Why the Original Note (and Ownership) Continues to Be Critically Important

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Editor’s Comment: Yves Smith is right to point out that when the borrower’s note is not produced and not returned after the “sale” of the property, something is rotten in Denmark. Just so we are all clear, we are talking about the foreclosure sale where according to state law the highest bidder get the property. But the bidder must bid SOMETHING in order to take title away from the homeowner. The homeowner must either get the note returned in its original form along with the endorsements, OR the bidder must pay cash.

Nobody in any state is allowed to go to an “auction” of real property held pursuant to a right of sale or foreclosure and bid nothing. In fact, in many states, the bidder must put up a sum of money just to get into the bidding or even witness the auction.

So it is indeed strange that amongst the millions of foreclosures that have alleged resulted in putative “sales” no homeowner has received anything like a cancelled note or even an affidavit explaining why he did not get the cancelled note. That being the case, why should the homeowner be forced to legally recognize the alleged sale. It is obviously not complete if the homeowner has not received the note.

There are two ways the homeowner can get the note. Either someone has paid the auctioneer the bid price in cash or the actual party to whom the debt was owed bids the amount of the debt owed by that specific homeowner in which that homeowner offered that specific property as collateral to guarantee repayment. Another creditor to whom the debtor owes money simply won’t do (and this is where the banks’ position collapses).

I have spoken to certain people on the dark side and they take the position that if the bid was less than the principal due, then the note is not due until it is paid in full. But this flies in the face of those states where the alleged creditor is limited to the value of the property and may not pursue a deficiency judgment. It also fails to explain why the note is not returned when the bid was i fact the principal claimed by the creditor (even though we know that the principal claimed is not actually the principal due).

Which brings me to my point. Attorneys for borrowers are snatching defeat from the jaws of victory by their ignorance of the auction process. When you are arguing standing, instead of spending all your time on erudite sounding arguments, simply point out to the Judge that unless the would-be forecloser produces the original note along with proof of ownership, they have no right to bid at the auction unless they want to pay cash. Just point to the provision of the statutes that says so.

I would go even further and say that if the Judge, in his discretion, allows the foreclosure to proceed, that the order specific that this order does not constitute a finding that the the party initiating the foreclosure is necessarily the right party to submit a credit bid.

It is important to add that the person who is conducting the auction should be put on notice that there is a high likelihood that a party is claiming to be a creditor for the sole purpose of being able to bid on the house without ever paying for it. If the auctioneer (trustee, clerk or whatever) accepts such a bid without performing any due diligence, they could be subject to liability.

The argument that the homeowner is subject to double liability is valid and true but the Judges are not giving it any traction. They are not seeing that happen often enough to make it a real issue in their minds.

Yet Another Mortgage Scam: Homeowners Not Getting Cancelled Notes After Foreclosures, Hit by Later Claims

As we’ve discussed the “where’s the note?” problem of mortgage securitizations, some readers who are old enough to have sold a home more than once have said that while they’d gotten a cancelled mortgage note back on their first sale, on a more recent one, they hadn’t. They were concerned, and as this post will show, they are right to be.

By way of background, the popular press has done the public a disservice by talking about “mortgages”. A “mortgage” consists of two instruments: a promissory note, which is a IOU, and a lien against the property, which is referred to as a mortgage (in non-judicial foreclosure states, they are typically called a deed of trust and confer somewhat different rights, but we’ll put that aside for purposes of this discussion).

What appears to be happening on all too often in Florida is that when borrowers signed warranty deeds in lieu of foreclosure when they can no longer keep these homes, they often get only a satisfaction of mortgage, not a cancelled note. This is not what is supposed to happen. When a borrower deeds his property to the bank, the objective of the exercise is to cancel the debt. If the note has not been extinguished, it is referred to as a “zombie note”. As the Fort Myers News-Press reported last year:

Carol Kaplan, a spokeswoman for the Washington-based American Bankers Association, said leaving the note off the satisfaction of mortgage is “not a practice we’ve ever heard of.”

Turns out that’s a bit disingenuous. The article quoted Jack Williams, resident scholar at the American Bankruptcy Institute and a bankruptcy professor at Georgia State University:

“We saw something very similar to this in the debacle in the ’80s, people buying notes from the government and suing,” Williams said. “I won’t rule out that could happen again. They sold the note to collection agencies and law firms and places like that.”

In the real estate meltdown of the ’80s, he said, it was the Resolution Trust Corp., set up by the federal government to liquidate mortgage loans and other real estate assets held by failed savings and loan associations.

“Let me tell you, people made millions of dollars suing homeowners back in the day,” Williams said.

Some of the debt was in the form of deficiency notes: court judgments saying a certain amount was owed even after the property was sold at public auction.

But in other cases, Williams said, it was the note, straight up.

Even though the lawyers who’ve taken note of this practice are in Florida, the ground zero fo the foreclosure crisis, it is important to stress that anything that is happening in one state on a meaningful basis in securitized mortgages is very likely to be happening elsewhere. The securitizations were set up to be widely dispersed geographically and the servicers have set up their procedures to be as standardized as possible even with the differences in real estate law across states. If borrowers aren’t getting notes back in Florida, it’s quite probable that that is occurring in other states.

Xiomara Cruz, a Coral Springs attorney who has taken an interest in this topic, sent a warning to fellow lawyers:

I have seen in dozens if not hundreds of foreclosure suits allegedly “settled” for properties in Florida, MOST only include language satisfying the mortgage BUT DO NOT INCLUDE SPECIFIC CANCELLATION/SATISFACTION of the promissory Note. So that in essence your client just got a Release of Mortgage and nothing else.

I hate these tactics being used against consumers, the recording system and the judiciary. It is wrong. Regular people are being conned. Judges are being conned. Even many lawyers are being conned. The words “mortgage loan” and “mortgage” are being used by Fannie, Freddie, all Servicers, Banks as if they were interchangeable with ‘debt’ and ‘NOTE’ when the foreclosure mills walk into court or settle for their ‘clients’. Yet, when you ask the mills or the banks, servicers, Fannie, Freddie to put their money where their mouth is, all of a sudden its “we only made an agreement to settle the foreclosure suit, we dismissed with prejudice, we filed a satisfaction of mortgage, we can’t back to sue you” That is serious BOLOGNA and I don’t mean the capital city of Emilia-Romagna!

