Why Opposition to “Business Records” Exception to hearsay is No Gimmick

For further information please call 954-495-9867 or 520-405-1688

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See http://www.natlawreview.com/article/five-years-later-palisades-still-causing-trouble-lenders

The biggest problem I have with Judges, Lawyers and even borrowers is that they have failed to do the required research and analysis of the mortgage market and securitization schemes that have dominated our landscape since 1996. As a result they apply presumptions to which the foreclosing party is not entitled and they arrive at preconceived notion of facts and law that are wrong.

Nothing could have been more stark than the thousands of orders, judgments and appellate opinions that were tersely overruled by a unanimous U.S. Supreme Court. And there is an admonishment from the Scalia opinion (and recently the Florida Supreme Court) if you read between the lines. It says that you can’t legislate from the bench or change the rules in your local courtroom that effectively overrules Federal Law or which make the foregone conclusion inevitable in violation of due process and the rule making authority of the actual entities who have that power.

In other words just because “everyone is doing it” neither makes it right nor institutionalizes it; but most courts are still treating case precedent that was overturned and in violation of Federal law as though the Court has discretion. It doesn’t. Attaching the note to a complaint doesn’t make the note enforceable even if it technically gives the pleader “standing” until proven otherwise.

And when a homeowner denies the loan, denies the ownership and denies the balance, and denies the note and denies the mortgage, the Judge should allow for the simple inescapable fact that the issue is in dispute and that presumptions don’t decide the case — facts decide the case. I think many lawyers have not been aggressive enough in pushing these points.

And I think the reason is that deep down inside they believe their client is liable for “the debt” (even thought the lawyer has made no inquiry into the actual nature of the debt) and then they take a giant leap of faith that looks for gimmicks and loopholes rather than showing plainly that the foreclosing party has no ownership, doesn’t know the balance, has no idea if there is a default from the perspective of the actual creditors, and lacks both the authorization and the knowledge to pursue foreclosure.

I have spoken with many lawyers and many judges. It all comes down to the fact that if there wasn’t a real default, we wouldn’t be in court. That assumption is wrong. We are in court because the Banks figured out a way to eat their cake and still have it. The Banks were intermediaries selling IPO shares in REMIC entities — so the banks neither owned the securities nor did they own the loans. And the real “lenders” got screwed. The banks intentionally did the loan paperwork such that it appeared as though the banks owned or controlled the loans and the mortgage backed securities. That is an illusion — one which is perpetuated by the insistence of Judges on relying on presumptions that lead to erroneous conclusions of law and fact.

So the end result is that the Banks claim losses on loans they never owned nor had any financial stake in. They are strangers to the transaction and they are not being required to prove the loan or acquisition of the loan by proof of purchase (which if it existed would end 90% of the litigation over these fake mortgages and fake mortgage foreclosures). If you look at the books of the investors whose money was used to fund the loans through improper means, you can see why all of them are suing — they loaned money to a REMIC Trust through a broker dealer on the premise that it would go through a REMIC trust, get the tax benefits, and the REMIC trust would originate or acquire the loans.

None of that actually happened and so the investors are stuck with a receivable that is neither enforceable by the note nor secured by the collateral; the simple reason for this is that the true disclosures were not made at the time of the closing, placing the banks in the position of controlling the information flow to both the investors who had signed off on their ability to get any information and to the borrowers who could only speculate what was wrong with the recorded encumbrance that was unenforceable but still slandering their title.

So they come into court with a witness who has never been employed in the processing of the loan at hand and who is “trained” to represent things he or she in actuality knows nothing about — providing a layer of deniability to the lawyers and the banks. The witness says he is “familiar” with the record keeping of the entity he is employed by but neglects to mention that entity has done no servicing of the loan at any time or has no controls in place to kick back those loans where there are obvious discrepancies. Add the fact that the servicing entity represented by the witness has a long list of failures, fraud and settlements with provisions for future conduct that they continue to ignore, and only a fool would give them credibility on presumptions of fact and law based upon suspect paperwork  much of it backdated, robo-signed, forged etc.

So is it wrong to say that the banks are not entitled to the benefit of the presumptions in light of the obvious history of forgery, perjury and other flagrant violations? NO! And does it prejudice the bank in ANY way to require them to prove the facts that they want presumed? NO! If they have the proof then let them produce it. But in 8 years of following thousands of cases I have never seen a bank come forward and say ok, here is the proof of the loan and here is the proof we purchased it. And here is the proof of our authority to represent the party who purchased it.

Instead they want presumptions upon presumptions using untrustworthy hearsay documents to escape the most elements of proof. And the same banks who reject that argument, use that as policy when granting approval of loans — they presume nothing. They want backup and proof of everything including where you got the money from for the down payment. In a level playing field, what is good for the goose is good for the gander. That is all you should demand and you should do it aggressively. The question that should be asked of the Judge is “Do you really think it is better to come to the wrong conclusion based upon presumptions arising out of suspect paperwork proffered by known violators of disclosure, testimony and who have stone walled even the agreements they made in “settlements” with Attorneys general, government agencies and the Department of Justice.

Allowing the bank to continue to get away with this nonsense is causing massive damage to our economy and to the individual lives of the people affected. Not only is the Court coming to erroneous factual and legal conclusions, if is acting in continuing and furthering the fraudulent schemes of Wall Street banks. And that, my friends, is no gimmick. You should only owe money to the party who advanced it to you or on your behalf out of THEIR funds. And if the paperwork was screwed up so the banks could trade on should have been the property of the investors, that is not a problem for the borrower. There is no encumbrance and there is no note that is actually enforceable. Creating a new creditor based upon a second debt arising from one transaction out of thin air is not a solution to the mortgage crisis — it is part of the problem.

 

42 Responses

  1. @Michael Keane
    @John Gault
    …all

    FHFA v. Nomura DOCUMENTS
    Judge Cote SDNY Trial March 2015

    http://www.plainsite.org/dockets/n3emf5yb/new-york-southern-district-court/federal-housing-finance-agency-v-nomura-holding-america-inc-et-al/

    Scroll down 1st p. to “Entries”

  2. JG- sorry for the typos.

  3. Yep.

    Obsolete absurdity. They still don’t win anything.

    Attorneys they refuse to hire don’t write 1/10 of the nonsense in their pleadings but manage to get results, good or bad, and to bring some closure to their clients, through win or defeat. Here, the endless epistolary diarrhea is a road to… a big, bottomless and fruitless nowhere that will go on forever and ever.

    What became of America, in a nutshell…

  4. John Gault-
    I understand that F&F

    JohnGault- I thought that F & F only guaranteed the notes, and bundled them into agency MBS. I do know that as a quasi-governmental outfit, their borrowing costs were lower. But why did they have to borrow if they were only guaranteeing (or insuring?) the notes? Instead of funding the mortgages? I know through the GAO that Fannie had a 55 billion dollar discrepancy in their accounting 12-15 years ago which was never resolved, or explained, or it was swept under the carpet. It is said through the grapevine that the two (F&F) were just an employment agency for minorities. Have you ever spoke w anyone in those offices? Give them a call some time and ask some question s that you know the answers to, and just listen.
    Anyway, their loan policy manual is over 1200 pages! That bespeaks their complete lack of any grounding in reality, if you need 1200 pages to give or guarantee a loan so someone can get a 100k loan for a house, you’re done.
    Great article over on Naked Capitalism by Bill Black- long, but very concise. And not open to interpretation or “opinion” , coming from him.
    MERS? Gotta think on that awhile.

  5. Ian, this is all blowing my mind. I’ve been trying to work on why mers can’t (sell and) assign notes. Now I hear a note is allegedly “assigned” to mers (the other direction). If this has been par for the course, I missed it I guess because it’s about a mortgage, not a dot, and I don’t often cross paths with mortgages. I’ve also only seen that I know of docs where mers is named as the original beneficiary. I know that before they got really brazen, the lender was named the ben and there were assignments later to mers, but can’t remember if I ever saw one to know if it also alleges a (sale and ) assignment of the note to mers. holy cow.

  6. keepon, I couldn’t cut and paste the stuff from your link which leads to my question, but the gist is that F & F PURCHASED billions in securities based on what turned out to be garbage loans. I’m confused. I thought it was F & F who were the issuers of securities and these were marketed thru their prospectuses. Does this mean they also BOUGHT someone else’s securities (which obviously then weren’t backed by loans F & F had bought themselves)? If so, how’d they do that, under what authority? How did agencies which were originally created to themselves be the secondary market (pre-securitization) for lenders become buyers of securities? Even as their m.o. changed to
    securitizing the loans they bought, how were they able to buy (v. issue)
    securities, which is something else entirely? Does anyone know if
    this particular lawsuit is our only clue they did this? Could Nomura
    stand on illegality of contract and claim they didn’t know the agencies
    had no authority to enter those contracts? I can see how that might
    have been a reason for Normura not to have settled with the others.

  7. JG- yep, a mortgage here in PA.
    Trying to find out the day on which the lenders MERS membership expired. Also, there are only 17 numbers in the min # instead of 18. I don’t think this would assign anything. Sort of like buying an item online with a credit card and leaving the last digit off.

  8. Keepon,

    All in part to hide the origination fraud. They got away with it while the borrower was to produce evidence as all the sol statues expired. Gov. modifications acted as the perfect cover up.

  9. Ian: “Even though, bizarrely, the wording in the mortgage/note (sic) …” does hereby assign the mortgage, together with the note, to Mortgage Electronic Registration Systems Inc (MERS)……”
    Are you referring to language in what? A mortgage which wasn’t originally a mers mtg (such that something was being assigned? And you do mean a mtg, not a dot, right?

  10. Remember Lynn Szymoniak’s work.

    http://4closurefraud.org/2012/12/13/mortgage-backed-trusts-using-mortgage-assignments-from-docx-llc-lps/

    MORTGAGE-BACKED TRUSTS USING MORTGAGE ASSIGNMENTS FROM DOCX, LLC (LPS) Posted by 4closureFraud on December 13, 2012

    Which trusts used these phony DocX-prepared mortgage assignments?

    This is a partial list.

    ABFC TRUSTS & TRUSTEES

    ABFC 2004-OPT4 (Wells Fargo Bank)
    ABFC 2005-OPT1 (Wells Fargo Bank)
    ABFC 2005-HE1 (Wells Fargo Bank)…

  11. John Gault- re:MERS-
    It is common knowledge, or should be, that MERS has nothing to do with the note, as per their own admissions in a number of cases. Also, the depositions of R.K. Arnold, and Wm Hultsman. Both CEOS at different times. Even though, bizarrely, the wording in the mortgage/note (sic) …” does hereby assign the mortgage, together with the note, to Mortgage Electronic Registration Systems Inc (MERS)……”
    But they never have any interest in the note to assign- “nemo dat” . One cannot give what one does not have.

  12. I guess that could mean that if the creditor gave me gold, I could return it’s reasonable value. So if that or a car, say, is what is “inpracticable”, I would concentrate on the “inequitable” in returning the face amt of the loan when the collateral, thru no fault of my own, is far below that amount.
    The only reason one may rescind is that the lender violated something, so he should in equity bear the entire brunt. Generally, we get loans because we don’t have the cash. So if we have to pay the face amt of the loan after getting X $ back, even after getting X back, that means that we would have to come up with cash for any portion owed (tender) which we can’t now borrow because the house isn’t worth what it was (purportedly) worth when we got the loan.
    If we have to tender the face amt, some of us must forego our right to rescind because tendering the face amt of the loan is just plain impossible. ‘impossibility of performance’ is a defense to contracts. I think here it should be a defense to tender, which is not pursuant to a contract but a law which calls for tender. Because it’s impossible for those who must get a loan sufficient to handle the full amt of tender, it’s inequitable to impose it on them. So to the extent (caveat) one may rely on the “equitable” recitation in tila, the lender should be made to accept either the reasonable value of the home or the amt the borrower may borrow (as demonstrated by a lender qualification letter?) plus what the lender returned.
    When I was looking at tila, I couldn’t find the “should’ve known” I’d swear I found there before. Doubt it’s been changed if it were in there, so don’t know where I would’ve gotten it (didn’t make it up, tho – case law that was right or wrong?
    At any rate, most people here might want to get off tila rescission
    because of that 3 year sol and start looking at rescission by way of state laws, such as by recoupment, unless we get an answer to the question below and it’s one we like. I don’t know yet if rescission by state law is only available as a defense or counter-claim in recoupment or if it may be an affirmative action (seems to me like it should be able to be an aff action).
    The other day, I cited to an article by an attorney with a large group which on info and belief represents lenders (and never homeowners) which said,

    “While TILA provides for a three-year statute of limitations for affirmative claims for violations of the Rule, there is no statute of limitations when a consumer asserts a violation of the Rule as a matter of defense by recoupment or set off to a non-judicial foreclosure or in any other action to collect the debt.”

    The article was dated Feb of this year. I ran this by an attorney and he said it’s crazy because tila is not available as a matter of defense etc. by recoupment after three years since it’s a federal law which comes with its own mandated time frame (and therefore is not relevant to any state laws which provide longer times for rescission) .
    I was all stoked because banksters posit that non-j f/c is not an “action”
    since it doesn’t involve a court (bah) and this article said recoupment
    IS available to a borrower where non-j is in play. Be nice to have
    some finite answers about this stuff. After considering both the article and the attorney’s comments,
    I think this is the question: Does tila’s 3 year time frame only apply to affirmative claims (to me, here, means borrower brings the action) or does it allow the violations to be asserted as defenses and counter-claims in recoupment? I don’t think tila speaks to recoupment (maybe it does. can’t swear) I think it only speaks to 3 years as an affirmative claim, and because (IF) it doesn’t prohibit rescission in recoupment after 3 years, it’s allowable.
    Well, there’s a second question: If it’s allowable against judicial
    foreclosure, how could it be that it wouldn’t also be available against
    non-judicial foreclosure? (that would be highly discriminatory)

    Neil Garfield, maybe you will address this.

  13. “U.S. Code § 1635 – Right of rescission as to certain transactions

    b) Return of money or property following rescission
    When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it.

    Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor,

    **except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its REASONABLE VALUE.**

    Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.” (which is why the
    U.S. SC ruled as it did imo)

    **What does that mean? This is in reference to returning”any property in kind (huh?) the creditor has delivered to the obligor” (as part of the transaction).
    I would say it means the borrower may tender the reasonable value of
    the real property (yahoo and ha ha), but that isn’t something the creditor delivered to the borrower, so what the heck? Could this possibly apply to the moolah in a cash-out refi? That doesn’t make sense nor does cash fit the description of something that would be
    “impracticable or inequitable” to return. (That description fits returning one’s home, whether that’s the intent or not of this stmt). “Property” s to means any property, personal and real. In any deal to which tila applies, I can’t think of any other personal property (besides cash) a lender delivers to a consumer. Well, a car (tila applies to car loans, I believe) IF the lender is also the seller. I guess a car fits this description, but then is that to say if one sold me a ford, I can return a chevy? A chevy’s ‘in kind’ because it’s also a car. Anyone?
    Be sweet if this actually meant one could tender the reasonable value of the home.

  14. NG, you said: “You should only owe money to the party who advanced it to you or on your behalf out of THEIR funds.”
    I’m not a big fan of the proposition a loan is void because (if) the named payee isn’t the lender. I also question whether it would matter to a hdc (but we’re definitely on the same page fwiw about me about now current if not earlier absurd presumptions). Neidermeyer asserts they sold the derivatives before there were any assets to have deriv’s on and that this is a bozo-no no (makes sense but not my thang). My mission lately has been claims and defenses in recoupment, so I posted some of (all?) Nevada’s which were easy to find. As you know, there has to be some nexus between the act complained of and some detriment to the borrower in order for the borrower to assert the act as a claim or defense (this doesn’t contemplate “standing” issues).

    “(3) Fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms;” (this is from NV’s recoupment statute)

    “reasonable opportunity to learn of its character” – what does this mean? Fwiw, I’m going to refrain from any speculation and ask you to
    explain it to us. Don’t know if you read our comments – hope so. I’m looking for nexus between things you and others
    report, like what I said above, and something in the law to call it and what it violates, like what you say about the note payee not being the lender. Neidermeyer’s allegation, if proven (how the heck we gonna do that?), means there was no money deposited into the trusts to buy loans, right? If there were no money to buy loans, they could only acquire the loans with an irrevocable promise to pay, which far as i know is off the grid for these trusts. Notwithstanding “void” by way of NY trust law, that might not mean more than that the trust-claimant is not a hdc and is subject to all aff defenses. None of them are hdc’s imo, but because of those presumptions, we’re stuck with the job of bringing that salient fact forward such that it can’t be ignored by a court (and I’ve suggested the request (demand?) for a more definitive stmt as to the basis of the claim, which, as I’ve said is for breach of contract (emphasis), the goal of which is to get past a stinking rule 12 mtn and get discovery). But as to the no money to buy loans, surely even these courts have some idea of how sec’n is supposed to work by now. When done properly, the trust uses all the investors’ money to buy loans by the cut-off date. If they don’t use it all, whatever they don’t use is ear-marked for a specific purpose. The no-dough is an argument distinct from the ‘trust can’t take a late loan’ argument and imo it isn’t
    one in left field because these assgts are purported as current events.
    The assignment should be called “sale and assignment” imo because that’s what the words describe. Mers is purporting to sell the note and dot for consideration (“10 dollars and other good and valuable consideration”).** I see no reason to hesitate making that assertion since that’s what the damm thing says, and if anyone has another opinion, I’d sure like to hear it.
    ** I already gave my best shot about why else a trustee may not
    accept a late transfer. fwiw.
    *for those who don’t know, the consideration as expressed in these
    documents is standard, i.e., the 10 dollars and other good and valuable consideration. There’s no legal compulsion to disclose the actual amt in a publicly recorded doc, though these days, I think there should be.
    But instead of some laws being changed to protect us, they’re getting changed to assist fraudsters. The other day I came across some change which 86’s personal knowledge in declarations in favor of
    reliance on business records by the declarant, sorry to report.

  15. The world is moving fast past MERS, securitization, foreclosure and what not, just as I predicted 5 years ago.

    Washington is going to start playing by the rule, by hook or by crook. And I wouldn’t be surprised is the Fed were suddenly audited as a condition to belonging with the rest of the world… Serves this belligerent and warmongering country well!

    http://www.zerohedge.com/news/2015-03-22/washington-blinks-will-seek-partnership-china-led-development-bank

    “Don’t look now, but Washington just blinked. As we’ve documented exhaustively over the past week, pressure has been building steadily for the US to strike some manner of conciliatory tone towards China with regard to the Asian Infrastructure Investment Bank, a China-led institution aimed at rivaling the US/Japan-backed ADB. Britain’s decision to join China in its new endeavor has prompted a number of Western nations to throw their support behind the bank ahead of the March 31 deadline for membership application. Because the AIIB effectively represents the beginning of the end for US hegemony, the White House has demeaned the effort from its inception questioning the ability of non-G-7 nations to create an institution that can be trusted to operation in accordance with the proper “standards.” Now, with 35 nations set to join as founders, it appears Washington may be set to concede defeat.”

  16. Looks like there’s a feeding-frenzy on loans in default. From the article below:

    “Industry commentators expect record prices from this auction as Wall Street firms have demonstrated considerable appetite for delinquent loans and have sent prices for such loans surging.

    This is Freddie Mac’s second sale of the soured debt after its first sale in August 2014 of $659 million of bad loans was received extremely well in the market. The August 2014 transaction drew 22 bidders and culminated in a Wall Street investment firm purchasing the loans in a private transaction at a reported price of 77 cents on the dollar. This compares with average nonperforming loan prices of 64.5 cents at the end of 2013 and 49 cents in the beginning of 2013. ”

    77% is being paid for delinquent loans? I’m no expert on this, but I don’t think any alleged credit bid may exceed the amt paid for the loan, and if that’s true, it’s something to watch.

    http://www.consumerfinancialserviceslawmonitor.com/2015/01/freddie-mac-auctioning-410-million-of-delinquent-mortgages-as-market-for-such-mortgages-is-heating-up-and-prices-are-surging/

  17. Did fnma itself guarantee whatever it guarantees at least in part to defeat the seasoning requirement? I mean, either way, what the heck. A quasi-govt agency or whatnot committed tax-payer funds to promote
    private enterprise? The justification is more capital for home loans?
    How long did it take fnma to figure out they could make millions of dollars, get their production bonuses, and damn the rest? Before the ink was dry?
    I’d sure as hell rather pay another discount point or even another point in my interest rate. In fairness, I guess the more capital if true would’ve been a good thing – except that as it turns out, as most likely predictable, it hasn’t been. Christine, way I get it, doesn’t want people to pay taxes. It’d make me happy if everyone in this country refused to sign a “mers mortgage”. Imo all this bs would come to a screeching halt. Mers is either in the act over bk remoteness (legit or not) or the fact they needed a “mers” points to the whole bs-ness of this sec’n ‘business’. If I may, people like Deb Wynn need to take time from their battles to smell the roses. Don’t let them have EVERYthing. Hard, isn’t it, D wynn? A stinking, rotten-to-the-core catch 22 for those who’ve decided to fight the good fight.

  18. i’ve tried without success to put my head around fnma and others’ guarantees in relation to enforcement of loans. What they guarantee is or may be is actually payment on the certificates. If they guaranteed payment on the loans themselves, it would be one thing, and I’ve advanced that that means the loans aren’t in default. But app that’s not the case if they guarantee payment on certificates only (?)
    But how does a party have a double remedy for one event, a borrower’s non-payment, and to boot, they’re quite distinct in their difference. As alleged owners of the loans, the trust bens have the remedy of enforcement. As owners of derivatives, they have the remedy of the guarantee. The mechanics of the guarantee aren’t optional, way I’ve gotten it. In order to end the guarantee, fnma et al must repurchase. There’s no reason anyone can’t have two or more
    remedies for the same problem (but they must choose only one is my understanding of election of remedies). What’s so different here is
    the guarantee, not on the loan per se, but on a derivative of the loan, the certs (if that’s the case).
    What is is they must repurchase exactly? The certs, the loans, what?
    My understanding had been it’s the loans which form the basis for the certs. But that would drag certs with it, would it not? The fact that fnma has at least a few known times appeared as the claimant (tho not imo the gazillion times it should) after a loan was securitized (did I presume it had been? don’t remember but it matters), tells me that they had to
    repurchase the loan, not just the certs.
    I guess my question is how can these two particular remedies co-exist.
    Can a trust abandon the guarantee in favor of the other remedy of
    loan enforcement? This is only about the agencies’ guarantee. I still
    don’t know why, except as maybe a marketing tool, they guaranteed whatever they guaranteed in the first place. When fnma purchases loans from lenders, the lenders make no guarantee. The only thing fnma has is the buy-back provision found in their agreement. Non-performance of these loans isn’t a cause for buy-back, pretty sure. The buy-back is, I think, limited to a finding the loan didn’t qualify to be purchased because it didn’t meet fnma’s loan parameters (from all accounts, they wrongfully abandoned this and let me add my own ‘thanks a lot’). First payment default HAS triggered buy-backs in some contracts all by itself, but I don’t think so in fnma’s (which reminds me, when there’s been a first payment default, what’d they do, pull the loan from the chain? and that reminds me of the seasoning requirement I’ve heard about. If there were a seasoning req, chances are none of the loans allegedly sold to trusts either could have been or should have been (“could have” if a matter of law), for whatever that’d be worth these days. oh, yeah, now I remember. It’s alleged by some that they created their own cure in the form of insurance or swap or w/e the heck (got me) on non-conforming or sub-prime to plug that hole).
    The only other thing I can surmise as to why fnma guaranteed is that they had to for some reason having to do with them being a quasi-gov’t
    agency or like that.
    Anyone have any info that might clarify how these two things co-exist?
    We shouldn’t have to learn any of this stuff.
    MERS HAS TO GO

  19. Also from Chong (and this is in ref to enforcement, not conveyance, of the note:
    “Since MERS provided no evidence that it was the agent or nominee for the current owner of the beneficial interest in the note, it has failed to meet its burden of establishing that it is a real party in interest with standing. Accordingly, the order of the Bankruptcy Court must be affirmed. This holding is limited to the specific facts and procedural posture of the instant case (plus 26 others decided concurrently – referred to as “Mitchell” – sic). Since the Bankruptcy Court denied the Motion without prejudice

    nothing prevents
    Appellant from refilling the Motion in Bankruptcy Court providing

    the evidence it (mers – sic) admits should be readily available in its system.

    The Court makes no finding that MERS would not be able to establish itself as a real party in interest

    had it identified the holder of the note or provided sufficient evidence of the source of its authority.”

    Well, they get around this deal by all kinds of junk, including simply purporting to convey the note as if in its own right. MERS has admitted it gets no communication from the note owner when it allows its
    straw officer at the servicer’s to execute an assgt of the dot in its name. Well, I guess if you ARE the ben, you wouldn’t need it unless a contract you signed with the lender says you do. Aren’t they just the crafty little buggers.

  20. MERS v Lisa Maria Chong (NV DC):

    “The Bankruptcy Court held that MERS lacked standing because it was not a real party in interest as required by the Rules. (Appx. 740-54). Specifically, the court found that…….

    **there is no evidence that the named nominee (mers – sic) is entitled to enforce the note or that MERS is the agent of the note’s holder.” **

    Right. So why is mers purporting to assign notes?
    Those guys need those transfers of the notes, and apparently, they’ll
    try anything they think they can get away with to get them.
    But imo even if mers were the agent of X, it still couldn’t sell or assign X’s note because when that act isn’t done by the principal, it may only be done by an att in fact under a power of attorney. Course, they’ll just make those up. But when challenged, I’m going to hazard the party claiming the status can’t evidence the poa, just like agency – the one who must confirm it is the principal – as a matter of law.

  21. “Some states allow rescission in recoupment beyond the TILA’s three-year extension period. See, Fidler v. Cent. Coop. Bank, 336 B.R. 734 (Bankr. D. Mass. 1998)”. I haven’t read this case, just went looking for some state law.
    About state law allowing rescission in recoupment – it won’t be by way of tila because it’s fed, but by a state statute, which we haven’t explored. Here’s an example of state law impacting recoupment:

    NRS104.3305 – Defenses and claims in recoupment
    Current as of: 2013 | Check for updates | Other versions

    1.  Except as otherwise provided in this section, the right to enforce the obligation of a party to pay an instrument is subject to the following:

    (a) A defense of the obligor based on:

    (1) Infancy of the obligor to the extent it is a defense to a simple contract;

    (2) Duress, lack of legal capacity or illegality of the transaction which, under other law, nullifies the obligation of the obligor;

    (3) Fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms; or

    (4) Discharge of the obligor in insolvency proceedings;

    (b) A defense of the obligor stated in another section of this Article or a defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract; and

    (c) A claim in recoupment of the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.

    2.  The right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in paragraph (a) of subsection 1, but is not subject to defenses of the obligor stated in paragraph (b) of subsection 1 or claims in recoupment stated in paragraph (c) of subsection 1 against a person other than the holder.

    3.  Except as otherwise provided in subsection 4, in an action to enforce the obligation of a party to pay the instrument, the obligor may not assert against the person entitled to enforce the instrument a defense, claim in recoupment or claim to the instrument (NRS 104.3306) of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.

    4.  In an action to enforce the obligation of an accommodation party to pay an instrument, the accommodation party may assert against the person entitled to enforce the instrument any defense or claim in recoupment under subsection 1 that the accommodated party could assert against the person entitled to enforce the instrument, except the defenses of discharge in insolvency proceedings, infancy and lack of legal capacity.

  22. from Steve’s link:
    “From 2002 to 2009, TBW acted as a middleman between investors and lenders such as Home America, borrowing money from banks to buy Federal Housing Administration-insured home loans. The firm then pooled the loans into securities GUARANTEED by the government and sold them to investors.”

  23. http://www.courthousenews.com/2015/03/20/defunct-mortgage-lender-cant-duck-fraud-claims.htm

    “The owner of a now-defunct mortgage lender cannot duck claims that he defrauded the United States of millions of dollars by falsifying loan applications, a federal judge ruled.

    Home America Mortgage,…”

    VERY CLOSE! Change it to ‘American Home Mortgage’ and you got yourself a winner.

    Also know as American Home Mortgage doing business as American Brokers Conduit a/k/a American Home Mortgage Servicing Inc. a/k/a Homeward Residential a/k/a Ocwen

  24. e.tolle – mN law provides a private right of action for pred lending.
    Don’t know the date of enactment (suspect recent ish).
    It also provides that the AG should do stuff:

    http://www.lawserver.com/law/state/minnesota/mn-statutes/minnesota_statutes_8-31

    I got this from mn revised stat 58.18, sub.2.
    The borrower’s right of action imo is likely to be the newer one, since I believe it’s always been the AG’s duty to prosecute.

  25. There are a few reasons which imo preclude the trust from being the current transferee: 1) as a current event, the trust has no funds with which to purchase a loan 2) the loan is in default and therefore isn’t eligible to be purchased 3) the acceptance of a “late loan” destroys the trust, or at least the tax purpose for which it’s created 4) Under NY trust law relevant to these trusts, the trust may not accept loans after the cut-off date (and any act in contravention is void, right?)

    The 1st, 2nd, and 4th may help homeowners. The third will only help if it does destroy the trust, so that there isn’t one any more to make a sale to (got me but I think not because can’t happen because of “void”).
    Now that i think about it, the reason it’s void by trust law is because its acceptance would vitiate thee or an objective of the trust (the tax status). So in that regard, it’s a law which has been made to benefit the investors. It wasn’t made to help homeowners, but the fact that the law exists for a good reason is some support for “void”, imo.
    The first one will require whatever it takes to demonstrate why the trust has no funds to buy the note. The 4th acc to some courts is merely voidable and not void. First of all, assignments of dots require acceptance, just like any other deed. In order for the trust to accept a late assignment, the trustee must 1) accept 2) after the cut-off date, but
    “A principal cannot ratify a contract made by an agent if at the time it was made the principal had no power to make it himself.”

    “Ratification is a principal’s approval of an act of its agent where the agent lacked authority to legally bind the principal.
    The term applies to private contract law, international treaties, and constitutions in federations such as the United States and Canada.

    another definition:
    “Confirmation of an action which was not pre-approved and may not have been authorized, usually by a principal (employer) who adopts the acts of his/her agent (employee) (See: principal, agent)”

    COULD the trustee accept a late sale and assignment of a loan such that the bens could ratify the acceptance?

    “A principal cannot ratify a contract made by an agent if at the time it was made the principal had no power to make it himself. ”

    But consider this, also from Lexus:

    “Illegality of an act will not of itself prevent its ratification.”

    I can’t seem to reconcile these two stmts. Cripes! The bens can’t accept a late assgt so the trustee may not, which means the
    bens may not ratify his act of acceptance. Think that’s it…..???? I

    What the heck makes it so that a principal has ‘no power to make a contract himself” if not illegality (of the objective)? No contract with
    an unlawful objective (I’m gonna sell your reefer for you where it’s not legal) is void (not merely voidable) and unenforceable. The objective of the doc called an assignment being used just now and recorded in public record is to sell and assign (or give the appearance) to another who cannot accept it.

    “A void agreement is void ab initio, i.e., from the beginning while a voidable contract can be voidable by one or all of the parties. A voidable contract is not void ab initio, rather, it becomes void later due to some changes in condition.”
    hmmmmm..”a voidable contract… becomes void LATER by some
    CHANGE in condition”. I give, what’s the change? I don’t see any.
    The cut-off date was well behind the date of the sale and assgt.

    Without the second quote from Lexus, I wouldn’t hesitate to say this (and still may not): Because the trust bens couldn’t accept a late assignment, they can’t ratify the trustee’s act of acceptance. Imo, there’s no one on the receiving end of a late sale and assignment of a loan (in default) who’s capable of accepting (neither the bens or the trustee) a late assgt such that it could be called voidable instead of void. When a court says a late assgt is merely voidable, that implies THAT SOMEONE MAY CHOOSE TO ACCEPT IT and there isn’t anyone (and this is by legislative intent). imo.

  26. transfer:
    (a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.

    (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

    negotiation”
    (a) “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

    (b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”

    As one can see, the words “transfer” and “negotiation” have separate and distinct definitions in the default law UCC.* Under transfer, if I’m the lender, I have to give you the note with the intent of giving you the right to enforce it. Under ‘negotiation’, if you get your hands on my note and it has the infamous endorsement in blank on it, it’s been negotiated.
    If not endorsed, it hasn’t been. If a crook get his hands on a bearer note, he could try to enforce it somehow. The whom he may enforce it against is a question we’ve never looked at and have presumed it’s the maker. He wouldn’t get juris in fed court, tho, because he has no juris-invoking injury. He’s not going to suffer by the notes non-payment because he has no skin in the game.

    The people who wrote the notes we use inserted words which imo
    change these notes from being freely negotiable. I think they meant to, but also imo, it wouldn’t matter.
    “Transfer” says it takes delivery by “a person other than its issuer” (borrower). WHO might that person be (if not the lender)? Could it be the custodian? A bailee? ANYone except the issuer / maker?

    Then it says “for the purpose of giving to the person receiving delivery the right to enforce the instrument”. May a custodian, say, or anyone other than the lender give someone else the note for the purpose of giving that guy the right to enforce (assuming it’s a bearer note)? Maybe he could. I think we need an answer.

    But even if he could and did, not done yet. If the custodian or anyone who may has ‘transferred’ the note (by the UCC definition), meaning he has given it to another for the purpose of enforcing it, the guy who wants to enforce must still meet the second condition in these notes: the transferee must have the right to payments. If he is now entitled to enforce the note, is he entitled to payments? He might be as a matter of fact but he also might not be as a matter of fact. The matter of fact which would make the transferee “entitled to payments” is that he is the real party in interest, the lender-creditor. In other words, (said almost to self because I see this may sound weird), I’m saying one could possibly be entitled to enforce without being entitled to payments, but it’s the latter which these notes identify / restrict as the party who may enforce. They made it a restriction: to enforce, one must have the right to payment, also. I didn’t make it up. I may be misinterpretting (tho obviously I don’t think so), but one thing is for sure: THEY put this language in there, not me.

    * While the note sets forth specific, identifiable terms and conditions, its use of the word “transfer” imo is what makes it necessary to look at the UCC (for its definition). But having done that, and looking at the other terms and conditions in the note, I believe what I’ve said: they’ve eliminated the negotiability of these notes (to the extent it would have existed without the language, i.e., negotiability is an article 3 concept) and the only way they may be moved is by “transfer”. And that, unfortunately, is found or could be found in the current (orchestrated imo) sales and assignments of both the note and dot. There would be no doubt that the sale of the note would result in the buyer / transfee acquiring the right to payment. The biggest stopper imo is that it’s mers who is alleging to be the seller / transferor. I would only use the word “transferee” in that last sentence if the doc didn’t recite consideration.
    The only way MERS could sell and transfer the note is if it’s the attorney in fact for the last note owner. But it would have to prove that it’s an att in fact and mers may not establish that relationship. Actually, as an agent of the last note owner, mers may not transfer the interest in a dot, either. It may also only do that if it’s the att in fact for the last
    ben. But since I think mers IS the bifurcating nominee, they wouldn’t need agency or a poa to move the collateral instrument. Since i want this all in one place, I’ll add that I don’t believe “reunification” of anything is possible when there wasn’t unity in the first place. Also,
    a reminder that ‘security first’ rules**, in states where applicable, likely
    negatively impact the negotiablity of these notes. Well, I guess if it weren’t for that language, these notes could be negotiated, but not
    enforced (because of sec first) without the dot.

    **’security first’ means the first (and sometimes only) action to collect on a note secured by an interest in one’s home must be one against the collateral (generally f/c).

  27. MAYBE CALL THE AG OFFICE AND ASK IF THEY HAVE A COPY. THEY SAY THEY OUR THE PEOPLES LAWYERS???

    The Official Website of the Attorney General of Massachusetts
    Attorney General
    Maura Healey
    Input Search QuerySelect an Area to SearchSearch
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    Home Consumer Resources Consumer Information Home & Housing Foreclosures and Mortgage LendingOption One FAQs
    Option One Settlement FAQs

    In a lawsuit filed in June 2008, the Commonwealth alleged that Option One engaged in predatory and discriminatory lending in Massachusetts. As a result of the recently announced settlement of this litigation, Option One has paid the Commonwealth $9.8 million. The Commonwealth will distribute much of this money to borrowers who were harmed by Option One’s predatory and discriminatory lending. The settlement also provides for loan modification relief valued at $115 million that will help up to 5,500 borrowers stay in their home through reduced monthly payments and extensive principal forgiveness.

    Below are the answers to some Frequently Asked Questions about the Commonwealth’s settlement. If you do not find the answer to your question below, please contact the Attorney General’s Public Inquiry and Assistance Hotline immediately at: 617-727-8400.

    Loan Modifications

    Payments to Consumers

    LOAN MODIFICATIONS

    Do I qualify for a loan modification under the terms of the settlement?

    In order to be considered for a loan modification under the agreement, you must meet the following criteria:

    your loan was originated by Option One between 2004 and 2008;
    your loan is currently serviced by American Home Mortgage Servicing, Inc.
    the property securing your loan is your primary residence;
    you currently occupy the home; and
    you are or become at least 45 days late on your mortgage payment(s) before May 6, 2013 because you cannot afford your mortgage payment
    How will I find out if I qualify for a loan modification?

    Between now and November 6, 2011, AHMSI will be setting up internal procedures to implement loan modifications. During this time, or shortly thereafter, an AHMSI representative will contact you to determine if are eligible for a loan modification.

    When the AHMSI representative contacts you, he or she will ask you to provide information so that AHMSI can determine whether you qualify for a loan modification, and, if so, for which type. It is essential that you cooperate with AHMSI and provide the information AHMSI requests. This is the only way you will qualify for a loan modification under the terms of the settlement.

    If I qualify for a loan modification, what kind of benefit can I expect?

    Generally, if you qualify for a loan modification, your monthly payments will be reduced to between 31% and 36% of your monthly income. If you received what the Commonwealth has concluded was one of the riskiest loans originated by Option One, burdened with a high debt-to-income ratio and a high loan-to-value ratio, you will be eligible for an even greater monthly payment reduction.

    You will also have the outstanding principal balance on your loan reduced. The specifics of how much principal will be forgiven through each loan modification will depend on the characteristics of your loan at the time of origination. If you received one of the riskiest loans originated by Option One, you will be eligible to have the outstanding principal balance on your loan reduced to 100% of the current value of your home.

    Can my home be foreclosed on while American Home Mortgage Servicing, Inc. determines whether I am eligible for a loan modification?

    Between now and November 6, 2011, AHMSI will not proceed with any foreclosures on loans that could potentially be modified under the terms of the settlement, even if a foreclosure was scheduled to occur. If, for some reason, you learn that a foreclosure is still scheduled, you should contact the Attorney General’s Public Inquiry and Assistance Hotline immediately at: 617-727-8400.

    If I am delinquent, will I be charged late fees while American Home Mortgage Servicing, Inc. is determining whether I am eligible for a loan modification?

    If you are eligible for a loan modification under the settlement, or become eligible between now and November 6, 2011, AHMSI will not assess late charges on your account during this time while it determines whether you will receive a loan modification.

    I was working with American Home Mortgage Servicing, Inc. on getting a loan modification. What happens now?

    AHMSI has halted all pending loan modifications. While this may frustrate you if you were in the process of applying for a loan modification, the settlement may allow you to qualify for a far more generous loan modification. Please be aware that AHMSI may ask you to submit up-to-date information concerning your income and your current financial status, even though you may have recently provided such information.

    If, for some reason, AHMSI attempts to place you into a loan modification that was pending prior to August 8, 2011, you should not agree to the modification and you should not sign any paperwork. If AHMSI asks you to complete the pending modification, you should contact the Attorney General’s Public Inquiry and Assistance Hotline at the following number: 617-727-8400.

    I previously received a loan modification from American Home Mortgage Servicing, Inc. Can I get another one now?

    Yes, you can, if you meet the eligibility criteria (see above). The fact that you previously received a loan modification does not restrict your eligibility for a new modification.

    I understand that I may be eligible for a loan modification. With whom will I be working to receive the modification?

    To receive a loan modification, you must work directly with AHMSI. The Commonwealth will be monitoring loan modifications through communications with AHMSI. Only on rare occasions will the Commonwealth intervene in a borrower’s interaction with AHMSI. If you have any questions or concerns about the loan modification process, you can contact the Attorney General’s Public Inquiry and Assistance Hotline at: 617-727-8400.

    How can I contact American Home Mortgage Servicing, Inc. to discuss whether or not I will receive a loan modification?

    If you are eligible for a loan modification, AHMSI will be contacting you in the coming months. Should you wish to contact AHMSI about a loan modification, you can reach AHMSI as follows:

    Phone: 800-340-7248
    Fax: 866-342-6619
    E-mail: MAAGS@ahmsi3.com
    I am having problems with American Home Mortgage Servicing, Inc. Whom can I call?

    If you are dissatisfied with AHMSI during the loan modification process, or if you do not understand the process after discussing it with AHMSI, you should contact the Attorney General’s Public Inquiry and Assistance Hotline at: 617-727-8400.

    I have an Option One loan, but it is not currently serviced by American Home Mortgage Servicing, Inc. Am I eligible for a loan modification?

    No. You are not eligible under the terms of the settlement. You should contact the Attorney General’s Public Inquiry and Assistance Hotline at: 617-727-8400 to discuss your situation. You may be eligible for a payment.

    I had an Option One loan, but was able to refinance out of it and get a mortgage with another lender. Am I still eligible for a loan modification?

    No. You may be eligible for a payment. See Part II for more information about payments.

    I had an Option One loan, but sold my home and paid off the loan. What type of relief am I entitled to?

    You may be eligible for a payment. See Part II for more information about payments.

    PAYMENTS TO CONSUMERS

    I heard that some portion of the money the Commonwealth received as a result of the settlement will be distributed to borrowers who received predatory loans. Will I receive a cash payment?

    Some portion of the $8 million in borrower restitution the Commonwealth received as a result of its settlement with Option One will be directed toward borrowers who:

    have had their Option One loan foreclosed on;
    have refinanced out of their Option One loan; or
    have sold their homes and paid off their Option One loan;
    The Commonwealth has not yet determined the range of the payments that will be made to borrowers or when those payments will be distributed. Should the Commonwealth determine that you are eligible for a payment, the Commonwealth, or a third party administrator hired by the Commonwealth, will contact you.

    If your address has changed since you received an Option One loan, and you believe you may be eligible to receive a payment, please call the Attorney General’s Public Inquiry and Assistance Hotline, at 617-727-8400, and provide the Attorney General with your current contact information, including your home address, telephone number, and e-mail address.

    I heard that I some portion of the money the Commonwealth received as a result of the settlement will be distributed to Black and Latino borrowers who paid more for their Option One loans. Will I received a cash payment?

    Some portion of the $8 million in borrower restitution the Commonwealth received as a result of its settlement with Option One will be directed toward Black and Latino borrowers who suffered discrimination.

    The Commonwealth has not yet determined which borrowers qualify for a payment, the range of the payments that will be made to borrowers, or when those payments will be distributed. Should the Commonwealth determine that you are eligible for a payment, the Commonwealth, or a third party administrator hired by the Commonwealth, will contact you.

    If your address has changed since you received an Option One loan, and you believe you may be eligible to receive a payment, please call the Attorney General’s Public Inquiry and Assistance Hotline, at 617-727-8400, and provide the Attorney General with your current contact information, including your home address, telephone number, and e-mail address.

    I am a minority borrower who received a predatory loan. Do I have to choose which payment I receive? Which will be more money?

    Black and Latino borrowers may be entitled to two different payments. If you are a Black or Latino borrower who received an unfair loan and who was also the victim of discrimination, you may receive a different payment for each harm suffered.

    The Commonwealth has not yet determined which borrowers qualify for a payment, the range of the payments that will be made to borrowers, or when those payments will be distributed. Should the Commonwealth determine that you are eligible for a payment, the Commonwealth, or a third party administrator hired by the Commonwealth, will contact you.

    If your address has changed since you received an Option One loan, and you believe you may be eligible to receive a payment, please call the Attorney General’s Public Inquiry and Assistance Hotline, at 617-727-8400, and provide the Attorney General with your current contact information, including your home address, telephone number, and e-mail address.

    Complementary Content
    © 2015 Commonwealth of Massachusetts.
    Mass.Gov® is a registered service mark of the Commonwealth of Massachusetts.

  28. @ johngault ,

    I have (and have had) the PSA for almost 7 years , what I need is the sale agreement “Purchase and Assumption” between Option One (as frontman for BAC) and AHMSI , for the sale dated 04/30/2008,, where AHMSI bought all of O-One assets including my MBS. At one time I found it but it was incomplete , missing the labeled sections that detailed the assets.

  29. @ david belanger,

    Thank you, you are fierce.

    I have no idea what you have just given me but I intend to find out.

    I am searching for some hendrix to help me muddle through; although I feel I will likely have to go to the Grateful Dead and it will therefore be a long weekend…

    I wonder where I left the hash pipe… ?

  30. EDGAR Search Results
    SEC Home » Search the Next-Generation EDGAR System » Company Search » Current Page
    Companies with names matching “NOMURA ASSET ACCEPTANCE CORP”
    Click on CIK to view company filings
    Items 1 – 25
    CIK Company State/Country

    0000888874 NOMURA ASSET ACCEPTANCE CORP
    SIC: 6189 – ASSET-BACKED SECURITIES
    formerly: CAPCO AMERICA SECURITIZATION CORP (filings through 2001-04-06)
    NOMURA ASSET SECURITIES CORP (filings through 1998-02-18)
    NY
    0001264167 NOMURA ASSET ACCEPTANCE CORP ALT LOAN TRUST SER 2003-A2
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001345745 Nomura Asset Acceptance Corp, Alternative Loan Trust, Series 2005-AR6
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001337561 Nomura Asset Acceptance Corp. Alternate Loan Trust, Series 2005-AP3
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001340387 Nomura Asset Acceptance Corp. Series 2005-AR5
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001340321 Nomura Asset Acceptance Corp. Series 2005-S3
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001347884 Nomura Asset Acceptance Corp. Series 2005-S4
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001377857 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AP2
    SIC: 6189 – ASSET-BACKED SECURITIES
    formerly: Nomura Asset Acceptance Corporation, Alternative Loan Trust, 2006-AP2 (filings through 2006-10-11)
    NY
    0001300362 NOMURA ASSET ACCEPTANCE CORPORATION, ALTERNATIVE LOAN TRUST, SERIES 2004-AR1
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001304804 NOMURA ASSET ACCEPTANCE CORPORATION, ALTERNATIVE LOAN TRUST, SERIES 2004-AR2
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001331805 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2005-AP2
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001331801 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2005-AR3
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001334708 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2005-AR4
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001331578 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2005-S2
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001360241 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AF1
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001368733 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AF2
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001347322 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AP1
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001347318 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AR1
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001355693 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AR2
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001375254 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AR3
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001381017 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-AR4
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001372828 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-WF1
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001394462 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2007-1
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001403264 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2007-2
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    0001403446 Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2007-3
    SIC: 6189 – ASSET-BACKED SECURITIES NY
    http://www.sec.gov/cgi-bin/browse-edgar

  31. like I have said a hundred times on here, all must go to. because of the over 500 securitized mortgage trust s involved, and 5 banks, and all
    the insurance companys that insured all this crap.

    look at all settlement trust tab on left side.

    Welcome To The ResCap RMBS Trustee Website

    This website (http://www.rescaprmbssettlement.com) has been established by:

    THE BANK OF NEW YORK MELLON,

    THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

    DEUTSCHE BANK NATIONAL TRUST COMPANY,

    DEUTSCHE BANK TRUST COMPANY AMERICAS,

    U.S. BANK NATIONAL ASSOCIATION, AND

    WELLS FARGO BANK, N.A.
    In their several capacities as trustees or indenture trustees (collectively, the “RMBS Trustees” and each, an “RMBS Trustee”), to the holders of Certificates, Notes or other securities (the “Certificateholders”) under certain residential mortgage-backed securitization trusts (collectively, the “Settlement Trusts” and each a “Settlement Trust”), to provide public access to information of interest to Certificateholders under the Settlement Trusts, and to other persons potentially interested in the Settlement Trusts.
    On May 14, 2012, Residential Capital, LLC, and certain of its direct and indirect subsidiaries (collectively, “ResCap”) filed voluntary petitions under Chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of New York (the “Court”) (In re Residential Capital, LLC, Case No. 12-12020 (MG) and related cases) (collectively, the “Chapter 11 Cases”).
    This website concerns, among other things, proposed settlements of claims of the Settlement Trusts against ResCap and others in the Chapter 11 Cases. These claims include, without limitation, certain claims relating to the origination and sale by ResCap of mortgage loans and to certain aspects of ResCap’s servicing of those mortgage loans. The current proposed settlements (which have superseded prior proposed settlements in the Chapter 11 Cases), would, if approved by the Court, bind that Settlement Trust and related Certificateholders. Accordingly, the proposed settlements and related Court approval procedures materially affect the interests of the Certificateholders, and the RMBS Trustees respectfully request that all Certificateholders and other persons potentially interested in the Settlement Trusts read all notices and related information posted to this website from time to time carefully in consultation with their legal and financial advisors.

    Pooling and Servicing Agreement, dated as of June 1, 2005, by and among Nomura Asset Acceptance Corporation, as Depositor, Nomura Credit & Capital, Inc., as Seller, GMAC Mortgage Corporation, as Servicer, Wells Fargo Bank, N.A., as Securities Administrator and Master Servicer and HSBC Bank USA, National Association, as Trustee relating to the Series 2005-AR3 Certificates.

    Item 2.01 Completion of Acquisition or Disposition of Assets
    Description of the Certificates and the Mortgage Pool
    On June 29, 2005, a series of certificates, entitled Nomura Asset Acceptance Corporation, Alternative Loan Trust Series 2005-AR3, Mortgage Pass-Through Certificates (the “Certificates”), were issued pursuant to a pooling and servicing agreement, dated as of June 1, 2005 (the “Agreement”), attached hereto as Exhibit 4.1, among Nomura Asset Acceptance Corporation, as depositor (the “Depositor”), Nomura Credit & Capital, Inc., as seller (the “Seller”), GMAC Mortgage Corporation as the servicer (the “Servicer”), Wells Fargo Bank, N.A., as securities administrator (“Securities Administrator”) and master servicer (“Master Servicer”) and HSBC Bank USA, National Association, as trustee (the “Trustee”). The Certificates consist of thirteen (13) classes of certificates, designated as the “Class I-A-1 Certificates”, “Class I-A-2 Certificates”, “Class II-A Certificates”, “Class III-A-1 Certificates”, “Class III-A-2 Certificates”, “Class M-1 Certificates”, “Class M-2 Certificates”, “Class M-3 Certificates”, “Class M-4 Certificates”, “Class M-5 Certificates”, “Class X Certificates”, “Class P Certificates” and “Class R Certificates”. The Certificates evidence in the aggregate the entire beneficial ownership interest in a trust fund, consisting of a pool of mortgage loans (the “Mortgage Pool’”) of conventional, one- to four- family, adjustable rate, first lien mortgage loans having original terms to maturity up to 30 years (the “Mortgage Loans”). The Mortgage Pool consists of Mortgage Loans having an aggregate principal balance of approximately $518,297,615.44 as of June 1, 2005. The Mortgage Loans were purchased pursuant to the Mortgage Loan Purchase Agreement, dated June 29, 2005, between Seller and Depositor. The Class I-A-1 Certificates, Class I-A-2 Certificates, Class II-A Certificates, Class III-A-1 Certificates, Class III-A-2 Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates and Class M-5 Certificates were sold by the Depositor to Nomura Securities International, Inc. (the “Underwriter”) pursuant to the Underwriting Agreement, dated February 26, 2004, between the Depositor and the Underwriter, and the Terms Agreement, dated June 27, 2005.
    The Certificates have the following initial Certificate Balances and Pass-Through Rates:

    The Certificates have the following initial Certificate Balances and Pass-Through Rates:

    Class

    Initial Certificate
    Principal Balance(1)

    Pass-Through
    Rate

    I-A-1

    $
    235,530,000

    Variable

    I-A-2

    $
    26,170,000

    Variable

    II-A

    $
    75,692,000

    Variable

    III-A-1

    $
    125,330,000

    Variable

    III-A-2

    $
    6,596,000

    Variable

    M-1

    $
    25,034,000

    Variable

    M-2

    $
    7,360,000

    Variable

    M-3

    $
    6,479,000

    Variable

    M-4

    $
    2,851,000

    Variable

    M-5

    $
    4,664,127

    Variable

    (1)
    Approximate.

    The Certificates, other than the Class X, Class P and Class R Certificates, and the Mortgage Loans are more particularly described in the Prospectus Supplement, dated June 27, 2005 (the “Prospectus Supplement”), and the Prospectus, dated June 23, 2005, as previously filed with the Securities and Exchange Commission pursuant to Rule 424(b). The Class X, Class P and the Class R Certificates have not been and will not be publicly offered by the Depositor. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Prospectus Supplement.

  32. @ david belanger,

    How do I find “HSBC Bank USA, As Trustee for Nomura Asset Acceptance Corporation Mortgage Pass through Certificates Series 2005-AR3”?

  33. Got the money?
    ………..took a withdrawal out of the 401K for the downpayment.
    one of the allowable withdrawals without penalty from that type retirement account.
    (ie. to purchase a home, to pay medical bills)

    Trespass Unwanted

  34. Awesome, Neil.

    That last line is the ultimate truth and not once spoken like that, from what I’ve seen or heard, before you stated it in this way.

    Creating a new creditor
    based upon a second debt
    arising from one transaction
    out of thin air

    Trespass Unwanted, Creator, Corporeal, Life, People, Free, Independent, State, In Jure Proprio, Jure Divino

  35. ” They want backup and proof of everything including where you got the money from for the down payment ”

    You got the money from selling your last house. You in good faith stuck into a designed to fail ‘liars loan’ created by the brokers and lenders. You lost everything.

    Any more questions.

  36. If anyone has HSBC Bank USA, National Association as Trustee for NAA (Nomura Asset Acceptance) Corporation Mortgage Pass through Certificates…

    Specifically, certificate Series “2005-AR6”, and you have evidence of fraud at origination, and, in particular “appraisal fraud”, a federal judge is prosecuting Nomura right now and the defendants are saying no fraud exists.

    I have “NAA Series 2005-AR3” and I undoubtedly can prove any number of origination frauds, not least, “appraisal fraud”.

    I just contacted the reporter, Charles Michael to explain I am hoping he will direct me toward the prosecutors on that case as I am ready-willing-and-able to share my file.

    I got the link below from the first posting on this site as it was delivered by “keepon”.

    thank you keepon. The link:

    http://stopforeclosurefraud.com/2015/03/19/one-bank-is-finally-on-trial-for-the-financial-crisis/

  37. neidermeyer – I think it’s deadlyclear.com that had a path to finding one’s psa etc.

  38. Lol… So.

    The judge refused our reinstatement today because she claims I failed to provide discovery… even though I did provide discovery.

    Not done yet. In fact, just warming up.

  39. From Steve at Consumer Rights Defenders:
    Neil’s analysis is excellent. Aside from the politico-economic issues, the formal objections raised form the basis to strike evidence at trial or to set up your appeal later.

    If you need litigation assistance, call us today at 818.453.3585. We have already assisted dozens in the new TILA suits now being filed nationwide. Let us help you.
    Call today at 818.453.3585, for Steve or Sara.

  40. @ Dave Belanger ,

    I need the P&A between BAC and O-One (or AHMSI) and any related docs…

    Where to find them?

  41. Loan Agreement
    This is an actual contract by Residential Capital.
    Browse the agreement preview below and buy the entire agreement for $35
    Submit
    Sectors: Financial Services
    Governing Law: Delaware, View Delaware State Laws Free Law Reference
    Effective Date: June 04, 2008
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    Exhibit 10.7 EXECUTION VERSIOIN $3,500,000,000LOAN AGREEMENTby and amongRESIDENTIAL FUNDING COMPANY, LLC,
    as Borrower,GMAC MORTGAGE, LLC,
    as Borrower,RESIDENTIAL CAPITAL, LLC AND CERTAIN OTHER
    AFFILIATES OF THE BORROWERS PARTY HERETO,
    as Guarantors,Certain Affiliates of the Borrowers and the Guarantors
    party hereto as Obligors,GMAC LLC,as Initial Lender and as Lender AgentandCertain Other Financial Institutions and Persons from
    time to time party hereto as LendersDated as of June 4, 2008

    Table of Contents Page ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS 1 Section 1.01. Definitions; Construction 1 Section 1.02. Accounting Matters 2 ARTICLE II COMMITMENTS, LOANS, BORROWING, PREPAYMENT 2 Section 2.01. Commitments and Loans 2 Section 2.02. Note 3 Section 2.03. Borrowing Procedures 4 Section 2.04. Borrowing Base 5 Section 2.05. Interest 6 Section 2.06. Fees 6 Section 2.07. Alternate Rate of Interest; Increased Costs 6 Section 2.08. Mandatory Repayment of Loans 8 Section 2.09. Optional Prepayment 9 Section 2.10. Termination of Commitments and Reduction of Aggregate Commitment Amount 9 ARTICLE III PAYMENTS; COMPUTATIONS; TAXES; EXPENSES 10 Section 3.01. Payments and Computations, Etc 10 Section 3.02. Taxes 12 Section 3.03. Fees and Expenses 15 Section 3.04. Setoff 15 ARTICLE IV ACCOUNTS AND COLLECTIONS 15 Section 4.01. Concentration Accounts 15 Section 4.02. Sales Proceeds Accounts 15 Section 4.03. Collections Deposited to Collection Accounts 16 Section 4.04. Withdrawals from Designated Accounts; Account Notices 16 Section 4.05. Cash and Cash Equivalents 16 ARTICLE V CONDITIONS PRECEDENT 16 Section 5.01. Conditions Precedent 17 Section 5.02. Further Conditions Precedent 17 ARTICLE VI REPRESENTATIONS AND WARRANTIES 17

    -i-

    Table of Contents
    (continued) Page Section 6.01. Representations and Warranties of the Borrowers 17 ARTICLE VII COVENANTS 21 Section 7.01. Affirmative Covenants of the Obligors 21 Section 7.02. Negative Covenants of the Obligors 25 Section 7.03. Notice of Certain Occurrences 28 ARTICLE VIII EVENTS OF DEFAULT 31 Section 8.01. Events of Default 31 Section 8.02. Remedies 33 ARTICLE IX ASSIGNMENT, PARTICIPATION 34 Section 9.01. Assignments 34 Section 9.02. Evidence of Assignment 36 Section 9.03. Rights of Assignee, Evidence of Assignment 36 Section 9.04. Participations 36 ARTICLE X INDEMNIFICATION 37 Section 10.01. Indemnities by the Borrowers 37 Section 10.02. General Provisions 38 ARTICLE XI GUARANTEE 39 Section 11.01. Unconditional Guarantee 39 Section 11.02. Nature of Guarantee 39 Section 11.03. Certain Agreements; Waivers of Certain Notices 40 Section 11.04. Waiver of Subrogation 40 Section 11.05. Taxes 40 Section 11.06. Payments 41 Section 11.07. Severability of Article XI 41 Section 11.08. Acceleration of Guarantee 41 Section 11.09. Election of Remedies 42 Section 11.10. Benefit to Guarantor 42 ARTICLE XII LENDER AGENT 42 Section 12.01. Appointment and Authorization 42 Section 12.02. Delegation of Duties 43

    -ii-

    Table of Contents
    (continued) Page Section 12.03. Liability of Lender Agent 43 Section 12.04. Reliance by Lender Agent 43 Section 12.05. Notice of Default 43 Section 12.06. Credit Decision 44 Section 12.07. Indemnification 44 Section 12.08. Lender Agent in Individual Capacity 44 Section 12.09. Successor Lender Agent 45 Section 12.10. Funding Reliance 45 Section 12.11. Security Matters; Release of Collateral 46 ARTICLE XIII MISCELLANEOUS 47 Section 13.01. Amendments, Etc 47 Section 13.02. Notices, Etc 48 Section 13.03. No Waiver; Remedies 48 Section 13.04. Binding Effect; Assignability 48 Section 13.05. GOVERNING LAW; SUBMISSION TO JURISDICTION 48 Section 13.06. Entire Agreement 49 Section 13.07. Acknowledgment 49 Section 13.08. Captions and Cross References 49 Section 13.09. Execution in Counterpart; Effectiveness 49 Section 13.10. Confidentiality 49 Section 13.11. Survival 50 Section 13.12. Joint and Several Liability of Borrowers 50 Section 13.13. Obligors Bound by Intercreditor Agreement 52 Section 13.14. Third-Party Beneficiaries 52 Section 13.15. First Priority Collateral Agent; Capacity under this Agreement and Protections Afforded 52

    -iii-

    Schedules Schedule 1.01 DefinitionsSchedule 2.04 Collateral Value CalculationsSchedule 5.01 Conditions Precedent to the Initial LoanSchedule 5.02 Conditions Precedent to each LoanSchedule 7.01(g) GMAC LLC Required ReportsSchedule 7.01(m) Master Custodial AgreementSchedule 7.01(t) Bilateral FacilitiesSchedule 8.01(m) Post-Closing RequirementsSchedule 13.02 Notices Exhibits Exhibit A Eligibility RequirementsExhibit B [Reserved]Exhibit C Initial Permitted Funding IndebtednessExhibit 2.02(a)(i) Form of Revolving NoteExhibit 2.02(a)(ii) Form of Term NoteExhibit 2.03(a) Form of Borrower Funding RequestExhibit 2.03(b) Form of Interim Borrowing Base ReportExhibit 2.04(a) Form of Collateral Value ReportExhibit 2.04(b) Form of Collateral Value CertificateExhibit 2.08(b) Form of Repayment NoticeExhibit 2.09(a) Form of Prepayment NoticeExhibit 7.01 Form of Compliance CertificateExhibit 7.01(s) Form of JoinderExhibit 9.01 Form of Assignment and Acceptance

    -iv-

    This LOAN AGREEMENT (as amended or supplemented from time to time, this ” Agreement” ) dated as of June 4, 2008, is by and among Residential Funding Company, LLC, a Delaware limited liability company (” RFC” ), GMAC Mortgage, LLC, a Delaware limited liability company (” GMAC Mortgage” , and together with RFC, each a ” Borrower” and collectively, the ” Borrowers” ), Residential Capital, LLC and the other Affiliates of the Borrowers party hereto as Guarantors (each, a ” Guarantor” ), the various other parties signatory hereto as obligors (the ” Obligors” ), GMAC LLC, a Delaware limited liability company (the ” Initial Lender” ), the financial institutions and other Persons that are or may from time to time become parties hereto as Lenders (together with the Initial Lender and their respective successors and assigns, each a ” Lender” and collectively, the ” Lenders” ), and GMAC LLC, a Delaware limited liability company, as agent for the Lenders (in such capacity together with its successors and assigns in such capacity, the ” Lender Agent” ) and Wells Fargo Bank, N.A., solely with respect to Section 12.11(b) and in its capacity as First Priority Collateral Agent. BACKGROUND The Borrowers desire to obtain Commitments from the Lenders so that the Lenders will from time to time and subject to the terms hereof make revolving Loans to the Borrowers, which Loans are secured by the Collateral. The Guarantors have entered into this Agreement and have agreed to provide guarantees of the Obligations hereunder and to pledge Collateral to secure such guarantees. The Lenders have agreed to acquire certain outstanding term loans made to ResCap pursuant to that certain Term Loan Facility dated as of July 28, 2005 (the ” Term Loan Agreement” ) among ResCap, the lenders thereunder, Citibank, N.A., as syndication agent, the documentation agents thereunder, and JPMorgan Chase Bank, N.A., as administrative agent, from the lenders thereunder. The Borrowers, the Guarantors and the Lenders have agreed to convert the existing term loans referred to immediately above to Loans subject to the terms of this Agreement. The Lenders are willing, on the terms and subject to the conditions hereafter set forth, to extend the Commitments and make Revolving Loans to the Borrowers. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, and intending to be legally bound, the parties hereto agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS Section 1.01. Definitions; Construction . (a) Capitalized terms used herein and not otherwise defined herein shall have the meanings specified in Schedule 1.01 .

    (b) All terms used in Article 9 of the UCC, and not specifically defined herein, are used herein as defined in such Article 9. (c) Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word ” from” means ” from and including” and the words ” to” and ” until” each means ” to but excluding” . (d) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. (e) Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. (f) The words ” include” , ” includes” and ” including” shall be deemed to be followed by the phrase ” without limitation” . The word ” will” shall be construed to have the same meaning and effect as the word ” shall” . (g) Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’ s successors and assigns, provided that such successors and assigns are not prohibited by the Facility Documents, (iii) the words ” herein” , ” hereof” and ” hereunder” , and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, and (v) the words ” asset” and ” property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Section 1.02. Accounting Matters . Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP applied in a manner consistent with that used in preparing the financial statements described in Section 7.01(f) hereof. ARTICLE II COMMITMENTS, LOANS, BORROWING, PREPAYMENT Section 2.01. Commitments and Loans . (a) On the terms and subject to the conditions set forth in this Agreement, each of the Lenders severally agrees, from time to time on any Business Day occurring on or after Closing Date but prior to the Commitment Termination Date, to make loans (relative to each Lender, its ” Revolving Loans” ) to the Borrowers in an aggregate amount equal to such Lender’ s Pro Rata Share of the aggregate amount of the Revolving Loans requested by the Loan Agreement

    2

    Borrowers to be made on such Business Day. The Lenders shall distribute the proceeds of such Revolving Loan to the Borrowers no later than 2:00 p.m. (New York City time) on the related Funding Date in accordance with Section 2.03 . (b) On the terms and subject to the conditions hereof, the Borrowers may from time to time borrow, prepay and reborrow Revolving Loans. No Lender shall be required to make any Revolving Loan if, after giving effect thereto, (i) the Outstanding Aggregate Loan Amount would exceed the Available Amount or (ii) such Lender’ s Outstanding Lender Loan Amount would exceed such Lender’ s Pro Rata Share of the Available Amount. (c) Pursuant to the Term Loan Assignment, each Lender shall have acquired Existing Term Loans in an aggregate principal amount equal to such Lender’ s Pro Rata Share of the Term Loan Initial Balance, which Existing Term Loans shall on the date hereof be deemed for all purposes to be term loans extended to the Borrowers hereunder (the ” Term Loans” ). Once repaid or prepaid hereunder, the Term Loans may not be reborrowed. (d) Upon the effectiveness of the transfer of the Existing Term Loans and to the extent such Existing Term Loans are deemed converted to Term Loans hereunder, the parties hereto acknowledge and agree that ResCap shall have no obligations to the Lenders with respect to the Term Loan Agreement or the Term Loan Assignment. Section 2.02. Note . (a) The Loans made by each Lender shall be evidenced by a promissory note executed by each Borrower substantially in the form of Exhibit 2.02(a)(i) hereto (a ” Revolving Note” ), in the case of a Revolving Loan, or Exhibit 2.02(a)(ii) hereto (a ” Term Note” ), in the case of a Term Loan (each a ” Note” ), in each case dated the date hereof, payable to the applicable Lender in a maximum principal amount equal to such Lender’ s Pro Rata Share of the Aggregate Commitment Amount. The Borrowers hereby irrevocably authorize each Lender to make (or cause to be made) appropriate notations on the grid attached to such Lender’ s Note (or on any continuation of such grid), which notations, if made, shall evidence, inter alia , the date of, the outstanding principal amount of, and the interest rate and Interest Period applicable to the Loans evidenced thereby. Such notations shall, to the extent not inconsistent with notations made by the Lender Agent in the Register, be conclusive and binding on each Obligor absent manifest error; provided that, the failure of any Lender to make any such notations shall not limit or otherwise affect any Obligations of any Obligor. (b) The Borrowers hereby designate the Lender Agent to serve as the Borrowers’ agent, solely for the purpose of this clause, to maintain a register (the ” Register” ) on which the Lender Agent will record each Lender’ s Commitments, the Loans (and interest due thereon) made by each Lender and each repayment in respect of the principal amount of the Loans, annexed to which the Lender Agent shall retain a copy of each Assignment and Acceptance, and each participation (as described in Section 9.04 ), delivered to the Lender Agent pursuant to Article IX . Failure to make any recordation, or any error in such recordation, shall not affect any Obligor’ s Obligations. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Obligors, the Lender Agent and the other Lender Parties shall treat each Person in whose name a Loan is registered as the owner thereof Loan Agreement

    3

    for the purposes of all Facility Documents, notwithstanding notice or any provision herein to the contrary. Any assignment or transfer of a Commitment or the Loans made pursuant hereto shall be registered in the Register only upon delivery to the Lender Agent of an Assignment and Acceptance that has been executed by the requisite parties pursuant to Article IX . Upon its receipt of a duly completed Assignment and Acceptance, the Lender Agent shall record the information contained therein in the Register. No assignment or transfer of a Lender’ s Commitment or Revolving Loans, including those transfers or assignments to an Affiliate, shall be effective unless such assignment or transfer shall have been recorded in the Register by the Lender Agent as provided in this Section. (c) The Register shall be available for inspection by the Borrowers or any Lender (but in each case only as to its relevant portion of the Register), at any reasonable time and from time to time upon reasonable prior notice. Section 2.03. Borrowing Procedures . (a) By delivering a Borrower Funding Request to the Lender Agent on or before 11:00 a.m. (New York City time) on any Business Day, the Borrowers may from time to time irrevocably request, on the Initial Funding Date (in the case of the initial Revolving Loan) or one Business Day prior to any subsequent Funding Date (in the case of subsequent Revolving Loans), that Revolving Loans be made in an aggregate minimum amount of $50,000,000 and an integral multiple of $1,000,000 (or the remaining unused portion of the Revolving Loans available to be advanced hereunder); provided that (i) the amount of the initial Revolving Loans requested pursuant to the initial Borrower Funding Request shall be not be less than $100,000,000, (ii) after the Initial Funding Date, the aggregate amount of Revolving Loans requested for Funding Dates in any period of ten (10) consecutive Business Days may not exceed $500,000,000 and (iii) the amount of Revolving Loans requested pursuant to any Borrower Funding Request (including the initial Borrower Funding Request) shall not, immediately after giving effect to the advance of such Revolving Loans, be greater than the difference between (A) the Available Amount minus (B) the Outstanding Aggregate Loan Amount. On the terms and subject to the conditions of this Agreement, the Revolving Loans to be made with respect to any Borrower Funding Request shall be made on the Business Day specified in such Borrower Funding Request. On or before 1:00 p.m., New York City time, on such Business Day, each Lender shall deposit with the Lender Agent same day funds in an amount equal to such Lender’ s Pro Rata Share of the requested Revolving Loans. Such deposit will be made to an account which the Lender Agent shall specify from time to time by notice to the Lenders. To the extent funds are received from the Lenders, the Lender Agent shall make such funds available to the Borrowers by wire transfer to the accounts the Borrowers shall have specified in their Borrower Funding Request. No Lender’ s obligation to make any Revolving Loan shall be affected by any other Lender’ s failure to make any Revolving Loan. (b) [Reserved]. (c) On or prior to the first Business Day preceding any Funding Date (if the related Funding Date is after the Monthly Settlement Date), and as a condition to the advance of any Revolving Loans relating to such Funding Date, the Borrowers shall deliver to the Lender Agent an Interim Borrowing Base Report. Loan Agreement

    4

    (d) By delivering a Borrower Funding Request, the Borrowers represent and warrant to each Lender that, after giving effect to the making of the requested Revolving Loans thereunder, all conditions precedent to such Revolving Loan specified in Section 5.02 have been satisfied and all statements in clauses (b) , (c) , (d) , (e) and (f) of Schedule 5.02 are true and correct. Section 2.04. Borrowing Base . (a) On or prior to the Initial Funding Date, the Borrowers shall deliver to the Lender Agent and the Valuation Agent the Initial Collateral Value Report and the other components of the initial Monthly Collateral Report. (b) After the Initial Funding Date, the Borrowers shall deliver to the Lender Agent and the Valuation Agent an updated Monthly Collateral Report no less frequently than once per calendar month and no later than the tenth Business Day of each calendar month (commencing with June 2008). Each Collateral Value Report and each Collateral Value Certificate delivered by the Borrowers shall be effective (subject to Sections 2.04(c) and (d) below) until such time as the Borrowers shall deliver a subsequent Collateral Value Report and Collateral Value Certificate. For purposes of preparing each Collateral Value Report, the Borrowers shall calculate the Collateral Value of the Primary Collateral described in the related Electronic File in accordance with Schedule 2.04 ; provided that prior to the European Reporting Date, the Borrowers may use reasonable estimates, based on available data (including the amount of collections on European Reporting Assets held in European SPV Accounts) in determining the Collateral Value of European Reporting Assets for inclusion in any Collateral Value Report. (c) If requested to do so by the Lender Agent, within two Business Days after receipt of a Collateral Value Report and Collateral Value Certificate pursuant to Section 2.04(a) or (b) , as the case may be, together with the related Electronic Files, the Valuation Agent shall, to the extent such Collateral Value calculation relies on market value rather than Carrying Value, verify the Collateral Value for the Primary Collateral and shall notify the Lender Agent and the Borrowers of the amount of such Collateral Value. (d) Within three Business Days after receipt of a Collateral Value Report and Collateral Value Certificate pursuant to Section 2.04(a) or (b) , the Lender Agent shall determine (taking into account any information provided by the Valuation Agent pursuant to Section 2.04(c) ) the Borrowing Base and notify the Lenders and the Borrowers of such determination. Such determination shall be effective as of the Business Day specified in such written notice from the Lender Agent (or, if no effective date is specified in such written notice, the next Business Day following delivery of such written notice) and such Borrowing Base shall remain in effect (as adjusted by any European Collateral Value Adjustment) until the next determination or redetermination of the Borrowing Base in accordance with this Agreement. (e) Notwithstanding anything herein the contrary, in the event that the Borrowers fail to furnish any component of the Monthly Collateral Report, any European Collateral Value Adjustment or any Interim Borrowing Base Report in accordance with this Section 2.04 , the Lender Agent may designate the Borrowing Base from time to time thereafter Loan Agreement

    5

    at an amount as determined by the Lender Agent in its sole and absolute discretion until each of the Lender Agent and the Valuation Agent shall have received all reports, certificates and files required to be delivered by this Section 2.04 , whereupon the Lender Agent shall designate a new Borrowing Base in accordance with the general procedures outlined in this Section 2.04 . (f) The Borrowers shall deliver Interim Borrowing Base Reports as required pursuant to Section 2.03(c) and the Lender Agent shall calculate the Adjusted Borrowing Base with respect to each Interim Borrowing Base Report. (g) To the extent that the Borrowers estimate the Collateral Value of European Reporting Assets in any Collateral Value Report, the Borrowers shall calculate the Collateral Value of such European Reporting Assets in accordance with Schedule 2.04 and furnish a supplemental Collateral Value Report as adjusted to reflect such calculation (such adjustment, a ” European Collateral Value Adjustment” ) within 5 Business Days of the delivery of the related Collateral Value Report. Section 2.05. Interest . Interest shall accrue on each Loan for each day during a related Interest Period at a rate equal to (a) the sum of (x) the applicable LIBOR Rate for such Interest Period and (y) the Applicable Margin, divided by (b) 360 days. Interest shall be payable (i) in arrears with respect to each Interest Period through the final day of each Interest Period (regardless of whether such day is a Business Day), such amount to be payable on the first Business Day following the end of such Interest Period, (ii) on the applicable Loan Repayment Date, (iii) on the date of payment or prepayment, in whole or in part, of principal outstanding on any Loan with respect to the principal amount so paid or prepaid, or (iv) on that portion of Loans the maturity of which is accelerated pursuant to Section 8.02 , immediately upon such acceleration. The Lender Agent shall determine the LIBOR Rate for each Loan prior to the beginning of each Interest Period, as set forth in the definition of ” LIBOR Rate.” The Lender Agent shall also calculate the amount of interest and, if applicable, any Breakage Costs or other amounts due to be paid by the Borrowers from time to time hereunder (including in connection with any prepayment or repayment of Loans permitted hereunder) and shall provide a written statement thereof to the Borrowers at least two Business Days prior to the due date of such payment (or the relevant repayment or prepayment after having received a notice thereof); provided that failure to provide such statements on a timely basis shall not relieve the Borrowers of the obligation to pay any interest and principal due on the applicable payment date (based upon their good faith calculation of the amount due, such amount to be promptly reconciled after receipt of a subsequent statement from the Lender Agent) and other such amounts hereunder promptly upon receipt of such statement. Section 2.06. Fees . On the Closing Date, the Borrowers, jointly and severally, shall pay to the Lender Agent the upfront fee specified in the Fee Letter, which fee shall be fully earned upon receipt and non refundable. Section 2.07. Alternate Rate of Interest; Increased Costs . (a) If, prior to the commencement of any Interest Period, the Lender Agent determines (which determination shall be conclusive absent manifest error) (i) that adequate and reasonable means do not exist for ascertaining the LIBOR Rate for such Interest Period; or (ii) Loan Agreement

    6

    that the LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to any Lender of making or maintaining its Loans; or (iii) that, after notice from an affected Lender, it has become unlawful for such Lender to honor its obligation to make or maintain Loans hereunder using the LIBOR Rate, then the Lender Agent shall give notice thereof to the Borrowers by telephone, facsimile, or other electronic means as promptly as practicable thereafter and, commencing with the Interest Period immediately following the Interest Period during which such notice is provided to the Borrowers until the Lender Agent notifies the Borrowers that the circumstances giving rise to such notice no longer exist, all Loans shall bear interest at a rate per annum equal to the Applicable Margin plus the rate per annum that the Lender Agent determines in its reasonable discretion adequately reflects the cost to the Lenders of making or maintaining the Loans for such Interest Period. (b) The Borrowers jointly and severally agree to reimburse each Lender for any increase in the cost to such Lender of, or any reduction in the amount of any sum receivable by such Lender in respect of, such Lender’ s Commitments and the making, continuing, maintaining or conversion of Loans hereunder that arise in connection with any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase in after the Closing Date of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any Governmental Authority; provided , however , that any such changes with respect to increased capital costs and taxes shall be governed by the terms of Sections 2.07(c) and 3.02 , respectively. For the purposes of this Section 2.07(b) , taxes shall include all present or future taxes, fees, levies, imposts, deductions, duties, withholdings, assessments or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. Each affected Lender shall promptly notify the Lender Agent and the Borrowers in writing of the occurrence of any such event, stating the reasons therefor and the additional amount required fully to compensate such Lender for such increased cost or reduced amount. Such additional amounts shall be payable jointly and severally by the Borrowers directly to such Lender within ten (10) days of its receipt of such notice, and such notice shall, in the absence of manifest error, be conclusive and binding on the Borrowers. (c) If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any Governmental Authority affects or would affect the amount of capital required or expected to be maintained by any Lender or any Person controlling such Lender, and such Lender determines (in good faith but in its sole and absolute discretion) that the rate of return on its or such controlling Person’ s capital as a consequence of the Commitments or the Loans made by such Lender is reduced to a level below that which such Lender or such controlling Person could have achieved but for the occurrence of any such circumstance, then upon notice from time to time by such Lender to the Borrowers (with a copy to the Lender Agent), the Borrowers shall within ten (10) days following receipt of such notice jointly and severally pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. A statement of such Lender as to any such additional amount or amounts shall, in the absence of manifest error, be conclusive and binding on the Borrowers. In determining such amount, such Lender may use any method of averaging and attribution that it (acting reasonably) shall deem applicable. Loan Agreement

    7

    (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.07 shall not constitute a waiver of such Lender’ s right to demand such compensation, provided that the Borrowers shall not be required to compensate a L
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  42. One Bank (Nomura) is Finally on Trial for the Financial Crisis

    http://stopforeclosurefraud.com/2015/03/19/one-bank-is-finally-on-trial-for-the-financial-crisis/

    If it weren’t for the Stop Foreclosure Fraud site, would you know this trial started on Monday?

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