Identity Theft By the Banks: A New Cause of Action?

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The inevitable conclusion, in my opinion, is that where the investment banks have set up a structure where the real lender is deprived of the evidence (i.e., the promissory note) of the loan (which they didn’t want) and the borrower is deprived of information and good faith in a table funded loan with multiple layers of conduits, is that the identity of both the investors and the borrowers is being systematically stolen, misused and causing losses and financial damage to both sets of victims. That is precisely what TILA and Reg Z are aiming at when they describe such loans as “predatory per se.” Isn’t that unclean hands per se?
The usual charges of identity theft are against individuals who poach identities and then use it get credit, cash or goods and services using the name and credit reputation of the victim. The penalties in civil and criminal law are pretty severe. But when you look at the “securitization” farce or “securitization fail” as Adam Levitin puts it, you can see that the banks are the perpetrators and the investors and borrowers are victims.
The banks used the identities of the borrowers to trade, profit, get credit, insurance proceeds, loss sharing payments, and proceeds from guarantees and hedge products all to the the eventual detriment of the debtors and real creditors. If the transactions were above board, the borrower would know the identity of the lender. The borrower would have a choice as to whether to do business with that lender. The borrower would also have an opportunity to see how many layers of fees were actually involved in all the conduits that were being used without permission from either the investors who put up the money and without permission, consent or knowledge by the alleged borrower.
There is plenty of good law to use that covers this and it might get traction now that the courts are wondering if any of this crap is real. From the start, the identity of the borrower was stolen or converted to the use of parties who had no actual privity with the borrower or rights to claim anything in the alleged loan transaction. By not making the actual loan and then engaging in a pattern of behavior in which the “loan” was said to be represented on the note and mortgage, then selling that paper, insuring it, getting guarantees on it etc, they were using the paper in ways that were never contemplated by the borrower who had no notice because this was a table funded loan (predatory per se) to begin with. Because that revenue was obtained without permission of either the borrower or the investor, it might well be that the borrower is entitled to bring a claim for those “profits”.
The identity of the real source of funds was withheld by using several layers of conduits. But the money, indisputably, came from the investors who bought bonds in an IPO offering from a REMIC Trust. What the investors didn’t know (and probably still don’t know) is that their money was diverted from the REMIC trust directly to closing tables around the country. As the creditor the investors were entitled to be named as payee on the note — but more importantly, they were entitled to not have their money used for that loan. The money from investors were obtained under false pretenses. If the money had been deposited into an account of the “Trustee” for teh REMIC Trust, the investment banks could not have creaed the alleged “proprietary trading profits” that theya re claiming now and which accounts for them declaring dividends even while they pay billions in fines and penalties for their misbehavior.

So the identity theft allegation is one of the core causes of action that ought to be looked at carefully. If successful it busts open the paper cocoon that the banks are hiding within. The paper is not worth the ink on it because it is all based upon stolen money, stolen identity, and forged, fabricated documents being hidden by a pattern of conduct in creating loans that had to fail and wrongful foreclosures, without notice to the investors, that multiple possible settlements and modifications might have mitigated the loss or eliminated it entirely. Taken as a whole, it is highly likely that the percentage of wrongful foreclosures over the past 7 years is around 94%. Out of more than 6 million foreclosures (and another 5-6 million to come) only 360,000 (estimated) would be valid.

This theft of household wealth has resulted in an economy that is and will continue to be struggling for equilibrium until the housing and mortgage issue is addressed in accordance with the true facts and existing applicable law. But judges first must dispel any bias about deadbeat borrowers trying to get out of a legitimate loan or debt. There is no legitimate loan and as to the people who are seeking to enforce the debt, there is no debt. The owners of the debt don’t know they own it because they are still laboring under the misapprehension that the money and the loans were funneled through the REMIC Trust. it wasn’t.

The government has been complicit in this scheme, afraid that if they cut the big banks off at the knees that the primary credit markets will collapse. That can be ameliorated using the existing infrastructure,but perhaps modifying the roles of the Federal Reserve and other agencies that are quasi public and quasi private. Any other approach means that we are transferring regulatory power over the banks, finance and the economy in general to the banks who caused the problem in the first place.

19 Responses

  1. Thanx for the vote to appeal I def planned on it, just that finding a decent lawyer in L.A. to do this type case is so hard.I have put a great deal of time into the whole thing but wouldnt have the confidence to do it myself.It is crazy what Wells Fargo gets away with they have no issue creating the documents they need at any time even if they are conflicting to the same documents that you have or they sent you at an earlier time.No problem lying in response to the CFPB,OCC or any regulatory,The part of my case still pending is with my loan broker that I prob did at the least 10 loans with over a few years and for sure without their help none of this would have been possible.Escrow and title I believe played a pretty solid part in it also,for me when I sent a QWR to WF and got the HUD-1 they claim that they paid my 2nd with Chase but I paid it 2 months prior to my refi and have the cancelled checks and statement with a zero balance,so according to their own math they shorted me 130k,and even though they had no documents to back that up,it didnt matter.Point is without the escrow co going along,could’nt have pulled it off.

  2. How can Wells Fargo and their Attorney’s get away with this?

    I am writing this letter to Virginia Bar Association as well as the Maryland Attorney Grievance Committee. First of all I know that this was an illegal foreclosure and do not agree with either of your assessments. Please examine all of the singed Attorney documents, and filed court documents and foreclosure documents. You will see that these documents are all dated back in February time frame, then take a look at the DOT that was posted to Baltimore County Public Records on April 3, 2014. How can you transfer ownership of a loan after the fact. Additionally, view the same DOT. It states that that the document was recorded back in 2005, but iI am writing this letter to Virginia Bar Association as well as the Maryland Attorney Grievance Committee. First of all I know that this was an illegal foreclosure and do not agree with either of your assessments. Please examine all of the singed Attorney documents, and filed court documents and foreclosure documents. You will see that these documents are all dated back in February time frame, then take a look at the DOT that was posted to Baltimore County Public Records on April 3, 2014. How can you transfer ownership of a loan after the fact. Additionally, view the same DOT. It states that that the document was recorded back in 2005, but it was clearly recorded in county records on April 3. How can this be justified in the law community. I can be reached at 443 677 2799, jsmith5915@msn.com. I would like my case looked at again bases on the fraudulent procedures used to foreclose on my home.

  3. And further: doesn’t relate to you, but White, in the same action just had a “reversal” from Appellate Court in Delaware, for his claim, based on the notice. Going to the Third Circuit as we speak…good news in a sense.

    Just my opinion here, but every step is a path to success, as many of these claims have been reexamined by local courts. Baby steps, but none the less, steps…all tied to originators behavior. Without the behavior of the originators, we would not be in this situation, right? It all ties.

  4. Ian

    Please read the case the Libor went south, but the Article III stood firm! Deutsche appealed the ruling and LOST! I am in the same proceedings with her….there are 5 Plaintiffs left in Delaware, then the state complaints.

  5. Poppy- I think that Helen Gallope’s main thrust was the manipulation of LIBOR at the same time she received her loan. I mean, no one manipulates the FRB rates……do they? Just kiddi g, it’s pretty transparent. But the reason all subprime and Alt-A loans WERE pegged to LIBOR was BECAUSE it could be manipulated.

  6. @ Deadly Clear ,

    I remember a funny datasheet in my closing about opting in/out regarding personal identifying data… sounds like it is a red flag that the title/closing attorney should have alerted me to regarding the implications of the “flow mortgage and sales agreement” … I clearly was not making a contract with the party I thought I was.

    @ Charles Reed ,

    We are still deeply underwater in my area ,, prices are still 45-50% below 2006/7 highs … when I have the cash I will be hunting for a WAMU short sale or foreclosure in progress (in one of the $million$ dollar neighborhoods) and buy the litigation rights … time to have some fun!

  7. @david charles: By all means appeal it. We homeowners do better in appellate courts. You have 30 days to file the notice of appeal.

  8. Appeal, David.

  9. My november 2005 refi broker originated,interest only,6% reffi with Wells Fargo but when I asked to renegotiate the terms they told they could not as the then defunked thornburg mortgage owned it,yet in their BK filings disputed Wells claims,listing them as unsecured creditors.From searching online I have the Reconstituted Pooling agreement and in it it list the insurance for the pool of loans and even bankruptcy procedures and and mod procedures and when they will come out of mod or bankcruptcy and when then to start the foreclosure again as they know that they are above the law and they will get their way.It also has the amount for the transfer from thornburg/Wells to B of A as sale price of 1.00 Dollar.That is one dollar like the boys up in their penthouse club wagering with our lives for one dollar.Anyone wanting to see these or have them your welcome to them,my case against Wells Fargo was just dismissed in their favor in Santa Monica by the judge Lisa Hart Cole who was in 2009 accused of running a real estate sham with the head of the Bar here in LA,and I had so much great evidence but my lawyer is in the game with these corrupt judges.So now I am deciding if I should appeal.The westside of LA real estate industry is sooooooo corrupt but I wont go on but the things Ive learned would blow even your minds.

  10. We must remember that at no time does a homeowner ever agree to be in a securities. The Securities agreement is a post home mortgage loan financial arrangement between a bank and the investors only, and does not obligate the homeowners! I don’t see how its legal to provide social security information to the securities!

  11. I wrote to my Congressional delegation earlier this month as I have zero sympathy for the whinning of Jamie Dimon to DC to help the banks that have been hacked. Software programs like the 1003 loan application dump the data into an accessible data storage cloud. I complained that the privacy “opt out” / “opt in” was too late – should be before the applications are completed and signed – not after the horse has left the barn. Borrowers should not have to “opt out” every year with a notification that they want privacy. It should be standard upfront and if you want your data shared you can “opt in.”

    I realized this when we found the “Flow Mortgage and Sale Agreements” which substantiate that the loan procurement scheme was simultaneous with the application process and required that the “person” social security number be included in the securitization package. As long as the borrower had not opted out for privacy purposes, apparently all those in line thereafter had a right to the same information as the originator.

  12. Reblogged this on Deadly Clear and commented:
    The scheme was patented. This was “seamless automation” and a simultaneous loan procurement to securities exchange scheme. See also: http://deadlyclear.wordpress.com/2012/04/18/behind-the-securitization-curtain-21st-century-mortgage-casino/

  13. Galope v. Duetsche National Bank, 03/27/2014

    12-56892; 9th Circuit non-precedential Article III

  14. This all doesnt matter until we solve the alleged Conflict of Interest (both economic and maybe even being threatened by the banksters) problem we have with our Public Officials.

    sort of like the era prior to world war 2 in Nazi Germany with the brown shirts.

    NEVER AGAIN

  15. Neil needs to at first pinpoint his attack instead of this wide assuming table funding that there been no evident offered up that the money came from other than the bank.

    Once again let understand that banks receive monies all the time to make loans as they don’t have enough money on hand to support making them. Once you lean $500 million you don’t have any more monies to lend, so they borrow money to lend from investors.

    A mortgage is a 30yr commitment that ties that money for 30yrs. Unless you got the financial records of the bank to present to a judge as to were monies came from and that the money could not have been used for the purpose on making home mortgage loans.

    Why I keep harping on Ginnie Mae because unlike the other two in Fannie & Freddie, we know that the blank Notes are relinquish to Ginnie who admits they don’t purchase the loans. It check and mate from that point as the originator in a WaMu is dead!

    Your working with at least $264 billion to recover in 2009-2010 government insured loans! 800,000 foreclosed FHA, VA & USDA loans!

  16. Having a choice to do business with these thugs, with proper disclosure, is under an Article III if my information is correct. 9th Circuit ruled recently on this, Galope ruling.

  17. Its the FEEs Boss! Its the FEEs! Its the FEEs!

  18. Creditor and Debtor ? Can You Say Idenity Theft?

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