Banks Fighting Subpoenas From FHFA Over Access to Loan Files

Whilst researching something else I ran across the following article first published in 2010. Upon reading it, it bears repeating.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

WHAT IF THE LOANS WERE NOT ACTUALLY SECURITIZED?

In a nutshell this is it. The Banks are fighting the subpoenas because if there is actually an audit of the “content” of the pools, they are screwed across the board.

My analysis of dozens of pools has led me to several counter-intuitive but unavoidable factual conclusions. I am certain the following is correct as to all residential securitized loans with very few (2-4%) exceptions:

  1. Most of the pools no longer exist.
  2. The MBS sold to investors and insured by AIG and the purchase and sale of credit default swaps were all premised on a general description of the content of the pool rather than a detailed description with the individual loans attached on a list.
  3. Each Prospectus if it carried any spreadsheet listing loans, contained a caveat that the attached list was by example only and not the real loans.
  4. Each distribution report contained a caveat that the parties who created it and the parties who delivered it did not guarantee either authenticity or reliability of the report. They even had specific admonitions regarding the content of the distribution report.
  5. NO LOAN ACTUALLY MADE IT INTO ANY POOL. The evidence is clear: nothing was done to assign, indorse or deliver the note to the investors directly or indirectly until a case went into litigation AND a hearing was scheduled. By that time the cutoff date had been breached and the loan was non-performing by their own allegation and therefore was not acceptable into the pool.
  6. AT ALL TIMES LEGAL TITLE TO THE PROPERTY WAS MAINTAINED BY THE HOMEOWNER EVEN AFTER FORECLOSURE AND SALE. The actual creditor who submitted a credit bid was not the creditor. The sale is either void or voidable.
  7. AT ALL TIMES LEGAL TITLE TO THE LOAN WAS MAINTAINED BY THE ORIGINATING “LENDER”. Since there was no assignment, indorsement or delivery that could be recognized at law or in fact, the originating lender still owns the loan legally BUT….
  8. AT ALL TIMES THE OBLIGATION WAS BOTH CREATED AND EXTINGUISHED AT, OR CONTEMPORANEOUSLY WITH THE CLOSING OF THE LOAN. Since the originating lender was in fact not the source of funds, and did not book the transaction as a loan on their balance sheet (in most cases), the naming of the originating lender as the Lender and payee on the note, both created a LEGAL obligation from the borrower to the Lender and at the same time, the LEGAL obligation was extinguished because the LEGAL Lender of record was paid in full plus exorbitant fees for pretending to be an actual lender.
  9. Since the Legal obligation was both created and extinguished contemporaneously with each other, any remaining obligation to any OTHER party became unsecured since the security instrument (mortgage or deed of trust) refers only to the promissory note executed by the borrower.
  10. At the time of closing, the investor-lenders were the real parties in interest as lenders, but they were not disclosed nor were the fees of the various intermediaries who brought the investor-lender money and the borrower’s loan together.
  11. ALL INVESTOR-LENDERS RECEIVED THE EQUIVALENT OF A BOND — A PROMISE TO PAY ISSUED BY A PARTY OTHER THAN THE BORROWER, PREMISED UPON THE PAYMENT OR RECEIVABLES GENERATED FROM BORROWER PAYMENTS, CREDIT DEFAULT SWAPS, CREDIT ENHANCEMENTS, AND THIRD PARTY INSURANCE.
  12. Nearly ALL investor-lenders have been paid sums of money to satisfy the promise to pay contained in the bond. These payments always exceeded the borrowers payments and in many cases paid the obligation in full WITHOUT SUBROGATION.
  13. NO LOAN IS IN ACTUAL DEFAULT OR DELINQUENCY. Since payments must first be applied to outstanding payments due, payments received by investor-lenders or their agents from third party sources are allocable to each individual loan and therefore cure the alleged default. A Borrower’s Non-payment is not a default since no payment is due.
  14. ALL NOTICES OF DEFAULT ARE DEFECTIVE: The amount stated, the creditor, and other material misstatements invalidate the effectiveness of such a notice.
  15. NO CREDIT BID AT AUCTION WAS MADE BY A CREDITOR. Hence the sale is void or voidable.
  16. ANY BALANCE DUE FROM THE BORROWER IS SUBJECT TO DEDUCTIONS FOR THIRD PARTY PAYMENTS.
  17. ANY BALANCE DUE FROM THE BORROWER IS SUBJECT TO AN EQUITABLE CLAIM FOR UNJUST ENRICHMENT THAT IS UNSECURED.
  18. ANY BALANCE DUE FROM THE BORROWER IS SUBJECT TO AN EQUITABLE CLAIM FOR A LIEN TO REFLECT THE INTENTION OF THE INVESTOR-LENDER AND THE INTENTION OF THE BORROWER.  Both the investor-lender and the borrower intended to complete a loan transaction wherein the home was used to collateralize the amount due. The legal satisfaction of the originating lender is not a deduction from the equitable satisfaction of the investor-lender. THUS THE PARTIES SEEKING TO FORECLOSE ARE SUBJECT TO THE LEGAL DEFENSE OF PAYMENT AT CLOSING BUT THE INVESTOR-LENDERS ARE NOT SUBJECT TO THAT DEFENSE.
  19. The investor-lenders ALSO have a claim for damages against the investment banks and the string of intermediaries that caused loans to be originated that did not meet the description contained in the prospectus.
  20. Any claim by investor-lenders may be subject to legal and equitable defenses, offsets and counterclaims from the borrower.
  21. The current modification context in which the securitization intermediaries are involved in settlement of outstanding mortgages is allowing those intermediaries to make even more money at the expense of the investor-lenders.
  22. The failure of courts to recognize that they must apply the rule of law results not only in the foreclosure of the property, but the foreclosure of the borrower’s ability to negotiate a settlement with an undisclosed equitable creditor, or with the legal owner of the loan in the property records.

Loan File Issue Brought to Forefront By FHFA Subpoena
Posted on July 14, 2010 by Foreclosureblues
Wednesday, July 14, 2010

foreclosureblues.wordpress.com

Editor’s Note….Even  U.S. Government Agencies have difficulty getting
discovery, lol…This is another excellent post from attorney Isaac
Gradman, who has the blog here…http://subprimeshakeout.blogspot.com.
He has a real perspective on the legal aspect of the big picture, and
is willing to post publicly about it.  Although one may wonder how
these matters may effect them individually, my point is that every day
that goes by is another day working in favor of those who stick it out
and fight for what is right.

Loan File Issue Brought to Forefront By FHFA Subpoena

The battle being waged by bondholders over access to the loan files
underlying their investments was brought into the national spotlight
earlier this week, when the Federal Housing Finance Agency (FHFA), the
regulator in charge of overseeing Fannie Mae and Freddie Mac, issued
64 subpoenas seeking documents related to the mortgage-backed
securities (MBS) in which Freddie and Fannie had invested.
The FHFA
has been in charge of overseeing Freddie and Fannie since they were
placed into conservatorship in 2008.

Freddie and Fannie are two of the largest investors in privately
issued bonds–those secured by subprime and Alt-A loans that were often
originated by the mortgage arms of Wall St. firms and then packaged
and sold by those same firms to investors–and held nearly $255 billion
of these securities as of the end of May. The FHFA said Monday that it
is seeking to determine whether issuers of these so-called “private
label” MBS misled Freddie and Fannie into making the investments,
which have performed abysmally so far, and are expected to result in
another $46 billion in unrealized losses to the Government Sponsored
Entities (GSE).

Though the FHFA has not disclosed the targets of its subpoenas, the
top issuers of private label MBS include familiar names such as
Countrywide and Merrill Lynch (now part of BofA), Bear Stearns and
Washington Mutual (now part of JP Morgan Chase), Deutsche Bank and
Morgan Stanley. David Reilly of the Wall Street Journal has written an
article urging banks to come forward and disclose whether they have
received subpoenas from the FHFA, but I’m not holding my breath.

The FHFA issued a press release on Monday regarding the subpoenas
(available here). The statement I found most interesting in the
release discusses that, before and after conservatorship, the GSEs had
been attempting to acquire loan files to assess their rights and
determine whether there were misrepresentations and/or breaches of
representations and warranties by the issuers of the private label
MBS, but that, “difficulty in obtaining the loan documents has
presented a challenge to the [GSEs’] efforts. FHFA has therefore
issued these subpoenas for various loan files and transaction
documents pertaining to loans securing the [private label MBS] to
trustees and servicers controlling or holding that documentation.”

The FHFA’s Acting Director, Edward DeMarco, is then quoted as saying
““FHFA is taking this action consistent with our responsibilities as
Conservator of each Enterprise. By obtaining these documents we can
assess whether contractual violations or other breaches have taken
place leading to losses for the Enterprises and thus taxpayers. If so,
we will then make decisions regarding appropriate actions.” Sounds
like these subpoenas are just the precursor to additional legal
action.

The fact that servicers and trustees have been stonewalling even these

powerful agencies on loan files should come as no surprise based on

the legal battles private investors have had to wage thus far to force

banks to produce these documents. And yet, I’m still amazed by the

bald intransigence displayed by these financial institutions. After

all, they generally have clear contractual obligations requiring them

to give investors access to the files (which describe the very assets

backing the securities), not to mention the implicit discovery rights

these private institutions would have should the dispute wind up in

court, as it has in MBIA v. Countrywide and scores of other investor

suits.

At this point, it should be clear to everyone–servicers and investors
alike–that the loan files will have to be produced eventually, so the
only purpose I can fathom for the banks’ obduracy is delay. The loan
files should, as I’ve said in the past, reveal the depths of mortgage
originator depravity, demonstrating convincingly that the loans never
should have been issued in the first place. This, in turn, will force
banks to immediately reserve for potential losses associated with
buying back these defective mortgages. Perhaps banks are hoping that
they can ward off this inevitability long enough to spread their
losses out over several years, thereby weathering the storm caused (in
part) by their irresponsible lending practices. But certainly the
FHFA’s announcement will make that more difficult, as the FHFA’s
inherent authority to subpoena these documents (stemming from the
Housing and Economic Recovery Act of 2008) should compel disclosure
without the need for litigation, and potentially provide sufficient
evidence of repurchase obligations to compel the banks to reserve
right away. For more on this issue, see the fascinating recent guest
post by Manal Mehta on The Subprime Shakeout regarding the SEC’s
investigation into banks’ processes for allocating loss reserves.

Meanwhile, the investor lawsuits continue to rain down on banks, with
suits by the Charles Schwab Corp. against Merrill Lynch and UBS, by
the Oregon Public Employee Retirement Fund against Countrywide, and by
Cambridge Place Investment Management against Goldman Sachs, Citigroup
and dozens of other banks and brokerages being announced this week. If
the congealing investor syndicate was looking for political cover
before staging a full frontal attack on banks, this should provide
ample protection. Much more to follow on these and other developments
in the coming days…
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Posted by Isaac Gradman at 3:46 PM

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MEDIATIONS, MODIFICATIONS, SHORT-SALES AND SETTLEMENTS

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AUTHORITY AND AGENCY

In “Fair Game” Gretchen Morgenson continues to unravel the failing process of “saving homes” while the world ignores the simple truth that legally the homes are in no jeopardy but for the pranks and illusions created by the pretender lenders.

  • There is no valid foreclosure, auction, mediation, modification, short-sale, satisfaction of mortgage, release and re-conveyance, or even settlement with a party to whom the money is not owed and a party owning no rights under the security instrument (the mortgage or deed of trust).

It is all an illusion given reality by repetition not by truth. It is fraud ignored by courts who naturally find it far more likely that a deadbeat homeowner is trying to trick the court than a world class bank or someone pretending to be an agent of a world class bank. But in the end, whether title moves by foreclosure or any of the procedures mentioned above, there is no clear title. There is clouded, fatally defective title and a settlement with a party lacking any power to even be in the room.

This is why I have maintained that lawyers err when they do not aggressively (on the front end despite the rules requiring mediation etc.) insist on proof of authority to represent and proof of agency and proof that a decision-maker is in the room. If those elements are not satisfied, there can be deal — only the appearance of a deal.It is entirely possible that not even the lawyer has authority to represent and that the lawyer has conflicts of interest when you make the challenge. If a lawyer asserts he represents a party you have a right to demand proof of that. I’ve seen dozens of cases unravel at just that point.

The foreclosure mills play musical chairs but they are forgetting that this fraud on the court may come back and haunt them with liability, discipline and even criminal charges. They keep their options open until they absolutely are forced to name a pretender lender. That lawyer standing in the room has generally spoken to nobody other than a secretary in his own firm. he doesn’t know the client, or any representative of the client. He or she presumed to be authorized to represent the client because the file was given to him or her.

Think I am kidding. Try it out on Deutsch Bank or U.S. Bank or BONY-Mellon. Demand that the lawyer produce incontrovertible proof that their client knows the case even exists and that this lawyer represents them.

From what I am seeing, this interrupts the flow of plausible deniability. Nobody high up in the food chain wants to come in and say they have personal knowledge or that they have anything to do with these foreclosures. They just want their monthly fee for pretending to be Trustee over a pool that was never created, much less funded. They will try to use affidavits from people who know nothing and who are probably not even employed by the “client.” Even if they are employed a quick inquiry will reveal that the signatory lacks authority to hire legal counsel and has no personal knowledge of the case.

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September 18, 2010

When Mortgage Mediation Is a Gamble

By GRETCHEN MORGENSON

NEVADA — one of the states where home prices went stratospheric during the housing mania — is now reporting some of the nation’s most horrifying foreclosure figures. Last week, RealtyTrac said that 1 in every 84 households in the state had received a foreclosure notice in August, 4.5 times the national average.

To mitigate this continuing disaster, the Nevada Assembly created a foreclosure mediation program last year. Intended to help keep families in their homes, the program brings together troubled borrowers and their lenders to negotiate resolutions.

The program began on July 1, 2009, and in its first year, 8,738 requests for mediation were received and 4,212 completed, according to the state’s Administrative Office of the Courts. Some 668 borrowers gave up their homes and 445 were foreclosed upon in the period.

“We are the only state that requires the bank to do something — they must come to the table if the homeowner elects mediation,” said Verise V. Campbell, who administers the program. “We are now touted as the No. 1 foreclosure mediation program around the country. The program is working.”

During its first year, 2,590 cases — more than 60 percent of completed mediations — resulted in agreements between borrower and lender, Ms. Campbell said. But when asked how many actually wound up assisting homeowners through permanent loan modifications, she said her office did not track that figure.

Most of these agreements, say lawyers who have worked in Nevada’s program, were probably for temporary modifications like those that have frustrated borrowers elsewhere — you know, the kind of plan that lasts only three months until the bank decides that the borrower does not qualify for a permanent modification.

Clearly, the Nevada program is superior to the White House’s Home Affordable Modification Program, where borrowers have trouble even reaching lenders by phone. Forcing banks to meet with borrowers is definitely a good step.

But some mediators who have participated in the Nevada program and some lawyers who represent borrowers in it say it has flaws that may give the banks an advantage over borrowers.

Patrick James Martin, a lawyer in Reno who is a certified public accountant and an arbitrator for the Financial Industry Regulatory Authority, was an early mediator in the program. In a recent letter to Nevada’s state court administrator, Mr. Martin expressed concern that the program favored lenders.

“I really felt the lenders didn’t have too much interest in having the program work,” Mr. Martin said in an interview. “A lawyer would show up for the lender with none of the documents required by the program. When they got into the mediation, they would call somebody in a bullpen someplace who had a computer handy and the borrower might or might not qualify for modification. No discussion, no negotiation.”

Mr. Martin said he no longer received cases to mediate.

Another experienced mediator, who declined to be identified because he feared reprisals, was removed from the system after he recommended sanctions for banks that did not meet their obligations under the program. These duties include showing up, bringing pertinent documents and having authority to negotiate with the borrower.

After this mediator made a petition for sanctions in a case this year, Ms. Campbell sent him and the other parties in the matter a letter saying that the recommendation was not a “valid Foreclosure Mediation Program document.” The letter, on Supreme Court of Nevada stationery, also stated that nothing in the law that established the mediation program “requires or permits a mediator to recommend specific sanctions.”

But the statute governing mediations in Nevada clearly specifies that if a lender does not participate in the mediation in good faith, by failing to appear, for example, “the mediator shall prepare and submit to the mediation administrator a petition and recommendation concerning the imposition of sanctions” against the lender. The court then has the power to issue sanctions, which can include forcing a loan modification.

Keith Tierney is a veteran real estate lawyer who was until recently a mediator in the program. He, too, stopped receiving mediation assignments after recommending sanctions against lenders in a number of cases. He said that a program official told him last week that he was no longer eligible because he issued a petition and recommendation for sanctions, even though that is what the law allows.

When asked why she believed that such recommendations were not allowed, Ms. Campbell said mediators who issued them were not following the program rules as interpreted by Nevada’s Supreme Court.

But Mr. Tierney said: “The statute trumps rules. Every attorney in the world knows that if a rule is in contradiction to a statute, the rule is null and void.”

Administering the program gives Ms. Campbell great power. She issues certificates allowing foreclosures to take place after mediations occur. And while she said such certificates were submitted only when mediators’ statements showed they should be, mistakes have happened.

ONE woman went through a mediation in which the lender didn’t provide necessary documents and the mediator noted it, according to legal documents. Under the rules, no certificate is supposed to be issued in such a circumstance, but shortly afterward, the borrower received notice of a trustee sale. Ms. Campbell’s office had issued a certificate allowing foreclosure; only by filing for bankruptcy could the borrower stop it.

Ms. Campbell said such problems were rare. The state doesn’t produce data that would allow her assertion to be verified.

Ms. Campbell is not a lawyer and is not a veteran of the housing or banking industries. Before overseeing the mediation program, she worked in the casino industry. She worked for a Chinese company developing a gambling property in Macau and was director of administration for the Cosmopolitan Resort and Casino in Las Vegas.

Ms. Campbell said that her position involved administrative duties, not legal insight, and that her experience overseeing large projects amply prepared her to manage the Nevada mediation program.

But David M. Crosby, the lawyer who represented the borrower whose case resulted in an erroneous foreclosure action, said significant questions remained about the program. Among them, he said, was the role that Ms. Campbell played in the process.

“Does she just do administrative stuff or does she make decisions?” he asked. “That doesn’t seem well decided.”


GMAC HALTS FORECLOSURES ADMITTING FALSE AFFIDAVITS

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From testimony in a Chase case, same as dozens of others I have seen —-

Q. So if you didn’t review any books, records, and documents or computerized records, how is it that you had personal knowledge of all the matters contained therein?

A. Well, I have personal knowledge that my staff has personal knowledge. That is our process.

KEEP IN MIND that these admitted facts now are the same facts treated with incredulity and derision from the bench and opposing counsel. The Judges were wrong. The foreclosures were wrong. Now what? How will homeowners and counsel be treated in court now? Will the Judge still think the homeowner is trying to get out of a legitimate debt or will the Courts start to allow these cases to heard on their MERITS instead of improper PRESUMPTIONS? Will the courts start following rules of evidence or will they continue to give the “benefit of the doubt” (i.e., and improper presumption) to the foreclosure mill that fabricated documents with false affidavits?

The tide is turning from defending borrowers to prosecuting damage claims for slander of title, fraud, appraisal fraud, and criminal prosecutions by state, local and federal law enforcement. GMAC is only the first of the pretender lenders to admit the false representations contained in pleadings and affidavits. The methods used to to obtain foreclosure sales were common throughout the industry. The law firms and fabrication mills will provide precious little cover for the culprits whose interests they served. AND now that millions of homes were foreclosed, their position is set and fixed — they can no longer “fix” the problem by manipulating the documents.

The bottom line is that GMAC mortgagors who “lost” their homes still own them, as I have repeatedly opined on these pages. The damages are obvious and the punitive damages available are virtually inevitable. Maybe Judges will change their minds about applying TILA and RESPA, both of which amply cover this situation. Maybe those teeth in those statutes do NOT lead to windfall gains for homeowners but only set things right.

These people can move back into their homes in my opinion and even taken possession from those who allegedly purchased them, since the title was based upon a fatal defect in the chain. Whether these people will end up owing any money and whether they might still be subject to foreclosure from SOMEBODY is not yet known, but we know that GMAC-sponsored foreclosures are now admitted to be defective. There is no reason to suppose that GMAC was any different from any of the other pretender lenders who initiated foreclosure sales either on false pleading or false instructions using the power of sale in non-judicial states.

Those hundreds of millions of dollars earned by the foreclosure mills, those tens of billions of wealth stolen from homeowner are all up for grabs as lawyers start to circle the kill, having discovered that there is more money here than any personal injury or malpractice suit and that anyone can do it with the right information on title and securitization.

With subpoenas coming in from law enforcement agencies around the country, GMAC is the first to crumble, aware that the choice was to either take a massive commercial hit for damages or face criminal charges. Finger pointing will start in earnest as the big boys claim plausible deniability in a scheme they hatched and directed. The little guys will flip on them like pancakes as they testify under oath about the instructions they received which they knew were contrary to law and the rules governing their licenses and charters. Real Estate Brokers, licensed appraisers, licensed mortgage mortgage brokers, notaries, witnesses, title agents and their collective title and liability insurance carriers will soon discover that their licenses, livelihood and reputations are not only at risk but almost certainly headed for a major hit.

There can be no doubt that all GMAC cases will be affected by this action although GMAC has thus far limited the instruction to judicial states. In non-judicial states, most of the foreclosures were done without affidavits because they were uncontested. GMAC will now find small comfort that they didn’t use affidavits but merely false instructions to “Trustees” whose status was acquired through the filing of “Substitution of Trustee” documents executed by the same folks who falsified the affidavits in the judicial states. But the fact is that GMAC was not the creditor and obtained title through a “credit bid.” THEY CAN’T FIX THIS! Thus the transfer of title was void, in my opinion, or certainly voidable.

The denial that the affidavit contained false information is patently false — and, as usual, not under oath (see below). GMAC takes the position that the affidavits were “inadvertently” signed (tens of thousands of them) by persons without knowledge of their truth or falsity and that the action is taken only to assure that the mortgage holder is actually known. So the fight isn’t over and don’t kid yourself. They are not all going to roll over and play dead. Just take this as another large step toward the ultimate remedy — reinstatement of people in their homes, damage awards to people who were defrauded, and thus restoration of hundreds of billions of dollars of wealth back into the economic sector where money is spent and the economy actually works for people who don’t trade false papers at the expense of pensioners and homeowners around the world.

September 20, 2010

GMAC Halts Foreclosures in 23 States for Review

By DAVID STREITFELD

GMAC Mortgage, one of the country’s largest and most troubled home lenders, said on Monday that it was imposing a moratorium on many of its foreclosures as it tried to ensure they were done correctly.

The lender, which specialized in subprime loans during the boom, when it was owned by General Motors, declined in an e-mail to specify how many loans would be affected or the “potential issue” it had identified with them.

GMAC said the suspension might be a few weeks or might last until the end of the year.

States where the moratorium is being carried out include New York, Connecticut, New Jersey, Illinois, Florida and 18 others, mostly on the East Coast and in the Midwest. All of the affected states are so-called judicial foreclosure states, where courts control the interactions of defaulting homeowners and their lenders.

Since the real estate collapse began, lawyers for homeowners have sparred with lenders in those states. The lawyers say that in many cases, the lenders are not in possession of the original promissory note, which is necessary for a foreclosure.

GMAC, which has been the recipient of billions of dollars of government aid, declined to provide any details or answer questions, but its actions suggest that it is concerned about potential liability in evicting families and selling houses to which it does not have clear title.

The lender said it was also reviewing completed foreclosures where the same unnamed procedure might have been used.

Matthew Weidner, a real estate lawyer in St. Petersburg, Fla., said he interpreted the lender’s actions as saying, “We have real liability here.”

Mr. Weidner said he recently received notices from the opposing counsel in two GMAC foreclosure cases that it was withdrawing an affidavit. In both cases, the document was signed by a GMAC executive who said in a deposition last year that he had routinely signed thousands of affidavits without verifying the mortgage holder.

“The Florida rules of civil procedure are explicit,” Mr. Weidner said. “If you enter an affidavit, it must be based on personal knowledge.”

The law firm seeking to withdraw the affidavits is Florida Default Law Group, which is based in Tampa. Ronald R. Wolfe, a vice president at the firm, did not return calls. The firm is under investigation by the State of Florida, according to the attorney general’s Web site.

Real estate agents who work with GMAC to sell foreclosed properties were told to halt their activities late last week. The moratorium was first reported by Bloomberg News on Monday. Bloomberg said it had obtained a company memorandum dated Friday in which GMAC Mortgage instructed brokers to immediately stop evictions, cash-for-key transactions and sales.

Nerissa Spannos, a Fort Lauderdale agent, said GMAC represents about half of her business — 15 houses at the moment in various stages of foreclosure.

“It’s all coming to a halt,” she said. “I have so many nice listings and now I can’t sell them.”

The lender’s action, she said, was unprecedented in her experience. “Every once in a while you get a message saying, ‘Take this house off the market. We have to re-foreclose.’ But this is so much bigger,” she said.

Ally Says GMAC Mortgage Mishandled Affidavits on Foreclosures

By Dakin Campbell and Lorraine Woellert – Sep 21, 2010

Ally Financial Inc., whose GMAC Mortgage unit halted evictions in 23 states amid allegations of mishandled affidavits, said its filings contained no false claims about home loans.

The “defect” in affidavits used to support evictions was “technical” and was discovered by the company, Gina Proia, an Ally spokeswoman, said in an e-mailed statement. Employees submitted affidavits containing information they didn’t personally know was true and sometimes signed without a notary present, according to the statement. Most cases will be resolved in the next few weeks and those that can’t be fixed will “require court intervention,” Proia said.

“The entire situation is unfortunate and regrettable and GMAC Mortgage is diligently working to resolve the situation,” Proia said. “There was never any intent on the part of GMAC Mortgage to bypass court rules or procedures. Nor do these failures reflect any disrespect for our courts or the judicial processes.”

State officials are investigating allegations of fraudulent foreclosures at the nation’s largest home lenders and loan servicers. Lawyers defending mortgage borrowers have accused GMAC and other lenders of foreclosing on homeowners without verifying that they own the loans. In foreclosure cases, companies commonly file affidavits to start court proceedings.

“All the banks are the same, GMAC is the only one who’s gotten caught,” said Patricia Parker, an attorney at Jacksonville, Florida-based law firm, Parker & DuFresne. “This could be huge.”

No Misstatements

Aside from signing the affidavits without knowledge or a notary, “the sum and substance of the affidavits and all content were factually accurate,” Proia wrote in the e-mail. “Our internal review has revealed no evidence of any factual misstatements or inaccuracies concerning the details typically contained in these affidavits such as the loan balance, its delinquency, and the accuracy of the note and mortgage on the underlying transaction.”

Affidavits are statements written and sworn to in the presence of someone authorized to administer an oath, such as a notary public.

GMAC told brokers and agents to halt evictions tied to foreclosures on homeowners in 23 states including Florida, Connecticut and New York and said it may have to take “corrective action” on other foreclosures, according to a Sept. 17 memo. Foreclosures won’t be suspended and will continue with “no interruption,” Proia said in a statement yesterday.

10,000 a Week

In December 2009, a GMAC Mortgage employee said in a deposition that his team of 13 people signed “a round number of 10,000” affidavits and other foreclosure documents a month without verifying their accuracy. The employee said he relied on law firms sending him the affidavits to verify their accuracy instead of checking them with GMAC’s records as required. The affidavits were then used to complete the process of repossessing homes and evicting residents.

Florida Attorney General William McCollum is investigating three law firms that represent loan servicers in foreclosures, and are alleged to have submitted fraudulent documents to the courts, according to an Aug. 10 statement. The firms handled about 80 percent of foreclosure cases in the state, according to a letter from Representative Alan Grayson, a Florida Democrat.

“It appears that the actions we have taken and the attention we’ve paid to this issue could have had some impact on the actions that GMAC took today, but we can’t take full credit,” Ryan Wiggins, a spokeswoman for McCollum, said yesterday in a telephone interview.

‘Committed Fraud’

In August, Florida Circuit Court Judge Jean Johnson blocked a Jacksonville foreclosure brought by Washington Mutual Bank N.A. and JPMorgan Chase Bank, which had purchased the failed bank’s assets, and Shapiro & Fishman, the companies’ law firm. Documents eventually showed that the mortgage on the house was in fact owned by Washington-based Fannie Mae.

WaMu and the law firm “committed fraud on this court,” Johnson wrote. JPMorgan had presented a document prepared by Shapiro showing the mortgage was sold directly to WaMu in April 2008.

Tom Ice, founding partner of Ice Legal PA in Royal Palm Beach, Florida, said a fourth law firm representing GMAC in recent weeks has begun withdrawing affidavits signed by the GMAC employee.

“The banks are sitting up and taking notice that they can’t use falsified documents in the courtroom,” Ice said. “There may be others doing the same thing. They’re going to come back and say, ‘We’d better withdraw these,’” Ice said in a telephone interview.

Alejandra Arroyave, a lawyer with Lapin & Leichtling, a law firm in Coral Gables, Florida, who represented the employee at his December 2009 deposition, didn’t respond to a request for comment. A phone call to the employee wasn’t returned.

Mortgage Market

GMAC ranked fourth among U.S. home-loan originators in the first six months of this year, with $26 billion of mortgages, according to Inside Mortgage Finance, an industry newsletter. Wells Fargo & Co. ranked first, with $160 billion, and Citigroup Inc. was fifth, with $25 billion.

Iowa Assistant Attorney General Patrick Madigan said the implications of Ally’s internal review and the GMAC employee’s deposition could be “enormous.”

“It would call into question whether other servicers have engaged in similar practices,” Madigan said in a telephone interview. “It would be a major disruption to the foreclosure pipeline.”

To contact the reporters on this story: Dakin Campbell in San Francisco at dcampbell27@bloomberg.net; Lorraine Woellert in Washington at lwoellert@bloomberg.net.

3 CASES THAT SHOW WE ARE ON THE RIGHT TRACK

SUBMITTED BY BRIAN

Three cases that show we are on the right track.
Indymac is a bad group that is going down further.

http://www.scribd.com/doc/37596878/Paul-Nygen-Judgement-Against-Lenders-09-15-10

http://www.scribd.com/doc/37617034/FDIC-Indymac-V-Van-Dellen-Complaint-Officers-of-Indymac-sued-by-FDIC-Onewest-Bank-states-106-of-the-108-loans-are-non-performing-Must-be-to-the

http://www.scribd.com/doc/37618538/Indymac-Certificate-ShareHolder-Class-Action-9th-Circuit-Interlocutory-Order-certifying-the-6th-Amended-Complaint

44 Million in Poverty and Climbing

livinglies-newsletter-provides-more-strategic-info

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RECOVERY HELD HOSTAGE BY WALL STREET AND POLITICIANS

THIS IS WHAT I WANTED AVOID. WE ARE FAST APPROACHING THIRD WORLD STATUS, FORMER WORLD LEADER. AND THE REASON IS SIMPLE, WALL STREET OWNS THE GOVERNMENT PROCESS. THE RESULT IS THAT THE ONLY RIGHTFUL STIMULUS PACKAGE THAT WOULDN’T COST THE TAXPAYERS A DIME IS BEING BLOCKED. WAKE UP, AMERICA! IT DOESN’T HAVE TO BE THIS WAY!

THE RIGHTFUL RETURN OF EQUITY TO HOMEOWNERS AMOUNTING TO TRILLIONS OF DOLLARS (WITHOUT A DIME MORE FROM TAXPAYERS) WOULD PRODUCE ALL THE STIMULUS NECESSARY TO JUMP START OUR ECONOMY FROM REVERSE GEAR TO FORWARD. IT WOULDN’T CURE EVERYTHING BUT IT WOULD ALLOW EVERYTHING TO GO RIGHT OVER TIME.

In the article below the gruesome details are shown and we all know that when it comes to bad news, the government tends to understate it and when it comes to good news, the government tends to overstate it. 4 million people have been officially added to those living below the poverty level. The total is now 44 million people, many of them children, and the government concedes this number is going to rise.

So let’s just put politics aside for a moment and focus on practicality. Just how close do the flood waters have to come to your front door before you stop caring how they got there and who else would benefit if you drained the swamp?

About 15% of our population, the highest in decades, is officially below the poverty line and the real figure is nearly twice that because of families that have had to move in together or because they couldn’t be located to be counted. In the same period of time it took us to get there, Wall Street grew from 15% of our our economy to 44%. Those kinds of result are impossible without government complicity and intentionally channeling the money from 98% of Americans to the top 2%.

It’s not that our people are stupid. The reason we have to wait for everyone to get mad enough is that everyone is trying so hard to stay afloat for themselves and their families that they don’t have luxury of reading, analysis and staying informed. Their news comes in tiny sound bites that say nothing but inflame the passions, because that is about all we have time for. But just like you don’t have to worry about crime until there is a home invasion in YOUR home, suddenly the pendulum swings the other way as we go into defensive and offensive mode to put down this takeover of the government and economy.

It’s happening. You can see it in politics as incumbents get hammered, as well they should, in new groups forming just to get heard or just to get the the existing person in office out and somebody, anybody else in. Voter anger is only part of this. Civil incidents are rising and will continue to rise until the vast majority of people start believing that the government is keeping the peace and the government is returning the piece of the American pie to its people.

What I think is the only legally, ethically and morally right thing to do is the only practical thing to do to drain the swamp before everyone ends up below the poverty line regardless of their current apparent economic condition. The economy needs the injection of trillions of dollars in individual wealth to start a REAL RECOVERY and the government doesn’t have it and can’t print it without causing even worse conditions than we now have.

Those trillions of dollars are locked up in the bondage of bogus claims by bogus intermediaries who are holding REO property from fraudulent foreclosures and who are adding to that pile of wealth every day because the judicial system is letting them. It is true that a complete change of policy that gives the middle class and poor the benefit of the bargain they thought there were getting when they accepted the “loan product” that they were sold, along with a fraudulent appraisal and fraudulent claims that the appraisal had been verified in the underwriting process that had been fraudulently claimed to have taken place.

The trick of this scheme was to make absolutely certain that the loans pools failed. That is what they did. And to make it fail-safe they put conditions in the pools that even if they were largely performing they could still be declared in default and collect money on insurance, counter-party risk obligations (credit default swaps) etc. But they knew that virtually all the loans would fail because regardless of the borrower’s ability to pay, which they sought to recruit at as a low a standard as they could find, they knew the borrower would not WANT to pay because the  deal turned out to be like one of those car deals where you drive off the lot and you already lost 20%, drive another 100 miles and you lost 25% and so on.

Practically every borrower thought when they accepted these deals that they had equity in the deal. Practically none of them did actually have equity. They had a loss and it got worse with each passing month and every dollar they put into the home. That loss was Wall Street’s gain. By any legal standard that I know that gain was illicitly obtained and should be re turned to the borrowers. If the borrowers were offered a deal where they ended up with at least part of the equity they were sold, the foreclosures would end, the housing market would rebound, the consumers would have money, the economy would start recovering and Wall Street would shrink back to where it belongs — a small portion of a vibrant economy that actually makes things of value that people want and actually performs services that people want and will pay for.

Free house? Maybe, if that is what it takes put the deal right after they robbed the homeowner blind. In most cases, no it won’t take that much. And in all cases the free houses are being given to intermediaries who never invested a dime in the deal would stop. The free houses that are being greedily split up by disinterested parties who have been paid multiple times on a transaction that never should have happened in the first place would also stop. Wall Street would groan and scream and call it socialism, as though ANY system of government or economics would allow the institutionalization of theft and the socialization (payment with citizens money) of losses.

We already paid for those losses by socializing the ridiculous machinations of Wall Street. Shouldn’t we get something for our investment? Shouldn’t there be some sort of exit strategy that leaves the economy right side up? And shouldn’t there be a day of reckoning for those caused this catastrophe?

  • What would be so bad if that day of reckoning also was the day we put things right with homeowners?

  • What would be so bad if some homeowners made out a little better than the Wall Street thieves who caused this mess, especially if it produced a healthy economy?

  • Do we really WANT our neighbors home to go down in flames when we know it will cause fire damage to our own home, just because he was smoking in bed, drunk, passed out?

  • When do we get practical about this and simply say, we want the economy right-side up, we want our society free and controlled by the people and for the people and if that ends up offending some souls out there, they’ll get over it or they won’t. Who cares?

September 16, 2010

Recession Raises Poverty Rate to a 15-Year High

By ERIK ECKHOLM

The percentage of Americans struggling below the poverty line in 2009 was the highest it has been in 15 years, the Census Bureau reported Thursday, and interviews with poverty experts and aid groups said the increase appeared to be continuing this year.

With the country in its worst economic crisis since the Great Depression, four million additional Americans found themselves in poverty in 2009, with the total reaching 44 million, or one in seven residents. Millions more were surviving only because of expanded unemployment insurance and other assistance.

And the numbers could have climbed higher: One way embattled Americans have gotten by is sharing homes with siblings, parents or even nonrelatives, sometimes resulting in overused couches and frayed nerves but holding down the rise in the national poverty rate, according to the report.

The share of residents in poverty climbed to 14.3 percent in 2009, the highest level recorded since 1994. The rise was steepest for children, with one in five affected, the bureau said.

The report provides the most detailed picture yet of the impact of the recession and unemployment on incomes, especially at the bottom of the scale. It also indicated that the temporary increases in aid provided in last year’s stimulus bill eased the burdens on millions of families.

For a single adult in 2009, the poverty line was $10,830 in pretax cash income; for a family of four, $22,050.

Given the depth of the recession, some economists had expected an even larger jump in the poor.

“A lot of people would have been worse off if they didn’t have someone to move in with,” said Timothy M. Smeeding, director of the Institute for Research on Poverty at the University of Wisconsin.

Dr. Smeeding said that in a typical case, a struggling family, like a mother and children who would be in poverty on their own, stays with more prosperous parents or other relatives.

The Census study found an 11.6 percent increase in the number of such multifamily households over the last two years. Included in that number was James Davis, 22, of Chicago, who lost his job as a package handler for Fed Ex in February 2009. As he ran out of money, he and his 2-year-old daughter moved in with his mother about a year ago, avoiding destitution while he searched for work.

“I couldn’t afford rent,” he said.

Danise Sanders, 31, and her three children have been sleeping in the living room of her mother and sister’s one-bedroom apartment in San Pablo, Calif., for the last month, with no end in sight. They doubled up after the bank foreclosed on her landlord, forcing her to move.

“It’s getting harder,” said Ms. Sanders, who makes a low income as a mail clerk. “We’re all pitching in for rent and bills.”

There are strong signs that the high poverty numbers have continued into 2010 and are probably still rising, some experts said, as the recovery sputters and unemployment remains near 10 percent.

“Historically, it takes time for poverty to recover after unemployment starts to go down,” said LaDonna Pavetti, a welfare expert at the Center on Budget and Policy Priorities, a liberal-leaning research group in Washington.

Dr. Smeeding said it seemed almost certain that poverty would further rise this year. He noted that the increase in unemployment and poverty had been concentrated among young adults without college educations and their children, and that these people remained at the end of the line in their search for work.

One indirect sign of continuing hardship is the rise in food stamp recipients, who now include nearly one in seven adults and an even greater share of the nation’s children. While other factors as well as declining incomes have driven the rise, by mid-2010 the number of recipients had reached 41.3 million, compared with 39 million at the beginning of the year.

Food banks, too, report swelling demand.

“We’re seeing more younger people coming in that not only don’t have any food, but nowhere to stay,” said Marla Goodwin, director of Jeremiah’s Food Pantry in East St. Louis, Ill. The pantry was open one day a month when it opened in 2008 but expanded this year to five days a month.

And Texas food banks said they distributed 14 percent more food in the second quarter of 2010 than in the same period last year.

The Census report showed increases in poverty for whites, blacks and Hispanic Americans, with historic disparities continuing. The poverty rate for non-Hispanic whites was 9.4 percent, for blacks 25.8 percent and for Hispanics 25.3 percent. The rate for Asians was unchanged at 12.5 percent.

The median income of all households stayed roughly the same from 2008 to 2009. It had fallen sharply the year before, as the recession gained steam and remains well below the levels of the late 1990s — a sign of the stagnating prospects for the middle class.

The decline in incomes in 2008 had been greater than expected, and when the two recession years are considered together, the decline since 2007 was 4.2 percent, said Lawrence Katz, an economist at Harvard. Gains achieved earlier in the decade were wiped out, and median family incomes in 2009 were 5 percent lower than in 1999.

“This is the first time in memory that an entire decade has produced essentially no economic growth for the typical American household,” Mr. Katz said.

The number of United States residents without health insurance climbed to 51 million in 2009, from 46 million in 2008, the Census said. Their ranks are expected to shrink in coming years as the health care overhaul adopted by Congress in March begins to take effect.

Government benefits like food stamps and tax credits, which can provide hundreds or even thousands of dollars in extra income, are not included in calculating whether a family’s income falls above or below the poverty line.

But rises in the cost of housing, medical care or energy and the large regional differences in the cost of living are not taken into account either.

If food-stamp benefits and low-income tax credits were included as income, close to 8 million of those labeled as poor in the report would instead be just above the poverty line, the Census report estimated. At the same time, a person who starts a job and receives the earned income tax credit could have new work-related expenses like transportation and child care. Unemployment benefits, which are considered cash income and included in the calculations, helped keep 3 million families above the line last year, the report said, with temporary extensions and higher payments helping all the more.

The poverty line is a flawed measure, experts agree, but it remains the best consistent long-term gauge of need available, and its ups and downs reflect genuine trends.

The federal government will issue an alternate calculation next year that will include important noncash and after-tax income and also account for regional differences in the cost of living.

But it will continue to calculate the rate in the old way as well, in part because eligibility for many programs, from Medicaid to free school lunches, is linked to the longstanding poverty line.

Reporting was contributed by Rebecca Cathcart in Los Angeles, Emma Graves Fitzsimmons in Chicago, Malcolm Gay in St. Louis, Robert Gebeloff in New York and Malia Wollan in San Francisco.


UNDISCLOSED MIDDLE: Repurchase Obligation in the Mortgage Loan Purchase Agreement

FROM ANONYMOUS, MY FAVORITE CONTRIBUTOR 🙂

EDITOR’S NOTE: I would be better off and so would our readers if I could be as succinct in my writing as Anonymous. Somehow it always takes me longer to say what he does in a few sentences. Use HIS version instead of mine whenever possible. My version is more academic and runs the risk of putting the Judge to sleep.

  • This piece written by Anonymous underscores the BASIC point that needs to be made from the start: the TOTAL agreement between lender and borrower consists of far more than the loan closing documents.
  • The fact that the rest of the documents were withheld doesn’t mean they weren’t involved, signed, executed and delivered. It means they were not disclosed when the applicable federal and state statutes as well as common law required them to be disclosed.
  • The old school Judges and lawyers are confused ONLY because they fail to recognize this basic truth.
  • Once they accept the fact that the borrower signed a note but the lender received a bond from a party not involved in the borrower’s closing, it all falls into place.
  • There is no nexus between borrower and lender without recognizing the obvious — there were parties, documents, agreements and corresponding duties and obligations existing in the UNDISCLOSED MIDDLE.
  • The single transaction rule once applied, clears up all confusion. No money from investor – NO DEAL. No borrower to accept loan — NO DEAL. SINGLE TRANSACTION if there ever was one.
  • But perhaps the single most important point Anonymous makes is that the alleged assignment, transfer, endorsement etc of the note never took actually place which means that the title (encumbrance — mortgage or deed of trust) is and remains in the name of the originating “lender” to whom no money is owed. A classical case of an unperfected security interest.

From Anonymous: “Repurchase and stipulations is contained within the same Mortgage Loan Purchase Agreement – it is not a separate contract – it is the same document and contract under the stated Trust and SEC filings. Thus, none of the note endorsements were actually “without recourse.”

However, many of the repurchase demands were not executed because the banks often looked the other way – until they became massive – and the originators were shut down.

Most of the endorsements were in blank – only when they knew there was no longer any recourse, are the notes actually endorsed to the trustee. But, they did not know this at the time of the trust set-up.

And, the notes are executed before foreclosure – they are sold at steep discounts to the servicer and removed from the trust – at this point there is no recourse..

It is at the inception of the trust – that the notes were not actually negotiable. Thus, the trust never actually owned the notes – they did not have to – because only the receivables are passed-through.

If there was a separate contract for Repurchases – it would have had to have been filed with the SEC – along with other documents. There was no separate contract – the Repurchase agreement was part of the Mortgage Loan Purchase Agreement – they were one and the same.

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