose a mortgage, from an order of the Supreme Court (Joan B. Lefkowitz, J.), entered February 14, 2008, in Westchester County, which granted that branch of the motion of the defendants Vincent Marchione and Debbie Marchione which was, in effect, pursuant to CPLR 3211(a)(3) to dismiss the complaint for lack of standing.

Fein Such & Crane, LLP, Chestnut Ridge, N.Y. (Samit G. Patel
of counsel), for appellant.
Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for
respondents.

OPINION & ORDER

LEVENTHAL, J.The issue presented on this appeal is whether an assignee of a note and mortgage has standing to commence a foreclosure action prior to the date of the execution of the assignment. We hold that an assignee in such a case has no standing.

The defendants Vincent Marchione and Debbie Marchione (hereinafter together the defendants) moved, inter alia, to dismiss this foreclosure action for lack of standing because the assignment of the mortgage to the plaintiff, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), did not occur until after the foreclosure action had been commenced. The Supreme Court granted that branch of the defendants’ motion and we affirm.

On or about September 2, 2005, the defendants executed a mortgage in favor of the mortgagee Option One Mortgage Corporation, creating a security interest in certain real property located in Mamaroneck. On the same date, Vincent Marchione signed an adjustable rate note in consideration of the loan. Wells Fargo alleges that the defendants failed to make payments beginning April 1, 2007, and, as trustee for Option One Mortgage Loan Trust, Wells Fargo commenced this foreclosure action by filing a summons and verified complaint on November 30, 2007, with the County Clerk of Westchester County.

Option One Mortgage Corporation assigned its “right, title and interest” in the aforementioned mortgage to Wells Fargo in an assignment dated December 4, 2007. The assignment contained a provision stating that it became effective on October 28, 2007. The complaint alleged that Wells Fargo was the “sole, true and lawful owner of record of the bond(s), note(s) and mortgage(s) securing the Mortgaged Premises.” The complaint was verified by counsel for Wells Fargo on November 29, 2007, and filed with the County Clerk on November 30, 2007. The record indicates that the defendants were served on December 7, 2007. The assignment, which did not yet exist at the time of the verification and filing, was, for obvious reasons, not attached to the complaint, as were other supporting documents such as the note and mortgage. [*2]

On December 18, 2007, the defendants made a pre-answer motion pursuant to CPLR 3211 to dismiss the cause of action alleged against the defendant Debbie Marchione, for a determination that the complaint was not verified, and for such other and further relief which may be appropriate. Wells Fargo attached the assignment of the mortgage to its papers dated January 18, 2008, which were submitted in opposition to the defendants’ motion. The contents of the assignment were unknown to the defendants at the time they moved.

The defendants first addressed the issue of the assignment in a February 3, 2008, reply affirmation of counsel which pointed out that Wells Fargo lacked standing to bring the action. Wells Fargo argues that the Supreme Court erred in relying on this argument, as it was first raised in the defendants’ reply papers. “The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion” (Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678; see also Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658; Dannasch v Bifulco, 184 AD2d 415, 417). Here, however, the Supreme Court correctly recognized that the defendants’ raising of the issue of standing in their reply was proper. The defendants’ argument that the plaintiff lacked standing was in response to the plaintiff’s submission of the assignment, presented for the first time in the papers the plaintiff submitted in opposition to the motion. Accordingly, the Supreme Court, in the exercise of its discretion, properly considered the response to the new evidence offered for the first time in the reply (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382).

Wells Fargo argues that the Supreme Court also erred since the retroactive effective date of the assignment gave Wells Fargo an interest in the mortgage before the action was commenced. We disagree.

In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the mortgage (see Katz v East-Ville Realty Co., 249 AD2d 243, 243). “Where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced, the plaintiff has standing to maintain the action” (Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547; see also First Trust Natl. Assn. v Meisels, 234 AD2d 414, 414). Here, Wells Fargo lacked standing to bring this foreclosure action because it was not the assignee of the mortgage on November 30, 2007, the day the action was commenced. A “foreclosure of a mortgage may not be brought by one who has no title to it” (Kluge v Fugazy, 145 AD2d 537, 538). Since the complaint was filed prior to the execution of the assignment, and the service occurred subsequent to the execution, the issue of standing in this case hinges upon whether the filing or the service of the summons and complaint effectuates commencement. A review of prior appellate decisions reveals that there is some confusion regarding whether, to be effective, the assignment must occur prior to the commencement of the action or instead after commencement, but prior to the service of the complaint.

Wells Fargo contends it had standing to bring the action because the assignment was executed before the summons and complaint were served on the defendants, although after the action was commenced. Wells Fargo cites to Bankers Trust Co. v Hoovis (263 AD2d 937) in support of this contention. The Appellate Division, Third Department, in Hoovis held that where the “plaintiff is the assignee of a mortgage at the time of service of the complaint, plaintiff has standing and is entitled to commence a proceeding in its own name” (Bankers Trust Co. v Hoovis, 263 AD2d at 938). However, the Court in Hoovis also pointed out that the defendant did not provide any proof contradicting the plaintiff’s documentation that the assignment occurred prior to the “initiation of the action” (Bankers Trust Co. v Hoovis, 263 AD2d at 938).

On July 1, 1992, the method of commencing an action in New York was changed from the service of process to the filing of the summons and complaint (or summons with notice) with the clerk of the court of the county in which the action is brought (see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C304:1). Though not the primary reason for the change in procedure, a beneficial by-product of the change was the “establishment of a precise measure in time by which to determine commencement” (id.). In 1999, the Hoovis Court stated that the “action was commenced by the filing of a summons and complaint,” but also found that the plaintiff had standing, as it was the assignee at the time of service (Bankers Trust Co. v Hoovis, 263 AD2d at 938) (emphasis added). It should be noted that in Hoovis, unlike the matter sub judice, the assignment occurred prior to both the commencement of the action and the service of the summons and complaint.

However, in the recent Appellate Division, Third Department, case of LaSalle Bank Natl. Assn. v Ahearn (59 AD3d 911), the Court held that the assignment must be effective prior to [*3]commencement of the action. In LaSalle, the plaintiff commenced a foreclosure action in April 2007, and the defendant moved to dismiss the amended complaint that alleged the mortgage was “to be assigned” to the plaintiff at a future time. The defendants claimed that the plaintiff had no standing because the “plaintiff did not have an interest in the mortgage at the time the foreclosure action was commenced” (LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d at 911). The plaintiff submitted a written assignment in response, dated June 2007, which stated the document became effective in April 2007. Therefore, the plaintiff maintained, it had standing (id. at 911-912). The Court in LaSalle found that:

“the written assignment submitted by plaintiff was indisputably written subsequent to the commencement of this action and the record contains no other proof demonstrating that there was a physical delivery of the mortgage prior to bringing the foreclosure action” (LaSalle Bank Natl. Assn. v Ahearn,59 AD3d 912).

Thus, the Court affirmed the Supreme Court’s finding that the plaintiff did not have standing (id. at 913). The LaSalle Court cited Hoovis in support of this finding, stating that an “assignee of such [a] mortgage does not have standing to foreclose unless the assignment is complete at [the] time [the] action is commenced” (LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d at 912). In LaSalle, the Third Department clarified Hoovis, holding that the assignment of a mortgage must have occurred prior to the commencement of the action, which is the date of filing (see CPLR 304), to confer standing to sue upon the assignee.
The decision of this Court in RCR Servs. v Herbil Holding Co. (229 AD2d 379), may lead to the conclusion that this department holds that an assignment of the note and mortgage occurring prior to the time of service of the complaint, but after commencement of the action, would confer standing to sue upon the assignee. However, an examination of the appellate briefs and record in that case reveals otherwise. In RCR Servs., a default judgment was entered in favor of the plaintiff on January 10, 1990, against a misnamed defendant under a 1989 index number, the year when service allegedly was made. The plaintiff was then granted leave to amend the summons and complaint to reflect the correct spelling of the defendant’s name. The assignment of the claim in RCR Servs. was dated May 7, 1991, and the supplemental summons and amended complaint was served on the defendant in 1994. Therefore, as this case had a 1989 index number, the commencement of the action was effectuated by service of the summons and complaint, not by filing of the same. The correctly-named defendant was not served until 1994, about three years after the 1991 assignment, so at the time the defendant was served, the plaintiff did in fact have standing to commence the suit (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674). Consequently, RCR Servs. does not stand for the proposition that an assignment executed after the commencement of an action, but prior to service, confers standing on the assignee.

Wells Fargo also contends that the assignment is valid, as it is retroactive to October 28, 2007, a date prior to the commencement of the action. Wells Fargo again relies on Hoovis, where the retroactive assignment was effective on May 1, 1997, prior to the commencement of the action on June 19, 1997 (see Bankers Trust Co. v Hoovis, 263 AD2d at 938). In Hoovis, however, the defendant was unable to contradict the plaintiff’s documentation demonstrating that delivery of the note and mortgage occurred prior to the initiation of the action. Here, it is clear that the date of the execution of the assignment was after the commencement of the action. If an assignment is in writing, “the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated” (LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing that in some circumstances parties to an agreement may bind themselves retroactively, “the fiction of retroactivity . . . should not be applied to affect adversely the rights of third persons” (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2 Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We disagree with the contention of Wells Fargo that public policy favors permitting less than strict compliance with the requirement that, in order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the subject mortgage.

Wells Fargo also argues that if the action were to be dismissed, the result would be a waste of judicial resources, as it would simply commence another action as soon as the original action was dismissed. Wells Fargo might have reached this conclusion earlier in its calculus to commence the lawsuit prior to the execution of the assignment.

Significantly, Wells Fargo’s attorney submitted a verification pursuant to CPLR 3020(d)(3), which allows an attorney to verify the complaint if the party is not in the county where the attorney maintains [*4]an office. “A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and as to those matters, he believes it to be true” (CPLR 3020[a]). “Since the verification makes the pleading, or those parts of the pleading that are verified, sworn data, a verified pleading is the equivalent of an affidavit, CPLR 105, and may be used for the same purposes” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3020:2). When an attorney verifies, he or she affirms under the penalties of perjury (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3020:9).

In the verification, Wells Fargo’s attorney affirmed the complaint to be true to the best of his knowledge, and his belief as to matters stated to be alleged on information and belief was based upon “correspondence, memoranda and statements of account in affirmant’s possession.” The complaint included a paragraph that stated Wells Fargo was “now the sole, true and lawful owner of record of the bond(s), note(s) and mortgage(s) securing the Mortgaged Premises.” This averment was not based on information and belief and could not have been true on the date of the verification, November 29, 2007, since the actual execution of the assignment did not take place until December 4, 2007. Thus, the complaint contained a misstatement of a material fact which is not excused simply because the attorney was the one who verified the complaint.

In sum, inasmuch as the assignment was not made until after the summons was filed, Wells Fargo had no standing to bring this action. Therefore, the order is affirmed.
DILLON, J.P., DICKERSON and BELEN, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

James Edward Pelzer

Clerk of the Court
Arpad, on October 22nd, 2009 at 11:47 am Said:

Hi Everyone!

I was looking at the Affidavit that the plaintiff filed to support his claim for foreclosure without the original note. Besides to be very vague, i also find the following. The notary public states the the Affiant is sworn in, but later states the Affiant did not take an oath. How is that possible?
Can i attack this affidavit based on this conflict?
usedkarguy, on October 22nd, 2009 at 9:30 am Said:

Allan, the trustee was determined at the outset. They are but figurehead. they handle the “disbursement”. It doesn’t change when the deal goes bad. “Left on the shelves” means the deal never got past the “seasoning” phase (around 2-3 years) and started to default. The Securities underwriter got stuck holding the certificates because they bought the rights to the mortgage pools (remember, these were pre-sold or sold forward sight unseen). Now they have to “write them down” or “write them off”. Maybe they strike a deal with the originator/depositor to buy them back for a small percentage of face value (since they (the underwriters) collected on the default swap), and they end up in the old “Bucket #3″ (BAD DEBTS / UNCOLLECTABLE) of the Sponsor. I don’t have my stuff with me, but I have some Wells Fargo ARS propaganda (sales material) that shows the SASCO deals that are shelved. I’ll find that and send you an e-mail.
Deontos, on October 22nd, 2009 at 8:16 am Said:

Dan

I’ll add those to my mountainous reading list.

But please, You, usedkarguy and others keep
posting the stuff! Some of it will make sense
sooner or later by OSMOSIS.

It’s a whole new world, the securitization processes,
laws and regs but it looks like we’d all be better off
getting good understanding of it.
ALLAN in MA (with a question for UsedKarGuy), on October 22nd, 2009 at 8:14 am Said:

UKG you mentioned “…..were all “left on dealers shelves” like the same vintage SASCO Deals.” Mine’s a SASCO 2005 RF 5 deal. Can’t find it. SEC cannot either. Believe it’s part of Lehman’s bankruptcy but can’t pry that info from anybody.

Tell me what are the implications? Why would USBank N.A. be Trustee for it if it’s on dealers’ shelves?

Allan
B e M o v e d @ A O L . c o m
Deontos, on October 22nd, 2009 at 8:09 am Said:

Ian,

Wonderful! Point fingers away from the enabling
fraudsters who are actually responsible.

What do you expect from MSM?
Dan Edstrom, on October 22nd, 2009 at 7:21 am Said:

UsedKarGuy,
You are going to have to post that again and run it through the “Maher cleanup” engine. I don’t think this site has gone over counterparty, repo and remics (at least in much detail). I don’t think most people will know what you are talking about.

Deontos,
There are many dimensions to securitization. One of the reasons for focusing on the securities side is SEC enforcement. It has some real teethe including criminal enforcement. As stated above we have a long way to go (in my opinion) in explaining the issues in terms that most people can understand.

Everyone,
I would recommend two readings at this point – one is the SEC charges against Bernard Madoff and the second is the House of Cards book, tape or CD. It goes through the Bear Stearns collapse in detail. This book really opened my eyes to the world of investment banking.

stopGOVTwaste,
Ending the Fed would have solved the meltdown crisis faster then any other method. Of course the government (and the Fed) would argue that if you think the meltdown was bad, end the Fed and the very fabric of the time-space continuum would unravel resulting in cataclysmic destruction that would destroy the entire universe.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Ian, on October 22nd, 2009 at 6:08 am Said:

To all- article in USA Today this morning titled TARP report slams lack of transparency, in part addressing the Making Home Affordable program: …”to prevent fraud, Treasury should require mortgage servicers to compare the income that borrowers report on the mortgage modification application with the income they claimed when they applied for the original mortgage” Do they mean MY mortgage application, or the doctored, backdated, forged mortgage app which the “pretender lender” dummied up and submitted to underwriting? How is this going to play out?
Allan Hennessey, on October 21st, 2009 at 11:54 pm Said:

It is true… Searching SEC and Edgar for the information that is relevant to a specific loan number is like searching for charlie for many homeowners…

If you have skills in discovery in this manner… I would love to hear from you, and offer you a job.

This paid position can be done from anywhere in the country… as long as you produce results, you get paid.

So SEC/EDGAR superstars… send me an email…

Allan
stopGOVTwaste, on October 21st, 2009 at 11:54 pm Said:

***END THE FED***
Deontos, on October 21st, 2009 at 11:49 pm Said:

usedkarguy,

You guys are making my head hurt! I AM JUST THE GRASSHOPPER IN ALL THIS GRASSY MUMBO JUMBO.

How in the heck did you guys learn this STUFF? You and Dan sound more like Maher than an average homeowner. I’m glad I’m here so I have a chance to learn anyway.

Tomorrow I am going to try to scratch the time out and post about my loans. I tried for THREE DAYS to find them on sec.gov and got no where. Obviously I don’t know where to look, I tried to follow instructions I gleaned from livinglies and from Googling but I just hit a wall. So if I could get some help on that perhaps I can then get in the **Grasshopper** School Kindergarten gates.
usedkarguy, on October 21st, 2009 at 10:48 pm Said:

Excuse me, Dan, may I cut in? Where’s the counterparty? who wrote the default swap? In my trust, it was Bear Stearns (Now JPMChase), and the Securities administrator (seller) was Citigroup Global Markets. Trustee HSBC for the Wells Fargo Trust. Wells Fargo wore all the other hats. Now, the vintage deals WFHome Equity Asset Backed Securities 2005-1/2/3/4 were all “left on dealers shelves” like the same vintage SASCO Deals. Anyway, if CitiGroup Global got stuck holding the bag ($62Billion writedown, anyone remember?) and the securities remained unsold, how did they (the mortgage pools) end up in the 1999 Wells Fargo/Norwest Assets 1999 Trust? It’s the “extinguishment of the liability” (140-3) wherein the problem lies (reverse-repo). It’s a modern-day version of “hot-potato”. It’s hot because they used the loan to borrow more money after dispersing the investor money. They don’t have the money to pay back the loan that constituted the proceeds of YOUR loan (it was borrowed from the investor). The AB1122 is where they defraud the investors by not reporting the actual failure of the trust (receivership). And, the REMIC trust is taking in more money in foreclosure and sheriff’s sale/liquidation (not a true open market transaction as perpetrated with fraudulent representation on the part of the foreclosing entity) than in interest pass through (the key to tax-exempt flow through (conduit) status) (more than 20%? what’s the number, Maher?), if the defaulted loans are indicative of 20% of the total number of loans in the pool, the mathematical consequences are supposed to trigger receivership (liquidation). The WFHEABS05-2 are running at 40% delinquent/foreclosed/bankrupt/REO. These default rates are common throughout meltdown-era MBSs.

My question, Mr. E, is who is the counterparty? They are the one who got stuck with loss on your note, but they have no note, and no claim to the collateral. They got paid a premium to perform on a contract, and lost. They don’t have any assigned interest in the house, only a receipt for paying the claim. The loan is extinguished on one set of books, but is continuously carried as an asset (money still a receivable) on another set of books (ABS) even though no such obligation exists.

Now, back to True Sale. This is the “surrender of control” issue that violates the true sale status. The loan was to be assigned “without recourse” when the Depositor agreed to deposit it with the Trust. I don’t think any of this was done other than with a passing of dollar values over a wire. There was never any “arms-length” transaction, the pretender lender stayed on immediately to “service” the loan and make sure you defaulted, they directed the appraisal of the collateral to cover the loan. Then they end up recovering the collateral at sheriffs sale to sell at a later date directing proceeds into their own pockets (the sponsor usually holds the equity tranches and the Z tranche, which receives non-regular cash flows).

