MERSCORP Shell Game Attacked by Kentucky Attorney General Jack Conway

CHECK OUT OUR EXTENDED DECEMBER SPECIAL!

What’s the Next Step? Consult with Neil Garfield

For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, Tennessee, Georgia, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

EDITOR’S NOTES AND COMMENTS: My congratulations to Kentucky Attorney General Jack Conway and his staff. They nailed one of the key issues that cut revenues on transfers of interests in real property AND they nailed one of the key issues in perfecting the mortgage lien.

As we all know now MERSCORP has been playing a shell game with multiple corporate identities, the purpose of which, as explained in Conway’s complaint, was to add mud to the waters already polluted by predatory loan practices and outright fraud in the appraisal and identification of the lender. This of course is in addition to the very gnarly issue of using a nominee that explicitly disclaims any interest in the property or loan.

The use of MERS, just like the use of fabricated, forged, robo-signed documents doesn’t necessarily wipe out the debt. The debt is created when the borrower accepts the money, regardless of what the paperwork says — unless the state’s usury laws penalize the lender by eliminating the debt entirely and adding treble damages.

But the use of a nominee that has no interest in the loan or the property creates a problem in the perfection of the mortgage lien. The use of TWO nominees doubles the problem. It eliminates the most basic disclosure required by Federal and state lending laws — who is the creditor?

By intentionally naming the originator as the lender when it was merely a nominee and by using MERS, as nominee to have the rights under the security interest, the Banks created layers of bankruptcy remote protection as they intended, as well as the moral hazard of stealing or “borrowing” the loan to create fictitious transactions in which the bank kept part of the money intended for mortgage funding. Since the mortgage or deed of trust contains no stakeholders other than the homeowner and the note fails to name any actual creditor with a loan receivable account, the mortgage lien is fatally defective rendering the loan unsecured.

When you take into consideration that the funding of the loan came from a source unrelated (stranger tot he transaction) then the debt doesn’t exist either — as it relates to any of the parties named at the “closing” of the mortgage loan. So you end up with no debt, no note, and no mortgage. You also end up with a debt that is undocumented wherein the homeowner is the debtor and the source of funds is the creditor — in a transaction that neither of them knew took place and neither of them had agreed.

The lender/investors were expecting to participate in a REMIC trust which was routinely ignored as the money was diverted by the banks to their own pockets before they made increasingly toxic over-priced loans on over-valued property. The borrower ended up in limbo with no place to go to settle, modify or even litigate their loan, mortgage or foreclosure. This is not the statutory scheme in any state and Conway in Kentucky spotted it. Besides the usual “dark side” rhetoric, the plan as executed by the banks creates fatal uncertainty that cannot be cured as to who owns the loan or the lien or the debt, note or mortgage. The answer clearly does not lie in the documents presented to the borrower.

Now Conway has added the hidden issue of the MERS shell game. Confirming what we have been saying for years, the Banks, using the MERS model, have made it nearly impossible for ANY borrower to know the identity of the actual lender/creditor before during and even one day after the “closing” of the loan (which I have postulated may never have been completed because the money didn’t come from MERS nor the other nominee identified as the “lender”).

The Banks are trying to run the clock on the statute of limitations with these settlements, like the the last one in which Bank of America would have owed tens of millions of dollars had the review process continued, and instead they cancelled the program with a minor settlement in which homeowners will get some pocket change while BofA walks off with the a mouthful of ill-gotten gains.

The plain truth is that in most cases BofA never paid a dime for the funding or purchase of the loan. That is called lack of consideration and in order for the rules of negotiable paper to apply, there must be transfer for value. There was no value, there was no cancelled check and there was no wire transfer receipt in which BofA was the lender or acquirer of the loan. Now add this ingredient: more than 50% of the REMIC trusts BofA says it “represents no longer exist, having been long since dissolved and settled.

The same holds true  for US Bank, Mellon, Chase, Deutsch and others. Applying basic black letter law, the only possible conclusion here is that the mortgages cannot be foreclosed, the notes cannot be enforced, the debt can be collected ONLY upon proof of payment and proof of loss. This is how it always was, for obvious reasons, and this is what we should re turn to, providing a degree of certainty to the marketplace that does not and will never exist without the massive correction in title corruption and the wrongful foreclosures conducted by what the reviewers in the San Francisco audit called “strangers to the transaction.”

See Louisville Morning Call here

See Bloomberg Article here

No Loan Receivable Account Exists

Everyone seems to be having trouble with winning these cases outright. I think I have discovered the problem.

Most attorneys start in the middle of things because that is how it comes to them. Basic Contracts Law, first day of law school. For an agreement to be enforceable it must have all three of the these components: offer, acceptance and consideration. You can’t have just an offer, you can’t have just an acceptance, there must be some act that the law recognizes as consideration if the offer is accepted. Absent all three there is no way for a party to enforce an agreement for which there was either no acceptance nor any consideration.

