Panic Time for Banks: “Auction” Sales Were Faked — REO Title Invalid

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EDITOR’S ANALYSIS: It has been the theme on these pages that the loan deals, if you look at the money trail, was strictly between the investors and the homeowners. The investors (pension funds etc.) were the lenders and the homeowners were the borrowers. Logically it follows that if there was a true default, the investors should make the claim.

A few years ago and even continuing into the present, the banks and servicers denied the existence or involvement of the investors. Most now concede that an investor group is the source of funding on nearly all the loans.

In 2008, when I asked a few hundred servicers to provide documentation as to ownership of the loan and a full accounting of the debt alleged to be due or in default, most of the answers were a complete denial that investors were in the mix. As “holder” of the loan, the banks and servicers claimed that they could foreclose in their own names. I contended that a stranger to the transaction could not go to an an auction of foreclosed property and submit a “credit bid” if they were not the creditor.

The defect in the argument of the banks and servicers was that they may have had a colorable right under some agency agreement to initiate foreclosure proceedings but ONLY the CREDITOR can submit a credit bid at the auction. Research your state statutes. They are all very clear. Instead these banks and servicers bid the properties in for themselves as though they were the mortgagee — when in fact they were not even mentioned in the mortgage.

I also asked a few hundred banks and servicers the same question, and found that they had no documentation at all unless the loan was already in foreclosure. I concluded that the paperwork that seem to arise when the case was in litigation, did not exist UNLESS there was litigation.

The documentation, the procedures for sales or securitization of a loan had not actually occurred and that the claims of securitization were a hoax perpetrated first on the investors whose money was used indiscriminately for bank fees and then dribbled out into funding toxic loans whose future was certain — foreclosure.

Looking at the myriad of cases in foreclosure, and especially at non-judicial states where court review was absent, it was apparent that the investors were not interested in pursuing the foreclosures because they did not want to get into a position where they asserted themselves to be holders in due course. Alleging HDC status would put them in the position of lying about the transfer of the loans, which never happened, and subjecting themselves to defenses, affirmative defenses, and counterclaims for predatory and deceptive lending. So the investors decided to go after the banks that sold them bogus mortgage bonds under false pretenses, alleging everything that borrowers were alleging — defective origination documentation and underwriting and the failure to follow the requirements of the pooling and servicing agreement, which in turn only followed the requirements of the Internal Revenue Code applied to Real Estate Mortgage Investment Conduits (if they wanted favorable tax treatment).

This left a void. A debt had been created by the acceptance of the loan. The debt was owed by the homeowner as borrower to the investors as lenders. But the lenders were not interested in seeking collection against homeowners. In many cases (more than 50%) the investor pool had been settled and scuttled anyway.

Thus arose the void in which anyone could pursue collection and foreclosure knowing that the borrower had allegedly failed to make payments, knowing that the investors would not cry foul, and knowing that the full accounting would show a very different picture of the status of the loans after credit was applied for payments  through servicers, insurers,  counterparties in credit default swaps, and the intermingling of money between tranches in the same pool.

Banks and servicers and other companies like MERS started collection and foreclosure procedures in their own name, submitting what are now known as false declarations contained in fabricated documents, forged by persons employed by the banks and servicers with no knowledge of the contents, or the truth of the contents of the documents they were signing. And of course there were the thousands of notary attestations that made it all look neat and proper.

The fact that the claims were total lies didn’t make a difference. The banks and servicers directed the narrative to the fact that the borrower had not made a payment (instead of whether a payment was due and if so, to whom). They further directed attention to the documents being submitted by these strangers to the mortgage transaction. They successfully inserted themselves into documents without permission from either the borrower or the lender based upon a ruse that escaped the attention of the courts. Many pro se borrowers and lawyers who represented borrowers missed the key factor of following the money trail. Thus they missed the fact that the documents were, by definition, false.

Now we have yet another audit which is being referred for criminal prosecution in San Francisco County. Here they did a survey of recent foreclosures which means that the parties involved had full knowledge that the documentation was false and the auction was faked.

More importantly, they found that 45% of 400 cases independently examined for the recording office, show that the property was sold on a credit bid without cash to a bidder who was not a creditor under the mortgage loan documents. That means the deeds issued in nearly half of the cases reviewed are invalid and that the homeowner who was supposedly foreclosed and evicted, still owns the home and is not subject to foreclosure unless the real creditor steps forward and the real debt is subject to a full accounting, after credits from payments from all parties.

The rest of the San Francisco loans were “suspicious” which means that if you scratch the surface, you will find that the rest of the loans suffered from the same same fatal defect. And all of this means that those who either purchased or loaned money on the purchase of REO homes were buying thin air and if they look carefully at their title policies they will see language that absolves the title company of liability for claims by the homeowner to reclaim title and possession of the property. This scenario is identical across the country.

That this is criminal behavior and should be punished as such goes without saying. My concern is how do we fix the massive title problem created by this widespread fraud? It isn’t enough that the victims of this fraud be compensated in money. Unless the homeowner actually ratifies the transaction in a recordable instrument, the foreclosure sale is void. Any new buyer owns nothing. Any new lender has no collateral. And nobody taking title from such an REO buyer or REO lender is getting actual title — a fatal defect that strips the buyer of any right to claim title or possession of the home they just paid good money for.

Which brings us to the narrative that these are victimless crimes because the foreclosure should have happened anyway. That is a flat out lie.

If proper procedures had been followed, the borrower would have been informed of all the parties that were involved in the funding of the loan, that the loan origination documents contained material misstatements of fact and material omissions of fact, the knowledge of which would have led any reasonable person to reject the deal.Even after the deal, the average homeowner seeking modification or settlement would have had a strong hand to play thus making it more likely that the millions of foreclosures would and still should be converted into modifications and settlements.

Certainly the investors would also have rejected the deal if they knew the facts and they certainly do not ratify the “sale”or “transfer” of toxic loans in default into pools where only a performing loan underwritten in accordance with industry standards was acceptable, and where the loans must be in the pool within the 90 day cut-off period. The investors were not sold high risk investments. They were sold Triple A rated insured investments. They just didn’t know the insurance was paid to the banks and servicers instead of the creditors (investors) who actually advanced the money for the loans.

None of this means that you can use news reports to show the Judge and expect a Judge a throw out the foreclosure, declare you the winner and invalidate the mortgage, the note and the obligation. You still must prove your case. But it is now easier to do so. By pointing to multiple incidents and indictments in the public domain, the job of convincing the Judge that you should be permitted to inquire as to whether the right party is suing for the right amount and you should be permitted to inquire into whether the foreclosure “sale” was a legal sale. If it wasn’t a legal sale, then title didn’t change hands. And if title didn’t change hands, the eviction that happened, or that is threatened must be thrown out.

There is very little discretion on the part of the trial judge to prevent you from proving claims that have at least some credibility. Once the process of discovery starts, the banks and servicers back off 100% of the time unless they think you will quit from exhaustion or lack of money. Beware of the settlements that will become easier and easier to get. You are settling with thieves who have no interest in the loan — but if they are offering something that is irresistible, by all means get court approval for the settlements that includes quieting title so that the homeowner is not subject to multiple liability. After all, we don’t know how many times and under how many guises the same loan was sold, insured or the subject of third party payments.

Quelle Surprise! San Francisco Assessor Finds Pervasive Fraud in Foreclosure Exam (and Paul Jackson Defends His Meal Tickets Yet Again)

by Yves Smith, NakedCapitalism.com

One of our big beefs about the pending mortgage settlement has been the failure of prosecutors and regulators to do anything remotely resembling serious investigations. You don’t settle on known, easy to prove abuses (particularly when you choose not to know their extent) and leave yourself with a grab bag of mainly more difficult to ferret out ones to consider going after later.

We’ve seen repeatedly that small scale investigations in the servicing and foreclosure arena have found widespread problems. For instance, one by Abigail Field of foreclosures in two counties in New York found a complete fail by Countrywide of transferring notes to trusts in its own securitizations. Registers of deeds Jeff Thingpen in Guiford County, North Carolina found widespread evidence of robosigning. John O’Brien of Southern Essex County, Massachusetts, conducted an audit and found, per Dave Dayen:

‘• Only 16% of assignments of mortgage are valid
• 75% of assignments of mortgage are invalid.
• 9% of assignments of mortgage are questionable
• 27% of the invalid assignments are fraudulent, 35% are “robo-signed” and 10% violate the Massachusetts Mortgage Fraud Statute.
• The identity of financial institutions that are current owners of the mortgages could only be determined for 287 out of 473 (60%)
• There are 683 missing assignments for the 287 traced mortgages, representing approximately $180,000 in lost recording fees per 1,000 mortgages whose current ownership can be traced.

So the latest report from San Francisco county should come as no surprise. From Gretchen Morgenson of the New York Times, emphasis ours:

An audit by San Francisco county officials of about 400 recent foreclosures there determined that almost all involved either legal violations or suspicious documentation, according to a report released Wednesday….

The improprieties range from the basic — a failure to warn borrowers that they were in default on their loans as required by law — to the arcane. For example, transfers of many loans in the foreclosure files were made by entities that had no right to assign them and institutions took back properties in auctions even though they had not proved ownership.