The very inherent INTENT of every borrower entering into a settlement is to cancel the debt, otherwise what good is to settle to give back the collateral willingly? Filing the satisfaction of mortgage only helps the banks, servicers, and Fannie/Freddie obtain clear title so they can sell it and make more money after already getting fat with interest for years, servicing fees, selling ‘beneficial rights’ to receive monthly payments, but not selling the actual underlying note. This situation gets horribly worse because if the note is left outstanding, it can be used upon by anyone else who obtains that note in the flow of commerce. A suit on the note is left open.

And she reports in a later message to me that servicers and even judges don’t take well to being pushed on this issue:

When this happened to my client, he immediately raised the flag requesting specific performance in the underlying foreclosure suit. However, the bank voluntarily dismissed the foreclosure action with prejudice while the motion for specific performance was pending hearing (which had already been set) and the judge ceded to the bank’s voluntary dismissal. He then hired me specifically after a year of calling everyone from members of congress to the OCC to the AG to obtain the cancelled note back because no one would give it him back to him marked cancelled. The bank and Fannie stated through their attorneys, over and over in every instance before our suit, that they never promised him anything else but a dismissal of the foreclosure suit and a satisfaction of mortgage, and he got a dismissal with prejudice. Long story short, its still there, the circuit judge dismissed all counts of the unfair consumer practices, unfair debt collection practices, with prejudice and although he really wanted to couldn’t dismiss with prejudice the breach of contract, specific performance counts but dismissed them without prejudice and with leave to amend “because he didn’t like some of the WHEREFORE clauses”.

This story borders of Kafkaesque. Yet Cruz is not being unreasonable. 25 years ago, an attorney who did not demand the cancelled note in satisfaction of a mortgage would have been considered grossly negligent. And the risk is not theoretical. Professor Williams described how people were defrauded in the wake of the S&L crisis when notes that should have been cancelled got into the wrong hands. April Charney had just seen a case on a 2008 foreclosure where the ex parte order returned the original note to the plaintiff/servicer. The hapless borrower is now being sued by the private mortgage insurer. PMI was typically used to insure the LTV over 80% on high LTV loans. In in the subprime market, lenders bought mortgage insurance on loans and paid the premiums themselves (via the trust) rather than have the premiums paid by the borrower, as is the more traditional structure.


53 Responses

  1. Valuable commentary , I Appreciate the insight – Does someone know where I would be able to locate a template NY DTF ST-124 form to fill out ?

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  2. I brought my home in1990, I refinanced my home in 2004 and I’m not sure if the doc”s I signed created a new Note from the orginal note I signed in 1990. I’m confused about what is the orginal note. The one created that I signed when I refin or the note I signed when I brought the house in 1990. Please clear this up for me.

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  3. There was no valid mortgage note for subprime. Not reflected on banks books as a mortgage loan, but rather reflected as collection rights to already (falsely) classified charged-off default debt. Cannot produce a valid mortgage note to an invalid mortgage loan.

    If you think the government is not aware of the “bank” fraud at origination of a false mortgage/loan, you are wrong. They are aware. And, also aware that prior loan was not paid off by the subprime refinance in question. That is the securities investigation that will pursue, because neither was the PRIOR loan securities trust paid off (by prepayment), when the subprime refinance in question was “originated.” All that was transferred by the subprime refinance was servicing rights to already classified default debt. And, yes, if MERS loan, MERS concealed.

    All we have before courts is fraudulent debt collection with a capital D. Debt collectors have always been able to con courts — they are good at it.

    kwddost – is correct. quote — “OMG…..you still don’t get it.”

    Or do you, and have some interest in not accepting what really happened??

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  4. iwantmynpv & kwddost,
    I appreciate both of your posts very much, and you guys have the experience we need to form a solid foundation for a concrete plan of attack for homeowners. Could you both please email me at Jay.Mace@SaveAmericaHomes.com? Thanks so much!

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  5. @ Chris
    I very much agree with your comment yesterday at 6:29 a.m. I have found through the painful experience of two lost lawsuits against my servicers and banks that one can have great theory about what was illegitimate in the securitization process but not get traction in court. Somehow the commendable work of kwddost and iwantmynpv has to be translated to some simple, incontrovertible breach of UCC or, not as good, state law. There is tremendous bias in favor of the
    banks and The System.

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  6. Oh and as far as Mr.Garfield and getting the whole truth out–, he’s still stuck like a pit bull on the idea that “investors funded loans..” Really sad.

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  7. @kwddost

    When I re-recorded our Grant Deed to change our (my and my husband’s) names to all caps—I wrote underneath our names “…as joint owners..” instead of joint “tenants”, which is what they usually say…

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  8. Feel like a broken record….and nobody is listening or hearing what it is that is being said…..I hope some were enlightened by what was posted.. it is time to move onto other pastures……if you all want to keep going on about a note that ……good luck…me, I want to end this shit one day, wanting nothing more than to expose the truth behind the Grand Illusion…..Mr. Garfield has not responded or said boo…

    is what is described below real property describe anything about real property or for that matter anything in the courts….

    [0087] The invention coordinates and manages the mortgage closing process, facilitates digital signing of electronic documents, packages the electronic documents and automatically registers the signed electronic documents electronically with the Mortgage Electronic Registration System. The invention comprises processes, computer systems and software for performing the paperless closing process. The invention may work in concert with a pre-existing eVault or other registration systems and governmental agencies for electronic recordation. Although the disclosed example relates specifically to residential mortgage loan relationships, it will be apparent to those of skill in the art that the invention is applicable to other transactions and contract situations, including other types of loans for other types of purchases, settlement negotiations, and other agreements, particularly those benefiting from a sequential signature process.

    [0088] One preferred embodiment of this invention uses automation in allowing the Software Application to control the majority of the process and preferably control the entire process. With this embodiment of the process, the system or a person sets up or configures the entire process in advance to make the process idiot-proof. For example, prior to a closing session, all electronic documents are pre-loaded in the software. The order of electronic documents is predetermined in the configuration before any party goes to a closing table. Once the process is configured in advance, the entire process is automated, to minimize errors, to prevent omitted electronic documents, to generate ONLY A COMPLETE ELECTRONIC DOCUMENT SET. Quality control can be assured by using the process of this embodiment. Quality control assures that 1) Electronic documents are signed in specified order; 2) Each electronic document is signed by all appropriate parties with appropriate signature; 3) All electronic documents are signed; 4) A notary observes the entire closing; and 5) Backdating and other such nonsense is prevented. Additionally, all electronic documents to be signed are included in a list on the screen. As the process progresses, the location of the electronic document presently in process of being signed is highlighted or otherwise displayed different from the other electronic documents in the list on the screen so that it is always known with what electronic document in the process you are at. All electronic documents that have been signed can be viewed throughout the continuation of the signing process.

    BTW, the reason that residential property is able to go through the 1031’s is because it is not private property, it is a lease….thats right, we do not even own it, we lease our property …….another small item the banksters, the government, Congress, etc etc. lied to us about …

    Keep chasing shadows and ghosts built on lies and deceit or pursue the truth…..

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  9. @ To Tell the Truth

    Are there any endorsements on your note.

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  10. What they don’t know is that I have records on my home from the time I purchased it in the 80+s and that is way before hurricane Andrew…and records of every debt I ever had with credit cards and utility bills etc…keep good records of your affairs everyone especially your home….

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  11. Well!!! Surprise surprise! I just wrote several comments about the unreturned notes recently after a curious incident of someone drove in front of my home of over 20+ years and unobtrusively started to take pictures of the from of my property from the inside of his truck!!!

    I happened to be glancing outside my window , I did not hear him arrive and I went outside to stop him and investigate and he said it was BOA that wanted the info and gave me a card for his boss to better explain to me so I sent him away and called his boss of one of those companies now common since the fraudclosures to assist banks to get people out of their homes etc…and she said BOA wanted to know if the property was occupied or unoccupied!!! I have absolutely no dealings with BOA except for a small personal account,..I got to thinking and seeking answers from the Lord and He told me that I should be very careful and told me outright that there are banks that never returned the notes to original buyers that either refinanced or paid off their loans like I have done a couple times and only received satisfaction of mortgage letter and the last one was a year after the closing. Then I remembered that one of the first satisfaction letter was from Nations bank/now BOA (probably the servicer as I am learning more on these issues) and then it hit me hard…they probably have that note they never sent and oh the tons of money these banks have been making off these cancelled loans…the fraud is so much bigger and broader than we can even imagine!!! How else would BOA want to know if this address is vacant or occupied??? GO figure…I thank the Lord for Word of Knowledge…now you are simply confirming this just like my Bible says that God will confirm His word among tow or 3 witnesses…

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  12. See UCC and presentment.

    UCC 3-502
    UCC 3-501(B)(2)(a)
    UCC 3-310(b)

    Except a bunch of Deed of Trusts have a statement that waves the right to presentment.

    CA Homeowners Bill of Rights needs to reinstate the right to presentment.

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  13. Ian

    right; to avoid paying the gain on the profit it is rolled into the next property; but others here were discussing it yesterday and specifically talked about MERS and the 1031 so I wasn’t following, just curious. thanks.

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  14. kathryn- I didn’t see any of Neil’s posts mentioning 1031 exchanges, which is what they are called. And the properties don’t have to be foreclosed. I was just responding to your query in general.
    I have a property for sale, mixed use residential/commercial. If I make some money on the sale, if and when that is, I either have to pay taxes on the profit, or reinvest in another property. The 1031 exchanges, I believe, were set up so that investors nationwide would be able to buy a percentage interest in a property, and it would be managed by some third party. So they would avoid having to pay taxes on their previous sale.
    I believe that alot of these purchases by the organizers were leveraged, possibly securitized, with a trustee, same as the mbs/rmbs debacle we are all discussing here. So, fraud could possibly be even more rampant, as the investor might be 3000 miles from the property in which they own a share. All they would get is a monthly statement, some papers, same as an investor in mortgage-backed securities.

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  15. Very interesting. Who would you request the note from? The creditor is never disclosed? The servicer does a substitution of trustee? Do you request it from The substitution trustee, the servicer, or the person who bought the property at auction?

    Maybe all 3?

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  16. Ian

    so the references made here to 1031’s would be on those properties that were already foreclosed upon and purchased by investors using the 1031 process. That makes sense. Yes…lots of room for fraud.

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  17. Neil, you blogged:

    “When you are arguing standing, instead of spending all your time on erudite sounding arguments, simply point out to the Judge that unless the would-be forecloser produces the original note along with proof of ownership, they have no right to bid at the auction unless they want to pay cash. Just point to the provision of the statutes that says so.”

    Presumably you are talking about non-judicial states only? Because, in judicial states, looks to me like plaintiffs routinely reject your “only the creditor can bid” argument and claim that a judgment of foreclosure itself to a naked holder of the note entitles it to so-called “credit bid” at a foreclosure sale, regardless of whether it “owns” the note or meets the Fed’s definition of “creditor.” Can you clarify?

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  18. Kathryn- 1031 ‘exchanges’ are an easy sell by the organizers because individuals who are selling investment properties don’t want to be on the hook for a tax hit if they aren’t able to find a suitable property to purchase. So, in steps the 1031 salesman. A couple of the national firms went under 3 or 4 years ago, I forget what the scheme was, as I recall, they either took the money and ran, or they didn’t purchase suitable properties, or were getting kickbacks from the owners or listing agents of the properties. In any case, this area, too, was ripe for fraud.

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  19. I did a 1031 on an investment property about 12 years ago. Unless the tax rules have changed; a 1031 can’t be used for an owner occupied dwelling; it has to be for rent it also has to be “like kind” property and the exchange has to be at a higher value. These were just some of the rules and I am trying to understand how it could be used by the banks?

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  20. Exactly, E.Tolle.

    A perfect example is CA AG Kamala Harris’ “Bill Of Rights”:

    “…Require creditors to provide documentary evidence of ownership,the chain of title to real property, and the right to foreclose, at the time of filing of a Notice Of Default.”
    “…Authorize borrowers to challenge the unlawful commencement of a foreclosure process in court.”

    These things were never given to me—even after I demanded them from the foreclosure mill and the servicer and the trustee…whatever you demand of them they know they can make up lies, lies and more lies…and steal homes in the millions—BECAUSE NO ONE IS STOPPING THEM—HOW LONG DOES THIS BS HAVE TO GO ON???

    Just words…no action…no help…no moratorium…

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  21. We had a first and second loan with the original lender. No! we never gave this entity permission to debit our account. Also, no assignment was every recorded by this enitiy in the county clerk office. This lender became our servicer a few months later. As I stated no assignments have every been recorded in this lender name.

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  22. Bart, while I do wholeheartedly agree with every single bit of contract law you’re preaching here, the fact is still like carie said, the judges would rather roll their grandmothers off a cliff than give a “free house” to a borrower. So yes, while you can argue these points and you definitely should, few here have the resources to appeal it up the chain, and the opposition knows that.

    Attrition is the game they’re playing. And they’re skilled, and doing quite well at it. Again, ask carie. And I could offer an entire list of names of those who used to post here who have been introduced to the curb, and btw were well versed in how to defeat them.

    A civilized society would offer legal support when a system is so fucked. Prove the law or move on. This is a case of us or them, and they are backed against the armory and the mint. They will do anything to keep a grasp on the power buttons. Ask Corzine about the legal system in D.C. Oh I forget, he’s at his house in the Mediterranean.

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  23. Chas404, that’s shaping up to be my game plan, just not IDL. I want to see them squirm in court. My mortgage is fatally flawed, and so the next logical step would be for the bank to have to prove up the note. We know they’re creating those at their pleasure. I have Questioned Document Examiner. The only thing is…..I want more than just a ruling on the matter, if and when proven. I want someone in the stockade. Give me the head of Jamie Dimon, oh, and cancel the debt while you’re at it.

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  24. Dee, you have clouds all over the place, you say two checks to the same enity, one they cashed one not cashed but auto debited from you by another entity? How did this entity get your permission to debt the acct? Did you do an aut pay? Sounds like you have a split loan, did you have a First and second with the same lender to start? This sounds illegal, did the other entity that took money auto pay transfer you to someone else or just go out of business? None the less, this change to the other entity should have been recorded and told to you by a notice. If you never gave any one permission to debt your bank acct and this happened, this is fraud and could be a federal offense,

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  25. Makes me wonder if we should get our lawyer to offer DIL and just require the cancelled original note as part of the deal.

    Don’t flame me for saying DIL I just find it an interesting tactic because it is more effective than begging for show me the note.

    If you are being sued for foreclosure and you offer DIL as part of a settlement it seems to be a completely reasonable, simple offer to mitigate losses.

    If they can’t produce the original at that point maybe a judge will wake up and we can go after counterclaims, discovery etc.

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  26. Bart- Option One didn’t declare bankruptcy. Press releases at the time stated that they had sold their mortgage servicing portfolio to Wilbur Ross’s American Home Mortgage Servicing Inc.
    Quote: from the Calif. Corporations Commissioner ‘Order Revoking Residential Mortgage Lender And Mortgage Loan Servicer License’;
    ‘On Aug 14, 2008, Option One’s surety bond expired and no replacement bond was ever obtained. On Aug 15, 2008 the commissioner again notified Option One in writing that it had failed to file its Audit Report, and had ten days to do so. Option One failed to do so. Option One was required to pay an administrative penalty in the amount of $1000.00 and failed to do so. Option One was again notified that its failure to file its Audit Report would result in revocation of its license. Option One did not file its Audit Report and did not pay the administrative penalty. (too much to write, skip to end)
    ……Mortgage lender and mortgage loan servicer license is hereby revoked. Dated: Sept. 23, 2009.
    A new entity, Sand Canyon Corporation, was set up, with the purported purpose of dealing with liability claims from Option One.
    Dale Sugimoto, pres. of Sand Canyon, sometimes called Sandy Canyon, has said in sworn testimony, that Sand Canyon “owns no loans, makes no loans, and collects no payments”.
    Hope this helps.

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  27. @ Bart

    What if you have a situation where you mailed your first payments to your original lender. Both checks were made payable to your original lender. One check was never deposit however, a ACH transaction from another company for the exact the amount was debited from our account. The second check was cashing by the original lender. The original lender filed bankruptcy a few months after we closed.

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  28. I have a comment about the IRS rules and regulations…they have been breaking those rules left and right.

    The trusts are a great example of how they abide by the rules. NOT!

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  29. Okay, so we at the 1031…unless there is a complete investigation (which I predict will not happen anytime soon), we are back to the beginning. Who owns the note? How was it transferred and where’s the money? Has anyone been paid to create the contract?

    1031’s do work for real property transfers…if they are done properly. This information is not easy to get.

    At the end of the day, the trusts matter, the 1031’s and such…but in court, you need a sophisticated judge, of which there are not many. So, we all end up in the same spot. You have to prove “consideration” was not transferred. The judges still think, if you don’t pay your mortgage, you lose!

    My point; you have to get past that or nothing will change. Understanding the logistics is fine, but facts need to be presented and I’ll bet there are accounting ledgers and documents to prove the notes were not paid at the onset and many of us were in default at or before closing, where this is the smoking gun!

    My $.02

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  30. Option one declared bankruptcy, I do not believe it was renamed, I believe it shut it’s doors. If you were caught up in the game of pay your first payment to another entity as I described below, that is I believe contract law. You need legal tender to bind the contract. This puts the mortgage and the note out to pasture from the start. This does not apply to all but to a huge portion of the mess out there yes it does.

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  31. @kwddost ,

    In my case I haven’t seen any MERS involvement ,, perhaps an in-house equivalent at WF… That doesn’t explain why Sand Canyon (the renamed Option One) stated they own nothing .. notes / mortgages etc. in an affidavit … nothing to back the “claims contract” … should the ceo (Dave Sugi****) be called back for a new deposition?

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  32. Carrie, yes I lived the hell since 2003, but this is all about your titles, this senerio was played out with a huge portion of the pretender notes and mortgages out there. There was never a true binding security interest attached to these property’s. This may fall under contract law, ask your attys to challenge that.

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  33. @neidemeyer….They never sold the note to collectors……the collectors purchased a contract to go after the claim.,…..The claim, I refer is actually what you and I were made to believe was a mortgage……

    Magically, through the wonderful world of financial engineering, the claims contract suddenly becomes a mortgage….it is not our debt to pay…….

    damn there has to be a simpler way to explain this…There are so many things going on behind the door of MERS (the members of MERS) but all (we) see is the illusion of mortgage process that isn’t….

    diagrams…we need diagrams……I be back

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  34. @enraged…..you got it!!! take MERS out of the equation and robo-signers show up on the scene. Not to cover up sloppy assignments, but to cover up the automation, behind which there never was an assignment process…..It is business model (privatized)..

    It is why I keep trying to say to look past the real property issues, put it on the shelf because to them, their business model, real property is just the illusion they sell to me and you, the courts…..the public…..but it is structured entirely different….

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  35. for a great primer on 1031 exchanges that shows the structuring refer to the following link…..pay special attention to the.tear away LLC’s …..The EAT is the role that MERS occupies…..

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292415&

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  36. Slow moving investigations but… investigations nevertheless…

    http://afr.com/p/home/jpmorgan_may_face_sec_action_on_APiou3HQHq7URXH0krIEUN

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  37. Abandonment (Destruction) of Lender loan orgigination Files Approved by Bankruptcy Court Here is the proof!

    Nationwide Title Clearing was holding loan origination files for Alliance Bancorp. In their BK proceeding buried as docket item #616 Judge gives OK to destroy these LOAN ORIGINATION FILES.

    Last I checked on S&P rating, the Alliance Bancorp Trust 2007OA1 had a default rate of 52% out of 777 loans. This is red flag that something was not right in Denmark as it relates to the underwriting of the loans- and now all of the evidence is gone.

    Lesson is for everyone to know where there loan is in a trust and if your lender went BK…like almost all of them have- look very carefully at each and every docket entry- you may come across something like this in your own situation.

    Fight on
    srosenberg@alumni.usc.edu

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  38. Bart, if this were a just world it WOULD be “end of story”…but, the world at this point in time is the exact opposite of just.
    We are in hell.

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  39. kwddost, i understand what you are saying and i thank you for that !!!!!

    i guess thats why the fuckers also changed the bankruptcy laws….

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  40. In regards to mers and the transfer of notes and or mortgages i believe both are invalid from the beginning if payment to the named pretender lender was never consummated, this invalidates the mortgage and the note if you were instructed not to make your first payment to the one named on the documents and no assignment was ever recorded for this change, this event means there was never a binding contract.end of story.

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  41. Ah look, create legislation of no more dual track foreclosures and more people will create a new contract for the mortgage (called a modification). Anyone ever go the definition of what a modification means?
    Smoke and mirrors, dog and pony.
    The law is the law. A judge who is making a final judgment as a God such that only another God (a superior judge) can overturn their decision has a natural duty to know the ‘law of the land’. Nature knows her laws. A miniature dog cannot stalk and kill a lion, but in their legal land someone with no right can make a claim of a loss of right or a financial injury and make you go to court to defend your right to not be accused of something you didn’t do. A judge will ‘unnaturally’ sit there and choose a so called ‘winner’ of the ‘unnatural claim of a loss’ and cause the life that has a supreme authority and supreme position to leave because by their decision they will write an order for a Sheriff (also a a supreme authority with a supreme position) is the only one on the land that can make you leave what is yours, but the unequal aspect of that is he can trespass, he can take the order to put his hands on you whether you want him to or not, and he can carry a weapon of mass destruction in full view on his hip and bring others with him and can turn your life upside down unless you leave.
    That’s an abomination. Neither the judge nor the attorneys have a right to make anyone leave their property but they have the Sheriff in their pocket and that Sheriff is equal in life, standing, a body with the Spirit of the Creator within him, and he will come to the habitat of another Creator within and force them to leave for a judge who doesn’t want the property, and a lawyer who doesn’t want the property, but for someone who created the layers in the game who doesn’t want the property and who had no loss of right nor injury but they saw value in getting some to steal it and some others to sell it and now their hands are clean and they get the proceeds rolled up to them…and then they file some paper with the IRS that they were the creditor when they were not and the IRS employees try to force you under financial coercion and extortion to accept that assignment and be responsible for those consequences.
    Oh what a tangled web we weave when we use it to deceive.

    Trespass Unwanted, corporeal, life, allodial, a Free and Independent State, a People, Sovereign, In Jure Proprio, Jure Divino

    Like

  42. @iwantmynpv….love the name btw…….I have been at this since in and around June 2008, after we received our default notice…for whatever reason I saw something that others were not seeing and followed that path….a couple of years ago I tried mentioning these issues and was promptly told I was nuts….Back than it was still pretty much theory…..within the past several months though…..the theory went out of the room……it is fact….The problem is its complexities and peoples mindsets…..I don’t intend that insultingly…..more in the sense of peoples rationale and perceptions……which is perfectly correct under ordinary circumstances…

    These are not ordinary circumstances…..Nancy Drew and I can detail this down to the knats ass…..because it is so damned involved, doing so in manner that is understandable is another story…..working on it though……This is one of things also that you have to see before you because it is that involved……

    I understand why the AG’s made the deal they did, I don’t believe they have a clue how deep this actually goes…but I am sure they have the understanding that should all told truths be known…..it wouldn’t be good……We have been, pardon my French, fucked so so bad. Not just the borrowers but everybody…..lies, deceit ……and the Fed Reserve…..

    But it needs to come out….

    When the Financial Crisis Inquiry Commission was enacted to look into the subprime mess, I was on the phone with them the first day…..I forgot who its chair was offhand, but I recall him saying that they were going to get to the very bottom of it all….they were not going to go into the ratings agencies or anything that was already beat to death and as I say covered over, but to to the heart of it…

    I bothered the shit out those people for months and one day got a call from a Tucker Carlson, the commission Public relations and press contact. He arranged an phone conference with an investigator……

    I thought cool, I can finally squak off about the automation and felt as I was doing a good thing…..Anyhow, the day came for the phone conference, a few days prior sending him some diagrams I had done to illustrate the connections and to make it easier to follow…..We connected and I went on for about an hour or so, every now and than being asked a question..

    Wrapping up, I expected to go to the next level, so to speak but instead was shocked by the response given. I was told that they had reviewed my diagrams and heard what I had to say, but they saw automation as having nothing to do with anything…….

    Out of the 12 members on the board, I believe……the vast majority had professional backgrounds in technology, programming and automated security……

    I KNOW…..IT HAS EVERYTHING TO DO WITH AUTOMATION AND I CAN PROVE IT…..AND NANCY DREW CAN ILLUSTRATE IT IN THE TRANSACTIONS….

    Like

  43. @kwddost,

    Which, then, explains perfectly well WHY no one has gone after the existence of Mers. Remove MERS and the whole thing irremediably collapses!

    Here is the problem for that system: it is completely virtual. Virtual money, virtual documents, virtual reality… but it made one very big error: there is no such thing as a “virtual” society. We’re not avatars but real human beings, with real needs that have to be satisfied. Need to eat, need for lodging, need to procreate, need to be left alone and allowed to live in peace. Right now, our “virtual” government is protecting “virtual” banks.

    It can all be taken down. Get involved and join.

    http://www.the99declaration.org

    Like

  44. @KWDDOST ,

    Outstanding info … http://www.1031exchangemadesimple.com/

    *******************************
    The 1031 exchange rule also lays down a guideline for the proceeds of the sale. The proceeds from the sale must go through the hands of a “qualified intermediary” (QI) and not through your hands or the hands of one of your agents or else all the proceeds will become taxable. The entire cash or monetary proceeds from the original sale has to be reinvested towards acquiring the new real estate property. Any cash proceeds retained from the sale are taxable.
    *******************************

    Can the IRS exchange forms/info be FOIA’ed … has anyone asked MERS if they are a Qualified Intermediary? Has MERS ever been referred to as an “agent” by a “bank”?

    @IWANTMYNPV ,

    I hear you loud and clear on the notes never leaving the agent bank… homeowners are in the situation Neil describes (notes not cancelled when sold/satisfied etc. etc.) I would like some comments regarding a blatant abuse … Option One Mortgage … they held the notes (as everyone here agrees) , and all the usual gyrations were gone through to create fractional certificates and such… then the notes were sold off to Wylbur Ross a debt collector (very much like the S&L crisis examples listed above). and his bogus servicing company AHMSI is foreclosing using various intermediary names …

    How did he buy Option Ones notes if Option One didn’t have them to sell?

    Like

  45. Kwddost, interesting albeit infuriating to put it mildly. So you’ve figured out how they kidnapped the victim, where the body was hidden, and where they stashed the gun. How does that info get into the hands of anyone or any organization that can do anything about it?

    The obvious fact here is that all of the suits in D.C. and Washington would appear to be in on this, right? How else could this have been assembled? Is everyone complicit?

    It has to be blown up.

    Like

  46. My $.02 here;

    I have ample paperwork and files to suggest that many of our loans were defaulted from the minute the ink dried on our so called “mortgages” or even before the paperwork was sent to the closing attorney.

    Having said that, I will go back to the insurance defaults I have been harping on for months. If the mortgages were deliberately put in default, to collect insurance, then we have NO mortgage, as we signed in blank, all of our Uniform Mortgage applications, so the information can be changed to suit any scenario.

    Then many of the originators “borrowed”, yes BORROWED money on our behalf to fund the loan. This means that it is impossible to lien the property, as we are not the party who borrowed the money, from a third party, that was undisclosed and agreed to.

    Then come the servicers…if we have no loan, no perfected lien, then we have no servicer that has the right to foreclose or service anything. Do they know? I am not sure yet. They do know about the false assignment, but whether or not the loan is valid….anyone’s guess. The PSA requires them to pay the mortgage when it is in default, so it makes sense (not legal) why they would try and foreclose without proper authority.

    Then there is the trust…Hmmmmm, not so many of them existed, just on paper. Many of the trusts that are out there now, were created, long after the requirement to do so. CYA!

    Then we have the “reselling” of the supposed mortgages to various entities, many of them unsuspecting investors like you and I.

    The list is long and dubious, but I think I am on the right track and put this out here for some of you to ponder. Maybe I am out in left field, but every piece of paper I find, brings me right back to the money trail and what makes sense…very doable!

    Like

  47. Okk….Business model…..this is a well organized and established electronic business model…..Each member, say we say, plays a particular role based on what they bring to the table…..The business model is made up of rules, each one designed to flow flawlessly to another business rule….If say for instance they run up against regulatory or credit risk items, they simply design and electronic workaround…it is that simple…..It may or may not be legal, that is not for me to say…Garfield can say, if he would step away from the real property issue aspect and step to where me and Nancy Drew are standing….

    The goals of the business model are to generate wealth for its member parties and clients at the global level….It has been in the planning for years and years, becoming a reality thanks to the United Congress and the various legislative acts passed in the last couple years of the 1990’s and into the first couple of the 21st century….namely Gramm-Leach-Bliley but more importantly the Uniform Electronic Transactions Act and E-sign….Most importantly though the UCC Rev 9 in 2000 or 2001, I forget the year off hand….Rev 9 is crucial not just for what it covers but for that which was omitted although still a part…..patents, trademarks, copyrights.
    In 2003 there were major revisions to the ISDA International Securities Derivatives Act that put the final pieces in place by which the business paradigm which had already been fully automated and consolidated, took its final step……This final step has to do with credit facilities and default…..finding mucho mucho profit in leading a person down the road to default…some they would take right away, others would be extended more credit until they defaulted……

    Additionally, schemes were financially engineered to use the borrower and the attachment to the collateral in all sorts of schemes….You have to understand the mortgage as we see it, in the real world is not that at all once it passed through the door of MERS….it is just and index thats all….it is electronic tag that is bet on against whatever scheme that particular index is running……

    They also devised a means by which a 30 year obligation could be paid off in 5 years with the addition of an annuity…..The annuity is paid for in the pumped appraisal pricing, which is than discounted and sold the difference paying for the annuity……That is the 5 year bond that we, technically speaking own…..It is our money, except it was set up for the banksters to steal from us……

    Think of it this way….they pay off a 30 year obligation in 5 years….in 5 years they figure a borrower is going to refinance, pay off loan or default….no matter by which means if after 5 years they have a remaining interest that is the annuity to split, sell, etc etc…..if it is a default they can run the same scam again…and again …and again….

    but remember the loan trusts are set for 30 years…..it does not care who the person is that occupies that slot, but in order to fill that spot they first have to be able to sell the house off…..

    If everything was above boards and borrowers knew that they were being sold a debt defaultable security, they would not fare so well…Borrowers would never go for this, the truth being up front….Number one reason for MERS to so secretive….to obfuscate the truth……Number two reason is to be able to provide good title to the next person who picks up the defaulted home….

    Which all goes back to the basis of the business model…..The one rule that it can not possibly satisfy …..’provide good title’…..This is where the technology comes in to play by which they simply state they provide good title if MERS is affixed to the face for the life of loan…….

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  48. @kwddost, I see you have done your homework. Most people I try to explain this too have no idea, an when they think they get it, they still cannot believe it is possible. The mistake everyone makes is including the (agent bank) correspondent, fetch bank as an actual party to the transaction. We always called them glorified mortgage brokers. It should have been disclosed at the table that they were operating as an agent for a reserve system bank, who through their wizardry creates fractional leverage out of thin air to fund the loan.

    The money is provided as a warehouse line to the agent bank by the N.A. The loan already has a destination (pool / trust) and the correspondent bank has a underwriting and funding agreement that pays them a multiple of 102-113 at the peak to make sure they hit their numbers. The MBS side was already sucking in unknowing investors to buy the debt rights to the cash flow created and were issued certificates.

    When the loan was commenced, the guy sitting across the table was not the originator, and merely acted as an agent so he could make his mark-up. The originating banks sat in the background and would sell the loans to the pool bank, who sold to the donor / seller bank. The notes never left the SPV and the mortgages never left the agent bank. Everything was tied to the shelf registration filed by the investment bank, and than the money was recycled to start all over again.

    Let’s not forget residual interest, PMI strips at the Trust side and the swaps and synthetic swaps on the reserve system bank side. The interest rate swaps are why nobody gets modified, and principal reduction will not occur in most cases because they would ahve to collapse the pool and they do not have sufficient reserves at the N.A.s to take these assets back onto the balance sheet.

    Gold down almost 100 today, which basically means the FRC is not going to move in the MBS market and will start shedding its balance sheet. get ready for the next round of vultures (private equity).

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  49. […] Read More: Why the Original Note (and Ownership) Continues to Be Critically Important […]

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  50. Yep. And assignments too. Just ask LaMar Gunn and Nikole Shelton!

    http://mortgagemovies.blogspot.com/2012/02/kingcast-mortgage-movies-celebrate.html
    http://mortgagemovies.blogspot.com/2011/10/senator-kelly-ayotte-stumbles-over.html

    WEDNESDAY, FEBRUARY 29, 2012

    KingCast & Mortgage Movies celebrate LaMar Gunn’s Complaint getting robo-signer notary Nikole Shelton decommissioned for life.

    The only problem is she probably earned enough money working with these dirtbag lawyers to buy her home and pay off a BMW and a 35-foot Sea Ray. Well she can laugh all the way to the bank, whatever I just want Justice for Lamar Gunn dammit. The entire packet is below the fold, short video posting by 5:30p EST. Search LaMar Gunn on Mortgage Movies journal to read more.

    PS: Immediately beneath the fold see the Salem Registry of Deeds Affidavit we were able to procure from John O’Brien in Massachusetts. It just goes to show (and as seen in the movie) that unlike Kelly Ayotte, some people in public office are not bought and sold by the banksters.

    Like

  51. Attorney General introduces “Homeowners Bill of Rights”

    News Release
    February 29, 2012
    For Immediate Release
    (415) 703-5837 Social Networks

    Print Version

    Attorney General Kamala D. Harris Joins Legislative Leaders to Unveil California Homeowner Bill of Rights
    SACRAMENTO – Attorney General Kamala D. Harris today announced the California Homeowner Bill of Rights designed to protect homeowners from unfair practices by banks and mortgage companies and to help consumers and communities cope with the state’s urgent mortgage and foreclosure crisis.

    Joined by Senate President pro Tem Darrell Steinberg and Assembly Speaker John A. Pérez, Attorney General Harris announced her sponsorship of six bills designed to guarantee:
    – Basic standards of fairness in the mortgage process, including an end to dual-track foreclosures
    – Transparency in the mortgage process, including a single point of contact for homeowners
    – Community tools to prevent blight after banks foreclose upon homes
    – Tenant protections after foreclosures
    – Enhanced law enforcement to defend homeowner rights – paid for by fees imposed on banks
    – A special grand jury to investigate financial and foreclosure crime

    “California communities and families are being devastated by the mortgage and foreclosure crisis. We must ensure the deceptive practices that caused it never happen again,” said Attorney General Harris. “The California Homeowner Bill of Rights will provide basic fairness and transparency for homeowners, and improve the mortgage process for everyone.”

    The legislation builds on the California commitment announced by Attorney General Harris earlier this month, which is expected to result in $18 billion of benefits for California homeowners. That agreement included reforms for mortgages owned by the five banks that were signing parties. The California Homeowner Bill of Rights will strengthen those protections, make them permanent, and apply them to all mortgages in the state.

    “When I secured the California commitment, I made clear it was only one of many steps I am taking to comprehensively address the mortgage and foreclosure crisis,” Attorney General Harris continued. “I want to thank Senate President pro Tem Steinberg, Assembly Speaker Pérez and all the other lawmakers who are supporting this urgent package of legislation for homeowners.”

    “I want to congratulate the Attorney General on the victory she won on behalf of the people of California,” said Speaker John A. Pérez. “Our state has suffered greatly as the result of bad actors in the banking and financial industries, and this settlement holds them accountable as we continue the difficult work of recovering the housing market and stemming the tide of foreclosures, evictions and auctions.”

    “Millions of Californians have already lost their homes to foreclosure and the mortgage crisis is far from over,” said Senate President pro Tem Darrell Steinberg. “This landmark settlement negotiated by Attorney General Harris helps thousands of Californians but thousands more need the same help. We need to put these protections into law so that more people can save their homes.”

    CALIFORNIA HOMEOWNER BILL OF RIGHTS LEGISLATIVE PACKAGE

    If passed, the following bills would:

    ASSEMBLY BILL 1602 / SENATE BILL 1470- THE FORECLOSURE REDUCTION ACT OF 2012

    Authors: Assemblymen Mike Eng and Mike Feuer; Senators Mark Leno, Fran Pavley, and Senate President pro Tem Darrell Steinberg
    -Require creditors to provide documentation to a borrower that establishes the creditor’s right to foreclose on real property prior to recording a notice of default.
    -Require creditors to provide documentary evidence of ownership, the chain of title to real property, and the right to foreclose, at the time of the filing of a notice of default.
    -Prohibit creditors from recording a notice of default when a timely-filed application for a loan modification or other loss mitigation measure is pending.
    -Prohibit creditors from recording a notice of sale when a timely-filed application for a loan modification or other loss mitigation measure is pending.
    -Prohibit creditors from recording a notice of sale while a borrower is in compliance with the terms of a trial loan modification or after another loss mitigation measure has been approved.
    -Require creditors to disclose why an application for a loan modification or other loss mitigation measure has been denied.
    -Require that notices of foreclosure sales be personally served, including notices of foreclosure sale postponement.
    -Provide homeowners with a private right of action in instances in which the requirements set forth in the legislation are not followed

    ASSEMBLY BILL 2425 / SENATE BILL 1471 – DUE PROCESS REFORM LEGISLATION

    Authors: Assemblywoman Holly Mitchell; Senators Mark DeSaulnier and Fran Pavley
    -Require creditors to provide a single point of contact to borrowers in the foreclosure process who will be responsible for providing accurate account and other information related to the foreclosure process and loss mitigation efforts.
    -Require creditors to provide a dedicated electronic mail address, facsimile number and mailing address for borrowers to submit information requested as part of a loan modification, short sale or other loss mitigation option.
    -Authorize borrowers to challenge the unlawful commencement of a foreclosure process in court.
    -Impose a $10,000 civil penalty on the recordation or filing of “robosigned” documents, defined as documents that contain information that was not verified for accuracy by the person or persons signing or swearing to the accuracy of the document or statement.
    -Require that certain documents be recorded in a county recorder’s office.

    ASSEMBLY BILL 2314 / SENATE BILL 1472 – BLIGHT PREVENTION LEGISLATION

    Authors: Assemblywoman Wilmer Carter; Senator Fran Pavley
    -Prevent blight enforcement actions from being taken against new purchasers of blighted property for 60 days, provided that repairs are being made to the property.
    -Require banks that release liens on foreclosed property to inform local code enforcement agencies of the release so that demolition of blighted property can proceed.
    -Increase fines against owners of blighted property from $1,000 per day to $5,000 per day, and allow the imposition of the costs of a receivership over blighted property to be imposed directly against the owner of blighted property.

    ASSEMBLY BILL 2610/ SENATE BILL 1473 – TENANT PROTECTION LEGISLATION

    Authors: Assemblywoman Nancy Skinner; Senator Loni Hancock
    -Require purchasers of foreclosed homes to honor the terms of existing leases and give tenants at least 90 days notice before commencing eviction proceedings.

    ASSEMBLY BILL 1950 – ENHANCEMENT OF ATTORNEY GENERAL ENFORCEMENT

    Author: Assemblyman Mike Davis
    -Impose a new $25 fee to be paid by servicers upon the recording of a notice of default. The fee would be deposited into a real estate fraud prosecution trust fund that would support the Attorney General’s efforts to deter, investigate and prosecute real estate fraud crimes, including the work of the Mortgage Fraud Strike Force.
    -Extend the statute of limitations from one year to four years from the date of discovery for violations of law commonly occurring in connection with foreclosure-related scams, including acting as a real-estate agent without a license and charging up-front fees for loan modification services.

    SENATE BILL 1474 / ASSEMBLY BILL 1763 – ATTORNEY GENERAL SPECIAL GRAND JURY

    Authors: Assemblyman Mike Davis; Senator Loni Hancock
    -Authorize the Attorney General to impanel a special grand jury for the purposes of investigating and indicting multi-jurisdictional financial crimes against the state.

    Like

  52. OMG…..you still don’t get it…….it is an electronic business model, based on rules…as is rules based and case based reasoning. It is an organized syndicate made up of all the members of MERS, whose stock structuring is as follows:

    The ownership interests of MERS are represented by three classes of Common Stock. The Class A Common Stock may be held only by the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Corporation and the Mortgage Bankers Association of America. The Class B Common Stock may be held only by those organizations in the mortgage industry that fund, acquire, lend on the security of, or service mortgage loans that are secured by real property or that guaranty or issue mortgage-backed securities. The Class C Common Stock may be held (a) only by those persons
    or organizations that are primarily engaged in providing services to the mortgage industry, including, without limitation, mortgage insurance, title insurance, and other mortgage origination services, other than as part of their funding, acquiring, lending or servicing activities; (b) trade associations or similar groups that represent such natural persons and organizations; or (c) those natural persons or entities that the MERS board of directors might approve from time to time.

    The original note is always ends up back with the loan originator in one manner or another……the obligation is split into at least two promissory notes and a plethora of mortgage servicing rights. The contracts, that is the riders are the prizes to be won in the future markets, that is the exchanges or another name for it the “clearinghouse”…..Don’t get confused with DTC as being the one. it is for the corporate equity securities of the loan trust senior tiers but the means by which loans are brought into the system, and I use the term loan very loosely, comes is funneled through 1031 exchanges…..

    MERS is an EAT (Exchange Accommodating Titleholder) sandwiched between a title company on one side: First American, Chicago Title, it does not matter who because they are all one in the same linked together through automated processes. On the other side coming in is a Wells Fargo and Loan Servicers…

    It is simpler to diagram it out as it gets very complicated in telling it with words….See Nancy Drewe….Perhaps a diagram put alongside what she writes will get it all to make sense to you all…..

    In simple terms everything goes through the 1031 exchange….it is how MERS can claim it is the legal title holder…….after this I will post a 1031 exchange rules ….once it comes through the so-called mortgage loan, which is not really mortgage loan to begin with splits into the basket of securities which it was already crafted to do before a borrower sat down at the closing room table….The deal sealed with a conditional purchase order cashiers check that becomes active the moment the borrower signs on the dotted line…..

    What the borrower is signing though is a claim that the unknown third party has on the mortgage servicing rights, that is to say the collections on a mortgage that you and I have been made partners to….Upon default the unknown third party is the receipent of the insured proceeds and we get stuck with the debt…..

    they get the asset and we get the debt……

    as foreclosure takes place it travels back through the 1031 exchange and is either auctioned through a process of bid -ask pricing….It does not get auctioned off in one bid…..it is a process because this is how the 1031’s operate…..Why, because it has to do with IRS rules and regulations….

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