If I loan you $100, you owe me $100 whether you sign a piece of paper or not. I offered to make the loan, you agreed to accept it and pay it back. That is true and presumed to be the reasonable interpretation of any exchange of money or property — that it isn’t a gift. And ALL of that is true whether there is documentation or not.

It is equally true that if I induce you to sign the note under the promise that I will loan you the $100, we have offer and acceptance and evidence of both the offer and the acceptance. But if I don’t give you the $100, there is no consideration and the agreement is not enforceable regardless of whether it is in writing or not. In the real world, I might survive a motion to dismiss or even a motion for summary judgment, but I could never win at trial because I don’t have any evidence that the money was delivered to you in cash, check or wire transfer.

But you are still going to lose and have a judgment entered against you for the $100 if you don’t deny that you ever got the money and you probably should add for good measure that you were fraudulently induced to sign a note when I knew I wasn’t going to give you the money.

The deal signed by most borrowers lacked consideration because the money did NOT come from the party representing itself to be the lender. The offer to the borrower was not the deal that the investor-lender or even the nonexistent trust pool was promised so if could not have been offered that way — with all the securitization parties involved and all their compensation contrary to the requirements of TILA for disclosure, whose purpose is to give the borrower an opportunity to exercise choice and seek a better competing deal in the marketplace. The borrower accepted an offer that was not backed by consideration nor the intent to provide it.

Hence there was no meeting of the minds in the first instance.

If you reverse the analysis and say that it was the borrower who made the offer it gets even worse. 99% of the real applications if they contained the true facts would never have been accepted by any investor or even a bank looking for subprime profits.

Hence the basics of contracts law have not been met – — you might have the argument to say there was an offer, but there are not grounds to say there was or even would have been acceptance if the true facts were known, and the documents signed do not reflect either the offer or the acceptance by the actual investor-lender or even the pool, whose documents were routinely ignored.

The real problem of Wall Street lies in the facts not in theory. They took the money in with complete disregard to the wishes and intent and agreement of the investor lenders and then funded loans from their own accounts that were based upon false premises made both to the investor-lenders and the borrowers. It is the fact that the money came from a Wall Street account rather than an investor account that causes the confusion.

That funding was the consideration — but that was separate from the documentary chain used by the securitizers. You can’t point to consideration “over there” and say that was the consideration you gave in exchange for the note and mortgage unless you can show that “over there” was connected to the documents that were presented to the borrower and signed under false pretenses, creating fraud in the inducement and even fraud in the execution of those documents.

They were “borrowing” the consideration from “over there” and borrowing the identity of the investor-lenders and borrowers to create a monumental shrine to Ponzi schemes in which the total nominal value of the scheme exceed world fiat money by 12 times the actual supply of money. The ONLY was to combat this is to dismantle the fraudulent scheme so that the threat posed by “shadow banking” no longer exists, seizure of the assets illegally obtained, and making whatever restitution is possible to investor-lenders and homeowners, past, present and future.

They did the illegal deals and then had their own people “approve”them and even accept them into non-existing pools without bank accounts. They claimed the loans as their own when it was convenient for them to do so — getting the money for plunging values of the mortgage bonds at 100 cents on the dollar.

Then they dumped what was left of the paperwork over the fence and told the investor NOW the loan is yours and you have a loss. But at all times these banks were merely depository institutions and they were accepting deposits from investor-lenders more or less in the same form as a CD. Their balance sheet did not show a loan receivable. It would have shown a liability for the deposit that was due back to the investor-lender but for them inserting fictitious entities that would take the liability and the loss borrower. In other words a shell game supporting the usual Ponzi scheme scenario.

In a word, they merely substituted the mortgage bond owed by a non-existent entity with no assets for a normal loan receivable account. Thus no loan receivable accounts exists.

Payback TimeMany See the VAT Option as a Cure for Deficits

The value added tax (VAT) has been around for decades in other countries. It is predicated on the  idea that ALL people should share in the cost of government. The way it works (see below) is that the government picks up 10% (for example) of each stepof the production and sales process. It is normally reserved for hard goods instead of services.

I think that is is the only good idea around topay down the deficit IF it is applied to Wall Street. In addition to raising money it would force all intermediaries to report every transaction and their profit on it. It would force them todeclare the profit (VAT) and pay the income taxes from the fees and profits.

Let’s look at the way this would work in the derivative market. Better yet let’s look at the derivative market over the last 10 years. Maybe you’ll fee outrage when you read this somewhat over simplified version of the way things REALLY work. 

  1. Mortgage Bonds are sold  to investors by a “seller.” Who gets the selling fee? How much was it? Where did it go? Even under current rules most of this money went untaxed for income tax because by playing the shell game cleverly you can create a question of tax jurisdiction and end up paying no tax and  not even reporting it.
  2. The Seller of the mortgage bonds (and a percentage interest in the underlying notes and mortgages) received a stack of certificates from the Special Purpose Vehicle (SPV/Trust)at a cost of  less than what the certificates were sold for. The great thing for the seller is that the Selling Agent is allowed to “sell forward” to investors, thus knowing exactly6 what his profit is going to be when he takes the stack of bond certificates. The VAT tax would apply here and perhaps result, heaven forbid, in a double tax of VAT and income taxes. Criminal law enforcement could beeefed up on the VAT so that the intermediary parties in the securitization chain have nowhere to hide — if the government does its job in enforcement which would mean training special VAT agents who can understand the workings of securities transfers on Wall Street and can enforce the jurisdicitional issue thaty has been the favorite tool of investment banks working both sides of the Atlantic and Pacific.
  3. The SPV has received an assignment (of dubious legality) from an aggregator pool. It is paying a huge premium over the true value fhe pool, and thus, so are the investors who buy the bonds. In the presence of a government doing its job to enforce tax liability —VAT and Income Tax — the fraud of the entire mortgage meltdown wouldhave been exposed, the government would have taken possession of the investment banks running these pools, and taxpayers would have received in their coffers huge amounts of money paid in taxes from this yield spread premium. But alas,Wall Street continues to get its way and this is considered no a profit or a fee but instead it is either not shown at all as this yield spread profit from sale of ggregator to SPV or it is actually shown as an expense. On an average basis the YSP on the sale from aggregator to SPV was about 80% of the mortgage funding amount. This is where the toxicity of the mortgages and notes was hidden.
  4. And then you continue down the line with the usual undisclosed YSP between mortgage broker and”lender” (actually a straw man through whom the transaction passes etc.

If you put pencil to paper you’ll see that Wall Street didn’t  just dodge responsibility for the mess they created, they dodged the taxes too. If the government was enforcing our existing tax laws through this process, the entire stimulus and other lines of credit from the Federal government would have been paid by the culprits who did this to us.

——————————————————————————-

December 11, 2009 Payback TimeMany See the VAT Option as a Cure for Deficits By CATHERINE RAMPELL Runaway federal deficits have thrust a politically unsavory savior into the spotlight: a nationwide tax on goods and services. Members of Congress, like their constituents, are squeamish about such ideas, instead suggesting spending cuts or higher taxes on the rich. But with a lack of political will to do the former, and a practical ceiling to how much revenue can be milked from the latter, economists across the political spectrum say a consumption tax may be inevitable once the economy fully recovers. “We have to start paying our bills eventually,” said Charles E. McLure, a tax economist who worked in the Reagan administration. “This strikes me as the best and most obvious way of doing it.” The favored route of economists is known as a value-added tax, which is a tax on goods and services that is collected at every step along the production chain, from raw material to a consumer’s shopping bag. Similar to a sales tax, it generally results in consumers paying more for the things they buy. The revenues could be used to pay for health care or other social programs, or just to pay down existing debt. Like universal health care, every other industrialized country in the world already has a value-added tax (as do about 100 emerging countries). And also like universal health care, this once-taboo policy option has recently been invoked, at times begrudgingly, by many prominent Washingtonians, including the House speaker, Nancy Pelosi; John Podesta, who was co-chairman of President Obama’s transition team; and two former Federal Reserve chairmen, Alan Greenspan and Paul A. Volcker Introducing such a tax would probably require an overhaul of the entire federal tax code, no small order, and something the government last did in 1986. At the time the goal was to simplify the tax system, to raise money more efficiently and with fewer headaches for taxpayers. Since then, federal spending has ballooned, while the government’s ability to raise taxes has become increasingly inefficient. Consider the page length of the tax code and tax regulations, which has expanded by more than 70 percent, according to Thomson Reuters Tax and Accounting. (There are more words crammed onto each page, too.) The tax system is now a compendium of lobbied-for ifs, ands and buts. As the tax code has been embellished and then Swiss-cheesed, the portion of Americans footing the nation’s income tax bill has shrunk. “There are many more deductions and credits, which can often encourage inefficient behavior such as tax shelters,” said Leonard E. Burman, a public affairs professor at Syracuse University, about the changes to the tax system since the 1986 reform. “The ideal tax system has a broad base — few deductions or exemptions — and low rates.” Most of the rest of the industrialized world — including, most recently, Australia — has already taken this lesson to heart by imposing value-added taxes. Unlike income taxes, which are often front-loaded on the rich, then subsequently diluted, a value-added tax is paid by almost everybody. That broad base is one of its major advantages, and why the International Monetary Fund frequently recommends it to countries that need to raise money quickly. What is good for economic purposes, however, can be bad politics, especially since Mr. Obama pledged not to raise taxes on the bottom 95 percent of Americans. (And many Republicans have pledged not to raise taxes on the bottom 100 percent of Americans.) The value-added tax is also the darling of many economists for its bounce-a-quarter-off-its-abs efficiency. Its administrative costs to the government are generally low. It is also considered less of a drag on the economy over the long run than raising income taxes, which discourage people from saving money and thereby making capital available to businesses. To understand why a value-added tax is considered so efficient, you have to understand how it usually works. Imagine the production of a new dress, in three steps: ¶A fabric store sells a tailor enough silk to make one dress, at a total price of $10 before taxes; ¶The tailor sews a dress and sells it to Macy’s for $30 before taxes; ¶Macy’s then sells the dress to a shopper for $50, before taxes. Let’s say the value-added tax is 10 percent. The government will collect some tax revenue in each step of the production process, from roll of fabric to cocktail-party scene-stealer, but each business in the chain gets credit for the tax already paid by other suppliers. When selling the cloth to the tailor, the fabric store adds a tax of 10 percent, or $1 on the $10 of supplies the tailor purchases. The tailor pays the fabric store $11, and the store remits $1 to the government. When the tailor sells his dress to Macy’s, he calculates the value-added tax as $3, or 10 percent of his $30 pretax price. Macy’s pays the tailor $33. But instead of sending the full $3 to the government, the tailor gets to subtract the $1 of taxes he had already paid to the fabric store. So he sends $2 to the government. When Macy’s sells the dress to a shopper, it adds another 10 percent, so the shopper pays $55, or $50 plus $5 in tax. That would be in addition to any state or local sales taxes consumers have to pay, depending on the locale. Macy’s checks to see how much the previous companies in the supply chain — the fabric store and the tailor — have already paid the government in value-added taxes, and subtracts that from the $5. Macy’s ends up remitting just $2 to the government. The government receives $5 total, or 10 percent of the final purchase price, but from three different businesses. Although more complicated, value-added taxes are considered better than equivalent sales taxes — where the tax is levied only when the consumer buys a product — for two main reasons. First, if a single business evades the value-added tax, the government does not lose a large portion of money, because it will collect taxes at other stages of production. Since companies usually get credit for taxes already paid by their suppliers, companies will pressure other businesses in the production chain to prove they paid their taxes. That means the system is somewhat self-policing. To some foes of big government, though, the efficiency of the tax is also its fatal flaw. Conservatives worry that it enables the government to raise money with such little effort that it will encourage Washington to spend even more. On the other hand, liberals are wary of value-added taxes because they are regressive. Poor people spend a higher portion of their income buying things than the rich, meaning lower-income people would be disproportionately hurt. That is why countries often make other major changes to their tax code at the same time. In Australia, the government imposed a value-added tax in the middle of an overhaul of the system in 2000, which included making the income tax system more progressive. “Many countries with VATs have income taxes that start out at higher income thresholds,” said James Poterba, an economics professor at M.I.T. Combining a broad-based VAT with a steeply progressive income tax, he said, avoids affecting the poor too much. But just as the income tax has been hollowed out by countless loopholes, so could a value-added tax. Many European countries, for example, have counteracted the regressive qualities of the tax by exempting broad categories of goods, like groceries and children’s clothing. This always creates problems, economists say. Companies are tempted to mislabel their products so they can avoid the tax. “What really is the difference between prepared food versus nonprepared food?” said Alan J. Auerbach, an economics professor at the University of California, Berkeley. “You start having to split hairs, and that can become quite complicated.” Besides cheating the government of revenue, this sort of behavior also distorts what people choose to buy, causing a drag on economic development, Mr. Auerbach said. Moreover, in some industries — like financial services — it is difficult to evaluate how much value is added because of the way they make their money. The solution in many places, like New Zealand, is to exempt the financial services industry. But that might not go over well in a country whose federal debt has recently swelled precisely because of a major banking crisis. Such political hurdles, along with a still-tentative economic recovery, make a consumption tax — or a tax increase of any kind — unlikely in the immediate future. But with economists like Kenneth Rogoff of Harvard predicting that federal tax revenues will need to rise by 20 to 30 percent in the next few years, politicians may hold their noses and decide this tax is the least worst option. “Of course, we want to take down the health care cost, that’s one part of it,” Ms. Pelosi told Charlie Rose of PBS. “But in the scheme of things, I think it’s fair to look at a value-added tax as well.” Kitty Bennett contributed reporting.

Follow

Get every new post delivered to your Inbox.

Join 3,327 other followers

%d bloggers like this: