Actual Fraud and Constructive Fraud and Other Fraud

From M. Solimon

Editor’s Note: Pretty Good Entry From M. Solimon discussing aspects of fraud. I would add the following:
  1. FRAUD: A false statement wherein the speaker knows it is false, intends for it to be relied upon to the detriment of the receiver, who does reasonably rely on it to his/her financial detriment.
  2. FRAUD IN THE EXECUTION: A trick where the signor believes he/she is signing something other than what the document says it is. Probably applicable in the mortgage mess because the truth is people did not know they were signing the equivalent of their own financial destruction whereas the parties presenting the document pretended it was a standard mortgage loan that had been properly subject to industry standard verification and underwriting standards.
  3. FRAUD IN THE INDUCEMENT: A lie causing a person to execute a document, and otherwise meeting the definition of FRAUD as above. Examples “This is the fair market value of your new house,” or “Housing prices always go up, nevr down,” or “we’ll be able to refinance the property, give you more money out of it, all before the time for reset of the payments.”

Deceit and fraud are defined separately in statutes. Under Civ. Code §§1709 and 1710, deceit is defined in simple terms. See Civ. Code §§1572 for both actual fraud and 1573constructive fraud.

Loook at Liability for actual fraud is limited to acts committed by or with the connivance of a party to a contract with the intent to deceive another party to the contract and induce that party to enter into the contract. Look under Civ. Code §1572

Deceit is appropriate under a material beach or perhaps cause of action. The notion of a lender, who willfully deceives its borrowers or customers leading to foreclosure so to remedy an investor issue and to avoid recourse.

]I suggest you use it there or for the servicing argument for showing the willful intent to induce the consumer homeowners of a right to modifications ad compliance with 2923. to alter his or her position towards litigation (and eat up the balance of legal reserves their intended for a defense and their attorneys). These guys, I know all too well and it’s all too much. The consumer’s injury or risk is liable for any damage suffered as a result of the deceit. [Civ. Code §1709] etc, etc.

My take on this is too isolate the actual fraud that consists of any of the following acts, committed by or with the connivance of a party to a contract who is the assignor and its agents and not the successors.

The argument is it is with willful intent a lost beneficial interest woefully deceives a trustor or mortgagor to the contract, solely to induce the other party to enter into the contract [see Civ. Code §1572]:

Deceit and Actual Fraud combined

•Servicing rights violate SEC 1122 AB,
•Accounting rules violations under FAS 140, FIN 115,
•Trust assets are restricted to passive investments,
•Lenders controlling interest revoke the powers of sale and foreclosure,
•Parties lack standing to bring a foreclosure by appointment,
•Conspiracy to commit fraud where Trustee, Beneficiary and Transferee are all one in the same
•Bid rigging at trustee sale
•Fraud perpetrated against the country recorder
•A nominal interest has powers that conflict in the original assignment,
•Violations of the Code of federal regulations “CFR”
Your feed back will be critical and evident where I have gone as far as I can. It’s not getting through to skilled litigators that still don’t get it. Maybe I am lacking your codifications eloquence and ledger capacity to zero into the abuses of GAAP in more subtle terms; LOL!

he head of the OCC stated in 2009 “I don’t know why getting relief from offering modifications is not working?”

It’s simple “BECAUSE LENDERS FORECLOSING DON’T OWN THE ASSETS THEY SOLD ….for starters.

That said, even after the effort and inability for the US Secretary to further tweak FASB to get them to completely roll over.

Few are winning here. Even Judges who are deciding the matter favorably are commenting from a wrong perspective. There is no demand on UCC judicial interpretations for perfection in a bonefide sale.

The District Courts hearing these chapter proceedings provide comments after deciding the matter favorably are merely suggesting it’s all about “get it right next time”. That wrong where it says’s to a lender they can bring it back, even when a decision is favorable.

The key arguments come down to the fact the lender transfers each receivable as a “whole loan” sale. For Pete’s sake, looks at the general ledger where the asset was entered as a “Receivable” and “Loan Held for Sale”.

That’s not “Loan Held to Maturity” but “Sale”.

The cost to capitalize and reserve a 30 year loan held to maturity defeats the arguments lenders are making that “they did not sell the subject loan. It’s the old “blank assignment” gimmick. Its arguments are lost in court where the problem peaks the Judges curiosity and that’s about it.

We know the value of the open assignment argument is defining for the court where it’s a bank surety and liquidity play. It’s also a GAAP disclosure fraud.

Therein the consumer is disadvantaged arguing defects after being instrumental in a lenders shuffling of assets for maintaining REPO requirements and in its pursuit for shareholder earnings and profitability.

My take on the matter is to let them have the consumer’s home. The consumer then makes the lender pay the price of foreclosure claiming recognition, for reclassifying the sales as debt and restating earnings.

These UD attorneys are so smart that they may cost these bank power houses a debt load totaling about $3 trillion and more in liabilities left off the books. It’s a scary thought actually where you put Citigroup out while not looking and as they still struggle with a $65 billion tax tab carried by consumer taxpayers. BAC may end fighting for their life with a private right to call receivership.

Foreclosures cannot continue in violation of GAAP and where lenders circumvent basis accounting laws while continuing to force the sale treatment issue and while denying they are controlling assets.

It’s the best of both worlds with sale on the front side and as if it was leveraged borrowing upon liquidation and egress.

As we sit I’ll show you the subtle instances of apparently innocent manipulation and confusion befallen o to the courts from errors and omissions which lenders are getting away with. That is happening as the courts say . . . . So what!

The errors and omissions are the desperate means for seeking to maintain some semblance of SFAS140 adherence while employing lawyers as third parties appointed by agents of agents by a nominal interest.
I personally have given up on the right MERS arguments as MERS is entitled to act as an accommodation and even a nominal interest, possibly.

It’s just so easy for one to see the obvious that it has become lost. The nominee cannot execute instruments upon being replaced by the signature below it. Hello guys, right! That’s the purpose of the nominee! And, while one courts rules in favor of the consumer it misses the call.

Something basic is getting lost and I’m not getting through. Unique “floating” entities cannot appear from nowhere to execute assignments by virtue of meritless appointments.

If one of your cases is picked up by the Fed it should register a nice settlement . As one District court judge put it with disgust. . . “The SEC is turning into a penalty and fine system where they are to quick to settle the matter for a couple hundred million every time allowing the defendants’ to save face.”

“That’s not bad!

The US AG office thinks there is a case for bid rigging but I’m not sure the AG’s office knows where to look. Yet as one Judge told me in court “speak English.”

The precise and distinct GAAP and FASB rules violation are clearly demonstrated in each foreclosure. Lenders are violating GAAP even with the recent codification, including revisions and interpretation.

It’s all mind boggling when you consider the distance in communication here and counsel’s alternative to grab the lowest hanging fruit. . . .A RESPA audit (what is that anyway) and a QWR that together are just not going to cut it.

These bank execs fail to realize maybe that these and other Enron style crimes, like those stated in the Fastow confessional, will gets you 10 years . . .at least.

M.Soliman
Witness to Counsel
Expert.witness@live.com

About these ads

13 Responses

  1. I need help! I am getting ready to refile my student loan case based on constructive fraud and need to find a previous case that was won by the debtor being that the servicer (second, third, or fourth, etc) never paid for the loan. Any help here would be greatly appreciated. I have been looking online to no avail. I don’t have access to Lexis Nexus for lack of funds. Thanks.

  2. [...] Actual Fraud and Constructive Fraud and Other Fraud [...]

  3. i have had occasion to talk to maher at length a few times he is quite smart and was very amiable. The rub though: How do we get everything together in a neat tidy package in a non judicial state?

  4. I have come to understand most of what Maher says, which I find valuable, but how the hell do you get this in front of a judge, in a non judicial state?

  5. Great comments on fraud! So sad that those that commit the crimes could care less about the harm it does to innocent people. My website is devoted to the fraud of Morgan Keegan against my handicapped brother. A lot of the fraud is captured on audio, which is also posted on the website. Please take a look at my site and post any comments
    http://www.trusteefraud.com.
    Themis

  6. A REASONABLE PERSON WOULD COME TO THE CONCLUSION THAT SOMETHING IS WRONG WITH THE TERMS OF THE AGREEMENT.

    But the Government and the Judges do not see anything in reasonable terms. It was a scam from the top level down. They must make it look like the numbers have suffered or that they can point fingers and blame the numbers. Rather to the top 20 perpetrators will claim their innocents while under protection.

  7. They screwed us in so many ways Let me count the ways ….but which way to fight back must be the way the judge your particular judge can see a way…..and justhow many pops at that doyou have considering the cost phew 2 yrs and counting.

  8. Someone needs to go to jail. But this government could care less because they created the mess. But yet the honest home owners must pay for the crime committed by others. The fleecing continues by Phil Graham, Bill Clinton, G.W. Bush and Greenspam. Pension funds were stolen, 401 ks dismantled and savings dissolved. My only hope is that I die before I retire. Thirty years of hard work and education got me know where in this life. God dam dirty bunch of bastards. Hopefully they will all burn in hell. McCain can shove his fence up his A$$. Not to mention Nobama is deaf , dumb and blind and can not see past the banksters who put him in office.

    Call Obama’s H.O.P.E. program. They will suggest that you cut back on the food budget.
    Call Obama’s H.A.M.P. program, you will find you are .1% from qualification.
    Call Consumer Credit Counseling (Division of H.U.D.) They will refer you to websites with free legal advice

    I am mad as hell and will stay this way until I drop dead.

  9. SEE HOW IT UNRAVELS. JUST LIKE A FOOTBALL OR BASKETBALL GAME YOU BREAK THEIR SPIRIT AND IT WILL UNFOLD RAPIDLY.

    http://latimesblogs.latimes.com/lanow/2010/07/former-bell-cop-alleges-serious-voting-irregularities-in-2009-election.html

    VERY SIMPLE

    DID ANYBODY REALLY UNDERSTAND WHAT THEY WERE SIGNING?

    CAN THE JUDGE PLEASE EXPLAIN WHAT WE SIGNED?

    IF HE OR SHE IS SO SMART? DID THE JUDGE EVER GET A SWEET DEAL FROM THE BANKS?

    WHY ARE THE BANKS HIDING BEHIND ALL THIS MISHMASH?

    ACTUALLY THIS IS ONE OF THE BEST ARTICLES BY NEIL I HAVE READ IN ALONG TIME. A CUT ABOVE THE BEST.

    LONG LIVE NEIL GARFIELD AND CO.

    NEVER AGAIN.

  10. Let’s not forget about promissory fraud. Homeowners were promised many things during the loan originations process that never materialized.

    Promissory fraud permits the recovery of punitive damages and allows for the avoidance of procedural bars such as Statute of Frauds and parol evidence rule. Promissory fraud can also give rise to criminal liability.

  11. THE DIALOGUE OF AN HONEST JUDGE.

    THE JUDGE ASKS THE BORROWER. DID YOU UNDERSTAND THE AGREMENT YOU SIGNED WITH THE BANK.

    I THINK SO. NOT REALLY.

    THE JUDGE ADDS I DONT UNDERSTAND THE AGREEMENT YOU SIGNED AND I DONT THINK A PHD IN ECONOMICS OR ACCOUNTING OR FINANCE CAN UNDERSTAND THE TERMS OF THE AGREEMENT YOU SIGNED WITH THE BANK.

    JUDGE SAYS TO THE BORROWER: I JUST READ FORECLOSURERADAR.COM THAT OVER 1 MILLION HOMES WILL BE FORECLOSURED THIS YEAR. A REASONABLE PERSON WOULD COME TO THE CONCLUSION THAT SOMETHING IS WRONG WITH THE TERMS OF THE AGREEMENT.

    THIS AGREEMENT IS NULL AND VOID.

    1 MILLION HOMES MEANS OVER 2 MILLION PEOPLE DISPLACED. WHAT WAS MILOSOVIC RECORD?

    WHAT WAS THE KHMER ROUGES RECORD IN A YEAR.

    FOR OVER A YEAR NEIL GARFIELD HAS TRIED TO EXPLAIN TO US ALL THIS SECRUITY BACKED ASSETS ASSIGNMENTS ETC………. WHILE I APPRECIATE IT. THE MERE NUMBERS OF FORECLOSURES SPEAK VOLUMES. JUST ASK TOYOTA OR LEXUS.

    AGAIN I DO NOT HAVE TO PROVE MATHEMATECALLY OR WITH PHYSIC THAT THE SUN IS GONNA RISE TOMMOROW. IT HAS DONE IT FOR OVER A MILLION DAYS
    AS THE WISE MAN BRAD KEISSER SAID

    KEEP IT SIMPLE STUPID.

    NEVER AGAIN

    .

  12. Maher, before reading your post, I thought I was confused, but now I’m not sure. Are you forwarding this meat and potatoes to all regulatory agencies? I hope so, because I don’t know how to.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 3,118 other followers

%d bloggers like this: