Borrower’s RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND TO TAX ATTORNEYS FEES AND ANSWER

RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND TO TAX
ATTORNEYS FEES AND ANSWER

Defendant, DOUGLAS SCHWARTZ AND TAMMY SCHWARTZ, files its response and additional answer to plaintiffs U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION (SASCO) 2007-BNC1, Mortgage Pass-through Certificates, Series 2007-bnc1 motion for summary judgment and to tax attorneys fees.

1. Plaintiff alleged that they had standing as plaintiff in hearing to dismiss case based on being the true holder and beneficiary of the Mortgage and the note based on affidavit testimony by attorney Emily Lang. When in fact in the days following the hearing file a motion to substitute another plaintiff on this case. It is defendant’s opinion that Florida default law group was not completely honest with this court in their affidavit testimony.
2. Plaintiff also submitted to the court an affidavit from Chase Home Finance llc. Stating in their own words that they are only a servicer on the loan that the plaintiff alleges to own and hold, and that they have only personal knowledge, and have only reviewed a file which is hearsay at best.
3. In their own sworn SEC document filings This Mortgage was pooled with other John Does (1-1000) and sold on the open market, making the true Owners of this Mortgage and Note truly unknown and mixed with a pool of beneficiaries. See Exhibit A
4. Affidavits are often submitted to prove default that are conclusory and insufficient. Manufacturers & Traders Trust Co. v. Medina, 01 C 768, 2001 WL 1558278 (N.D.Ill., Dec. 5, 2001); Cole Taylor Bank v. Corrigan, 230 Ill.App.3d 122, 595 N.E.2d 177, 181 (2d Dist. 1992). Computer-generated bank records or testimony based thereon are often offered without proper foundation, or are summarized without being introduced. Manufacturers & Traders Trust Co. v. Medina, supra, 01 C 768, 2001 WL 1558278 (N.D.Ill., Dec. 5, 2001); FDIC v. Carabetta, 55 Conn.App. 369, 739 A.2d 301 (1999). Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent; rather, the records must be introduced after a proper foundation is provided. New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301, 308-09 (1996), later opinion, 246 Conn. 594, 717 A.2d 713 (1998); Cole Taylor Bank v. Corrigan, supra, 230 Ill.App.3d 122, 595 N.E.2d 177, 181 (2d Dist. 1992). It is the business records that constitute the evidence, not the testimony of the witness referring to them. In re A.B., 308 Ill.App. 3d 227, 719 N.E.2d 348 (2d Dist. 1999). Nor is such an affidavit made sufficient by omitting the fact that it is based on a review of loan records, if it appears that the affiant did not personally receive or observe the reception of all of the borrowers payments. Hawaii Community Federal Credit Union v. Keka, 94 Haw. 213, 11 P.3d 1, 10 (2000). If the underlying records are voluminous, a person who has extracted the necessary information may testify to that fact, but the underlying records must be made available to the court and opposing party. In re deLarco, 313 Ill.App.3d 107, 728 N.E.2d 1278 (2d Dist. 2000).
5. By the very nature of the way they “pooled” these notes, the note lost its individual identity under the express terms of the pooling and services. What that means is that the revenue from the note was made part of a larger promise to pay, under which the payments under one note could be effectively applied to another note where the payment was not made. This was even more expressly provided when the pool was assigned in different parts to the Special Purpose Vehicles, that issued certificates to investors in which the investors thought they were buying triple AAA cash equivalent securities backed by mortgages and notes that were, according to the sellers of the certificates negotiable. But a negotiable note is ONLY a note where there is an unconditional promise to pay. The pooling with the aggregator, the placement of parts of the pool into tranches (divisions) of the SPV (corporation that issued the certificates of mortgage backed securities). In this case the obligation was created by the funding of the loan. The source of the loan was an undisclosed party. That party was calling the shots, including the terms of the note that it needed to justify the presale (selling forward, which means selling what you don’t have “yet”) of the asset backed securities. With the pooling agreement at the aggregator (loan wholesaler) level combined with the re-pooling at the SPV level the note was converted from an unconditional promise to pay to a conditional promise to pay — i.e., if you didn’t pay your note, it is quite possible that a third party could and in fact did pay part or all of the payments or the principal of your note. The presence of insurance, credit default swaps, bailouts from the U.S. Treasury and Federal Reserve indicate that the only party who could possibly claim to be holder in due course has been paid in part or in full. I am therefore left with two extremely high probabilities to the point of being, in my opinion, virtually certain: (1) BNC MORTGAGE INC. was paid in full contemproaneously with my loan closing and (2) the note was negotiated despite the fact that it was non-negotiable. This leaves BNC MORTGAGE INC on my closing documents in the position of (a) having been paid in full and probably not even taking the loan on its balance sheet and (b) lacking an argument that it “negotiated” (Sold) the note to a third party. If the note was not sold and the lender received payment in full, neither the obligation nor the security (mortgage) exists by operation of law entitling defendants to file a lawsuit to quiet title my property.
6. For any claiming that the defendants are seeking a windfall — that isn’t true. The homeowner admits to signing a note but is merely saying that the party claiming rights to foreclose, and any party acting in furtherance of that claim is acting ultra vires (without authority, right, or justification). To do otherwise would cause the unjust enrichment of a party seeking to obtain ownership of property despite the fact that the party seeking foreclosure has already been paid in full, plus fees. Which is the windfall — a homeowner who got hoodwinked by deceptive and predatory lending practices or a thief who already got paid and now wants the property too?
7. Defendants believe there was Fraud in the Factum since securitizations were involved. The Defendants filings with the Securities and Exchange Commission (SEC) shows interconnected and affiliated parties that aided and abetted a pattern of fraud by the originating lender and, thus, trust cannot acquire the rights of a holder-in-due-course per U.C.C.§ 3-203 (b). (England v. MG Investments, Inc., 93 F. Supp. 2d 718 (S.D. W.Va 2000)).
8. For example, a federal district Court held that the Wall Street underwriters (Lehman Bros.) for a predatory lender could be liable to injured consumers on an aiding and abetting theory where consumer allege that the underwriter knew of the lenderʼs fraud and provided substantial assistance to the lenderʼs scheme (Aiello v. Chisik, 2002 U.S. Dist. Lexis 5858 (C.D. Cal. Jan. 10, 2002)
9. Defendants believe that the powers afforded to the plaintiffs as trustees or services per the trustees service agreement do not give any authority to prosecute this case and do not give any justification to tax attorney’s fees on a frivolous case. See exhibit B (Demurer)
10. Exhibits submitted suggest that a trial is needed before any judgement can be awarded to alleged plaintiffs.

WHEREFORE, Defendants reaffirm their original answer and respectfully request the court enter an order denying the motion for summary judgment and an order to deny attorneys’ fees until a trial can be heard and determination of the right of the plaintiff to have valid standing. Defendants request a trial by jury on the facts contained in answer and submitted discovery items.

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21 Responses

  1. I just sent this email to Rep. John Conyers Jr. Mi
    I would invite everyone here to do the same.

    You are not a Democrat you are a Wall Street Republican in their back pocket, HOW MUCH MONEY DID IT TAKE THEM TO BUY YOU?
    The Truth and Leading Act is one of the few defenses available to Home Owners fighting Foreclosure. How can you sleep at night when
    you give the Banks Government BAILOUTS and Screw the PEOPLE YOU ARE SWORN TO SERVE. I DON’T THINK YOU OATH OF
    OFFICE SAID ANYTHING ABOUT HAIL TO WALL STREET and SCREW THE PEOPLE YOU SUPPOSED TO SERVE.

    PLEASE RESIGN! DO WHAT IS RIGHT FOR THE COUNTRY AND RESIGN YOUR SEAT IN THE HOUSE OF REPRESENTATIVES

  2. H.R.1106
    Title: To prevent mortgage foreclosures and enhance mortgage credit availability.
    Sponsor: Rep Conyers, John, Jr. [MI-14] (introduced 2/23/2009) Cosponsors (24)
    Related Bills: H.RES.190, H.RES.205, S.895, S.896
    Latest Major Action: 3/11/2009 Referred to Senate committee. Status: Read twice and referred to the Committee on Banking, Housing, and Urban
    (Sec. 102) Requires the court to disallow a claim that is subject to any remedy for rescission under the Truth in Lending Act, notwithstanding the prior entry of a foreclosure judgment.

    Affairs.SUMMARY AS OF:
    3/5/2009–Passed House amended. (There is 1 other summary)

    Helping Families Save Their Homes Act of 2009 – Title I: Prevention of Mortgage Foreclosures – Subtitle A: Modification of Residential Mortgages – (Sec. 101) Amends federal bankruptcy law governing a Chapter 13 debtor (adjustment of debts of an individual with regular income) to exclude from the computation of debts the secured or unsecured portions of: (1) debts secured by the debtor’s principal residence if the value of the residence is less than the applicable maximum amount of noncontingent, liquidated, secured debts; or (2) debts secured or formerly secured by the debtor’s principal residence that was either sold in foreclosure or surrendered to the creditor if the property’s value was less than the applicable maximum amount of noncontingent, liquidated, secured debts.

    Applies the credit counseling requirement to a Chapter 13 debtor who certifies receipt of notice that the holder of a claim secured by the debtor’s principal residence may commence a foreclosure on it. Allows such a debtor to satisfy the requirement within 30 days after filing a petition for relief from debt. (Currently the requirement must be satisfied within 180 days before the filing of a petition.)

    (Sec. 102) Requires the court to disallow a claim that is subject to any remedy for rescission under the Truth in Lending Act, notwithstanding the prior entry of a foreclosure judgment.

    (Sec. 103) Permits a Chapter 13 bankruptcy plan to modify the rights of claim holders with respect to a claim for a loan originated before the effective date of this Act and secured by a security interest in the debtor’s principal residence that is the subject of a foreclosure notice.

    Authorizes reduction of a claim secured by the debtor’s principal residence, but only in specified circumstances, particularly if the debtor sells the residence.

    (Sec. 104) Permits a Chapter 13 bankruptcy plan to deny debtor liability for certain fees and charges incurred while the bankruptcy case is pending and arising from a debt secured by the debtor’s principal residence, unless the claim holder observes specified requirements.

    (Sec. 105) Adds to conditions for court confirmation of a plan in bankruptcy that: (1) the holder of a claim secured by the debtor’s principal residence retain the lien securing the claim until the later of the payment of the claim as reduced and modified, completion of all payments under the plan, or the discharge of a debtor from all debts; and (2) the plan modifies the claim in good faith and the court does not find that the debtor has been convicted of obtaining by actual fraud the extension, renewal, or refinancing of credit that gives rise to a modified claim.

    Authorizes the court, upon request, to confirm a plan proposing a reduction in the interest rate on the loan secured by such security interest and that does not reduce the principal, provided the total monthly mortgage payment is reduced to a percentage of the debtor’s income in accordance with the guidelines of the Obama Administration’s Homeowner Affordability and Stability Plan, and the debtor, thereafter, would be able to prevent foreclosure and pay a fully amortizing 30-year loan at such reduced interest rate without such reduction in principal.

    (Sec. 106) Excludes from the final discharge of a debtor from all debts any unpaid portion of such a claim as reduced.

    (Sec. 107) Amends the federal judicial code to prescribe standing trustee fees regarding certain payments received under a Chapter 13 bankruptcy plan.

    (Sec. 109) Instructs the Comptroller General to study and report to certain congressional committees on: (1) the number of Chapter 13 debtors who filed, during the year following enactment of this Act, for the purpose of restructuring their principal residence mortgages; (2) the number of mortgages restructured under this Act that subsequently resulted in default and foreclosure; (3) a comparison between the effectiveness of mortgages restructured under programs outside of bankruptcy and mortgages restructured under this Act; (4) the number of cases presented to the bankruptcy courts where mortgages were restructured under this Act that were appealed; (5) the number of bankruptcy cases where mortgages were restructured under this Act that were overturned on appeal; (6) the number of bankruptcy judges disciplined as a result of actions taken to restructure mortgages under this Act; and (7) whether the amendments made by this Act should be amended to include a sunset clause.

    (Sec. 110) Directs the Comptroller General to report to Congress on: (1) a comprehensive review of the effects of the amendments made by this subtitle on the bankruptcy court; (2) a survey of whether the program should limit the types of homeowners eligible for the program, and (3) whether such amendments should remain in effect.

    Subtitle B: Related Mortgage Modification Provisions – (Sec. 121) Expands federal procedures governing default on veterans’ housing loans. Authorizes the Secretary of Veterans Affairs, in the event of a modification in bankruptcy, to pay the holder of the obligation the unpaid balance due as of the date of the filing of the bankruptcy petition, plus accrued interest, but only upon assignment, transfer, and delivery of all rights, interest, claims, evidence, and records regarding the loan.

    (Sec. 122) Amends the National Housing Act to authorize the Secretary of Housing and Urban Development (HUD) to: (1) pay Federal Housing Administration (FHA) mortgage insurance benefits for a mortgage modified under federal bankruptcy law; and (2) implement a program solely to encourage loan modifications for eligible delinquent mortgages through the payment of insurance benefits and assignment of the mortgage to the Secretary and the subsequent modification of the terms of the mortgage according to a loan modification approved by the mortgagee.

    (Sec. 123) Amends the Housing Act of 1949 to authorize the Secretary of Agriculture to pay: (1) the guaranteed portion of any losses incurred by the holder of a note or the loan servicer resulting from a modification in a bankruptcy proceeding; and (2) for losses incurred by holders or servicers in the event of a modification pursuant to a bankruptcy proceeding.

    (Sec. 124) Declares unenforceable as contrary to public policy certain investment contracts between servicers and securitization vehicles or investors that require excess bankruptcy losses that exceed a certain dollar amount on residential mortgages.

    (Sec. 125) Requires the Comptroller General to report to certain congressional committees on the volume of mortgage modifications reported to the Office of the Comptroller of the Currency and the Office of Thrift Supervision (OTS), under the mortgage metrics program of each such Office, during the previous quarter.

    Title II: Foreclosure Mitigation and Credit Availability – (Sec. 201) Shields servicers from liability for implementing mortgage loan modifications or loss mitigation plans if they are in compliance with fiduciary duties required by the Truth in Lending Act (including any refinancing undertaken pursuant to standard loan modification, sale, or disposition guidelines issued by the Secretary of the Treasury).

    (Sec. 202) Amends the National Housing Act to modify the HOPE for Homeowners Program (HOPE).

    Requires mortgagor certification to HUD that the mortgagor has neither intentionally defaulted on an existing mortgage, nor provided false information, nor (as under existing law) been convicted for fraud during the 10-year period ending upon the insurance of the mortgage under this Act.

    Authorizes the Secretary of Housing and Urban Development (HUD) to permit the establishment of a second lien on a property under an eligible mortgage to be insured, for the purpose of facilitating payment of closing or refinancing costs by a state or locality using funds provided: (1) under the HOME Investment Partnerships program; (2) under the community development block grants program under the Housing and Community Development Act of 1974; or (3) by a state or local housing finance agency.

    Authorizes HUD to provide exceptions to primary residence and exclusive present ownership interest requirements for any mortgagor who has inherited a property or has relocated to a new jurisdiction, and is in the process of trying to sell such property or has been unable to sell it due to adverse market conditions.

    Bans from the HOPE program mortgagors whose net worth exceeds $1 million.

    Authorizes the Secretary to establish a payment of up to $1,000 per insured loan to the loan servicer of the existing senior mortgage for every loan insured under HOPE.

    Directs the Secretary to establish, if feasible, an auction to refinance eligible mortgages on a wholesale or bulk basis.

    Reduces by $2.316 billion the $700 billion limit on the Secretary of the Treasury’s authority to purchase troubled assets under the Troubled Asset Relief Program (TARP) (in order to offset the costs of program changes).

    (Sec. 203) Limits participation in the origination of an FHA-insured loan to a person or entity approved by the Secretary as a mortgagee, unless the Secretary otherwise authorizes such participation.

    Prohibits approval as a mortgagee of any applicant any of whose officers, partners, directors, principals, managers, supervisors, loan processors, loan underwriters, or loan originators is currently suspended, debarred, otherwise restricted, indicted or convicted of certain offenses, engaged in nonconforming business practices, or subject to unresolved findings of a HUD audit, investigation, or review.

    Requires an approved mortgagee to notify the Secretary immediately of any such sanctions applied to it or any of its personnel, including revocation of a state-issued mortgage loan originator license or similar declaration of ineligibility under state law.

    Directs the Secretary to: (1) expand the existing process for reviewing new applicants for participation in FHA-insured mortgages on one- to four-family residences in order to identify applicants who represent a high risk to the Mutual Mortgage Insurance Fund (MMIF); and (2) implement procedures that, for mortgagees approved during the 12 months before enactment of this Act, expand the number of mortgages originated by such mortgagees reviewed for compliance with laws, regulations, and policies, including a process for random reviews and one for reviews based on volume of such mortgages.

    (Sec. 204) Amends the Federal Deposit Insurance Act (FDIA) and the Federal Credit Union Act (FCUA) to: (1) increase deposit insurance coverage permanently to $250,000; and (2) increase the borrowing authority of the Federal Deposit Insurance Corporation (FDIC) and the National Credit Union Administration (NCUA).

    Amends the FDIA to: (1) extend to eight years the time period applicable to a Deposit Insurance Fund (DIF) restoration plan; and (2) revise requirements for special assessments to recover the loss to the DIF arising from actions taken to contain systemic risk with respect to certain insured depository institutions.

    Amends the FCUA to direct the NCUA Board to establish a National Credit Union Share Insurance Fund Restoration Plan whenever the Board projects that the equity ratio of the National Credit Union Share Insurance Fund will fall below a minimum designated equity ratio.

    (Sec. 205) Requires the Secretary of the Treasury, when using certain funds under the Emergency Economic Stabilization Act of 2008 (EESA) to prevent and mitigate foreclosures on residential properties (including mortgage modifications), to provide that the limitation on the maximum original principal obligation of a mortgage that may be assisted shall not be less than the dollar amount limitation on the maximum original principal obligation of a mortgage that may be purchased by the Federal Home Loan Mortgage Corporation (Freddie Mac) for the area in which the property involved in the transaction is located.

    (Sec. 206) Amends the National Housing Act with respect to insurance of home equity conversion mortgages for the elderly. Redefines a mortgage on the alternative kind of leasehold under such insurance program as one that has a term that ends no earlier than the minimum number of years, as specified by HUD, beyond the actuarial life expectancy of the mortgagor or comortgagor, whichever is the later date. (Currently, a lease having a period of not less than 10 years to run beyond the mortgage maturity date.)

    (Sec. 207) Expresses the sense of Congress that the Secretary of the Treasury should use amounts made available in this Act to purchase mortgage revenue bonds for single-family housing issued through state housing finance agencies and through local governments and their agencies.

    Title III: Mortgage Fraud – Nationwide Mortgage Fraud Task Force Act of 2009 – (Sec. 302) Establishes in the Department of Justice the Nationwide Mortgage Fraud Task Force to address mortgage fraud in the United States.

    Requires the Task Force to: (1) establish federal, state, and local coordinating entities to organize initiatives to address mortgage fraud; (2) provide training to federal, state, and local law enforcement and prosecutorial agencies with respect to mortgage fraud; (3) collect and disseminate data with respect to mortgage fraud; and (4) perform other functions determined by the Attorney General to enhance the detection of, prevention of, and response to mortgage fraud in the United States.

    Authorizes the Task Force to: (1) initiate and coordinate federal mortgage fraud investigations and, through the coordinating entities, state and local investigations; (2) establish a toll-free hotline for reporting mortgage fraud and providing the public with access to related information and resources; (3) create a database about suspensions and revocations of mortgage industry licenses and certifications to facilitate the sharing of such information by states; and (4) make recommendations and propose federal, state, and local government legislation.

    Title IV: Foreclosure Moratorium Provisions – (Sec. 401) Expresses the sense of Congress that mortgage holders, institutions, and mortgage servicers should not initiate a foreclosure proceeding or a foreclosure sale on any homeowner until foreclosure mitigation provisions of title II of this Act, and the President’s “Homeowner Affordability and Stability Plan,” have been implemented and determined to be operational.

    States that the foreclosure moratorium should apply only for first mortgages secured by the owner’s principal dwelling. Sets forth duties of the consumer to maintain property and to respond to reasonable inquiries.

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  3. Important language on recission

    Congressional Research Service Summary

    The following summary was written by the Congressional Research Service, a well-respected nonpartisan arm of the Library of Congress. GovTrack did not write and has no control over these summaries.
    3/5/2009–Passed House amended.
    Helping Families Save Their Homes Act of 2009 -
    Title I – Prevention of Mortgage Foreclosures
    Subtitle A – Modification of Residential Mortgages
    Section 101 -
    Amends federal bankruptcy law governing a Chapter 13 debtor (adjustment of debts of an individual with regular income) to exclude from the computation of debts the secured or unsecured portions of: (1) debts secured by the debtor’s principal residence if the value of the residence is less than the applicable maximum amount of noncontingent, liquidated, secured debts; or (2) debts secured or formerly secured by the debtor’s principal residence that was either sold in foreclosure or surrendered to the creditor if the property’s value was less than the applicable maximum amount of noncontingent, liquidated, secured debts.
    Applies the credit counseling requirement to a Chapter 13 debtor who certifies receipt of notice that the holder of a claim secured by the debtor’s principal residence may commence a foreclosure on it. Allows such a debtor to satisfy the requirement within 30 days after filing a petition for relief from debt. (Currently the requirement must be satisfied within 180 days before the filing of a petition.)
    Section 102 -
    Requires the court to disallow a claim that is subject to any remedy for rescission under the Truth in Lending Act, notwithstanding the prior entry of a foreclosure judgment.
    Section 103 -
    Permits a Chapter 13 bankruptcy plan to modify the rights of claim holders with respect to a claim for a loan originated before the effective date of this Act and secured by a security interest in the debtor’s principal residence that is the subject of a foreclosure notice.
    Authorizes reduction of a claim secured by the debtor’s principal residence, but only in specified circumstances, particularly if the debtor sells the residence.
    Section 104 -
    Permits a Chapter 13 bankruptcy plan to deny debtor liability for certain fees and charges incurred while the bankruptcy case is pending and arising from a debt secured by the debtor’s principal residence, unless the claim holder observes specified requirements.
    Section 105 -
    Adds to conditions for court confirmation of a plan in bankruptcy that: (1) the holder of a claim secured by the debtor’s principal residence retain the lien securing the claim until the later of the payment of the claim as reduced and modified, completion of all payments under the plan, or the discharge of a debtor from all debts; and (2) the plan modifies the claim in good faith and the court does not find that the debtor has been convicted of obtaining by actual fraud the extension, renewal, or refinancing of credit that gives rise to a modified claim.
    Authorizes the court, upon request, to confirm a plan proposing a reduction in the interest rate on the loan secured by such security interest and that does not reduce the principal, provided the total monthly mortgage payment is reduced to a percentage of the debtor’s income in accordance with the guidelines of the Obama Administration’s Homeowner Affordability and Stability Plan, and the debtor, thereafter, would be able to prevent foreclosure and pay a fully amortizing 30-year loan at such reduced interest rate without such reduction in principal.
    Section 106 -
    Excludes from the final discharge of a debtor from all debts any unpaid portion of such a claim as reduced.
    Section 107 -
    Amends the federal judicial code to prescribe standing trustee fees regarding certain payments received under a Chapter 13 bankruptcy plan.
    Section 109 -
    Instructs the Comptroller General to study and report to certain congressional committees on: (1) the number of Chapter 13 debtors who filed, during the year following enactment of this Act, for the purpose of restructuring their principal residence mortgages; (2) the number of mortgages restructured under this Act that subsequently resulted in default and foreclosure; (3) a comparison between the effectiveness of mortgages restructured under programs outside of bankruptcy and mortgages restructured under this Act; (4) the number of cases presented to the bankruptcy courts where mortgages were restructured under this Act that were appealed; (5) the number of bankruptcy cases where mortgages were restructured under this Act that were overturned on appeal; (6) the number of bankruptcy judges disciplined as a result of actions taken to restructure mortgages under this Act; and (7) whether the amendments made by this Act should be amended to include a sunset clause.
    Section 110 -
    Directs the Comptroller General to report to Congress on: (1) a comprehensive review of the effects of the amendments made by this subtitle on the bankruptcy court; (2) a survey of whether the program should limit the types of homeowners eligible for the program, and (3) whether such amendments should remain in effect.
    Subtitle B – Related Mortgage Modification Provisions
    Section 121 -
    Expands federal procedures governing default on veterans’ housing loans. Authorizes the Secretary of Veterans Affairs, in the event of a modification in bankruptcy, to pay the holder of the obligation the unpaid balance due as of the date of the filing of the bankruptcy petition, plus accrued interest, but only upon assignment, transfer, and delivery of all rights, interest, claims, evidence, and records regarding the loan.
    Section 122 -
    Amends the National Housing Act to authorize the Secretary of Housing and Urban Development (HUD) to: (1) pay Federal Housing Administration (FHA) mortgage insurance benefits for a mortgage modified under federal bankruptcy law; and (2) implement a program solely to encourage loan modifications for eligible delinquent mortgages through the payment of insurance benefits and assignment of the mortgage to the Secretary and the subsequent modification of the terms of the mortgage according to a loan modification approved by the mortgagee.
    Section 123 -
    Amends the Housing Act of 1949 to authorize the Secretary of Agriculture to pay: (1) the guaranteed portion of any losses incurred by the holder of a note or the loan servicer resulting from a modification in a bankruptcy proceeding; and (2) for losses incurred by holders or servicers in the event of a modification pursuant to a bankruptcy proceeding.
    Section 124 -
    Declares unenforceable as contrary to public policy certain investment contracts between servicers and securitization vehicles or investors that require excess bankruptcy losses that exceed a certain dollar amount on residential mortgages.
    Section 125 -
    Requires the Comptroller General to report to certain congressional committees on the volume of mortgage modifications reported to the Office of the Comptroller of the Currency and the Office of Thrift Supervision (OTS), under the mortgage metrics program of each such Office, during the previous quarter.
    Title II – Foreclosure Mitigation and Credit Availability
    Section 201 -
    Shields servicers from liability for implementing mortgage loan modifications or loss mitigation plans if they are in compliance with fiduciary duties required by the Truth in Lending Act (including any refinancing undertaken pursuant to standard loan modification, sale, or disposition guidelines issued by the Secretary of the Treasury).
    Section 202 -
    Amends the National Housing Act to modify the HOPE for Homeowners Program (HOPE).
    Requires mortgagor certification to HUD that the mortgagor has neither intentionally defaulted on an existing mortgage, nor provided false information, nor (as under existing law) been convicted for fraud during the 10-year period ending upon the insurance of the mortgage under this Act.
    Authorizes the Secretary of Housing and Urban Development (HUD) to permit the establishment of a second lien on a property under an eligible mortgage to be insured, for the purpose of facilitating payment of closing or refinancing costs by a state or locality using funds provided: (1) under the HOME Investment Partnerships program; (2) under the community development block grants program under the Housing and Community Development Act of 1974; or (3) by a state or local housing finance agency.
    Authorizes HUD to provide exceptions to primary residence and exclusive present ownership interest requirements for any mortgagor who has inherited a property or has relocated to a new jurisdiction, and is in the process of trying to sell such property or has been unable to sell it due to adverse market conditions.
    Bans from the HOPE program mortgagors whose net worth exceeds $1 million.
    Authorizes the Secretary to establish a payment of up to $1,000 per insured loan to the loan servicer of the existing senior mortgage for every loan insured under HOPE.
    Directs the Secretary to establish, if feasible, an auction to refinance eligible mortgages on a wholesale or bulk basis.
    Reduces by $2.316 billion the $700 billion limit on the Secretary of the Treasury’s authority to purchase troubled assets under the Troubled Asset Relief Program (TARP) (in order to offset the costs of program changes).
    Section 203 -
    Limits participation in the origination of an FHA-insured loan to a person or entity approved by the Secretary as a mortgagee, unless the Secretary otherwise authorizes such participation.
    Prohibits approval as a mortgagee of any applicant any of whose officers, partners, directors, principals, managers, supervisors, loan processors, loan underwriters, or loan originators is currently suspended, debarred, otherwise restricted, indicted or convicted of certain offenses, engaged in nonconforming business practices, or subject to unresolved findings of a HUD audit, investigation, or review.
    Requires an approved mortgagee to notify the Secretary immediately of any such sanctions applied to it or any of its personnel, including revocation of a state-issued mortgage loan originator license or similar declaration of ineligibility under state law.
    Directs the Secretary to: (1) expand the existing process for reviewing new applicants for participation in FHA-insured mortgages on one- to four-family residences in order to identify applicants who represent a high risk to the Mutual Mortgage Insurance Fund (MMIF); and (2) implement procedures that, for mortgagees approved during the 12 months before enactment of this Act, expand the number of mortgages originated by such mortgagees reviewed for compliance with laws, regulations, and policies, including a process for random reviews and one for reviews based on volume of such mortgages.
    Section 204 -
    Amends the Federal Deposit Insurance Act (FDIA) and the Federal Credit Union Act (FCUA) to: (1) increase deposit insurance coverage permanently to $250,000; and (2) increase the borrowing authority of the Federal Deposit Insurance Corporation (FDIC) and the National Credit Union Administration (NCUA).
    Amends the FDIA to: (1) extend to eight years the time period applicable to a Deposit Insurance Fund (DIF) restoration plan; and (2) revise requirements for special assessments to recover the loss to the DIF arising from actions taken to contain systemic risk with respect to certain insured depository institutions.
    Amends the FCUA to direct the NCUA Board to establish a National Credit Union Share Insurance Fund Restoration Plan whenever the Board projects that the equity ratio of the National Credit Union Share Insurance Fund will fall below a minimum designated equity ratio.
    Section 205 -
    Requires the Secretary of the Treasury, when using certain funds under the Emergency Economic Stabilization Act of 2008 (EESA) to prevent and mitigate foreclosures on residential properties (including mortgage modifications), to provide that the limitation on the maximum original principal obligation of a mortgage that may be assisted shall not be less than the dollar amount limitation on the maximum original principal obligation of a mortgage that may be purchased by the Federal Home Loan Mortgage Corporation (Freddie Mac) for the area in which the property involved in the transaction is located.
    Section 206 -
    Amends the National Housing Act with respect to insurance of home equity conversion mortgages for the elderly. Redefines a mortgage on the alternative kind of leasehold under such insurance program as one that has a term that ends no earlier than the minimum number of years, as specified by HUD, beyond the actuarial life expectancy of the mortgagor or comortgagor, whichever is the later date. (Currently, a lease having a period of not less than 10 years to run beyond the mortgage maturity date.)
    Section 207 -
    Expresses the sense of Congress that the Secretary of the Treasury should use amounts made available in this Act to purchase mortgage revenue bonds for single-family housing issued through state housing finance agencies and through local governments and their agencies.
    Title III – Mortgage Fraud
    Nationwide Mortgage Fraud Task Force Act of 2009 -
    Section 302 -
    Establishes in the Department of Justice the Nationwide Mortgage Fraud Task Force to address mortgage fraud in the United States.
    Requires the Task Force to: (1) establish federal, state, and local coordinating entities to organize initiatives to address mortgage fraud; (2) provide training to federal, state, and local law enforcement and prosecutorial agencies with respect to mortgage fraud; (3) collect and disseminate data with respect to mortgage fraud; and (4) perform other functions determined by the Attorney General to enhance the detection of, prevention of, and response to mortgage fraud in the United States.
    Authorizes the Task Force to: (1) initiate and coordinate federal mortgage fraud investigations and, through the coordinating entities, state and local investigations; (2) establish a toll-free hotline for reporting mortgage fraud and providing the public with access to related information and resources; (3) create a database about suspensions and revocations of mortgage industry licenses and certifications to facilitate the sharing of such information by states; and (4) make recommendations and propose federal, state, and local government legislation.
    Title IV – Foreclosure Moratorium Provisions
    Section 401 -
    Expresses the sense of Congress that mortgage holders, institutions, and mortgage servicers should not initiate a foreclosure proceeding or a foreclosure sale on any homeowner until foreclosure mitigation provisions of title II of this Act, and the President’s “Homeowner Affordability and Stability Plan,” have been implemented and determined to be operational.
    States that the foreclosure moratorium should apply only for first mortgages secured by the owner’s principal dwelling. Sets forth duties of the consumer to maintain property and to respond to reasonable inquiries.

  4. Love the comments here, that is my response and i’m doing it pro se with the help of this website, things i might be missing are precedent cases in florida and federal court. my email is here for note sharing also, navigating this website can be tough but well worth it, keep up the pressure, thank you neil
    Flcommercial@bellsouth.net

  5. To file an Answer to a Motion for Summary Judgment you need to follow the Civil Procedure and answer each Material Statement with Deny, Admit or Qualify. Then you need to include a Memorandum of Law. The Affidavit is your testimony claiming who you are, that you never saw a document assigning the Plaintiff as Note holder, never signed a Promissory Note to Plaintiff (if thats the case), etc…the Affidavit must then be Notarized. From my understanding this is the only way to enter a definitive Answer to allegations that are not true and entered into evidence. I’m sure the above Answer included an Affidavit as it looks like they had some legal help.
    I’m a Pro Se Defender, not a legal pro(getting there though;) Seek out a Non-Prof Advocate and make them Get It!

  6. Ohio Foreclosure Stopped by “Real Party in Interest” Objection
    http://adask.wordpress.com/2009/04/02/2008-ohio-foreclosure-stopped-by-real-party-in-interest-objection/

    Great read enjoy!!!

  7. With regard to defense on “pooled” securitized mortgages,

    I have a question

    Suppose we discovered the exact SEC filing for our mortgage (in our case BCAP LLC 2007-AA3) and see Underwriting Agreement.

    It doesn’t say exactly that Notes were actually “sold” to the
    certficate purchasers (investors).

    This makes possible for the banks, to have a counter argument that a chain of Note title ends at the Trust Fund stage and the sold
    certificates are just backed by the pool of notes but no actual
    interest collected under notes is directly transferred to the investors with the securities (certificates).

    That would undermine the whole theory of defense against securitized mortgages, please shed a light of wisdom on this.

    Thank you!

  8. Can a first mortgage be rescinded?

  9. Long read but worth it
    How to Recind a Mortgage

    The following information pertains to the right to recind an agreement between HSBC and a customer. It is quite lengthy, but very interesting. The information comes from the FTC and OCC, respectively, according to the submitter. Case law is included:

    I. TILA & Res Judicata
    (Analogous to Mr. Curtis xxxxxx , situation since he had never litigated fully or raised any TILA claims affirmatively or defensively) A rescission action may not be barred by prior or subsequent TIL litigation which did not involve rescission (Smith v. Wells Fargo Credit Corp., 713 F. Supp. 354 (D. Ariz. 1989) (state court action involving, inter alia TIL disclosure violations did not bar a subsequent action based on rescission notice violations in conjunction with same transaction which were not alleged or litigated in prior action) (See also In re Laubach, 77 B.R. 483 (Bankr. E.D. Pa. 1987) (doctrine of merger bars raising state and federal law claims arising from a transaction on which a previous successful federal TILA action was based; merger does not bar, however, rescission-based on the same transaction)).

    The Truth-in-Lending law empower Mr. Curtis xxxxxxx , to exercise his right in writing by notifying creditors of his cancellation by mail to rescind the mortgage loan transactions per (Reg. Z 226.15(a)(2), 226.23(a)(2), Official Staff Commentary 226.23(a)(2)-1) and 15 U.S.C. 1635(b).

    2. Security Interest is Void
    The statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. 1635(b); Reg. Z 226.15(d)(1), 226.23(d)(1). As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary 226.15(d)(1)-1, 226.23(d)(1)-1.). Also, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. This requires HSBC Mortgage Services to submit canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary 226.15(d)(2)-3, 226.23(d)(2)-

    3. Extended Right of Rescission
    The statute and Regulation Z make it clear that, if Mr. Curtis xxxxxxx , has the extended right and chooses to exercise it, the security interest and obligation to pay charges are automatically voided. (Cf. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704-05 (9th Cir. 1986) (courts do not have equitable discretion to alter substantive provisions of TILA, so cases on equitable modification are irrelevant). The statute, section 1635(b) states: “When an obligor exercises his right to cancel, any security interest given by the obligor becomes void upon such rescission”. Also, it is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1625(b).

    The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. The statute makes no distinction between the right to rescind in three day or extended in three years for federal and four years under Mass. TILA, as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects Hsbc Mortgage Services Inc. to potential liability

    Non-compliance is a violation of the act which gives rise to a claim for actual and statutory damages under 15 USC 1640. TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Mr. Curtis xxxxxxxx , to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Mr. Curtis xxxxxxxx , all finance charges and fees paid.

    In case HSBC Mortgage Services Inc. do not respond to this default letter, Mr. Curtis xxxxxxxx, has the option of enforcing the rescission right in the federal, bankruptcy or state court (See S. Rep. No. 368, 96th Cong. 2 Sess. 28 at 32 reprinted in 1980 U.S.C.A.N. 236, 268 (”The bill also makes explicit that a consumer may institute suit under section 130 [15 U.S.C., 1640] to enforce the right of rescission and recover costs and attorney fees”).

    TIL rescission does not only cancel a security interest in the property but it also cancels any liability for Mr. Curtis xxxxxxxx , to pay finance and other charges, including accrued interest, points, broker fees, closing costs and the lender must refund to Mr. Curtis E Frazier , all finance charges and fees paid. Thus,HSBC Mortgage Services Inc. are obligated to return those charges to Mr. Curtis xxxxxxxx , (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Apr. 28, 2003) (citing lender’s duty to return consumer’s money as reason for allowing rescission of refinanced loan); McIntosh v. Irwing Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003) (citing borrower’s right to be reimbursed for prepayment penalty as reason for allowing rescission of paid-off loan).

    4. Step One of Rescission

    First, by operation of law, the security interest and promissory note automatically becomes void and the consumer is relieved of any obligation to pay any finance or other charges (15 USC 1635(b); Reg. Z-226.15(d)(1),226.23(d)(1). . See Official Staff Commentary 226.23(d)(2)-1. (See Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002) (Once the right to rescind is exercised, the security interest in the Mr. Curtis E Frazier’s property becomes void ab initio). Thus, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. (See Family Financial Services v. Spencer, 677 A.2d 479 (Conn. App. 1996) (all that is required is notification of the intent to rescind, and the agreement is automatically rescinded).

    It is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1635(b). The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. The statute makes no distinction between the right to rescind in 3-day or extended as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Also, after the security interest is voided, secured creditor becomes unsecured.

    5. Step Two of Rescission

    Second, since Mr. Curtis xxxxxxxxx has legally rescinded the loans transaction, the mortgage holders (HSBC Mortgage Services Inc.) must return any money, including that which may have been passed on to a third party, such as a broker or an appraiser and to take any action necessary to reflect the termination of the security interest within 20 calendar days of receiving the rescission notice which has expired. The creditor’s other task is to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission within 20 days of the creditor’s receipt of the rescission notice (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2).

    6. Step Three of Rescission

    Mr. Curtis xxxxxxx was prepared to discuss a tender obligation, should it arise, and satisfactory ways in which to meet this obligation. The termination of the security interest is required before tendering and step 1 and 2 have to be respected by HSBC Mortgage Services Inc.
    XIV. Conclusion

    When Mr. Curtis xxxxxxxx rescinds within the context of a bankruptcy, courts have held that the rescission effectively voids the security interest, rendering the debt, if any, unsecured (See Exhibit #6). (See in re Perkins, 106 B.R. 863, 874 (Bankr. E.D.Pa. 1989); In re Brown, 134 B.R. 134 (Bankr. E.D.Pa. 1991); In re Moore, 117 B.R. 135 (Bankr.E.D. Pa. 1990)).

    Once the court finds a violation such as not responding to the TILA rescission letter, no matter how technical, it has no discretion with respect to liability (in re Wright, supra. At 708; In re Porter v. Mid-Penn Consumer Discount Co., 961 F,2d 1066, 1078 (3d. Cir. 1992); Smith v. Fidelity Consumer Discount Co., Supra. At 898. Any misgivings creditors may have about the technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not the courts.

    Since HSBC Mortgage Services Inc. have not cancelled the security interest and return all monies paid by Mr. Curtis xxxxxxxx within the 20 days of receipt of the letter of rescission of April 4th, 2007, the lenders named above are responsible for actual and statutory damages pursuant to 15 U.S.C. 1640(a).

    HSBC Mortgage Services Inc. are to take any necessary or appropriate action to reflect the fact that the security interest was automatically terminated by the rescission (15 USC 1635(b); Reg. Z-226.15(d)(2),226.23(d)(2). This requires canceling documents creating the security interest and filing release or termination statements in the public record of FREE and CLEAR TITLE to Mr. Curtis xxxxxxx .

    If a lender fails to respond within twenty days to the notice of
    rescission, the ownership of the property vests in the borrowers and they are no longer
    required to pay the loan. See 1635(b); Staley v. Americorp Credit Corp., 164 F. Supp.
    2d 578, 584 (D. Md. 2001); Gill v. Mid-Penn Consumer Disc. Co., 671 F. Supp. 1021
    (E.D. Pa. 1987).

    7. Where, as here, if, a Creditors does not respond to a properly served and ignores a duly issued TILA notice of rescission, an Entry of default, is the appropriate and, indeed, just and only recourse. According to The Office of the Comptroller of the Currency, “a consumer’s right to rescind is not affected by the sequence of the rescission procedures or a court order modifying those procedures in both open and closed-end credit (Comptroller of Currency, OCC Bulletin 2004-19 (May 7, 2004)). Since the Creditors do not appear disposed to follow and to abide by the rule of law of the Federal Truth-In-Lending Law, this Court has as the only avenue available to conclude this matter, the entry of default against Creditors for failure to comply by illegally proceeding with a foreclosure action despite having received the TILA rescission notice that automatically void the security interest as described in 15 USC 1635(b).

    8. TILA Achieves its Remedial Goals by A System of Strict Liability To further this congressional policy TILA achieves its remedial goals by a system of strict liability in favor of consumers when mandated disclosures have not been made. 15 U.S.C. 1640(a) (emphasis added). The standard applied is considered “strict liability in the sense that absolute compliance is required and even technical violations will form the basis for liability.” Shepeard v. Quality Siding & Window Factory, Inc., supra. at 1299; In re McElvany, 98 B.R. 237, 240 (Bankr. W.D. Pa. 1989). This means that “technical or minor violations of TILA, or Reg. Z, as well as major violations impose liability on the creditor and entitle the borrower to rescind [the loan].” Smith v. Wells Fargo Credit Corp., 713 F.Supp. 354, 355 (D.Ariz. 1989); Jackson v. Grant, 890 F.2d. 118, 120 (9th Cir. 1989); Semar v. Platte Valley Fed. S & L Assoc., supra. at 704.

    This rule is inviolate and is followed by courts in all jurisdictions. See, e.g., Smith v. Fidelity Consumer Discount Co., 989 F.2d 896, 898 (3rd Cir. 1990)(The federal Truth in Lending Act (TILA) achieves its remedial goals by a system of strict liability in favor of consumers when mandated disclosures have not been made); Lewis v. Dodge, 620 F.Supp. 135, 138 (D. Conn. 1985); In re Porter, 961 F.2d 1066 (3rd Cir. 1992); Rowland (John M., Carol S.) v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (C.D. Ill. 1992) (”even technical violations will form the basis for liability”); New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (D. Me. 1992); Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (S.D. Ga. 1990); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (D. Conn. 1990) (same with Unfair Debt Collection Practices Act); Morris v. Lomas and Nettleton Co., 708 F.Supp. 1198 (D. Kan. 1989); Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988); Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988); Searles v. Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); “Liability will flow from even minute deviations from requirements of the statute and Regulation Z.” Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990); Shroder v. Suburban Coastal Corp., supra. at 1380; Charles v. Krauss Co., Ltd., 572 F.2d 544 (5th Cir. 1978).Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984) ; Goldberg v. Delaware Olds, Inc., 670 F.Supp. 125 (D. Del. 1987); Curry v. Fidelity Consumer Discount Co., 656 F.Supp. 1129 (E.D. Pa. 1987); Laubach v. Fidelity Consumer Discount Co., 1986 WL 4464 (E.D. Pa. 1986); In re Wright, 133 B.R. 704 (E.D. Pa. 1991); Moore v. Mid-Penn Consumer Discount Co., 1991 WL 146241 (E.D. Pa. 1991); In re Marshall, 121 B.R. 814 (Bankr.C.D. Ill. 1990); In re Steinbrecher, 110 B.R. 155 (Bankr.E.D. Pa. 1990); Nichols v. Mid-Penn Consumer Discount Co., 1989 WL 46682 (E.D. Pa. 1989); In re McElvany, 98 B.R. 237 (Bankr.W.D. Pa. 1989); In re Johnson-Allen, 67 B.R. 968 (Bankr.E.D. Pa. 1986); In re Cervantes, 67 B.R. 816 (Bankr.E.D. Pa. 1986); In re McCausland, 63 B.R. 665, 55 U.S.L.W. 2214, 1 UCC Rep.Serv.2d 1372 (Bankr.E.D. Pa. 1986); In re Perry, 59 B.R. 947 (Bankr.E.D. Pa. 1986); In re Schultz, 58 B.R. 945 (Bankr,E.D. Pa. 1986); Solis v. Fidelity Consumer Discount Co., 58 B.R. 983 (E.D. Pa. 1986).

    Violation of the rule of law, since neither you nor any of the defendants have Standing to pursue foreclosure action because, once TILA notice of rescission is given, the lien or security interest in plaintiff’s property becomes void ab initio, even if a court has not yet ruled on the validity of the plaintiff’s rescission (Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002)).

    Posted by: Mario Kenny
    I think this was written by Brian korte

  10. Could someone educate me a little on including “your own Affidavits” how, why, and when that would be necessary. Oh, and to be a little greedy, how does one do an Affidavit? (Website referrals or any other guidance are both greatly appreciated).

    Lisa E. (Pro Se , Florida)

  11. Good luck! Please let us know how your case is progressing!

    I’m also Pro Se, against US BANK NA, with Chase Home Finance as the servicer and Florida Default Law Group as Plaintiff’s attorneys.

    I’ve posted quite a bit in the Discovery (left side bar) and the Homeowner (center top bar) tabs.

    Thank you for posting this pleading!

    Enjoy your Holiday weekend.
    Lisa E. (Pro Se, Florida)

  12. To Dave:

    I’m not well versed in the Trust defense, but I would not take what any Complaint in a Servicer’s name for face value. File discovery and ask for loan pooling/servicing agreements along with proof of chain of title.

    The basic premise of Proof of Note, is that the entity filing suit as the injured party must lawfully possess the Note in Due Course either by issuance or endorsement.

    This article basically says, that even the Trusts who bring suit must show the Note with 3-4 endorsements or THEY have committed tax violations. They will simply not produce such evidence because they’ll be on the hook for big accounting fraud.

    It appears that 99% of “Lenders” who claim to have the “Note” are in fact just Servicer’s with no right to enforce the mortgage or note as a matter of law, so they skirt this by simply lying through Affidavit’s of dirty scumbag AVP hired from the outside title companies.

    Ask for everything and get an attorney and have them help you prepare your responses.

  13. Accredited home Lenders has filed for CH 11.Hurry put your claims in before its too late this company will take thousands of homes millions down with them, File the proof of claim

  14. Further Commotion at AIG
    By KELLY CURRAN
    May 22, 2009 10:15 AM CST
    Advertisements

    American International Group (AIG: 1.70 -5.56%) Chairman and CEO Edward Liddy said Thursday he will leave his position as head of the firm once the board of directors is able to locate the appropriate replacements.

    The roles of CEO and chairman are likely to be split going forward, the company says.

    Liddy stepped into his position as CEO in September, at the request of previous Treasury Secretary Henry Paulson, when the company turned over a majority of its stake in exchange for a federal bailout.

    At the time, Liddy vocalized the arrangement was not permanent, but he didn’t specifying exactly how long he would serve in such a capacity. Liddy, who has earned $1 for his work at AIG, has come under intense fire from congressional leaders for awarding employee bonuses while the company was kept afloat by more than $170 billion in bailout funds.

    But Liddy hopes he will leave with an “enhanced reputation” and a feeling as though he “stepped in at an incredibly vulnerable time and provided some stability.”

    It’s easy to forget just how awful the situation was in September,” he said.

    Within hours of Liddy’s announcement, AIG made the headlines yet again, as California insurance policy holders announced a suit against AIG, following a six month analysis of AIG’s financial records which allegedly show the company “raided” California insurance companies to gamble on high-risk, sub-prime market investments in effort to keep the financial side of the firm afloat.

    The court action was filed by an insurance broker who purchased and sold over $15m of AIG life insurance.

    “The complaint presents the most in-depth financial analysis of the impact of the hundreds of billions AIG lost in the high-risk derivatives market,” says Patrick DeBlase of Kiesel, Boucher & Larson, the co-lead counsel for the plaintiffs.

    The suit claims AIG channeled funds from its California insurance companies into a lending program that put over $75bn of AIG insurance assets at risk, using the companies’ bonds and investments to speculate in high risk real estate mortgage securities.

    “AIG lost the gamble and taxpayers have paid over $180bn,” the counsel for the plaintiffs said in a press release.

    Write to Kelly Curran.

    Contributed by

    Jose L. Semidey
    Mortgage Compliance Analyst
    Mortgage Auditor

    703-946-5851

  15. well done Martin!!!
    quite the iron fist your wielding there.
    i’d love to find out more about this a…..ah…..is collusion an appropriate term for the described events?no matter what its called i need to know because
    i’m being dogged by Laughable Larry [ i'm lair] litton & company.
    so i need some ammo!
    thanks again Martin

  16. hi martin my email is gobb@ptd.net have an issue with lasalle/emc trying to say they bought my loan 4 years later than they did, the series is 1998-2, they say mortgage assigned may 31, 2002. really assigned according to sec juky 22, 1998, allonge of note pay to order of is blank, please give me a hollar.

  17. What a REMIC is and Why You Should Care…
    Posted by admin On February – 10 – 2009

    A REMIC (Real Estate Mortgage Investment Conduit) is a corporation, trust, partnership or a segregated pool of assets that qualifies for special tax treatment under the Internal Revenue Code of 1986 (as amended, the “IRC”).

    The principal advantage of forming a REMIC’s for the sale of mortgage-backed securities is that REMIC’s are treated as pass-through vehicles for tax purposes helping avoid double-taxation. For instance, in most mortgage-backed securitizations, the owner of a pool of mortgage loans (the Sponsor or Master Servicer usually) sells and transfers such loans to a special purpose entity, usually a trust, that is designed specifically to qualify as a REMIC, and, simultaneously, the special purpose entity issues securities that are backed by cash flows generated from the transferred assets to investors in order to pay for the loans along with a certain return. If the special purpose entity or the assets transferred qualify as a REMIC, then any income of the REMIC is “passed through” and taxable to the holders of the REMIC Regular Interests and Residual Interests.

    First of all, one should understand that just one Trust might usuallly have anywhere from 2000-5000 loans in the asset pool. This is millions of dollars in cash flow payments each MONTH from a Servicer (receiving payments from borrowers) to a REMIC (Trust) with the cash flow “passing through” the Trust (REMIC) without taxation to the investors. The investors have to pay taxes on the cash flow payments from their interests just for the record. But imagine the taxes a Trust would have to pay on $30, 50 or 100 million dollars per year if this “pass through” taxation benefit didn’t exist? Worse, what would be if a Trust that was organized in February 2005 were found to have violated the REMIC guidelines outlined in the Internal Revenue Code? At $4 million per month in cash flow, we’re talking about around $190 Million in now, TAXABLE income. Hmmmm… let me think of a word… Armageddon comes to mind.

    If a Trust – or a Servicer or Trustee acting on behalf of the Trust – were found to have violated these very strict REMIC guidelines to qualify as a REMIC, the taxable status of the REMIC can be revoked; the equivalent of financial Armageddon for the Trust and its investors.

    Folks, I’m clueing in you in to some major, major insights in the ‘War on the Home Front’ and some very, very potent weapons that can be used to fight this war.

    In order for the Trust to qualify as a REMIC, all steps in the “contribution” and transfer process (of the notes) must be true and complete sales between the parties and within the three month time limit from the Startup Day. Therefore, every transfer of the Note(s) must be a true purchase and sale, and, consequently the Note must be endorsed from one entity to another. Any mortgage note/asset identified for inclusion in a Trust seeking a REMIC status MUST be deposited into the Trust within the three month time period calculated from the official Startup Day of the REMIC as per Section 860 of the Internal Revenue Code.

    But what if the Notes weren’t actually true sales? What if the Notes weren’t in fact transferred and sold to the Depositor from the Servicer? Or from the Depositor to the Trust? What if the Notes weren’t actually sold and deposited into the Trust within the three month time limit? Oh boy… big problem.

    So what’s the deal with all these Notes mysteriously being lost in all these foreclosure cases? Hmmm. Gotta be something to that. Why is it that nearly 100% of every Note I’ve ever seen in a foreclosure case lacks the proper endorsements evidencing the chain of ownership AS DISCLOSED TO THE SEC AND IRS?

    I’ll leave it at that for now… things to think about. If you need help or have questions about this, I have a lot more to this story. Just give me a shout. Until then, fight the good fight. Don’t let anyone take your home unless they prove through PROPER documentation that it’s theirs to foreclose and take.

  18. Best of luck. This would be a landmark victory and major precedence for everyone fighting the Trust’s standing.

  19. I am with you Allan!!!!

    Alina

  20. ny’ s right. Hope you included your own affidavits, Douglas.

    We’re facing the same US Bank National Association (which was a recipient of TARP funds), the Florida Default Law Group that has several times not noticed me on hearings (despite claiming to the court under penalty of perjury to have done so). The SASCO 2005 RF 5, in my case, is in the Lehman bankruptcy. How can that be?

    Here’s to uniting ALL FL foreclosure defendants!

    Allan
    BeMoved@AOL.com

  21. I hope you included your own affidavits.

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