Yves here. I wish Morgenson had not deemed the latter abuses as “arcane”. They are actually pretty basic to lawyers – you can’t assign rights you don’t possess or sell what you don’t own. And these are concepts that laypeople can grasp readily. Back to the article, which makes clear the state attorney general Kamala Harris, who was doing a victory lap over the mortgage settlement, had nothing to do with this probe:

Commissioned by Phil Ting, the San Francisco assessor-recorder, the report examined files of properties subject to foreclosure sales in the county from January 2009 to November 2011. About 84 percent of the files contained what appear to be clear violations of law, it said, and fully two-thirds had at least four violations or irregularities…

As the San Francisco analysis points out, “the settlement does not resolve most of the issues this report identifies nor immunizes lenders and servicers from a host of potential liabilities.” For example, it is a felony to knowingly file false documents with any public office in California.

In an interview late Tuesday, Mr. Ting said he would forward his findings and foreclosure files to the attorney general’s office and to local law enforcement officials. Kamala D. Harris, the California attorney general, announced a joint investigation into foreclosure abuses last December with the Nevada attorney general, Catherine Cortez Masto. The joint investigation spans both civil and criminal matters.

The depth of the problem raises questions about whether at least some foreclosures should be considered void, Mr. Ting said. “We’re not saying that every consumer should not have been foreclosed on or every lender is a bad actor, but there are significant and troubling issues,” he said…

In a significant number of cases — 85 percent — documents recording the transfer of a defaulted property to a new trustee were not filed properly or on time, the report found. And in 45 percent of the foreclosures, properties were sold at auction to entities improperly claiming to be the beneficiary of the deeds of trust. In other words, the report said, “a ‘stranger’ to the deed of trust,” gained ownership of the property; as a result, the sale may be invalid, it said.

In 6 percent of cases, the same deed of trust to a property was assigned to two or more different entities, raising questions about which of them actually had the right to foreclose. Many of the foreclosures that were scrutinized showed gaps in the chain of title, the report said, indicating that written transfers from the original owner to the entity currently claiming to own the deed of trust have disappeared.

While Phil Ting is optimistic that there will be follow through and action, one can easily reach the opposite conclusion. First, the intent of the settlement is to collect money, impose new servicing standards, which like past servicing standards will not be met, and also go after some additional cases with great fanfare to create the impression that the officialdom is Doing Something. The goal is to preserve the system, based on the deeply flawed premise that all that is needed is yet another consent decree and more serious looking fines and servicers will toe the line.

But look at the report findings. Almost no foreclosures were conducted properly. One cause is the issue we have been writing about for nearly two years: the failure of the parties to the original securitization to convey notes properly to the securitization trusts. That failure can’t be remedied at this late date, so the only way to create the appearance that the trust has the right to foreclose is either by filing improper documents and hoping no one notices, or document fabrication and forgeries.

The second is that servicers can’t afford to meet the servicing standards set forth in the consent decrees. They’d go bankrupt. Various regulators have been promulgating the same standards since the FTC consent decree with Fairbanks in 2003, and the industry has NEVER been able to meet them. Enforcement is lax, and violations are simply rolled into new consent decrees. See this, for example, this announcement from the Office of the Comptroller of the Currency last week:

In the agreements in principle struck by the OCC with these mortgage servicers, the servicers do not contest the OCC’s ability to impose penalties aggregating $394 million, and the OCC agrees to hold in abeyance imposition of such penalties provided the servicers make payments and take other actions under the federal-state settlement with a value equal to at least the penalty amounts that each servicer acknowledges that the OCC could impose.

I also have to note that Paul Jackson of Housing Wire has attacked the Morgenson piece on Twitter, attempting to smear the authors of the underlying report and accusing Morgenson of sloppy fact checking. Jackson (pjackson) has put up a manic 17 tweets. That’s a cowardly way to take issue with a piece, but this approach allows him to make various ad hominem salvos when a putting them in a more conventional format would expose that he has no substantive argument. His efforts to attack the report’s authors don’t really land a blow.

87 Responses

  1. I get it Nancy, Thank You! Quite the scam they have going on there.

  2. WHEN IS A ‘FORECLOSURE’ for Plaintiff Beneficiary a SETTLEMENT FOR A SHORT-SALE?

    A) Beneficiary (RES-Direct), Trustee for REMIC Servicer of Origination, Robo-Firm and Judge as Real Estate Lawyer signs Order Trustee/Sheriff Sale for $100 certifying a public auction was lawfully conduted and;
    B) Servicer of new loanID and Successor Beneficairy settlement following Judge as Real Estate Lawyer Orders distribution proceeds of sale for settlement of short-sale between Beneficiary and Successor Beneficiary and;
    C) A & B
    D) Always

    THERE ARE FOUR PARTIES WHO ARE ‘UNKNOWN’ BEFORE COURT AS PLAINTIFF IN ALL MATTERS WHERE ‘SALES CONTRACT’ OF INDIVIDUAL VARIABLE RIDER/NOTE WAS IN EXCHANGE FOR A ‘DEED’, AND FILED IN PUBLIC RECORD A FORM OF FINANCING STATEMENT IN FORM OF A ‘MORTGAGE’ RECORDING A PUBLIC LIEN OF A NOMINEE, ASSIGNEE AND/OR SUCCESSOR OF THE BENEFICIARY WHO WITHDREW ‘ESCROW FUNDS’ FROM SOME PENSION/MUNICIPAL/TRUST PRIVATE FUNDS AND CREATED CREDIT LOANS.

    BENEFICIARY OF ORIGINATOR SERVICER AND
    TRUSTEE OF REMIC,
    TRUSTEE OF ‘INDIVIDUAL VARIABLE RIDER/NOTE’ INVESTMENTS INVESTMENTS SUCCESSORS ASSIGNS TRUSTEE

    BENEIFICARY:
    Word Mark RES-DIRECT
    Goods and Services IC 042. US 100 101. G & S:
    Real estate related services, namely,
    closing services and post-closing services.
    FIRST USE: 19991000.
    FIRST USE IN COMMERCE: 20000200
    Mark Drawing Code (1) TYPED DRAWING
    Serial Number 75833251
    Filing Date October 27, 1999
    Current Filing Basis 1A
    Original Filing Basis 1B
    Published for Opposition September 18, 2001
    Change In Registration CHANGE IN REGISTRATION HAS OCCURRED
    Registration Number 2628732
    Registration Date October 1, 2002
    Owner (REGISTRANT) RELS MANAGEMENT COMPANY, LLC Norwest Mortgage, Inc. (organized under the laws of California) and First American Title Insurance Company (organized under the laws of California) LIMITED LIABILITY COMPANY DELAWARE 5700 SMETANA DRIVE, SUIT 300 MINNETONKA MINNESOTA 55343
    Attorney of Record Dean R. Karau
    Type of Mark SERVICE MARK
    Register PRINCIPAL
    Affidavit Text SECT 15. SECT 8 (6-YR).
    Live/Dead Indicator LIVE

  3. Barry Fagan v Wells Fargo Bank Re REQUEST for JUDICIAL NOTICE of a RELATED CASE:REPORT Office of the Assessor-Recorder San Francisco Report as Sponsored by Phil Ting Assessor-Recorder for San Francisco Entitled Foreclosure in California a CRISIS OF COMPLIANCE

  4. @johngault

    Sorry—accidently left out the “e”…it’s cariemac9@gmail.com

  5. @JG
    It was missed by the hotshots–or they expected me to miss it—motion to enforce a statute of frauds agreement??? its awful

    then they raise equitable estoppel—saying not only did they get an atty to verbally agree to give a deed —but the courage to suggest they relied to their detriment—and you will love the reliance element assigned—they would have been more aggressive in litigating if they had realized that id raise SF———

    they just take my breath away with overreaching—

  6. I wouldn’t call anyone the alleged agent of anyone else if the alleged relationship were between the ben and the trustee. Where MERS, say, has purported to be the ben or acting for the ben, someone posing as ben “agents” are doing things in regard to foreclosure.
    The dot only authorizes the trustee to foreclose and a NOD is an act in the foreclosure process. While we were sleeping, states have passed legislation which says someone other than a trustee may do
    these things. But that’s not what the dot says, or at least used to before “MERS”.
    I just caught a bit of Weidner’s take on FL Senate Bill 1890. He says the intent, hate to misquote so I think he says, the intent of the legislation among other things is to make a foreclosure sale final, subject to no judicial review once done. He also says it wants to excuse bad conduct of the banksters -paraphrased – and their gang. I hate to be negative on a nice Sunday afternoon, but perhaps signs at customs should now read: Welcome to the Pit of Despair.

  7. P.2 of Notice

    AP # xxx-xx-xxx-xxx

    PA: 1234 Main Street
    Washington, PA zip

    A foreclosure was instituted in 2009 by Mortgage
    Electronic Registration System, Inc. on this property by way
    of a Notice of Default recorded on February x, 2009. The
    Notice of Default / Election to Sell was executed by
    Brown’s American Title as alleged agent for Reconstrew Company,
    N.A. as alleged agent for MERS.

    An assignment of the deed of trust purporting to be executed by
    an officer of Mortgage Electronic Registration System, Inc. was
    recorded on April 14, 2009 to Youstabem Weslabem, Inc.

    An assignment, titled “Corrective Assignment” which alleged
    to be executed by an officer of Mortgage Electronic Registration
    Systems, Inc. was recorded in favor of YYY on February 4, 2010.

    A Notice of Default was issued and recorded by Someone
    claiming authority for smith, Inc., the alleged substitute trustee
    on some date, some year.

    An alleged substitution of trustee was recorded from ????
    to Reconstrew five months after someone with no apparent
    authority executed the Notice of Default on its behalf.

    The instruments recorded on this date and that date were not
    executed by named parties to the documents;
    the record produces no evidence of any rights to execute for
    the named parties.

    The record does not support any actions currently being
    undertaken by any of these parties. There is no compliance
    with either contractual considerations nor the provisions of
    the laws of my state.
    The issues listed are not exhaustive. The parties signing
    below intend in and by this notice to preserve these issues and
    any others relevant hereto and their rights accordingly.

    ___________________ _____________________

    George Washington Martha Washington

    I am not an attorney and this is not legal advice. Consult
    an attorney to discuss your situtation.

  8. @ian – are you in court? The first thing this non-lawyer, non-advice-giving person would do is file the Notice of Claims and Preservation of Rights and Interest on the property to give Notice of those things.

    Here’s one for example. Cover Sheet:
    NOTICE

    APN: 482-43-339-976

    Recording Requested by
    George and Martha Washington
    After recording, send to
    1234 Main Street
    Washington, PA 15309

    February 19, 2012

    NOTICE is hereby given of the claims, information,
    preservations and reservations in the attached affecting
    the real property commonly known as

    1234 Main Street
    Las Vegas, NV 89123

    and by legal description: lot 41, block 10, Harry
    Johnson’s Subdivision, County of America
    _________________________ ____________________

    George Washington Martha Washington

    This is NOT legal advice. It’s just what I, as a layperson, might do.

  9. carie – tried that email. came back to me……..

  10. Ian
    Yes. Reiki is very helpful and has enhanced my life greatly as well as helped me and my family get the through the foreclosure,courts and eviction to stay centered and balanced. Check out http://www.reiki.org and I have a website as well http://www.mariedoudreiki.com

  11. Marie, you are a Reikki master? Why an odd thing happened not too long ago, and now the allure of reikki has cast its’ spell. Funny. A reikki master on LL. Well I’ll be.

  12. @johngault0.
    What specific details on these docs do you need me to send? Also do you know what court in ca. denied the motion to dismiss against Deutsche? Thanks
    @Concerned
    Nope did not know LSI was a part of LPS but do now thanks!

    Here is my email: reikimaster15@yahoo.com

  13. johngault- re: yesterday’s ‘corrective assignment of mortgage’ comment- Homeowners paid off default judgement in 2007 wherein AOM to XXX had been entered by fc entity. AOM remains as such until Sept. 2011. Now ‘corrective AOM’ is recorded, XXX is replaced with YYY thru MERS. On allonge, (wrong loan number, undated,unnotarized,no proof of authority attached), note is purportedly transferred to YYY, by ZZZ, as ‘attorney in fact’- an entity,not a person. Trust closed 3/31/2005.
    Problems:
    XXX- out of business in 2008, MERS cannot transfer anything from an out of business former member to a current member.
    YYY- Out of business in 2008 also. Lost Calif. licenses, net worth dropped below 250k, (minimum for bonding) to MINUS $28,000,000.
    ZZZ- Out of business in 2009. All Calif.licenses yanked as a result,
    Both YYY and ZZZ missed the final appeals date, law is strict,didn’t reply to letters.
    Trust(REIT) trading at 8cents per share, received 15.8million overcollateralization proceeds from somewhere. Apart from that, no news. Phone number for trust rings in servicers’ office, they answer in servicer’s name when they pick up phone.
    Best case of fraud on the court that I have seen yet! But we aren’t supposed to know any of this, are we? After all, the atty has stated that to the best of his/her knowledge, all statements contained in complaint are true and have been verified.
    How can I help these guys quash their fc? They have an atty who knows nothing, I spoke with him on the phone.

  14. @johngault

    I’m interested in the Deutsche case you mentioned re. sub of trustee in CA…can you add any more information about that?

    As you may remember, my situation is in CA with IndyMac/OneWest (servicer) with MERS as “nominee”, and Deutsche as trustee of (empty) MBS—foreclosed on me and “sold” my property by (sub trustee) Aztec Foreclosure Corp, with the usual bogus docs recorded, and NO owner of promissory note anywhere in sight…

    my email if you don’t want to respond here: carimac9@gmail.com

  15. @ Marie,

    And you guys know that LSI Title is a part of good ole LPS, right????

  16. @dcb – (take three for this site), I think that’s why the legislation crafted the dot (unlike a mortgage) to include a conveyance – so that the statute of frauds would be implicated, since notes and their transfers are not recorded and thus not publicly noticed.

  17. Marie – can I ask you to try that again? I didn’t quite get that
    recitation. Only if you want. Either way, wanted to tell you that a CA court just two days ago denied Deutsche’ motion to dismiss the homeowner’s wrongful foreclosure suit. The foreclosurer was not the ben when it attempted to sub the trustee, which alleged sub trustee proceeded to foreclose without authority from the proper beneficiary.

  18. @dcb – no offense, but if that’s as far as I’ve gotten with my statute of frauds arguments listed here for some time now, than I’ve failed to convey my message (or no one read them) regarding the statute of frauds: all conveyances and interests in real property must be reduced to writing. Period.
    In other “news”

    1) this case discusses litigation fees
    http://caselaw.findlaw.com/nv-supreme-court/1366464.html

    2) it references Young v Nevada Title, 103 Nev. 436
    which discusses THE BEST EVIDENCE RULE and when an
    ORIGINAL IS REQUIRED. Federal Rule of Evidence 1002. See “my state best evidence rule” for your state’s version, also – try google scholar or just good old yahoo.

  19. @johngault
    Thank you.
    Yes. Our home was foreclosed and sold in May of last year. The assignment of deed of trust was signed August 27 2010 by Brian Burnett (robo). Where it is to be recorded is blank but I do believe it was recorded but I don’t know when. The Substitution of Trustee was recorded on July 21, 2009 and signed by “famous robo signer” Erica Johnson Seck on 5-5-09. The Notice of Default was issued by Trustee Corps in ca. it also says by s/title court automation, LSI title co. in ca.

  20. @JG

    there is an ancient standard that there is a defense against a verbal agreement to convey land–STATUTE OF FRAUDS—any agreement to convey land must be in writing and signed by the person who owns the land——–it is a part of all state laws by statute or common law\\

    so if they come at you with this it is a defense–the rule was made because verbal agreements to convey land had the effect of suborning perjury–ie people lied to seize your land for a pittance—or you got drunk one night and agreed to sell it for the last bottle of whiskey

  21. and

    http://www.scribd.com/doc/82073587/FNMA-Announcement-Re-Hamp-020410 =

    “Program Update SVC – 2010 -03 Resolution of Active Trial
    Modification”

    We should probably discuss these and all the others. Certainly people who want or were denied “modifications” . There are many others to be found and disected. There are many clues if not statements which will lead to a better understanding of the whole f/c m.o. here, also.
    Please retrieve more while we stilll can.

  22. Describes:
    Reclassifying HAMP Mortgage Loans
    Expedited Reims of Servicer Advances for Reclassifieds
    Executing Modification Agreements

    We want to talk about this, I’d say…………….

  23. @Marie – here is a link to material everyone should read. It’s title, which II didn’t give it, is pretty interesting given the actual content.
    If someone knows how to cut and paste the whole thing here, PLEASE do. I would, but I can’t; don’t know how. FNMA discusses its plan to purchase delinquent loans from alleged trusts. (Delinquent = NO holder in due course status on these loans, for one big thing. Yours might be one of them.) This is one of a number worth our attention.

    weird, cuz I don’t see that in the material.

  24. @dcb – I don’t understand this question:

    **what is wrong with a verbal agreement to make and deliver a deed??** aside from it was your atty agreeing –not you????

    A deed in lieu?

  25. @Ian – trying to piece together what you said re: assignment(s).
    If party A executed and recorded an assignment to party B, or even if not recorded, the assignment is effective, valid, and binding on the parties thereto, that is, on A and B. Imo unrecorded, that assg’t is not binding on anyone else, like the homeowner.
    But at any rate, A may not now do a “corrective” assignment, as it no longer has anything to assign. Gone. Just plain gone. B imo would have to assign the dot back to A and THEN A could assign to C.
    Or, B could of course assign to C.

    If I, and I have seen this in an actual case, sell you my home, I may not sell it to someone else and call it a “corrective” deed, as I no longer have anything to sell. In the case I read, the first buyer did not record. The seller didn’t purport to sell a second time via a “corrective” deed, of course, but that doesn’t matter here. Can’t do it. The first buyer had a superior claim. He actually had the only claim.
    This is why, sort of, I say again and again those assignments in the chain need to have been done even if unrecorded, with good ol’ MERS
    allegedly holding place in public record. Perhaps MERS” (disregarding for this purpose that MERS is a shell if not straw entity, imo an invalid business) could have done that, been public-record holder, but when it comes to enforcement of the rights transferred by assignment, those rights must be noticed to demonstrate those rights. An unrecorded assignment is valid without doubt between the parties thereto, such as with A and B above, and that’s why their little corrective assgt scheme is garbage. Now, if C allegedly had no notice of the assignment from
    A to B, could C allege its assignment from A is good if it can substantiate that it was taken without notice and for value? Have to think about that stinker. I didn’t get it whether or not there were rec of the assgt from A to B, but I’m guessing there was and that’s why they tried the “corrective” sucker. But, then, if the borrower had no notice of the assgt from A to B, either, what might that mean?

    There was a case here a month or two ago over which I had a cow,
    and I wasn’t bashful in opining the judge was wrong. He said the assignment was good and enforceable against the borrower, as I recall, because it was executed by a person (allegedly) holding one of the titles (chief bottle washer, head honcho, secretary of corp, etc.) his state law said made the assignment binding. Assuming the legitimacy, and here I gag, of the title of the person executing the assgt, the assg’t would be valid as between the assignor and assignee. And that’s what the good judgey got wrong. The law he cited only stood for the prop that the assgt were valid as to the parties thereto. It would not be binding on anyone without Notice. Enforcement of rights and interest requires Notice. Imo the AZ SC court recently got one very wrong, also. Their reasoning was good as far as it went. But they totally overlooked the statute of frauds, and forgot that an assgt of dot, unlike a note which is generally regulated by the UCC, is regulated by the statute of frauds, which requires a writing and without recordation, there is no Notice of that writing. Banksters begin and even finish forelcosure without that Notice, but when called on it, are now going ‘oh, look, we had it , but we just didn’t Notice it.’ In a very recent case in CA, the court denied dismissal of a wrongful foreclose action which the court said it took as one for breach of contract where the NOD went out by a sub trustee sub’d by a party who did not have the benefit of an assignment of the dot. The bankster was not able to wiggle, as they do, that’s what they do because they were on record with their story already. Have to box them into a position that they didn’t have this or that. This and everything else is difficult because I have no doubt they have people who are paid to watch dockets and share the ‘news’ so the next bankster doesn’t get boxed in, as it were. Pretty damn hard to beat organized crime.

  26. Marie – was your home foreclosed on? Was the alleged assg’t of the dot recorded after the sub of trustee? Who issued your NOD? I don’t mean the name, but the alleged status of the party who did?

  27. @johngault
    Thanks for recommending the FNMA’s website am very interested in looking into it as there is so much info out there and it is helpful to know which are accurate and factual.

    @DCB
    Thank you so much for clarifying the non-judicial vs the judicial foreclosures. You are right to be careful what you ask for I have much research to do.

  28. @ Etolle
    In our local small-town paper I have seen weekly approximately 15% of foreclosures upon a string of plaintiffs of 3-6 parties within a period of 18 months–obviously there are multiple assignments necessary —probably corrective –because they list the whole string in the notice of sale published

    it seems obvious to me something is wring and/or the intent is to totally confuse efforts of the type advertised here

  29. I’m glad you brought up corrective assignments. What can they be good for save for nefarious outcomes? Especially when I’m seeing them in such great numbers in my local foreclosure legal rag of late. And since no one is minding the store, I’m sure they go unnoticed by borrowers with no representation and one foot on the curb.

    Today I saw a corrective mortgage. Who got snookered out of their home over that one?

    I know of a case where the bank’s attorney tried to bring a corrective assignment into court, but it wasn’t something the court had to deal with so it wasn’t addressed. The judge did say something about how dubious he was about it. Ya’ reckon?

    I bought used dryer today. The empty house I bought it at off of Craig’s List was occupied by one lone guy around forty. I asked him if he was moving. He said yeah, that he was over the homeowner thing. He went on to say that he had tried real hard to get a modification and came really close, but something happened and it didn’t work out, and his family lost the house. He said he was lucky to find a rental. I didn’t have it in me to tell him that the plan from on high is to turn America into a nation of renters.

    Take a number.

  30. @ JG et al

    I can top that—-iv got an atty for bank of potterstown that asserts in an mtd that they have a right to submit a copy of a note in lieu of an original because an atyy examined the copy and did not in some manner assert it was not authentic—a right to provide a copy—and cant complain about being a copy unless somebody comes up with the original and pursues the claim??????

    be very wary—your atty may be able to waive your right to demand an authentic document w/o you or him knowing it? or even agreeing on your behalf verbally to give a deed in exchange for an order terminating the suit against you in a judicial state—-there seems to be no limit to over-reaching

    anybody–what is wrong with a verbal agreement to make and deliver a deed?? aside from it was your atty agreeing –not you????

  31. @ johngault,

    I sure DO have one. Mine conforms to the standard ones done by LPS where they also would have it assign the NOTE!

    MERS nominee status for “AMERICA’S WHOLESALE LENDER A CORPORATION”. It then cited that it was assigning to a particular CWABS trust from 2005 but the assignment was created and recorded in 2010. Bank of New York Mellon, F/K/A Bank of New York was cited as the trustee. If this had been assigned back in 2005, they would not have had to add that F/K/A clause. The PSA cited Bank of New York as the Trustee but after 2005, BNY merged with Mellon, creating BNYM.

    This is a BLATANTLY false attempt to assign the loan. “AWL CORP” was not a member of MERS so no corporate resolution could even exist as of the date of the assignment, let alone at the time of loan closing.

    The NY AG has pulled the documents on this loan, BTW.

  32. johngault- the corrective assignment: The homeowners had gone into default and foreclosure underway in 2007, they paid up, foreclosure was dropped. Assignment had been made to XXXX just prior to fc filing. XXXX went out of business in 2008. Now in 2011, fc started again, BBB entity files ‘corrective AOM from XXXX, via MERS, into new entity.

  33. Has anyone seen a dot allegedly assigned to a trust?

  34. @dcb – yes, thanks. Having facts is where to start. Does anyone know if NG’s securitization reports address the factual existence of trusts? They must. Anyone here ever gotten one of his reports?

  35. @ian – how was the corrective assignment used?

  36. @JG

    Did I get all your questions answered re failed trust investors’ joint and several liability with the debt collector and purported trustee—I would think that if the facts were applicable that JV liability runs to all the investors–but need to do discovery

  37. Ian said:

    “credit bids” by noncreditors at prices lower than short sale offers, and junk fees piled upon junk fees…”

    Do we really believe the reason a servicer will foreclose instead of allowing a short sale is over junk fees to the servicer? Certainly I don’t put a servicer’s eye to its own greedy bottom-line out of any equation, but I think there’s more to it, and it may be about insurance. These are the kinds of FACTs we need. I think it’s related to why borrowers are told they must be in default to be considered for HAMP.
    And what about the dollar incentive (grrr) I hear about to get banksters to do mod’s? Surely that offsets the loss of junk fees.

  38. @exposetherotteneggs – having been the recipient of the Mod Trot,
    you are a prime candidate to go into FNMA’s website and start
    reading, if you would. There is a lot of info there which if known and understood, would shed some very valuable light on modifications and who knows what else. I looked at it in a cursory fashion a while back, and it looked to me like the servicer had to buy the loan first, for
    instance. Now, I may have gotten that wrong, but if not, that itself could lead to better understanding of FACTS, like the m.o. and as I said, who knows what else.

  39. @MARIE

    Yes the non-judicial is awful—-but basicaly its just that you get a notice and have the option to file a complaint

    in a judical they sue you on the debt—and the mortgage–seek the deficiency judgement unless you file an answer—and dont assume that the judge sees the two different procedures to be different in terms of substative law

    often what you get in a nonjudicial is a walk on the deficiency on the residence—you do not get that in a judicial—so be careful of what you ask for —

    the servicers will lobby to keep non-judicial and add deficiency—-they have so much money to lobby–they have business lobby associations —they have contributions ——-you have none of these ——something that might be very helpful on this site would be the list of consumer orgs that are actually lobbying etc on mortgage fraud issues–they are there but they dont get much press –at least not what i see—id be happy to join an association that is already there–like Sierra Club on enviro issues—what is the name and contact? pls anybody?

  40. @Chris,

    Didn’t I read something a few weeks ago about banks having approached the legislators to render every state non-judicial, so as to clear all the backlogs in courts caused by all those homeowners who have the temerity (Yes sir!!!) to fight their foreclosure? There was something in the paper about it. Some very-well laid out article explaining why the economic situation in this country wouldn’t and couldn’t be resolved until all the foreclosures have been duly and fully completed…

    Don’t remember who wrote it but it struck a cord. That’s when I decided that I was just going to sit back and see how much more the American people was willing to take before uprising…

  41. Who knows Neil Barofsky? Perhaps we can:

    Get a petition circulated and signed by us all demanding an emergency hearing before the Prez, CFPB and task forces with all 50 AGs in the audience, with our “appointed representatives” Neil, Yves, Max, Adam, etc.” in attendance representing us . . . Barofsky effectively organized a NYU Law School gig – perhaps he can gives us some pointers on how to go about getting an ’emergency hearing’ – obviously there are enough citizens to warrant such a hearing – this is election season – if they are afraid to do anything for fear of negative momentum against TBTF/J then if pressure is openly existent before a collective emergency hearing of the ‘People (homeowners) v USA’ – good time to give it to him is when recess is going on . . . hint hint . . . maybe they are waiting for us to put a bone in front of them they can run and chew on before the public without seemingly impartial . . . these petitions circulate and seal the deals in hours for all sorts of issues – why not one demanding an emergency hearing on behalf of the US people (homeowners) . . . from all 50 states signing it – they have to listen and respond – let’s go thru connections to AGs – they may like getting off some of the hooks the TBTF/J’s put them on with this damned settlement . . . perhaps an emergency hearing would force discussions needed – with Neil, Yves, Max, Adam, etc. at the table for us . . . Adam (Levitin) has already been there so he too knows the tunnels to get there . . .

  42. @chris Thanks, good idea to petition at local levels for Judicial Foreclosures. Will do it. At this point the only way to justice if there is any, is to write to anybody and everybody about what the banks,courts and government are allowing to happen. It just is not right and must be stopped. I have started a blog http://www.exposetherotteneggs.wordpress.com and I will write about what we learned and who is helping and who is not and also to look for solutions that actually are worth putting time into.

  43. @ Marie

    Too little to late here; but the non-judicial foreclosures need to stop. Just a thought here, we need to demand that change, as judicial foreclosures require documentation and a judges order. Given, the abuses, just my opinion, we may want to start petitioning at the local level, judicial foreclosures, when we are sending email to the entities about our situation. We are not asking you as citizens, We Demand Change to restore OUR rights!

  44. @JG further
    “that’s an odd way to frame / define the resulting jv, by its liability? I understand some basic business tenets, altho did not understand each co-v liable for damage by the pool. Is that, I guess, jointly and severally? Is the way you chose to define the jv related to what you see as liabilty, and that liability is for the pretense?”

    JV is the most basic and oldest form of business asociation–essentially a common law general partnership ——joint and several liability for co-venturers

    see for example all the fuss about the BP oil spill—where they went after the non-operator jt venture co-venturer—-anadarko or some such——this part is predominant method of development of oil/gas–then they make federal eltions to get jt several tax treatment because JVs are automatically presumed to be tax partnerships—which is what these failed trusts are or should be

    i believe this is a big deal and justifies adding at least the larger investors as defendants—plead failure of trust —then default to JV –then add the big investors that show up in the CUSIPs

    ie shake the trees –or as one atty cautioned against ” dont blow up the forest” –but honestly there must be consequences to the fraud enabled by failure to comply with SEC reps—-etc–the private labels did this stuff and have walked because no big toes stepped on —if the biggies had inside info as to how the collapsable investment pool structures operated–which classes of MBS were valuable after the waterfalls

  45. @JG
    aren’t we talking specifically NY trust law here? –depends–usually NY or Delaware–thats why Biden is on it—Uniform trust act pretty much in place everywhere—but scheduling intangibles is black letter law of trusts 101

    See excerpts from Uniform Trust law

    Later under the model trust law is:

    “SECTION 107. GOVERNING LAW.
    The meaning and effect of the terms of a trust are determined by:
    (1) the law of the jurisdiction designated in the terms unless the designation of that jurisdiction’s law is contrary to a strong public policy of the jurisdiction having the most significant relationship to the matter at issue; or
    (2) in the absence of a controlling designation in the terms of the trust, the law of the jurisdiction having the most significant relationship to the matter at issue.” [Emphasis added.]

    SECTION 401. METHODS OF CREATING TRUST.
    A trust may be created by:
    (1) transfer of property to another person as trustee during the settlor’s lifetime or by will or other disposition taking effect upon the settlor’s death;
    (2) declaration by the owner of property that the owner holds identifiable property as trustee; or
    (3) exercise of a power of appointment in favor of a trustee.

    Comment: [in the model act]
    This section is based on Restatement (Third) of Trusts Section 10 (Tentative Draft No. 1, approved 1996), and Restatement (Second) of Trusts Section 17 (1959). Under the methods specified for creating a trust in this section, a trust is not created until it receives property. For what constitutes an adequate property interest, see Restatement (Third) of Trusts Sections 40-41 (Tentative Draft No. 2, approved 1999); Restatement (Second) of Trusts Sections 74-86 (1959)…”

    A general power of appointment is one which allows the holder of the power to appoint to himself, his estate, his creditors, or the creditors of his or her estate the right to have the beneficial use and enjoyment of certain property covered by the power of appointment. In this case the trust failed under any of the three conditions by want of any reasonable description of the property to have been the trust property.

    If the settlor had followed the prescription set out in the Indenture and Servicing Agreements as filed with SEC, the issue would not arise, the trust would survive as an enfranchised entity under state law and that trust would have met the requirements for tax-exempt treatment as a REMIC. However, the settlor-depositor failed to follow its own representations and warrantees as set out in the securitization documentation.

    The Model law Comment adds, ironically;
    “A declaration of trust can be funded merely by attaching a schedule listing the assets {See for example the language in the representations filed with SEC, blank page; re “LOAN SCHEDULE” and in Delaware UCC filing, blank page, “MORTGAGE LOAN SCHEDULE” that are to be subject to the trust without executing separate instruments of transfer. But such practice can make it difficult to later confirm title with third party transferees and for this reason is not recommended.”
    [Emphasis added.]
    http://www.law.upenn.edu/bll/archives/ulc/uta/2004final_rev.htm#TOC1_7

  46. @CARIE et al
    That connection to FDIC is most significant—-FDIC essentially insures the mortgages that the buyer acquires as part of the bail-out

    that creates a huge incentive to make a big loss asap on foreclosure–quick check from FDIC rather than mods or shorts or anything—–better if loss sale is to an affiliate which is much easier if the buyers are offshore hedge funds and nobodsy knows the web of controlled affiliates—–shiela bair talked a good line—- but as someone noted–seems like if they were obama contributors there was a complete bandonment of long held standards of openness

  47. This is the correct web site to look at the IndyMac /One West Bank Sweet heart deal the investors who bought Indymac made with the FDIC. http://www.fiercefreelancer.com

  48. Like Carie, our house in ca. a non judicial state was sold at a foreclosure auction. We had a lawsuit going, suing for Breach of Contract, Fraud and more with a very good attorney who continued to hit brick walls in court, not just our case but case after case going against the banks. In one case against Wells Fargo she said to the Bank’s attorney, “how do you sleep at night?”. She told me the opposing attorneys would greet the Judges as if they at a golf game.
    We had to stop our lawsuit which was very disturbing to us due to the fact that because of a new precedent which hasn’t been published yet states that a Loan Modification (which we made 2 payments before IndyMac denied us for the packet not being notarized, but it was) if not signed by a lender is “invalid”, and that was our case as well as our “robo signed” docs. We could pay over $30 thousand over 7 months and more than likely it would be dismissed in court. We have over a year to refile before the statute of limitations runs out. I would like to find a less expensive way to continue with our lawsuit. I am waiting for the tide to turn to maybe do it myself, I am still pondering as I hope we can get some justice.

  49. It cannot end peacefully…

  50. Thanks Ian, I did see it and more people should see it. I believe you are refering to http://www.fiercefreelancer.com/sweetheartdeal

  51. Marie- while reading the HAMP statistics about 2 years ago in regards to “modifications”, OneWest had the distinction, out of 100,000 modifications processed, ZERO were “approved”. Also, the FDIC shared-loss agreement, netted OneWest unbelievable profits on each loan where a large loss was realized. This of course was due to bloated appraisals when the loan was originally written, “credit bids” by noncreditors at prices lower than short sale offers, and junk fees piled upon junk fees with compound interest piled onto the borrowers’ “default judgement”. There is a youtube video available somewhere, sorry I don’t have a link to it.

  52. ” the servicers do not contest the OCC’s ability to impose penalties aggregating $394 million,”

    “and the OCC agrees to hold in abeyance imposition of such penalties provided the servicers make payments”

    ” and take other actions under the federal-state settlement with a value equal to at least the penalty amounts that each servicer acknowledges that the OCC could impose.”

    Lien them up OCC. File a lien like the IRS likes to do, and then have a foreclosure sale outside the courthouse where their corporate offices are.

    They’ve made trillions upon trillions but they are leveraged up the hilt in fake wealth and obligations and so they can’t pay a few million dollars,? There’s 394 homes worth more than a million that they’ve stolen. Why don’t you let them convey that property to you? Oh, the title is corrupt so you won’t really have ownership of the property so you don’t want them to pass it to you? Well each new home sold that was foreclosed upon, aren’t you providing them some compensation or value through some business process as the comptroller?

    Aren’t you over leveraged by what you have given to them for the benefit of the new purchaser who just bought something you won’t even accept in a settlement?

    Hey, OCC,didn’t you pass payments to them over some documents they submitted to you with these mortgages and for all mortgages.

    I’m sure the Office of the Comptroller of Currency has some financial interest or involvement in the transfer of funds to these entities, I’m just not sure how to tie the pieces together.

    Office of the Comptroller of Currency – in addition to taxpayer bail out and insurance and investors (including the homeowners participation in 401K or other stock that has Real Estate Investment Trust (REIT), didn’t you pass a pretty penny or two to them in this process?

    Jus non patitur ut idem bis solvatur
    Law does not suffer that the same thing be twice paid.

    Jus non habenti tute non paretur
    One who has no right cannot be safely obeyed.

    The only reason anyone would investigate and tell them to stop what they are doing is if they have some ‘skin in the game’.
    States property was being absorbed by a select few hiding behind corporations called banks or servicers…if ultimately the FED owned the corporations that owned these corporations, then those private bankers were taking ownership of our lands by economic warfare means and they control the money supply of our nation, and if we don’t let them have our lands one way they’ll take them another because no one can make a payment if they don’t have a job, and most businesses cannot hire if they don’t have credit and credit is available if a bank provides it, but the fed is holding their reserves so they aren’t providing credit nor lending soooooo…..they will get the property “economic duress or crook”.

    Trespass Unwanted, corporeal, life, sovereign by divine right, a free and independent state, a free People, in jure proprio, jus sanguanis

  53. More people here could forward these posts to as many people who will forward them and so on. It is important that the general public really hear what is happening but they are not. They are only hearing, reading and seeing what the media wants them to see. Not many people are aware of what is really happening and after our experience with IndyMac One West Bank, the trial mod, the Freddie Mac Hamp loan mod, BK13, Eviction. It is crystal clear IndyMac/One West Bank DID NOT WANT TO GIVE US A LOAN MOD. One of the excuses was we did not pay an $80.00 title fee that, oh yeah, nobody told us about and oh sorry it is too late now. Why did they even send us the Freddie Mac Back up loan modification packet if they were not going to honor it?

  54. wouldn’t paste before. here:

    http://www.sourceoftitle.com/blog_node.aspx?uniq=922

    If the link won’t open, look left under my-name blogs, and hit
    “The Foreclosure Dilema: Decisions at the Expense of One Class”
    Fyi, fwiw, it isn’t the first time I’ve written and alleged that the
    homeowner ‘class’ is being sacrificed to the investor ‘class’ by the
    failure to acknowledge the true situation with these trusts. You could
    certainly one-up me by citing chapter and verse. I wish you would, but hopefully not until you and I finish our little deal here.

  55. DCB, on February 17, 2012 at 7:30 pm said:
    @JG
    Here is the heart of the matter. A trust is a very formalized entity. The trustee under

    state law

    jg: aren’t we talking specifically NY trust law here?

    has special privileges and immunities. It is necessary for a trust to be formed and have a trustee to meet the minimum federal standards for that set of tax immunities–
    Now if the settlor of the trsut does not meet the standards for trust formation set out in the trust agreements–then the trust is not created–there is no trustee–no immunities. No FIT break.

    jg: who is the settlor?

    The most obvious failure is the most basic failure to meet the

    basic state law

    jg: same question, aren’t we talking NY trust law?

    requirement that there be a “schedule” of the intangible assets supposedly placed into the trust for benefit of trust share holders ie MBS holders. The SEC required this as did the general state law. If they did not meet this –then no trust–for example you cant march around claiming you are a corporation or LLC or LLP without meeting the statutory requirements, So under state law if you have a failed trust the business association is under
    common law by default a joint venture

    **—-each co-venturer is liable for damages caused by the investment pool as a whole **

    jg: that’s an odd way to frame / define the resulting jv, by its liability? I understand some basic business tenets, altho did not understand each co-v liable for damage by the pool. Is that, I guess, jointly and severally? Is the way you chose to define the jv related to what you see as liabilty, and that liability is for the pretense? Normally, a principal is liable for the acts of its agent.
    However, even if there were a trust, I have yet to see an agency agreement per se with any servicer. If these trusts are really jv’s, could they have signed a (secret) agency agreement with servicers? Nah – wouldn’t do that – would out the game. An agent, as well as a poa, must identify its principal. Can’t say I’m acting rightfully for John if john has no right of his own to represent. Don’t really believe they did either of those, and I’m a staunch believer that authority to act in regard to real property requires Notice of that authority, anyway.

    jg: any more on the jv?

    the assertions about investor ownership are accurate in this narrow fact pattern–not every fact pattern–just where there is no schedule of loans (LISTED) –see black letter law of trusts—uniform law of trusts 101—–

    jg: no schedule, no trust, so jv, (jv = investors and depositor?) owns the loans (sans trust tax treatment) ?

    this is why nobody in the entire financial community wants to own up to this–lots of private lable stuff was done w/o schedules because they were fast and loose and my guess is double-counting notes and loan files–selling them multiple times—my guess at this point–

    jg: lost tax status, no trust, no trustee, no governing docs regarding
    alleged trust assets. WHOM under this set of ‘facts’ may enforce the notes and their collateral instruments (if they had been endorsed and assigned)?
    But wait, there’s no trust in this deal to assign them to….. now
    they are owned by a joint venture?(assuming other stuff done properly) In the law which says no schedule, no trust, so now
    jv, does the jv own the assets?

    so what you need to do is think outside the box

    jg: I believe I make this a habit, but hey, maybe not

    –what if there is no legal trust–no legal trustee—-who represents this group of investors? this pool of investors? what if the debt collector invents
    or co-opts a name

    jg: I take this phrase to mean assumes, acts as the entity who was supposed to have that trust name and formation. Or the servicer acting for heck if I know whose benefit (its own, looks to me) pretends to have an agency or other agreement with a non-existant trust, which as far as I can tell would be found in a PSA?

    and pursues collection —who does it account to?

    jg: first here I ask for whom the co-opter acts and by what authority?
    No one really, itself? Pretends there’s a trust for whom to act? Who
    gets ben of re-sale proceeds: part of to whom it accounts?

    in whose name is the suit brought?

    jg: post MERS foreclosures = trusts, generally

    in whose name is the REO property recorded?

    jg: ummmmmm…trust again, after gangster credit bid

    who can execute a deed?

    jg: servicers will allege this is part of their right to foreclose
    authorized in some phantom, phantom = unNoticed (trust) document? What specifically are the statutes which provide
    that no schedule = no trust created?

    where we are —the trust is dead–its body is locked in the closet and various parties are out there asserting to act in the name of the dead body—better analogy is that the trust was never born–just a pretense–a pretender

    jg: how do we know the trust is dead, beyond speculation? If we know the answer, if there is one, why are we not advancing this not-speculative answer in litigation? What is the statute which provides that not filing a required schedule turns a trust into a jv?

    This isn’t one of my better recitations, but the gist is there, at least
    mol. Can I ask you to read it before responding? thanks

  56. @Marie

    IndyMac Mortgage Services is a “division” of OneWest Bank, FSB. IndyMac failed and was placed in receivership by the FDIC in 2008…OneWest (yes, George Soros AND the Dell co. owner are 2 of the owners…) acquired certain mortgage “assets” (at least that’s what the servicer said) from Indymac…
    They are full steam ahead with foreclosures—complete with fraudulent documentation and no proof of ownership of a promissory note or real creditor…and when I asked the foreclosure mill who was real creditor lender/owner—they said some “investor” of the MBS—which of course is total BS—but they sold my house anyway based on all their lies…

  57. Actually IndyMac Bank was bought by a group of investors in March 2009 which included George Soros, Michael Dell of Dell computers, John Paulson who sold Hedge funds and bet against the housing market hoping there would be massive defaults on home loans as well as Steven Mnuchin. So IndyMac is a servicer of One West Bank. check out the Sweet heart deal they were given by the FDIC.

  58. @Marie,

    Isn’t OneWest a division of IndyMac? As in “owned” by IndyMac? I believe I sent Carie something about it not long ago. You may want to ask her for it. I can’t find it anymore.

  59. Why do I never hear of IndyMac a servicer of One West Bank who has been one of the most aggressive in Foreclosing on homeowners and who has locked people out of their homes even after they informed the homeowner the sale of their home would be rescinded (all in court documents). Could it be that George Soros is one of the owners of One West Bank? Or is it that George Soros is one of Obama’s biggest campaign contributors?

  60. @JG
    Here is the heart of the matter. A trust is a very formalized entity. The trustee under state law has special privileges and immunities. It is necessary for a trust to be formed and have a trustee to meet th minimum federal standards for thatr set of tax immunities–

    Now if the settlor of the trsut does not meet the standards for trust formation set out in the trust agreements–then the trust is not created–there is no trustee–no immunities. No FIT break.

    The most obvious failure is the most basic failure to meet the basic state law requirement that there be a “schedule” of the intangible assets supposedly placed into the trust for benefit of trust share holders ie MBS holders. The SEC required this as did the general state law. If they did not meet this –then no trust–for example you cant march around claiming you are a corporation or LLC or LLP without meeting the statutory requirements,

    So under state law if you have a failed trust the business association is under common law by default a joint venture —-each co-venturer is liable for damages caused by the investment pool as a whole.

    the assertions about investor ownership are accurate in this narrow fact pattern–not every fact pattern–just whhere there is no schedule of loans (LISTED) –see black letter law of trusts—uniform law of trusts 101—–

    this is why nobody in the entire financial community wants to own up to this–lots of private lable stuff was done w/o schedules because they were fast and loose and my guess is double-counting notes and loan files–selling them multiple times—my guess at this point–

    so what you need to do is think outside the box–what f there is no legal trust–no legal trustee—-who represents this group of investors? this pool of investors? what if the debt collector invents or co-opts a name and pursues collection —who does it account to?

    in whose name is the suit brought?

    in whose name is the REO property recorded?

    who can execute a deed–eg if i die tomorrow can my wife just keep on going as if i were alive–forging my signature–keeping my body in the closet?

    thats where we are —the trust is dead–its body is locked in the closet and various parties are out there asserting to act in the name of the dead body—better analogy is that the trust was never born–just a pretense–a pretender

  61. Well what i did was ask them who owns my obligation pursuant to 15 USC 1641(g)1 and 15 USC 1641(f)2 in a QWR. If they reply i use it to show an issue of fact to court about ownership.if not I show the judge that they are denying a federal right for me to know who owns my loan. I live in new york state. It puts the judge in the hotseat as well because alot of times the judge is not aware of this law. I used it to get a friends foreclosure vacate back to square one based on plaintiff procuring said judgment by fraud. He vacated it based on evidence that the plaintiff was trying to procure the judgment by misrepresentation or fraud. The servicer had sent her a letter saying that HSBC as Trustee and not fremont owned her debt. They are in strange position

    Google fremont vs davilar. The subsequent servicer even sent her a 1099c after the judge’s decision I guess extinguishing the debt. So as a counterclaim we are asking for discharge of mortgage. I mean they already gave her a discharge of debt according to their representations to the IRS.

  62. @ ENRAGED
    I agree–by my experience their attys are ifvanything more bold. That is what happens when they get 50 lashes with a wet noodle.

  63. Great list of questions JG, and I wholeheartedly agree. I’ve thought about this dilemma as well….we all know how high the shit is piled, and while more stories about its depth are entertaining and add justification we’re not getting any closer, and TPTB keep moving the location of the piles.

    Without offering his services, could we see if we could get Mr. Garfield to head to Washington for us all, and demand an audience with the King? I’m serious here. Enough people demanding answers to the straight up questions that Neil knows the answers to so well would cut a huge swath in the blatant boot-on-the-neck scars that we all share.

    Can we demand an audience, as in…WE’VE HAD ENOUGH AND WE’RE NOT TAKING IT ANYMORE? Neil, Bill Black, and/or Yves Smith maybe? What a trifecta. We need answers that result in changes, not more articles buried on the last page.

  64. Really interesting reading, but just more of the same. Where’s a proposed, viable solution? We re-act. Where is action? We’ve got a lot of mouthpieces, admittedly briliant and clever, but no one actually doing much about it. Well, occupy is there and we do sign some petitions. And Mr. G, my man, you keep saying the investors are the creditors. IF the investors provided funds to B, you would still play hell demonstrating those funds given to B literally made their way to the closing table. You have never even attempted to defend your statement.

    How do we change the perception of deadbeats to one which acknowledges that we would like and demand that laws and rules be upheld? WHO owns the notes? Are they even truly negotiable instruments? Are third parties obligated to make payments when borrowers don’t? (sure looks like it) Why?
    What’s the ramification of this? How do we demonstrate the ramifications? If loan made it into trust, who owns the note? If loan didn’t make it into a trust, who owns the note? Who has the right to enforce? How do we get discovery (which need is part of the stinking problem) ? Why don’t servicers want to modify loans? Because they really can’t? Why? What do PSA’s actually authorize and what don’t they?
    Many people here have been vicitmized by what appears to be a plan to get some more payment out of us in trial modifications. How many of those went to FNMA’s website, for instance, and studied that stuff to see whaddup with ‘modification’ tenets and reported back?
    What we need are FACTS.
    We’re not doing a very good job of getting them, I’m afraid. We are in one condemnation article after another damning the symptom of the problem. Okay, we got it. Our government is not interested in putting homeowners ahead of other interests and I readily concede it’s good to keep track of behaviors which demonstrate this. It’s just not enough. What can we do to change that? What non-hysterical, reasonable arguments can we make that might make them see differently? If they won’t see differently, what are we going to do about it? The principle reduction awared to Suiesse when it could have been given to homeowners is the straw for me.
    Mr. G – don’t get on the bandwagon. Why not drive it? Why does this site have only 1100 followers out of millions? We need more people gathering dispositive FACTS here. Then we need to apply those facts to existing law imo. At the rate we’re going, all our homes will be gone by the time we find FACTS necessary to save them.

  65. @carrie, it so frustrating to deal with this debt collections company who pretend to be real trustee, beneficiary, agent of the trustee holder of the note and deed under false pretense. their business is to mislead us homeowners to believe that they are. their purpose is to collect a defaulted debts period. when you send them a validation letter, they will not even bother to reply because they have no interest in knowing the beneficiary, all they have pursue is to collect a debt.
    have you file your complaint yet? you have to and include loan servicing, debt collectors, mers, foreclosing attorneys, false trustees, the trustee on securitized mortgages, real estates broker and their agent, and the title company who close escrow on foreclosure properties that’s what I did. its better to do something than nothing at all. although, i have still a pending case, one of my cases will do discovery and then trial by the jury. though the defendants wants mediation will see if it turns out good for me. i advise you have to read a lot of court decision regarding foreclosure cases and this livinglies website helps me a lot since 2009 and i believed that as a pro se, you should have the guts to face the judge and a arm with valuable informations and knowledge so your case will be given opportunity to be heard. only FRAUD survive on my causes of action in regards on Loan Modification. the other causes of action has been dismissed without leave to amend , but I filed Notice Of Appeal and my Brief would be by March 24, 2012 due appealing some of the causes of action such as Ca, Rosenthal Act, Quite Title, Wrongful Foreclosure, and others. i encourage those who sue and represent yourself, never be discourage if you stumble an idiot judges, remember by the time you said your a pro se in front of the judge, he would assume that you don’t know nothing thats why most of the foreclosure case were dismissed without leave to amend.
    Why do you think I successfully discharged my BK because I did not quit and was not discourage by the judge attitudes. ? NEVER BE A QUITTER IF YOU ARE PRO SE. THANK YOU LIVINGLIES for helping us understand the Fraud.

  66. @ carie

    It is my opinion only, securitization has no bearing on ownership.

    I am thinking, if a servicer has been PROPERLY assigned, by the OWNER, actual lender, authority to foreclose, then you have nothing.
    However, if you dig, you will find servicers are given rights only, to service the account…not legal authority to foreclose. No one would commit forgery (a Felony) if they owned your property and had a right to it, there would be no need to commit felonious acts to acquire the home.

  67. If I want to sue the servicer for illegally selling my house—damages wise—how would I do that? Anybody? People need to figure that out and start doing it—big time…oh—whoops—no money…:(

    Well, if anybody knows how we could do that without much money—let us know…thanks.

  68. @boots

    Exactly what happened to me…servicer sold my house right after Aztec Foreclosure Corp suddenly became the Sub Trustee right after a fake Assignment of DOT…

    I asked over and over:

    “WHO is owner of loan and/or Promissory Note?

    They said:

    “As you are well aware, OneWest does not own your loan. Your loan has been securitized…(Deutsche mbs, etc.), and we stand by our position regarding ownership of your loan.”

    Huh??? So—their position is…what? I guess their “position” is that they have no real answer regarding ownership—just the lie that it was securitized…which is not an answer to my question—am I missing something?.

    And this:

    “…since we were the duly authorized servicer acting on behalf of the securitization, we were able to proceed with the foreclosure due to your uncured default…”

    So—them saying they are “acting on behalf of the securitization” gives them the right to steal my house.

    They said proceeds from the sale would be collected on behalf of the trustee…hmmm…so I demanded a LEDGER showing my payments/proceeds going to the trustee—big surprise—he’s totally IGNORING that request…

  69. CONCERNED- you are right on the money there regarding Marie O’Donell’s audits. I have seen an out-of-business entity assigning to MERS via a ‘corrective assignment of mortgage’, and then MERS assigning to another out-of-business-entity ‘Trust’ , by their ‘Attorney in Fact’, yet a THIRD out-of-business entity. What’s that couple’s chain of title going to look like?!
    BTW, does anyone have anything on corrective assignments of mortgage? Can’t find more than a sentence or two here and there.

  70. Panic? For the banks? Where? With everything that has been uncovered thus far, I, personally, would have expected real panic. Something like bankers so afraid that they commit suicide (as they do in China), partners in crime starting to sing like parrots and denouncing everyone else… Noise, furor, something.

    You know: normal human reactions.

    Ain’t seen no panic yet. In fact, everytime I turn around, someone in high places is bending over backwards to accommodate the banks yet even further. I swear, with all that backward bending, chiroprators are going to be the new elite…!

  71. @HMAN/CHRIS
    The real head scratcher is if there is no trust because no loan schedule and now the purported trustee denies reliability of its posted investor data–no fiduciary—–its clearly just some undescribed form of business association managed/operated by the purported trustee—or its delegate debt collector

    the trust documents are not necessarily valid—maybe the PSA is ???

    so you have debt collectors purporting to represent MBS investors that in fact actually own joint venture units —-IRS partnerships—-you must name the purported trustee as well as the debt collector–as representatives–if they will admit they are representatives—-i cant even get the attorneys arguing –filing–to provide letters of authority from the purportedly represented parties

    this is the crux of it–use of trust and trustee names is a sham

    another interesting issue is the ability of a psuedo-trust business association to file claims in a state where it has not registered to do business—defense is lack of capacity to sue in the state—trusts often exempted from this duty and usually given immunity as trustees—but if no trust–no trustee–no registered agent in state—no standing or capacity to sue–all FDCPA sham and intimidation using false names

  72. this fabricated documents recorded in each county recorder’s office were done by “debt collectors” e.i. foreclosing attorneys/law firm, purporting to be “substituted trustees” when in fact they are foreclosing trustees, loan servicer, and other 3rd vendors who were hired by loan servicer.

    In fact, in Ca. judges dismisses the CA. Rosenthal ACT, and FDCPA because the foreclosing attorney would argue that they representing the original creditor and their clients are exempted from this violation. the Court without knowledge of Rosenthal & FDCPA dismiss this causes of action because judges believed the foreclosing entity are the original creditors. judges still believe that original creditor is the one foreclosing.

    if you are a third party collecting a debt either personal or real property you are not exempt on FDCPA & Ca. Rosenthal. Act, debt collectors job is to mislead homeowners in order to foreclosed homes with the help of loan servicer, banks & lenders, foreclosing attorneys and Real Estates Brokers to fabricate those documentation. use of robo- signing and surrogate signers started with LPS with the blessings and knowledge by all loan servicer to speed up the foreclosure process. we should go after this debt collectors.

  73. I have reason to believe that the percentage of loans where paperwork problems exist is even HIGHER that reported in this article. I can not vouch for how all the effort was done in this San Francisco stludy, but in the one done in MA by Marie McDonald, I know of facts that she did not bother to check that are VERY pertinent. I talked to her by phone and found out that she was NOT checking to see if the LENDER named on the DOT or mortgage was in fact in business properly either at the time the loan closed OR at the time assignments and other documents were later executed that cite that original LENDER. She was not doing any such verification.

    That means that situations where the original lender had declared bankruptcy were not detected. It also left out all the fraud of attempting to transfer ‘WILD DEEDS” such as exist with all “AMERICA’S WHOLESALE LENDER CORPORATION” loans. That CORPORATION did not exist as such an entity on the date the loans were closed. Nor was that corporation registered as a lender in any state, nor were there agreements with MERS at the time of the loan closing, directly in that CORPORATION name. The loans do NOT identify any relationship with any other entity as the actual LENDER. This means the loans never had perfection, causing them, at best, to be UNSECURED LOANS. But Marie did not even check whether the statements within the DOTs where a LENDER claimed to be a corporation registered in a specific state was in deed registered in that state as of the date of closing of the loan. IF she had checked, the AMERICA’S WHOLESALE LENDER CORPORATION which claims on the DOT to be a New York CORPORATION, was not registered until years after the loans closed. The usual entity that now tries to claim those loans is Bank of America or Bank of New York Mellon as trustee for one of many REMICs. The AMERICA’S WHOLESALE LENDER CORPORATION that is now listed with the state of New York is not connected with either of those Banksters.

    Fraud is being committed on all those AMERICA’S WHOLESALE LENDER CORPORATION assignments and other documents such as substitution of Trustee.

  74. @ Chris. Yes I agree. I own stock in a few companies and that does not make me the owner of the company. Buried in my PSA it stipulates that the PSA can be amended if 30% or more of the certificate holders agree. Sorry but I don’t know the exact verbage because I dont have the PSA in front of me.

    I am petitioning my (undisclosed) “investor/bond holders” to give me a MOD. I’ve been able to find 3 parties that bought bonds to my trust just by googling them. I don’t know if this is 30%. I have already started negotiating with 1 of the 3 paries. I have a mediation with another one soon.

    The bond holders that are suing for breach of contract, non disclosure, and misrepresentations have a lot of the same allegations as the home owner. One of my investors may even use me as a witness in their suit. I was leant almost a million bucks making $50k a year.

    I believe if any party tries to forclose being as I’m in negotiations already the foreclosure will be under greater scruitiny. Also, I have the investors on my side to fend off the other unlawful party. The investors and the homeowners want the same thing. Both parties win if you can get modified. I know there is still the title issues to resolve but I’m working on that too.

    Again, this is only my thoughts. I could end up loosing big again. Only time will tell.

  75. @hman

    This also adds to the confusion when you say:

    “…the judge would rather give the bank a free house…”

    It’s the SERVICERS getting or selling the “free house”…not “banks” who “own” a legitimate loan and/or promissory note.

    We have to be really clear on what exactly is going on here. Nothing is being done in part because the confusion and obfuscation is perpetuated.

  76. @Chris

    Exactly…that’s why it’s so RIDICULOUS that Neil keeps saying investors are somehow a “lender”…right, ANONYMOUS?

  77. I’ve had 2 homes foreclosed because I choose not to fight. Now I’ve pushed them for answers and haven’t made a payment in a year and a half with no foreclosure scheduled.

    I know I will get a lot of people that disagree with me about this comment but I think the certificate holders have more ownership than any other party in the transaction. Yes, I know it is a fractionalised interest and the interest was converted into “shares” of stocks. Although I believe the other parties have been paid multiple times already with TARP funds, insurance, etc…and the debt isn’t owed I don’t see this reasoning working in court cases often, it seems like the judge would rather give the bank a free house rather than the “dead beat irresponsible homeowner”. I’ve been painted this way 2 times already.

    The certificate holder like the homeowner is the parties that have tax consequences and actual skin in the game. I think if you could join forces with the certificate holder/investors you would have a good chance at a MOD. For me this is the route I’ve gone. I don’t claim this to be the solution or the answer. I just hope it works for my situation. Having already lost 2 properties I know the frustration and anger and don’t want to risk it a 3rd time. I can’t risk getting a “free house” at the risk of losing it, even though I believe their paperwork is fraudulent and deficient.

    If you align with the cerfificate investor I think the judge would be sympathetic being both parties were victim to fraud and deception. I think with the “investors” on your side you have a better shot at getting to discovery if any other party tries to foreclose because they can prove they have skin in the game. I think you have a better shot at discovery. Also, it may cause the judge to ponder who has the right to foreclose on this property and open the door for QT, sactions, etc…

    I am very sympathetic to those who have lost their house and I don’t claim to be an expert. This is only my 2 cents so take it for what it’s worth. I wish everyone out there good luck no matter what avenue they decide to take.

  78. Maybe I am missing this, but if I buy stock in something, hence invest in an IPO, I AM NOT the owner of the company, the lender or the authority to do anything with that company. So, does that simple premise translate in this scenario?

    Investing in a pool only means you are entitled to some “financial benefit” IF the pool is sound and the investment is productive/producing gains.

  79. Okay…except WHY does Neil still keep saying that the “investors” are the “lender”? It reeks of desperation…

    NO NO NO NO NO NO. INVESTORS ARE NOT “LENDER”… NOT “CREDITOR”.

    Neil, you perpetuate the confusion and the fraud when you insist on saying that. Ridiculous.

  80. […] Read More: Panic Time for Banks: “Auction” Sales Were Faked — REO Title Invalid […]

  81. Yes, the system must be preserved and the people must be sacrificed to THE SACRED SYSTEM! The system is all that matters. Welcome to the machine. Welcome to the jungle baby–you’re gonna die, but the system will live forever, as it rightly should.

  82. “IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES, LOSSES OR EXPENSES, [of investors] INCLUDING WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING IN CONNECTION WITH THIS WEBSITE, THE USE HEREOF OR RELIANCE ON ANY INFORMATION CONTAINED HEREIN, EVEN IF WE KNEW OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES.”

    Folks ask youself ” Does this sound like a statement of a fiduciary ie a trustee?”

    If you answered NO—then what if this same entity was the named plaintiff in a foreclosure SO AND SO BANK “AS TRUSTEE for XYZ Trust——its not true–no trustee–because no trust because no loan schedule filed to create the trust in the 1st place

    all lawsuits filed under a false name–why because its more intimidating to be sued by apparent big trademark bank—-its pure intimidation see FDCPA—-so if you did anything it was under the false assumpion –maybe even mutual mistake—-that there was a trust and the correct name was used—when in fact the claimant is simly a debt collector aka servicer—little to do with the purported trustee

    this is close to Cw——-look at CW filings–did they file loan schedules–if not then no trust–just an investment pool operated by the purported trustee

  83. Great comments Neil. Cuts to the chase. And you’re right….follow the money….it’s always the neon finger pointing the way…..and it always points to the greed, whose trail always ends up back at Wall Street’s bronze bull.

    Unfortunately, so do our taxpayer funds and now all the real estate, commercial’s next….

    The Great Capital Extraction Machine is whirring loudly. And our legislators, regulators, and even our AGs now are stoking the fires. It reminds me exactly of Mordor and the battle against Sauron.

    Bring it all down. Where’s Gandalf when you need him…..

  84. The problem that every person will have is getting to discovery , yes that is where your case can be won….still even with all this info and proof everywhere Judges are rejecting cases now as they come before them in my area of So. Cal. I smell a big stinking rat.

    We must fight on but understand your case is only as good as the Judge before you. Too few to make a change , tragic really.
    The “powers that be” have closed CC 2932.5 in CA which I prevailed & had my foreclosure voided. Cannot do that now as it is moot due to a ruling in an appeal by the banks in San Diego courts.

    They keep closing all legal rights to allow us our day in court , folks the fix is in.

    Fight on no matter what but understand the clocking is running out for all of us as the Banks master plan is to delay, delay until the Statute of
    Limitations is enforceable in most of our cases.

  85. “they back off 100% of the time” people do not believe this~ Take the settlement, as its the best you can get. I am in litigation two years now pro per. and they have NOT DENIED ANYTHING, just demurrer, and state “It appears to be impossible” that this person I allege was in the office. (Donna K. Demello) admitted loan fraud felon of over eighty straw man loans. I named the CRIMINAL that did this to us, and they do’t even deny it, but still claim I am not damages after two years of severe emotional distress, hospitalization, and therapy.

    Take the $30K

  86. how they are allowed to buy these houses at auctions without any money is the real crime

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