Maher, am I making sense?
angry&not taking it, on October 21st, 2009 at 9:59 pm Said:

fwiw i discovered the mortgage servicers [the debt collectors] have purchased credit default swaps2.
anyone else discover this.?
angry&not taking it, on October 21st, 2009 at 9:57 pm Said:

fwiw i discovered the servicers have purchased credit default swaps2.
anyone else discover this.?
Marcus, on October 21st, 2009 at 11:58 am Said:

They should go after the big fishes too, I should say the big sharks in Wall Street. That’s too difficult; the sharks pay campaign contributions. We can’t mess with that.
—————————————————————-
Feds targeting North Florida real estate fraud
Source: The Florida Times-Union
JACKSONVILLE, Fla. – Oct. 21, 2009 – In the past two weeks, federal prosecutors have charged at least eight real estate professionals with some type of mortgage fraud in Duval and St. Johns counties.

One already has pleaded guilty and another is scheduled to Monday. U.S. Attorney A. Brian Albritton said there are dozens more people under investigation who he expects to be indicted in the coming weeks.

It’s all part of a concerted federal effort to expedite real estate fraud cases that have come to light in Florida because of the economic downturn and resulting foreclosures.

“Mortgage fraud is, to a large extent, uncovered when there is a foreclosure,” Albritton said. “People go to look at the collateral and realize it’s not enough to support the loan.”

Albritton said his office and the FBI have spearheaded the effort, dubbed “Mortgage Fraud Surge,” in Jacksonville, Orlando and the Gulf Coast. The goal is to accelerate investigations that typically can take years down to 10 months because of the pervasiveness of the problem.

“North Florida has been heavily impacted by the foreclosure crisis,” said FBI Special Agent Rick Dent of Jacksonville. “Every foreclosure is not indicative of mortgage fraud. It’s one of the indicators.”

The agencies are in the first stage of the operation, which was launched in February and designed to eventually go after more sophisticated fraud schemes by professionals and institutions, Albritton said.

“Real estate is so important to the economy of Florida. Unfortunately it’s earned the moniker ‘Ponzi state,’” Albritton said. He said fraud was pervasive in Florida’s real estate boom but wasn’t really discovered until the bottom fell out.

Those charged the past two weeks include:

• Sharon Keller Baker, office manager of a Jacksonville title services company.

• Joseph Cirlot, a former mortgage broker in St. Johns County.

• Jennifer Rosemarie Genus of Jacksonville, employee of an unnamed company that sold property.

• Donna Nelson Gurlides, a Jacksonville real estate agent.

• Timothy Lee Miller of Jacksonville, a production manager for a mortgage company.

• Christopher Reid, a St. Johns County mortgage broker.

• Barry Westergom, a Jacksonville appraiser who pleaded guilty Oct. 8.

• Winslow Ballenger Wheeler, a St. Johns County mortgage broker.

The number of defendants could be higher because other indictments may have been sealed pending arrest.
Marcus, on October 21st, 2009 at 11:49 am Said:

dasmom,
It looks like you have a lazy lawyer in your hand.
He should be filing “Motion to Compel” and insisting on getting answers. You need to be the driving force in this; you have your house on the line after all.
Why does he say it will cost money to file a motion?
Is he charging you for each pleading?

marcus @ foreclosureProSe.com
dasmom, on October 21st, 2009 at 10:57 am Said:

Spoke to lawyer about motion to dismiss. Lawyer doesn’t think it is a good idea because it will cost me more money. Lawyer states that discovery was filed months ago and that the discovery addressed all of my concerns. There has been no response in 6 months to discovery. Lawyer thinks we should wait to hear about modification offer and has already asked for a continuance on the state-mandated mediation.

Am I missing something here?
maher soliman, on October 21st, 2009 at 10:49 am Said:

Dan

WOW! . . .FAS 140.3 The asset cannot be deleted loan that is imparied and made a new loan unless special consideration is given for impairment.

Move on up…yes right on ….Fantastic brother…yes you got it!

Maher.Soliman
213-627-2324
Dan Edstrom, on October 21st, 2009 at 10:43 am Said:

By the way, the master servicer in my case has repurchased exactly 0 loans. The current estimated lifetime loss on the entire pool is around 25%. That is truly an amazing feat to pull off. Nobody is holding them accountable – not even the Trustee. That is probably because he is specifically denied the knowledge that the master servicer has done anything wrong – unless the Trustee has specific first hand knowledge. And of course they don’t because the only knowledge they have is what the master servicer says.

Who is able to go up against Goliath and slay him?

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on October 21st, 2009 at 10:35 am Said:

Abby,
Awesome thanks. Ok here is the issue (or an issue):

The asset (your loan, or at least my loan) is an impaired asset (you haven’t been making payments on it right?). They have to account for it at the fair market value (which they are not – they are showing it as full value). They (or somebody – starting probably with the sub-servicer) is making false reports (presumably). The master servicer attempts to transfer the asset into the Trust (again at full value) but it is impaired AND THEY KNOW IT. If it is not impaired, why are they transferring it to the Trust in order to foreclose on it? Plus they are reporting to the Trust that it is < 60 days delinquent in order to AVOID their obligation to repurchase the loan. It will be foreclosed on before becoming 60 days delinquent. They cannot assign the loan to the Trustee as they never did a TRUE SALE (see FAS 140-3) to begin with. This means the assignment is invalid, the title is clouded, etc. The ONLY way they can clear title is to sell it at auction (foreclosure sale). (Or can the master servicer/seller repurchase it?) The following have a title interest (at least in my case):

– The Master Servicer (GMAC-RFC)
– The Depositor (GMAC-RASC)
– The Trust (RASC Series 2005-EMX4)
– The Trustee (US Bank)
– The master servicers parent company (GMAC-ResCap)
– The associated Federal Savings Bank (Ally Bank FKA GMAC Bank)
– Any and all "holders of certificates" issued by the Trust
– The sub-servicer (who allegedly made advances for my principle and interest payments) (ASC AKA Wells Fargo Bank)
– the debt collector foreclosing company hired by the sub-servicer (who claims to be the Attorney in Fact for the Trustee) (NDEx West, LLC)
– MERS (who claims to be the Nominee for the originator and who the SEC filings refers to as the Nominee for the Trustee)
– the parent company of the FSB and the "parent of the parent of the master servicer" (GMAC, LLC)

Can I claim all of that in court? I can try, but I doubt the judge would keep up.

Disclaimer: I am not an attorney and this is not legal advice.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Abby in CA, on October 21st, 2009 at 10:10 am Said:

Read here for info on 1122AB

http://www.law.uc.edu/CCL/regAB/item1122.html
Dan Edstrom, on October 21st, 2009 at 9:47 am Said:

FIERRA basically states that a Federal Savings Bank cannot invest in (and hold) a risky asset (probably without holding cash reserves for nearly the full value?) … This is second hand from Maher and I haven’t even started researching this issue yet. The FSB is the one who provided the funding for the “loan” and, because they didn’t actually sell the loan to the depositor, they “pledged” it, there never was a true sale. They kept control of the asset so they could list it on their balance sheet and basically go to vegas and gamble. (The loan pool I am in had $500,000,000.00 of loans that GMAC Bank was basically keeping on its balance sheet. Investment banks leverage typically 30 times their assets. My pool was one of 5 created in 2005 by GMAC for my originator. So just imagine 5 pools with a total of approx. $2.5 Billion in assets leveraged 30 times = $75 billion to gamble with – and that was only 1 originator in 1 year).

FAS 140-3 is securitization sale accounting and deals with transferring an asset. This deals with the issue of “We said we sold the asset for tax purposes but for accounting purposes we really did NOT sell it”. It also deals with how they actually do sell it when they are ready (has to be open market sale). You can find information regarding this on the Internet – or go out and purchase Wiley’s GAAP (a very thick accounting book that is over 1,000 pages).

1122 AB – I cannot remember this one off the top of my head which means I have not done my homework. Sorry.

Again I am not an attorney or an accountant …
Hopefully Maher or somebody else can post better info.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on October 21st, 2009 at 9:31 am Said:

Amber,
Your first step would be a full review of your SEC filings. You need to determine whether or not the loan was SOLD or PLEDGED. My SEC filings say the following (in my case the seller is the master servicer and the depositor is the entity that created the Trust):

“The transfer of the mortgage loans from the seller to the depositor is intended by the parties to be and has been documented as a sale; however, the seller will treat the transfer of the mortgage loans as a secured financing for accounting purposes as long as the limited mortgage loan purchase right referred to in this prospectus supplement remains in effect. If the seller were to become bankrupt, a trustee in bankruptcy could attempt to recharacterize the sale of the mortgage loans as a loan secured by the mortgage loans or to consolidate the mortgage loans with the assets of the seller.”

Next you would need to read and study the laws (FIERRA, FAS 140-3 and 1122 AB).

I doubt it could be done without an expert witness, but stranger things have probably happened (knowing it an applying it are two different things).

You CAN bring up the fact that they pledged the loans and did NOT sell them for consideration, thus invalidating the transfer. However, if they did an assignment in foreclosure, they probably bypassed all of that anyway. I have the allonges on the back of my note (thanks to the sub-servicer) and they show assignments without recourse that ALMOST match what the SEC filings say. My allonges skip the assignment to the Depositor (so it is assigned from the seller or master servicer directly to the Trustee).

Disclaimer: I am not an attorney and do not know that of which I speak.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Deontos, on October 21st, 2009 at 9:22 am Said:

Amber,

Great question! Maybe Maher or Dan Edstrom have some thoughts.
I, just like you, want to get a better GRASP on IF and WHEN we should use these statutes in our litigation.
Amber J Williamson, on October 21st, 2009 at 9:13 am Said:

Can anyone give me an example of the proper way to include in my current lawsuit, a “cause of action for violations of FIERRA, FAS 140-3, SEC” and/or effects of the mishandled, unregulated securitization of the mortgage backed securities on consumers?
Dan Edstrom, on October 21st, 2009 at 8:13 am Said:

Lisa,
One more point. What Maher is essentially saying is that if the loan was pledged and not a true sale with consideration, the ONLY way they can truly transfer the asset and gain clear title is through an open market transaction. They are using the foreclosure sale (auction) as the open market transaction. They are getting away with it because nobody has (as of yet) held their feet to the fire on these issues.

Of course we all now know that even when they do this they are not really getting clear title.

Again, not an attorney or an accountant and my views are warped by my own ignorance.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on October 21st, 2009 at 8:07 am Said:

Lisa,
I understand. These are more complex issues and I am not sure they apply to everyone. In your case I reviewed your SEC filings (or filing) and I could find no reference to them not doing full assignments of your loan (assuming they did what they said and paid consideration – but it still may not be a “full” assignment because they didn’t record it). They do have a repurchase obligation though so I do not know what it actually means in your case. Some expert like Maher or otherwise would need to look into it.

As for the question of whether it applies in state court I can say that it DOES. That doesn’t mean you can use the argument though. The reason it does is because each state has a section of government which enforces securities and accounting laws. I don’t know that it is the best place or that they will understand the issues.

Of course I am not an attorney or an accountant and these are just my opinions.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Marcus, on October 21st, 2009 at 7:29 am Said:

Jason,
If the “lender” does not respond to your rescission letter within the 20 days they forfeit their right to anything.
If a lawyer attempt to collect, it will be a violation FDCPA. Go after them in Federal court.
Read Regulation Z for more detail.

marcus @ foreclosureProSe.com
Jason in GA, on October 21st, 2009 at 5:22 am Said:

I have a question concerning a lenders right to bring forth an action in response to a homeowners rescission letter.

I’ve heard that the recent trend in rescission cases is for the lender to ask the judge to require the homeowner to have the ability to tender before granting a rescission. But what if the servicer never responded to the the rescission notice, and the case is actually being brought before a judge by the homeowner. In this scenario, does the lender forfeit it’s right to ask for relief under the TILA statute since it didn’t answer within the 20 days required by law? And if so, could the homeowner simply surrender the home instead of tendering?
Lisa E., on October 21st, 2009 at 3:37 am Said:

What went wrong.

Interesting Washington Post article that sheds some light on the unregulated credit default swap market and the resulting amplification of the risk involved in securitization of housing.

“The real estate boom and easy credit of the past decade gave birth to more complex securities and derivatives, this time linked to the inflated value of millions of homes bought by Americans ultimately unable to afford them. That created a new chain of risk, starting with the heavily indebted homebuyers and ending in a vast, unregulated web of contracts worldwide.”

“Washington stood impotent as the risk of Wall Street innovation swelled,” (Washington, apparently, might have performed better with a good dose of Viagra)

“Investors loaded up on the mortgage-based investments, then bought “credit-default swaps” to protect themselves against losses rather than putting aside large cash reserves. If the mortgages went belly up, the investors had a cushion; the sellers of the swaps, who collected substantial fees for sharing in the investors’ risk, were betting that the mortgages would stay healthy. ”

Lisa E. (Pro Se, Florida)
Lisa Bep @ gmail . com (remove spaces to email)
Lisa E., on October 21st, 2009 at 3:08 am Said:

Dan,

Please understand that I completely acknowledge the value of understanding murkier aspects of securitization. I would love to see true back and forth discussions and tutorials.

In regards to : a violation of FIERRA, FAS 140-3 and SEC enforcement of 1122AB.

I wonder if state civil court judges will will hear of such illegalities (not that I have any earthly idea what the numbers & letters above mean)? After all, FIERRA, FAS, 104-3 and 1122AB are (probably) federal something-or-others (laws? rulings? regulatory requirements?).

If one did understand that trio, and one did wish to use them as ways to defend their home, then I wonder if jumping into federal court would be the only way to access their usefulness?

I see ads in the paper all the time for attorneys offering “stock broker fraud” defense (or similar). I wonder if I looked up several of their case files if I’d get a glimmer of answers to my questions re: how to defend against securities fraud in state court. I’ll post if I find anything out in my weekly courthouse jaunts.

Lisa E (Pro Se, Florida)
Lisa Bep @ gmail . com (remove spaces to email)
http://www.ForeclosureHamlet.ning.com
ALLAN in MA (with a request that MSoliman henceforth include attibutions to differentiate his work from that of 'borrowed sources'), on October 20th, 2009 at 11:37 pm Said:

IMAGINE my surprise when I Googled the following phrase in MSoliman’s Oct 19 posting at ATTORNEY TAB:

“S&P apparently feels that before it gets back to business as usual, it needs to know more about how the FDIC plans to treat bond collateral tied in those scenarios.” …………and got the following hyperlinked Securitization.net article!

“FDIC Uncertainty Sends S&P to Sidelines

Asset Backed Alert, Harrison Scott Publications Inc. (September 25, 2009)

S&P is temporarily curtailing the volume of new ratings it assigns to asset-backed bonds issued by banks.

The retreat appears focused on credit-card securities, given their prevalence among bank-issued transactions. However, the agency still plans to grade a few such deals in the near term.

At issue is a longstanding lack of clarity about how bank insolvencies might play out after Jan. 1, when banks must start booking securitized assets on their balance sheets under the Financial Accounting Standards Board’s pending FAS 167 rules. S&P apparently feels that before it gets back to business as usual, it needs to know more about how the FDIC plans to treat bond collateral tied in those scenarios.

The agency, like many other players in the securitization industry, is concerned that the FDIC could seize securitized assets to re-pay other creditors of failed banks.

Such actions are currently blocked by true-sale accounting procedures, in which issuers gain bankruptcy-remote status for their assets by transferring them to special purpose vehicles used in securitizations. But that treatment will vanish for banks with the implementation of FAS 167.

While the concern certainly isn’t limited to S&P, it is the only rating agency that has taken action. An executive at another agency said he believes the FDIC will clarify its intent well before FAS 167 kicks in, and thus doesn’t see the need for a similar move. “I would be surprised if [the FDIC] didn’t put something out,” he said. “They’ve always been pretty supportive of . . . securitization markets in general.”

The American Securitization Forum is working on the issue. Officials from the trade group have met with FDIC representatives to discuss their concerns, and proposed two potential fixes in a Sept. 17 letter. One entails a “sale approach” that would require an FDIC agreement not to “reclaim, recover or recharacterize” securitized assets in a bank insolvency. The other, deemed a “security interest approach,” would allow seizure of securitized assets, but only if bondholders receive compensation equivalent to the principal and interest they are owed. It’s unclear whether the FDIC will adopt either suggestion. Meanwhile, S&P’s pullback has already started. The agency – historically the market leader in rating bonds backed by consumer assets – graded only eight of the 21 new credit-card deals that banks have distributed since the beginning of August. By comparison, it rated all 13 deals fitting that description in June and July, according to Asset-Backed Alert’s ABS Database.

The agency’s official take: “S&P continues to rate credit card ABS transactions in accordance with its published criteria . . . Although the recent accounting rule change has resulted in significant uncertainty about the treatment of these assets in the event of the bank’s insolvency, some issuers have been able to mitigate the risk. We have rated credit card ABS transactions in the past few months that are structured as true sales.”

S&P also noted that it rated some J.P. Morgan deals by tying them to the bank’s unsecured grade. It is still supplying ratings for deals from non-bank institutions as well. However, S&P’s maneuvering means ratings from Moody’s and Fitch are now more appealing options for many issuers. Those that want their deals to qualify for buyer financing via the Term Asset-Backed Securities Loan Facility might need to deal with both agencies, as the Federal Reserve requires that consumer-asset securitizations eligible for TALF financing carry triple-A grades from two of the three.

While the narrower field of options could delay some deals, it isn’t expected to cause a major hiccup given the fact that many issuers have already been obtaining ratings from all three agencies for TALF transactions. That said, many banks, including Bank of America, Capital One and J.P. Morgan, were already thinking about scaling back their securitization volumes next year due to pressures created by FAS 167.

In any event, the thought is that securitizations completed this year will remain exempt from FDIC action even after the FASB rules take effect. That has left some people puzzled over why S&P is acting now. “We’re still of the belief that you’re still protected by the grandfather clause,” the rival rating-agency executive said. “We’re not sure what [S&P is] thinking.”

http://www.securitization.net/article.asp?id=1&aid=9255&print=Y”

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

For those who would appreciate an accounting translation of MSoliman’s pearls:

http://accountingonion.typepad.com/theaccountingonion/2008/03/fsp-140-3.html

FSP FAS 140-3: Plugging a Hole in GAAP — Or Another Off-Balance Sheet Financing Gimmick?

and

http://www.straffordpub.com/products/fasb-statement-167-consolidation-of-variable-interest-entities-2009-09-09

FASB Statement 167: Consolidation of Variable Interest Entities

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I NOW understand why there is a Dr. Jekyll and Mr. Hyde quality to otherwise informative postings.

ALLAN
B e M o v e d @ AOL . c o m
Deontos, on October 20th, 2009 at 9:15 pm Said:

Dan,

Thank you for that further explanation. I appreciate Maher, even when I don’t understand him. The man is DEEP on his subject. And we need him and more like him.

I also agree my inability to understand some of what he says is my own lack of knowledge of the subject matter. TO MY DETRIMENT. There is just so much to get up to SPEED on and penalties for whatever you don’t learn.

Tomorrow or the next day I will post about my efforts(unsuccessfully)
to find my PSA and actual loan. I wanted to start a dialogue so that others who come after this will have an easier time of it.

In the meantime…….Maher? Are you listening? YOU MAY CALL ME GRASSHOPPER, MASTER ………. AS LONG AS YOU KEEP LETTING ME TRY TO GET THOSE &^%@! PEBBLES. SOONER OR LATER THE DRAGONS OF GREAT WISDOM WILL BE MINE.
Dan Edstrom, on October 20th, 2009 at 7:04 pm Said:

Deontos and Lisa,
I don’t think there is anything particularly cryptic about what Maher said – I just didn’t understand the context of two words (which seem out of place). I don’t know if they were spelled wrong or if I have new words I need to learn (I have learned a lot in the last year!). I get the gist of what he is saying though. I don’t think the two words take away from the meat of what he is saying. The main focus is really the following:

FIERRA
FAS140-3
1122 AB
Who owns the asset?

If you understand securitization and have read your assignment and assumption agreement, pooling and servicing agreement and prospectus you are half way there. It is a tough leap for most though.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Deontos, on October 20th, 2009 at 6:52 pm Said:

Lisa E,

First I’d like to quote that “saying” about the loaf of bread?
I think it goes something like, “Half a Maher is better
than no Maher at all.” Anyway!

I just started this learning curve a little over a month ago now.
And you sum it UP so well!

“……depends deeply on our understanding of complex concepts of law, business, capitalism, judiciary culture, Rules of Civil Procedure, state statutes, courthouse comportment, securitization, Wall Street (lack of) ethics, legal motion practice, etc, etc, etc, etc……”

I am trying to learn what some people have graciously taken a LIFE TIME to learn in another 15 days. If I don’t, the consequences WILL be DIRE indeed.

I have been trying diligently to WAKE UP, because surely this must be a just nightmare and when this episode ends I’ll awaken to my old life routine, happy or not…prefer it to this. {{[RANT}}}

I feel better……..
Lisa E., on October 20th, 2009 at 5:40 pm Said:

Deontos,

Allow me to present an alternative view, which is my opinion only, not based on anything besides my own personal opinion (which probably should be disregarded entirely).

Maher, clever and with personal experience & knowledge of the nefarious market practices that flew us into the twilight zone, is selling something.

Please never forget that.

It certainly behooves any salesman to keep something close to the vest, just presenting enough to whet the appetite, gives an air of respectability & authority, casting a lure out into the sea, waiting………….waiting…………….waiting……………
Oh, yes, eventually a nice fat fish will bite.

I usually shun controversy, but it annoys me to no end that one’s own legal well-being, not to mention the roof over one’s head (and the heads of one’s family members) depends deeply on our understanding of complex concepts of law, business, capitalism, judiciary culture, Rules of Civil Procedure, state statutes, courthouse comportment, securitization, Wall Street (lack of) ethics, legal motion practice, etc, etc, etc, etc.

It sure feels MUCH safer when these concepts are introduced to us in a way that we can grasp, with the tips of our fingers, a little bit of new knowledge upon which to build.

When ideas are presented in a way that only increases our cumulative anxiety, it is neither enlightening or helpful.

I’ve suggested to Maher before: teach us & guide us. At the very least, pretend a modicum of empathy to our stress levels that prevent understanding of the language and speech patterns of a high flying Wall Streeter.

Show your ability to relate to us as the quintessential client homeowner in distress. THAT, my unintelligible, alienating friend, will earn you flowing coffers as clients clamor to your door for more.

I honestly mean this very respectfully! It pains me to see important ideas being presented in a way that most will never have a hope of understanding.

Perhaps, I’m wrong? Maybe his words are clear as a bell to all but myself?

Lisa E (Pro Se, Florida)
Lisa Bep @ gmail . com
http://www.ForeclosureHamlet.ning.com
floridadefenseteam, on October 20th, 2009 at 4:52 pm Said:

Pro Se Litigants:

Here’s a piece of advice passed on to us. Its so simple
you’ll probably read it and discard it. Please don’t. If
you want to be heard as a serious party in front of the Judge:

Bring a Court Reporter.

They are not expensive.
It changes you from a homeowner to a serious litigant.
It creates a record of your hearing which can be appealed.
It puts the Judge on guard to obey the law and not steam roll your case.
It prevents the Judge from giving instruction to opposing counsel.
Deontos, on October 20th, 2009 at 3:03 pm Said:

To: Dan Edstrom

Uhhhh one WORD …….Aaarrghh!!!!

Look when something is written in English (which I speak; I thought anyway) and it is shall we say UNCLEAR ……. and it sounds vitally important to my legal well being …… well it leaves me to utter that
unintelligible word above ………..Aaaaaarrrgghhh!!!!

Thanks for attempting that explanation, I…got…IT… sort… of…but… not…exactly!

Please continue your efforts for the benefit of us all here. I truly feel Maher is making a contribution of GREAT value, I just don’t understand a lot of the time.

Again thank you.
Dan Edstrom, on October 20th, 2009 at 2:27 pm Said:

Maher,
It was moderated for quite awhile but I just got it. Here is my interpretation of what you said (some of it is unclear) as it applies to my case:

My loan was funded but Mortgage Lenders Network, they assigned the loan within 70 days (45 days?) to all of the following in succession: EMAX, Residential Funding Company FKA Residential Funding Corporation and Residential Asset Securities Corp. Residential Funding Company FKA Residential Funding Corporation funded the loan on a warehouse line of credit provided through Residential Capital Corporation (GMAC-ResCap) that was ultimately provided from Ally Bank FKA GMAC Bank. The assignment has not yet transferred the loan. Therefore, borrowers seek an injunction to stop MERS or anyone else from transferring the asset until a court can hear the merits for borrowers arguments the loan does not constitute a true sale. Therefore the alleged holder in due course is Ally Bank FKA GMAC Bank. The FDIC must be alerted to this (although it is something they already know). It’s a violation of FIERRA, FAS 140-3 and SEC enforcement of 1122AB. The matter is subject to claims the deed is disturbed (agitated or distressed?) (incorporeal hereditament reference?) from the false claims and misrepresentations alleging further deceptive business practices. Therefore the deed is disturned (to turn aside?) and arguably defective and made voidable preventing anyone from transferring title until the matter is heard.

There is no power of sale here.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Lisa E, on October 20th, 2009 at 9:45 am Said:

Dasmom,

1) Was the assignment even recorded in the public official records of your county?
2) What state are you in? (IF Florida, email me and I will give further suggestions based on Florida Statutes)
3) Did the orginal complaint (papers with which you were served) have something called a “Re-establishment of Lost Note”?
4) Was that late assignment assigned by your original mortgagor to Plaintiff?
5) Who is your plaintiff and who signed as witnesses for them on that assignment? We may be able to provide incidents of fraudulent signatures on that assignment.
6) HANG IN THERE! WE WILL HELP YOU! YOU ARE NOT ALONE!

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
Lisa Bep @ gmail . com (remove spaces to email)
dasmom, on October 20th, 2009 at 9:28 am Said:

@ Luis
@Marcus

Thanks for your quick response. I am trying to contact my attorney to get the motion to dismiss filed. I’m hoping the servicer’s fraudulent filing comes back to bite them and gives me an advantage if they file another foreclosure action.

dasmom
Marcus, on October 20th, 2009 at 8:51 am Said:

Dasmon,
File a “Motion to Dismiss For Improper Party”.
You can find a sample pleading at the link below. The link is MTD2.
http://www.foreclosureprose.com/pleadings/

marcus
Luis, on October 20th, 2009 at 8:19 am Said:

dasmom,

I’m pretty sure that you can get a dismissal. Plaintiff did not have the right to foreclose when they filed. They will have to file again, but they will have one strike against them.

Any comments on this?
dasmom, on October 20th, 2009 at 7:28 am Said:

foreclosure action was filed by the lender months before the mortgage was assigned to them. What can I do?
Lisa E., on October 19th, 2009 at 10:58 pm Said:

Deontos!

Wow! Thank you for putting a great big smile on my face.

That helps!

Carry on all.

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
Lisa E., on October 19th, 2009 at 5:40 pm Said:

This.

more than anything

more than the outrage

more than the disbelief

more than the blind eyes of justice

more than the appalling disinterest

more than the refusal to sanction fraud

more than the greed

more than the lethargy of all 3 branches of our government.

This is what tears at the fabric of my heart and soul: http://www.nytimes.com/2009/10/19/business/economy/19foreclosed.html?_r=1

May G-D help us all.

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
Deontos, on October 19th, 2009 at 3:19 pm Said:

“The arc of the moral universe is long, but it bends towards justice.” –

~~~~~~~~~~~~~~~ Foreclosure Hamlet ~~~~~~~~~~~~~~~

I like this place. We need many “points of light” along this Arc of History we are living……………………

http://foreclosurehamlet.ning.com/
Dan Edstrom, on October 19th, 2009 at 3:16 pm Said:

Arpad,
In normal circumstances I would agree, but these are not normal circumstances. Continuing to pay on a mortgage that is going into a black hole doesn’t do anybody any service (except the people in the middle). Here is why:

The interest rate and payments are aburd and you are going to lose the house anyway

The servicer refuses to negotiate and will just misapply your payments anyway – their only purpose is to recover an advance (or advances) they already made without your knowledge

The servicer refuses to tell you who the real “lender” is and directly interferes with your ability for a true workout

You are paying money to companies involved in a criminal enterprise (I refuse to support criminal activity)

Your loan was probably paid in full

The company you actually may owe the money to is no longer in business or is in or has been in bankruptcy

The list goes on and on. If they want real payments they should make real loans.

One thing is sure though – if you do not make your payments you will lose your house. Unless of course you are successful using the methods outlined on this site. Will that happen? It remains to be seen. Some people have “won” or settled but many more have lost their house along the way.

Of course I am not an attorney and there are not many attorneys that would tell you not to make your payments. These are my opinions.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Abby in CA, on October 19th, 2009 at 2:53 pm Said:

URPERA

“Uniform Real Property Electronic Recording Act” and map of states which have adopted!!!

http://www.electronicrecording.org/DesktopDefault.aspx?tabindex=4&tabid=76

URPERA builds upon existing electronic transactions laws, in particular the Uniform Electronic Transactions Act (UETA) and the federal Electronic Signatures in Global and National Commerce Act (ESIGN). The act authorizes, but does not mandate, local land records officials to begin accepting records in electronic form, store electronic records, convert existing records into electronic form, and set up systems for searching for and retrieving these land records. Equally important, URPERA designates a state authority to set general and technical standards for the practice and process of electronic recording in the enacting state.
msoliman, on October 19th, 2009 at 2:39 pm Said:

Dan,

Sorry, no cigar. Their answers are programmed. Don’t ask, but STATE the following after you do your research:

My loan was funded but XYZ, they assigned the loan within 45 days to ABC. ABC funded the loan on a line proved by Citi. The assignment has not yet transferred the loan. Therefore, I will seek an injunction and stop MERS from transferring the asset until a court can here the merits for my arguments the loan does not constitute a true sale. Therefore the holder in due course is Citi and the FDIC must be alerted to something they already know. It’s a violation of FIERRA, FAS 140-3 and SEC enforcement of 1122AB. The matter is subject to claims the deed is disturbed from the false claims and misrepresentations alleging further deceptive business practices. (Attorneys stopped reading by now) Therefore the deed is disturned and arguably defect and made voidable preventing you from transferring title till the matter is heard.

SO lender, there is no power of sale here is there?

M.Soliman
admin@borrowerhotline.com
http://www.borrowerhotline.com
.
Deontos, on October 19th, 2009 at 2:36 pm Said:

Rik,

This is generally the way it works in my state(Calif).
I only am comfortable speaking about where I am.

I would imagine though your State procedure must
be at least similar to this.

Hello? Are there any “in the know” Floridians tuned
in right now?
Rik, on October 19th, 2009 at 1:57 pm Said:

Hi Deontos,

Thanks for the info. I am in FLorida. I am pretty sure I did not get this info, but I will dig into my files and check tonite.

Rik
Arpad, on October 19th, 2009 at 1:53 pm Said:

Marcus!
I do not think this is a right advice an Attorney should give to anybody. Especially publicly. This is not right IMHO.
Deontos, on October 19th, 2009 at 1:53 pm Said:

Rik, What state are you in?

This may or may not be of some help…………………….

If you buy property or a home using a loan from a lender, then the lender places a lien against the property. The lien is put in place when you originally borrow the loan. A reconveyance can remove this lien when the loan has been paid back in full and the property is yours free and clear.

A reconveyance must be recorded at the county recorder’s office of the county the property is situated in.

When you pay off your loan, you should receive the original recorded deed of trust. You should also receive the deed of full reconveyance and the >>lien note<< . All that is really necessary to prove that the loan has been paid in full is the original deed of full reconveyance.
Marcus, on October 19th, 2009 at 1:04 pm Said:

Mandatory Mediation Has a High Success Rate
Source:The Miami Herald, Daniel Chang.

MIAMI – Oct. 19, 2009 – In some ways, says Caridad Ramos, it might have been easier for her to walk away from the pink, five-bedroom Miami house her family has called home since 2001. The numbers aren’t encouraging: She owes $195,000 on the house, which is assessed at $178,000.

But relocating might have been too disruptive for her 11-year-old son, who is autistic, she feared.

“When you have a disabled child,” she says, “you can’t just pick up and leave.”

Instead, she’s taking a second chance at paying her mortgage under a court-ordered mediation program in Miami-Dade County.

Ramos, 42, hopes to be one of hundreds of Miami-Dade homeowners who have averted foreclosure through the 11th Circuit Homestead Access to Mediation Program (CHAMP), which requires lenders to negotiate with borrowers before foreclosing on a home.

Since launching on May 1, the Miami-Dade program has led to settlements in 465 of the 599 cases scheduled for mediation.

The program, which is mandatory in three of Florida’s 20 judicial districts, has led to settlements in 1,072 of the 1,401 cases scheduled for mediation statewide.

To be sure, that’s only a fragment of the estimated 350,000 foreclosures projected by Florida’s Clerks of Court to be filed this year – in part because only homesteaded properties qualify, but also because mediation is mandatory only in Miami-Dade, Pensacola- and Stuart-area courts.

Under this system, mediators cannot compel either side to settle a case. But a success rate of about 76 percent in the three judicial test districts has made the program a likely model for the rest of the state.

Some lenders oppose mandatory mediation, saying it adds another cost to an already expensive process. Under the mediation program in Miami-Dade, lenders are required to pay the $750 fee in addition to foreclosure filing fees that can cost as much as $1,900 per case. They must also provide a representative with the authority to modify a loan.

Though many banks have invested in in-house programs to help borrowers who have fallen behind, sometimes it’s just not enough, says Ned Pope, program director for the nonprofit Collins Center for Public Policy, which manages the mediation program for Miami-Dade civil court.

“You can’t try and patch that hole with the same old solutions,” he says. “Mediation is part of the answer, not the whole answer.”

Cases that do not mediate to settlement proceed through the foreclosure process, Pope says. Lenders who do not comply with the program risk having their cases thrown out of court.

For their part, borrowers are required to attend credit counseling before mediation and to provide detailed financial information.

Ramos, who is currently in mediation, fell behind on her $1,900 monthly mortgage payments in January – after taking a pay cut at her job as a leasing agent, and after her husband lost his job as a driver.

Chase Bank filed for foreclosure in June, Ramos says. Soon after, a Collins Center counselor called and offered to help her navigate the judicial process and get her financial documents in order.

A mediation conference lasted about 90 minutes, during which Ramos met in a room with an attorney for the bank and the mediator. A bank representative participated by phone.

Negotiations went back and forth, Ramos says, with the bank requesting financial and personal information, such as how often she goes to the hairdresser.

Ramos is still waiting for Chase to modify her balloon mortgage with a floating interest rate by converting it into a 40-year fixed rate loan. She expects her monthly mortgage payment to be about $1,300, including an escrow account for insurance and taxes.

The best part, Ramos says, is that she can sleep at night now, and she no longer feels that the bank is her adversary.

“I feel that Chase really worked with me,” Ramos says. “They did have a lot of patience with me.”
Marcus, on October 19th, 2009 at 12:59 pm Said:

I think Florida Bar and the banksters will come heavy on this attorney. He needs our moral support. I wish more attorneys had the courage to do what he did.
———————————————————-

Daily Real Estate News | October 19, 2009 | Share
Florida Attorney Offers Foreclosure Advice
Tampa Bay foreclosure defense attorney Mark Stopa is blunt in his advice to home owners facing imminent foreclosure:

* Stop making payments.
* Hire a lawyer to frustrate the bank.
* Use the yearlong delay to build a savings account with unpaid house payments.
* Enjoy living mortgage-payment free.

Stopa’s technique for stalling foreclosure involves asking a judge to dismiss a case because the originating lender isn’t the same one initiating the foreclosure. It takes a bank about six months to avoid that legal tactic. After that delay, banks are more likely to cooperate with the homeowner, Stopa says. He charges a flat fee of $1,300 to initiate this stalling technique.

Any chance his advice will backfire?

A foreclosure task force commissioned by the Florida Supreme Court concluded in August that only a few law firms, known as “foreclosure mills” by detractors, handle most of the cases for banks, and their expedited processes sometimes result in errors. At the same time, the task force said foreclosure defense attorneys often file “boilerplate motions to dismiss” that only delay rather than resolve the issue.

Source: St. Petersburg Times, James Thorner (10/16/2009)
Marcus, on October 19th, 2009 at 12:54 pm Said:

This is the link to the full St. Petersburg Times article.
I just posted a comment. Everyone should check it out.

http://blogs.tampabay.com/realestate/2009/10/pinellas-county-foreclosure-lawyer-stop-paying-mortgage-save-a-bundle.html
Deontos, on October 19th, 2009 at 12:45 pm Said:

Lisa E.,
As someone recently responded here about wanting to get access to a certain “Foreclosure Fraud Guide”, “squeek! squeek…”

Lisa PLEASE send me a copy of your compilation.

This is regarding your post:
“…Lisa E, on October 19th, 2009 at 10:03 am Said:

P.S. At least we all know EXACTLY how to respond if our opponents ever turn the tables and file their own Request for Productions (which I’ve seem some do)…….”

My email is Deontos.is@gmail.com

squeek! uhhhhh I mean
Thank you!
Rik, on October 19th, 2009 at 12:09 pm Said:

Hi All,

I am still in the fight, and need a bit of help or guidance. My original mortgage was with AmNet Mortgage which was assigned to MERS I believe. THen I refinanced the loan with Wells Fargo.

I have not really gone back beyond Wells Fargo, but think that this could be a good tactic. If the ownership of the loan was with MERS, did they have the right or rights to transfer the note/mortage to Wells Fargo.

I have been able to find county records showing the loan as paid off to AmNet/MERS. If the note/mortage was never correctly assigned and the rest originally, will the Wells Fargo be valid?

Thanks for any comments or suggestions.

Rik
James#, on October 19th, 2009 at 11:03 am Said:

The plantiff’s lawyer called my lawyer an hour before the hearing to dismiss and told him he should not even bother with the hearing as she had a case thrown out the week before where the Judge had ruled in her favor. At the hearing she told the Judge that he should rule in her favor because another Judge in his district had ruled not to dismiss. The Judge said “Missy, do you mean that because another Judge ruled in your favor I should?” Missy kept her head down and said “no sir”. The judge denied the motion to dismiss due to standing and failure to produce a $100. dollar bond. The judge gave the lawyer 20 days to post the cost bond an refile. Judges always bend over backward for the banks.
I think the servers put inexperienced and/or stupid lawyers up as a defense for fraud. The lawyer was just stupid not fraudlent!
Amber J Williamson, on October 19th, 2009 at 10:59 am Said:

Each state is different in time frames and requirements. I threw this option at my then 4th and 5th attorneys all who stated that it was not feasible. I’ve read the law regarding quiet titles (TEXAS) and it can be very complex depending on the situation. My concerned was more legal fees if the suit was contested by any of the banks. I’m hovering around 50k in legal fees thus far …

Amber
Amberjoy26@yahoo.com
Luis, on October 19th, 2009 at 10:43 am Said:

Amber,

I think that the statute of limitation is 4 years. If I’m right, you should be able to file for a quiet title.

Does anybody know exactly what is the statute of limitation? Is it different for different states?
Dan Edstrom, on October 19th, 2009 at 10:43 am Said:

Amber,
Excellent point! Once again, I have been too generous in my feelings for how the banks are responding. I was assuming they were dragging this along hoping you would give up and they would win. I don’t think they even care. They handed it to the attorneys and probably don’t even follow what is going on (too many foreclosures). The attorneys can just keep dragging this out as long as possible adding to the amount of time they can bill. I would be very dubious about anything they say. My personal plan is to say fine – I will consider anything, once they have complied with discovery. I need discovery in order to make an informed decision. Remember, they withheld material information at closing, up to now – and they continue to withhold material information.

COMPEL, COMPEL, COMPEL!

I am not an attorney – this is my opinion and what I plan on doing in my case.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on October 19th, 2009 at 10:37 am Said:

Alina,
Wow, 6 months! I would be leary of anything they say, but I am no expert and don’t know what it means – keep requesting answers. Why do you need them? Is there are loan? What are the terms of the loan? Were the terms changed before, during or after closing? Was my loan paid off? Did others make my loan for me? Did any of the parties foreclosing know that my payments were made (or not due) even though they were saying I hadn’t made them and pursuing foreclosure? The list of responses to why you need the documents goes on and on – these are just a few I can think of off the top of my head.

By the way – my SEC filings have definitions for almost everything. Let the judge know this if it applies in your case. You are just asking for the documents the other side has that show the true terms, payments, obligations, etc., etc. for the loan.

Again – I am not an attorney and these are just my opinions.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Amber J Williamson, on October 19th, 2009 at 10:36 am Said:

Also, Alina I was told the same things for years by the banks, send financials for loan modifications, potential settlement talks scheduled and agreed/approved in WRITING, signed off by all attorneys. Nothing was taken seriously until the lawsuit was FILED! Even then they bank on you NOT going to trial or being financially prepared for trial. Hopefully you have a direct contact with the bank and are not just dealing with their attorneys. The attorneys are trying to get as many billable hours as possible and don’t have the authority to “act” without the consent of their client, the mortgage company. Get to trial as soon as possible if you can…

Amber
Amberjoy26@yahoo.com
Arpad, on October 19th, 2009 at 10:33 am Said:

Alina,
The fact that they called you and offered you something is a very good sign. This means they feel they could lose the case. You are on to something!

Arpad
Amber J Williamson, on October 19th, 2009 at 10:26 am Said:

I’m currently living “mortgage free” for 7 years (as of 03/10), in my home for a wrongful foreclosure by WAMU. The title was and has always been held by MERS since foreclosure, however in late 2008, post failure of WAMU title was change back to WAMU. The active mortgage loan is still held with Wells Fargo with Wells Fargo paying insurance and property taxes through escrow. WAMU, Lehman Brother, Wells Fargo and JP Morgan Chase have been included as possible “note” holders however no one has produced the note. FDIC openly communicated with me with the approval of my attorney but recently (last week), refused to communicate with me. If the note is not produced how do I find out who has legal authority to the property? Also, does that also mean no one has legal authority to evict as well? My attorney has requested production of the “note” to no avail.

Amber
Amberjoy26@yahoo.com
Alina, on October 19th, 2009 at 10:22 am Said:

Thanks for your responses. My requests for admissions were very simple. The one I posted was actually one of the last requests where I tied in the chain of custody. I do have the Pooling and Servicing Agreement as well as the Prospectus. Just wanted to get them to admit the proper chain of custody per the PSA. As you can see, they do not seem to know the basic definitions.

Btw, the admissions were served back in April and the response was this past Friday.

I wanted to add that the day before (Thursday), opposing counsel called and requested that I postpone both the state and federal cases pending settlement talks. I told them I would entertain any good faith offer wherein they advised that they could offer a modification (I would have to provide all my financial s in order to be approved), deed in lieu, or rescission. I was told that if I pursue rescission, they would reimburse the money I overpaid at closing and I would have to reimburse the money they gave me. My response was, “Oh, really. That’s not my understanding of rescission.” I then asked them if they have figures to begin the settlement talks. I was told they did not have the figures.

They repeatedly requested that I postpone the federal case and agreed to respond to the admissions and produce something proving U.S. Bank owns the mortgage. They also asked why was it so important for me to receive the documents requested.
Ed, on October 19th, 2009 at 10:05 am Said:

Lisa, I would like a copy

send to

eddarsom@aol.com
Lisa E, on October 19th, 2009 at 10:03 am Said:

P.S. At least we all know EXACTLY how to respond if our opponents ever turn the tables and file their own Request for Productions (which I’ve seem some do).

I’ve got all those vague, evasive answers right here at the ready and am chomping at the bit to spew them right back from whence they came.

Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.ning.com
erlinda, on October 19th, 2009 at 9:49 am Said:

sorry , it should be year 2004 not 2009.
Lisa E, on October 19th, 2009 at 9:49 am Said:

Alina,

Was that question part of an interrogatory or a production or documents request or an admissions?

I agree with Dan that the questions have got to be broken up in to v.e.r.y. s.i.m.p.l.e. terms.

I got the same nonsense in my Response to my Discovery Request. I debated sending a Motion to Compel but finally settled on a new tactic. I wrote out a lengthy Request for Productions (Still working on the new Interrogatories & Admissions). I saw how my first request for productions could have been greatly improved so I decided to just file a SECOND REQUEST FOR PRODUCTIONS.

It’s in it’s final stages of completion. I am happy to share it with anyone at all. I’ve culled some great questions from my weekly review of a multitude of contested (by real life attorneys) foreclosure cases in my local courthouse. Additionally, I got some great suggestions here (thanks Dan). OH, I also referred to that document from He!! (aka the P&S agreement) to get some questions right from the horse’s mouth.

My plan is thus. This, too, will be denied and/or objected to. THEN I’ll proceed with my motion to compel.

My specific question re: assignments in my Productions Request is:

All communications, notices, records, notes, legal documents, internal memoranda or other documents regarding any assignments, sales or any other transfers of any interest in the note and/or mortgage in this action.

Lisa E (Pro Se, Florida)
***Obviously not an attorney****
http://www.ForeclosureHamlet.ning.com
erlinda, on October 19th, 2009 at 9:45 am Said:

alina,

you have to read the company’s prospectus filed at SEC, just click the name of the company and what trust it was under. usually on their prospectus , it would say who will be the master servicer or security administrator, custodian of records, most of the time the custodian of records are the master servicer and the security administrator who are responsible for auditing the mortgage loan once the trustee deliver that mortgage pool of asset from the trust. this master servicer or security administration have all the mortgage files in their possession because part of their obligations is to audit the files and once they found out the particular loan is a non- compliance based on the loan documents, the master servicer/security administration will notify the trustee for non- compliance and the trustee has the option to replace the loan with the same llke amount of loan as long as it will not disqualify as a REMIC guaranteed loans. remember by reading the prospectus of the company, you will gain knowledge and amaze how securitization process involved a lot of players. once you identify the custodian of your loan ask the court to produce your loan file. you have to know all the players of that securitization so you could name them as your defendants. as of this writing i just finished, reading the prospectus of countywide in 457 pages and found out that in ca foreclosures only the original trustee has the right of power of sale, please review you deed of trust under countrywide if your in ca state, it specify in the prospectus of CWABS, Inc, Asset Back Certificate Trust 2004-4 if you loan closed in 2009, i think they are more than ten trust created by countrywide and you could read this if your loan belongs to those trust.
Marcus, on October 19th, 2009 at 9:35 am Said:

Alina,
This is classic stone walling tactic from the plaintiff.
Your response will depend on your strategy and goal.
If you want to buy time and drag it on, play their game and wait. The flip side of that, is that it gives them strategic initiative of the case.
If you want to be more aggressive in your approach, file motion to compel and drag them in front of the judge each time. Make it expensive for them.
I recommend that you read two articles written by the moderator of Legal_Self_Representation newsgroup. I reposted them on the web site.
http://www.foreclosureprose.com/pro-se-litigation-strategy/
http://www.foreclosureprose.com/pro-se-litigation-strategy-ii/
His approach is very insightful for all pro se defendants. A must read.

marcus @ foreclosureProSe.com
Dan Edstrom, on October 19th, 2009 at 8:54 am Said:

Alina,
Hopefully a knowledgeable attorney will respond. I am not an attorney and these are just my opinions. Now knowing what you wrote, I can only guess the following:

It probably doesn’t matter what you say you would receive a similar response

Make sure you only ask 1 question at a time (no compound questions)

Ask questions directly, such as “who is the lender?”, “Who originated the loan?”, “Who provided the cash to fund the loan?”, “Is the foreclosing party the lender?”, “Did the foreclosing party give consideration for the assignment?”, “At the time the foreclosure was initiated, who was the ‘holder in course’?”, “Did the sub-servicer advance any payments for the borrower(s)?”, “Has the sub-servicer received any reports or statements from the Trustee that include any information regarding the borrowers loan?”, “Has the Trustee issued any reports or statements to any ratings agency containing any information regarding the borrowers loan?”, “Is the borrower entitled to full disclosure of all payments that have been made to the true ‘holder in due course’?”, etc. I am not a lawyer so I don’t know the best way to phrase questions. I do now it is easy to make these questions complicated. You may want to include a list of definitions for them since they do not understand anything unless you give them a frame of reference. Remember Clinton – it depends on what the definition of “is” is – they will not make any of this easy for you.

Either way I don’t think they will answer them. But if you treat them like a child and show very simple questions the judge may not accept their response.

You really need to consult with an attorney!

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Allan Hennessey, on October 19th, 2009 at 8:52 am Said:

Deontos, thanks for your vote of confidence in my insight here… I have been studying these issues for over 2 years, full time, doing nothing else. I refuse to give up…

This is the game that is being played… Even if you have them on the hook for fraud, with evidence… they will still do whatever they can to get off the hook… by denying your valid requests for information among other things. If they do not provide a valid reason for denying your valid, specific requests, you can file a motion to compel, or a motion for default.

So many ways that you can get them eventually… you just must be specific with what you are seeking… looking to stop the foreclosure? ok. Seeking monetary damages? Whole different ball of wax.

Stop the foreclosure first, then seek damages is what I say.

There are many different ways to deal with these characters. It is never over. If one method fails, use another… let them know you will never give up, and sooner or later they will.

Good Luck Everyone!

Allan Hennessey
800-552-9313 Ext 111
Deontos, on October 19th, 2009 at 8:36 am Said:

Alina,

I truly wish I could contribute something substantive
regarding your request. But I think at this point you
probably know 10 times more than I do (Make that 100).

We do have some DEEP people here like Nye Lavalle.
I am hoping by mentioning names; some of them will have
“Google Alerts” set up and become aware of your request
regarding your post, “Alina, on October 19th, 2009 at 8:02 am “.

I could do a long roll call of the many MANY others ..
Sample:
Abby
Mario Kenny
Allan Hennessey
usedkarguy
Marcus
Mike Linton
Just a huge constellation here of insightful
people.
——————————————————-

My *uninformed* comment? I sure hope whoever
wrote that is the LEAD attorney you are going up
against. It’s helpful to have a clueless adversary;
just my two cents.
Foreclosure Fraud, on October 19th, 2009 at 8:34 am Said:

Alina,

Not that this help much but…

Florida Default Law Group answered my request for admissions the same way. Sounds like Standard Operating Procedure to me…

Plaintiff objects to defendants request in that it is unclear, ambiguous, confusing and capable of multiple interpretations.

That was the answer to almost all the admissions.

The other popular phrase was it is evident from the pleading that the plaintiff was not the entity that originated the loan so it is a third party request..

4closureFraud
Alina, on October 19th, 2009 at 8:02 am Said:

Hi everyone,

Wanted to give everyone a quick update on my case. I finally received a response to my Requests for Admissions and Plaintiff (Trustee) obviously does not know the definition of a lot of terms. Here’s an example of one response:

The Master Document Custodian for the securitized trust in this case verified in
writing to the Trustee for the trust that it had confirmed an unbroken chain of transfers and
deliveries of the original mortgage note from the Originator to the Loan Seller,from the Loan
Seller to the Depositor,from the Depositor to the Trustee for the trust, and from the Trustee to
the Master Document Custodian/or the trust.
Response:
Plaintiff cannot truthfully admit or deny this matter, and objects to this request. Plaintiff
also does not know what Defendant means by the tems “Master Document Custodian”,
“Originator,” “Loan Seller”, “Depositer” and “securitized trust.” The term “verified” is also
vague and ambiguous, as is the phrase “unbroken chain of transfers and deliveries” in this
context, and Plaintiff does not know what Defendant means. This is also a compound request,
involving the topic of multiple “transfers” in one request. The request also is irrelevant to the
subject matter of this action, and not reasonably calculated to lead to the discovery of admissible
evidence.

I would love some feedback from everyone. Thanks.
Don-CA, on October 19th, 2009 at 12:19 am Said:

I found the corporate resolution of MERS (page 4)indicating that the attached list of candidates(page 5) are employees of FIS Foreclosure Solutions Inc. (Minnesota office) and are hereby appointed as assistant secretaries and vice presidents of MERS:

http://mylandrecords.appspot.com/pdf/ma017-23203-279/afjenDWxIc7/document.pdf?actual=1255935829

On my substitution of trustee, an individual on this list signs as a VP of the servicer, not MERS. It’s not really a signature.

The vice president who signed my assignment from MERS to the servicer? She’s a supervisor on the mail team at FIS and she is also a notary.

It gets better…
Kalona S B, on October 18th, 2009 at 10:18 pm Said:

Aloha All

WOW Been really reading all the stories and comments. I especially enjoyed the story about Mark and his battles with the bank. The JPMorgan battle especially caught my attention. Wish I too could sit on the front lawn and protest the bull crap.

I’m still in my home for now and that shocks me. I know it’s a matter of when not if. Going back to the law library this week to try and figure out what I need to do for my next step.

The debt collector are getting dirtier all the time. It’s mind blowing to see what they will do to try and get ur attention, inclusing making phone calls non stop, back to back to ur house and cell.

Telling u they are ur insurance company, demanding they get ALL ur info such as taxes, bank statements and so on. Also calling and leaving messages pretending to be looking for work refferances, pretending to be people u know as high school friends. Yeah high school friends with a 1 866 number.

Even used my ex husbands name and begged me to call for concerns of his well being. I haven’t seen him in several years. That’s just the start of how low they go.

I read on the web site that if they are debt collectors they by law have to expose that. They do not. I was so thankful I was able to push the stress aside and realize it was a scam AGAIN and not send them all the info they were asking. I was so close. Wheeew!

The bad part about all these scams is u become so untrusting u worry that a real call may be missed that u need to have in order to do something to resolve the issue. Any suggestions? Is there someone u can report these scammers to?

I will only call JPMORGAN direct. . If they don’t answer me I won’t answer these bogus calls.

Always wishing u all the very best and a win in ur battle.

Mahalo
Foreclosure Fraud, on October 18th, 2009 at 7:23 pm Said:

Just want to say thanks to everybody on all of the positive support…

Stay tuned. I think the rabbit hole just got a little deeper…

Set up a wordpress blog for everyone to follow my thoughts on all this and to post comments and tips on their fraudulent documents…

Lets make this Guide the go to source for the frauds.

http://4closurefraud.wordpress.com/

4closureFraud
Foreclosure Fraud, on October 17th, 2009 at 12:29 pm Said:

All,

The ruling from Massachusetts RE Judge Long is posted on the front page of Michael Moore’s website.

See it here…

http://bit.ly/1888vH

I posted a comment with a link to the Foreclosure Fraud Guide and the post from the market ticker.

Now get over there and comment on the story as well…

Maybe if he gets enough of us commenting, he will do a story on these frauds…

4closureFraud
Marcus, on October 17th, 2009 at 7:29 am Said:

BT,
What is Ron Houchins Bar number. I could not find his name in Georgia State Bar Association directory.

marcus @ foreclosureProSe.com
bt, on October 17th, 2009 at 7:07 am Said:

One the folks on the Garfield-”lawyers that Get It” list, list” Ron Houchins, of Georgia, is one of the best. He has helped me with all kinds of lawsuit issues and foreclosure defense in multiple states. He is a must use with pleadings and filings. Contact him to help you Pro Se folks, he is a great guy. ron.financialfreedom@live.com
Marcus, on October 17th, 2009 at 6:55 am Said:

Bailout Helps Fuel a New Era of Wall Street Wealth
Source: NYTimes.com

Even as the economy continues to struggle, much of Wall Street is minting money — and looking forward again to hefty bonuses.
Many Americans wonder how this can possibly be. How can some banks be prospering so soon after a financial collapse, even as legions of people worry about losing their jobs and their homes?

It may come as a surprise that one of the most powerful forces driving the resurgence on Wall Street is not the banks but Washington. Many of the steps that policy makers took last year to stabilize the financial system — reducing interest rates to near zero, bolstering big banks with taxpayer money, guaranteeing billions of dollars of financial institutions’ debts — helped set the stage for this new era of Wall Street wealth.

Titans like Goldman Sachs and JPMorgan Chase are making fortunes in hot areas like trading stocks and bonds, rather than in the ho-hum business of lending people money. They also are profiting by taking risks that weaker rivals are unable or unwilling to shoulder — a benefit of less competition after the failure of some investment firms last year.

http://www.nytimes.com/2009/10/17/business/economy/17wall.html?_r=1&th&emc=th

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