Chase-WAMU Letter Reveals”Expungement” and “Assignments” of Alleged Mortgages ” Not on the Books and Records of WAMU”

There is an old saying on Wall Street that “Bulls make money, Bears make money but Pigs never do.” The obvious circumstances of Chase claiming ownership to nonexistent loan portfolios contained within WAMU coupled with the admission in this letter to the FDIC, shows just how arrogant Chase felt when they informed the FDIC that they wanted to get paid by the FDIC for expunging documents and fabricating other instruments for “loans” that were not on the books and records of WAMU at the time of their purchase and sale agreement wherein Chase acquired the WAMU estate.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
see Letter from Chase to FDIC: chase-letter-to-fdic-2014
*
Hat tip to Bill Paatalo who reminded me of this letter that surfaced in the dispute over FDIC indemnification of Chase for the takeover of WAMU operations. Chase expressly admits to defects in the chain of title and erroneous mortgage documentation.
*
It has been central to the defense of foreclosures based upon alleged “loans” originated by Washington Mutual (WAMU) that Chase never acquired any loans. It is obvious from the the transaction where Chase agreed to pay around $2 Billion to the estate but received more than that in a tax refund due to the WAMU estate. So the consideration was zero.
*
Yet Chase has persistently asserted claims of ownership and direct or indirect authority to foreclose on loans that were not in the books and records of WAMU at the time of the FDIC sale to Chase.
Along with several others, I have stated the fact that Chase (1) acquired no loans (2) because they were not in the WAMU portfolio and that (3) a check of the WAMU books and records in the bankruptcy court will not show the loans that Chase says it acquired from WAMU. If WAMU didn’t own them then Chase could not have acquired them from WAMU.
*
In order to perpetuate this farce we have alleged that Chase was directly involved in the fabrication and forgery of documents to create the illusion of loans that didn’t exist on WAMU books and records and schedules in the receivership and schedules in bankruptcy.
*
Even a non-lawyer can see the problem for Chase. The letter in the link below clearly shows the lawyers asserting a claim for expenses in expunging records (i.e., destroying them) and fabricating other records which obviously leads to the issue of forging since the document itself was knowingly fabricated at the expense of Chase.
*
Somehow Chase came to the conclusion that having paid for the destruction of documents and having paid for fabricating documents, they were now entitled to call themselves owner of the “Loan portfolio” which according to the schedules never existed.
*
They admit to fabricating documents to create the illusion of a chain of title. Now they want payment from the FDIC to cover the expense of fabrication and forgery. Perhaps more importantly they admit “errors in mortgage documentation occurring prior to September 25,2008.”
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===========================

Email from Bill Paatalo:
Neil,
Have you seen this letter? The collusion between JPMC and the FDIC could not be any more transparent.
Excerpts from letter in italics:

The additional matters giving rise to JPMC’s indemnity rights relate to costs incurred in connection with mortgages held by WMB prior to September 25,2008. These costs have resulted from aspects of-and circumstances related to- WMB mortgages that were not reflected on the books and records of WMB as of September 25, 2008, and include:

[HERE IS A DIRECT ADMISSION THAT THERE IS A SCHEDULE OF LOANS “NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB.” IF NO SCHEDULE EXISTS SHOWING WHAT WAS “ON THE BOOKS AND RECORDS,” THEN WE SHOULD NOW INQUIRE AS TO THE SCHEDULE SHOWING THOSE LOANS NOT REFLECTED ON THE BOOKS AND RECORDS.]

(a) Costs incurred by JPMC associated with individual assignments of WMB mortgages. Where JPMC has initiated foreclosures on properties associated with mortgages that were held by WMB prior to its Receivership, JPMC has performed individual assignments of the associated mortgages/deeds of trust and allonges to comply with a recent appellate-level court decision in Michigan so as avoid potential additional expense and/or liability. In so doing, JPMC has incurred additional recording and legal fees, Limited Power of Attorney costs, as well as quantifiable costs associated with increased staffing to address these issues.

[THIS IS A DIRECT ADMISSION THAT ASSIGNMENTS AND ALLONGES ARE BEING EXECUTED BY JPMC (AS BENEFICIARIES AND MORTGAGEES) FOR WMB LOANS THAT WERE “NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB.”]

(c) Costs incurred by JPMC to expunge records associated with WMB mortgages as a result of errors in mortgage documentation occurring prior to September 25,2008, including erroneously recorded satisfactions of mortgages and associated legal fees and disbursements.

[“EXPUNGING RECORDS ASSOCIATED WITH WMB MORTGAGES AS A RESULT OF ERRORS IN MORTGAGE DOCUMENTATION?” THIS IS A DIRECT ADMISSION THE JPMC HAS DESTROYED RECORDS RELATED TO WMB MORTGAGE FILES.]

(d) Costs incurred by JPMC to correct various defects in the chains of title for WMB mortgages occurring prior to September 25, 2008, including recording and legal services fees.

[WHAT “CHAINS OF TITLE?” JPMC TAKES THE POSITION THAT THESE LOANS WERE NEVER SOLD BY WMB. THIS IS A DIRECT ADMISSION THAT JPMC IS ATTEMPTING TO CORRECT DEFECTS IN THE CHAINS OF TITLE FOR WMB LOANS THAT WERE NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB. THESE “CORRECTIONS” UNIVERSALLY INVOLVE ASSIGNMENTS OF BENEFICIAL INTERESTS FROM THE FDIC, AND/OR BY VIRTUE OF THE PAA.]

At the time of WMB’ s closure, the above liabilities were not reflected on its books and records.

Bill Paatalo
Oregon Private Investigator – PSID#49411

BP Investigative Agency, LLC
P.O. Box 838
Absarokee, MT 59001
Office: (406) 328-4075

The Dangers of Disregarding the Uniform Commercial Code

There is a trend nationwide where judges are ruling that broken chains of title are not relevant.

 
The UCC is one of the least favored courses in law school. Judges hate it because they didn’t pay attention during class. But it’s the law. So the courts are ruling by the seat of their pants instead of following the law. Banks like it for now but be careful what you wish for — these rulings are undermining the marketplace for negotiable instruments.

 
Eventually lenders and factoring companies are going to come face to face with the “law” they have created through the courts — the UCC doesn’t mean anything and there are no protections against a party with a broken chain pursing a competing claim. The end result is that they will start lending or trading in negotiable instruments or even non-negotiable instruments. That could stop the economy dead in its tracks as the credit markets freeze up because players have lost confidence in the courts applying the rule of law instead of following statutes that have been on the books for generations.

 
The second problem with the current approach is that it leads inescapably to a constitutional crisis: if the Courts can ignore the rule of law as set forth in a statute, then legislation is final only after a court rules on it. This is a fundamental break with the express provisions of the US Constitution which provides for separation of powers within three independent branches of government — executive, legislative and judicial. This takes us far from the rule of law and into the third world nation context where it is the the rule of men in power that prevails, that changes the laws at their whim, and that enables such leaders to line their pockets with Government money.

 
Also arising out of their inattention to the UCC — which is adopted into the laws of every state in the union — courts are left with applying their own sense of what SHOULD happen as an end result. And by their reckoning, the most important thing is that the marketplace SHOULD be a place where you can be assured that borrowers repay their debts or suffer the consequences.

 
Add the political fear factor and you have a mess. The political fear factor is that most judges are laboring under the delusion that ruling for the borrower will cause the entire financial system to crash. This has been the most powerful weapon used by the banks in creating the myth of too big to fail. But as I predicted years ago during the bailout, this policy — of deferring to the thieves that undercut all world markets — will prevent Government or anyone else from pursuing policies of growth.

 
No judge wants to be responsible, even in part, for the downfall of the entire financial system. The irony is that their rulings are doing exactly that — holding the economy back from a real rebound. Nearly all of the foreclosures were wrongful. As a result the modifications and deeds in lieu of foreclosure were also wrongful — a continuing pattern of converting investor wealth into bank wealth.

 
Nearly all foreclosures could have been settled under the premise that everyone, including the banks, should share in the losses created by the false claims of securitization. Merely applying the rule of law as it has existed for decades would have stopped the foreclosures, stopped the loss of wealth, and stopped the loss of jobs and income for wage earners. We continue to see a “recovery” that has none of the ear-marks of a strong economy.

 
The reason is simple. We are a consumer driven economy and many of the consumers now have been stripped of the ability to buy anything. Until that fundamental element is addressed, the economy will never recover in actuality. We will continue to have the bubble and illusion that the economy is strong because the stock market has gone up. But ask any financial analyst and they will say that the stock market itself has taken on all the attributed of a bubble that will burst.

 
Stocks are over-valued by a factor of as much as 3, which means that for stocks falling into that category, they should be selling at one-third of their current share price. Averaging out the price earnings multiples and comparing it with traditional fundamental securities analysis and you come up with the inescapable conclusion that the DOW ought to be under 10,000.

 
When that correction happens, the last vestige of the illusion of economy recovery will be gone — because Government never addressed the fundamental element of our economy — consumer wealth and income.

David Dayen’s Chain of Title Interview Confirms What You Always Suspected: The Game is Rigged

Chain of Title should be required reading in every college-level business ethics class in America. At a time when “business ethics” is an oxymoron, perhaps the current generation that adores Bernie Sanders might better understand the dangers big banking monopolies hold. David Dayen’s book, Chain of Title, unearths a system with the power and collateral to stonewall millions of homeowners from obtaining one very simple answer: Who owns my mortgage?

 
If you haven’t been able to wrap your head around why the federal government has failed to prosecute one banker for the foreclosure crisis there is a very simple answer that Chain of Title alludes to. The federal government has a dark secret: the trusts are empty and the falsified notes cannot be traced back to their true owners so they must be “recreated” if a default occurs. This means that the investors, the pensions and the trusts own nothing. It also means that the banks now own everything- including the U.S. federal government. It hardly matters that we have separation of powers if the bankers and elite control all three branches.

 
Salon contributing writer David Dayen and winner of the coveted Ida and Studs Terkel Prize, illuminates how home buyers have ended up illegally evicted from their homes as the result of dishonesty, greed, and deception at the hands of mortgage lenders, servicers, investment bankers, and unscrupulous lawyers. Dayen states that Alan Greenspan “viewed regulations the way an exterminator viewed termites.” If this is true, then the President viewed homeowners the way a sunbather views 300 million gnats at the beach.

 
What is truly amazing about this book is how Dayen who has never gone through foreclosure himself is able to recreate the desperation, optimism, and naiveté of homeowners fighting foreclosure while concurrently examining the systematic collapse of the economy. The insight into his three protagonists borders on the voyeuristic and compels the reader to proceed voraciously. The reader keeps rooting for the underdogs to prevail-but it never happens. Through Dayen’s expose you can literally smell the black mold on vacant houses, and feel the desperation of those who lack the tools and resources to fight back- but try with all their might to do so.

 
Dayen’s writing explores the possibilities for the housing crash while remaining detached from the outcome.  For example, he writes, “There is a rot at the heart of our democracy, rooted in a nagging mystery that has yet to be unraveled. It gnaws at people, occupies their thoughts, leaves them searching for answers in the chill of the night. Americans want to know why no high-ranking Wall Street executive has gone to jail for the conduct that precipitated the financial crisis. The oddest thing about the predominance of the question is that everyone already assumes they know the answer. They believe that too many politicians, regulators, and law enforcement officials, bought off with campaign contributions or the promise of a future job, simply allowed banker miscreants to annihilate the law in pursuit of profit.”

 
Dayen’s story begins when two of the protagonists start corresponding via discussion posts on Neil Garfield’s Living Lies blog, and come to the conclusion that they are being deceived by unscrupulous loan servicers. The homeowners will eventually meet other activists along their journey including Lynn Szymoniak and decide to take on the Foreclosure Machine. The personal sacrifices they make to become activists will leave all but Szymoniak permanently altered, and uncompensated for their efforts.

 
The homeowners include Lisa Epstein, a cancer nurse; Michael Redman, an auto dealership employee; and Lynn Szymoniak, a lawyer who investigates insurance fraud. Dayen chronicles their almost futile and life altering battles to save their homes from illegal foreclosure while acting on behalf of millions of homeowners without voices to complain. The author begins with Epstein’s case, followed by Redman’s; one-third of the way into the narrative, the two of them meet Szymoniak, who then pool their meager resources to raise public consciousness about banks who forge, fabricate and robosign to create the appearance of standing.

 
Dayen profiles hundreds of other individuals, many of them crooks, cowards, or corrupt men and women, many of whom had the authority to halt the fraudulent activities but were unwilling to do anything that would undermine their position or social standing.  Although the efforts of the whistle-blowers educated millions of homeowners wrongfully facing foreclosure—ultimately hundreds of thousands of houses remain empty and only now are people starting to put their lives back together with a paradigm shift- that their government doesn’t care. Dayen relates how prosecutors, judges, and the Department of Justice have caved to powerful mortgage industry donors while illegal foreclosures continue.

 
Whereas politicians and the banks have been indifferent that a mortgage is properly endorsed and assigned, Dayen believes that the technicalities matter and are there to protect the homeowner and investors. Without a clear chain of assignment from one entity to the next, there is no way to determine how the loan is transferred except to rely on banks who are not noted for their honesty or accurate business records.

 
Exposing the lies of the banks becomes a moral crusade for the three main characters and their decision to pursue justice will create an emotional smorgasbord, which Dayen meticulously reports. Chain of Title settles on the fact that the banks’ behavior not just indefensible, but criminal and duly executed with precision. This book won’t tell readers of Living Lies anything they don’t already know- but it will help the victims of foreclosure to recognize that the United States is now full of hard working Americans who were sucked into the vortex of banking greed- and who will never again believe in the rule of law or their leaders. This is a yet undiagnosed disease in the general public and the long-term repercussions are not yet known.

 
Dayen describes a bank pursuing foreclosure without legal signatures as “flailing away like a boxer in the dark”- and this is a feeling that also captures the feelings of many homeowners who continue to fight illegal foreclosure. Not sure where their well-funded opponent will come from next or what tactic will be used, the homeowner will flail away like a boxer in the dark hoping that some tactic will create sympathy or even due process from the court or cause the bank to retreat back to their hellish cave.
After reading this epic novel, it can’t be avoided that a free-market economy will function best when people have the ability to prove they own what they own and owe who they owe.

 

 

If we don’t return to the rule of law soon, the average American’s confidence will be undermined and alternatives will be sought.  Remember, those who tired of the Federal Reserve created Bitcoin and lending isn’t so complicated to enact that a similar solution among revolutionaries will not be created. It is amazing that the greed of banks, to save a recording fee, or pass around notes like bubblegum cards could undermine an entire industry- but that is exactly what has happened. Ominously, the first housing crash has yet to be resolved and it appears that the second wave, or what we call 2008 Part II is on the horizon. David Dayen’s book will be read well into the next century- and hopefully Americans will one day say, “How could people standby and let that happen?”  We won’t, but sometimes the wheels of justice take time.
CHAIN OF TITLE
How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud
By David Dayen
385 pp. The New Press.

Tonight on the Neil Garfield Show — The Foreclosure Opus: Chain of Title by David Dayen

Listen to David Dayen tonight on the Neil Garfield Show at 6 pm EST.

Click in to tune in The Neil Garfield Show Or call in at (347) 850-1260.

Chain of Title should be required reading in every college-level business ethics class in America. At a time when “business ethics” is an oxymoron, perhaps the current generation that adores Bernie Sanders might better understand the dangers big banking monopolies hold. David Dayen’s book, Chain of Title, unearths a system with the power and collateral to stonewall millions of homeowners from obtaining one very simple answer: Who owns my mortgage?

*
If you haven’t been able to wrap your head around why the federal government has failed to prosecute one banker for the foreclosure crisis there is a very simple answer that Chain of Title alludes to. The federal government has a dark secret: the trusts are empty and the falsified notes cannot be traced back to their true owners so they must be “recreated” if a default occurs. This means that the investors, the pensions and the trusts own nothing. It also means that the banks now own everything- including the U.S. federal government. It hardly matters that we have separation of powers if the bankers and elite control all three branches.

*
Salon contributing writer David Dayen and winner of the coveted Ida and Studs Terkel Prize, illuminates how home buyers have ended up illegally evicted from their homes as the result of dishonesty, greed, and deception at the hands of mortgage lenders, servicers, investment bankers, and unscrupulous lawyers. Dayen states that Alan Greenspan “viewed regulations the way an exterminator viewed termites.” If this is true, then 2 President viewed homeowners the way a sunbather views 300 million gnats at the beach.

*
What is truly amazing about this book is how Dayen who has never gone through foreclosure himself is able to recreate the desperation, optimism, and naiveté of homeowners fighting foreclosure while concurrently examining the systematic collapse of the economy. The insight into his three protagonists borders on the voyeuristic and compels the reader to proceed voraciously. The reader keeps rooting for the underdogs to prevail-but it never happens. Through Dayen’s expose you can literally smell the black mold on vacant houses, and feel the desperation of those who lack the tools and resources to fight back- but try with all their might to do so.

*
Dayen’s writing explores the possibilities for the housing crash while remaining detached from the outcome.

*

For example, he writes, “There is a rot at the heart of our democracy, rooted in a nagging mystery that has yet to be unraveled. It gnaws at people, occupies their thoughts, leaves them searching for answers in the chill of the night. Americans want to know why no high-ranking Wall Street executive has gone to jail for the conduct that precipitated the financial crisis. The oddest thing about the predominance of the question is that everyone already assumes they know the answer. They believe that too many politicians, regulators, and law enforcement officials, bought off with campaign contributions or the promise of a future job, simply allowed banker miscreants to annihilate the law in pursuit of profit.”

*
Dayen’s story begins when two of the protagonists start corresponding via discussion posts on Neil Garfield’s Living Lies blog, and come to the conclusion that they are being deceived by unscrupulous loan servicers. The homeowners will eventually meet other activists along their journey including Lynn Szymoniak and decide to take on the Foreclosure Machine. The personal sacrifices they make to become activists will leave all but Szymoniak permanently altered, and uncompensated for their efforts.

*
The homeowners include Lisa Epstein, a cancer nurse; Michael Redman, an auto dealership employee; and Lynn Szymoniak, a lawyer who investigates insurance fraud. Dayen chronicles their almost futile and life altering battles to save their homes from illegal foreclosure while acting on behalf of millions of homeowners without voices to complain. The author begins with Epstein’s case, followed by Redman’s; one-third of the way into the narrative, the two of them meet Szymoniak, who then pool their meager resources to raise public consciousness about banks who forge, fabricate and robosign to create the appearance of standing.

*
Dayen profiles hundreds of other individuals, many of them crooks, cowards, or corrupt men and women, many of whom had the authority to halt the fraudulent activities but were unwilling to do anything that would undermine their position or social standing.

*
Although the efforts of the whistle-blowers educated millions of homeowners wrongfully facing foreclosure—ultimately hundreds of thousands of houses remain empty and only now are people starting to put their lives back together with a paradigm shift- that their government doesn’t care. Dayen relates how prosecutors, judges, and the Department of Justice have caved to powerful mortgage industry donors while illegal foreclosures continue.

*
Whereas politicians and the banks have been indifferent that a mortgage is properly endorsed and assigned, Dayen believes that the technicalities matter and are there to protect the homeowner and investors. Without a clear chain of assignment from one entity to the next, there is no way to determine how the loan is transferred except to rely on banks who are not noted for their honesty or accurate business records.

*
Exposing the lies of the banks becomes a moral crusade for the three main characters and their decision to pursue justice will create an emotional smorgasbord, which Dayen meticulously reports. Chain of Title settles on the fact that the banks’ behavior not just indefensible, but criminal and duly executed with precision. This book won’t tell readers of Living Lies anything they don’t already know- but it will help the victims of foreclosure to recognize that the United States is now full of hard working Americans who were sucked into the vortex of banking greed- and who will never again believe in the rule of law or their leaders. This is a yet undiagnosed disease in the general public and the long-term repercussions are not yet known.

*
Dayen describes a bank pursuing foreclosure without legal signatures as “flailing away like a boxer in the dark”- and this is a feeling that also captures the feelings of many homeowners who continue to fight illegal foreclosure. Not sure where their well-funded opponent will come from next or what tactic will be used, the homeowner will flail away like a boxer in the dark hoping that some tactic will create sympathy or even due process from the court or cause the bank to retreat back to their hellish cave.

*
After reading this epic novel, it can’t be avoided that a free-market economy will function best when people have the ability to prove they own what they own and owe who they owe.

If we don’t return to the rule of law soon, the average American’s confidence will be undermined and alternatives will be sought. Remember, those who tired of the Federal Reserve created Bitcoin and lending isn’t so complicated to enact that a similar solution among revolutionaries will not be created. It is amazing that the greed of banks, to save a recording fee, or pass around notes like bubblegum cards could undermine an entire industry- but that is exactly what has happened. Ominously, the first housing crash has yet to be resolved and it appears that the second wave, or what we call 2008 Part II is on the horizon. David Dayen’s book will be read well into the next century- and hopefully Americans will one day say, “How could people standby and let that happen?”  We won’t, but sometimes the wheels of justice take time.
CHAIN OF TITLE
How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud
By David Dayen
385 pp. The New Press.

Judges Resist Proactive Homeowners Challenging Servicers and Pretender Lenders

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

This is for general information only. It should never be used as a substitute for the advice of an attorney licensed in the jurisdiction in which your property is located.

==============================

see also 201306_cfpb_laws-and-regulations_tila-combined-june-2013

I’ve been busy dealing with Judges who are resisting meritorious defenses and proactive lawsuits challenging the validity of the mortgage, note, debt or assignments. I had one Judge order me to remove America’s Wholesale Lender — an entity that doesn’t exist — as a party Defendant.

But an increasing number of homeowners are seeking to challenge, rescind, or otherwise put the pretender lenders on defense, along with the “servicers” who have no authority and question the enforceability of a modification agreement in which the countersigning party is a “servicer” with dubious or nonexistent rights to enforce a modification agreement.

This is reminiscent of when I wrote in 2008 that the Courts are getting it wrong about rescission. I said then that rescission is a specific statutory remedy which is clear on its face and not subject to interpretation that the “borrower” is getting a free house. I said that applying common law rules on rescission was wrong. There was no requirement for the homeowner to file suit and no requirement for the homeowner to tender money to the “lender” (who can’t be known because of the lack of disclosure). Hundreds of state and Federal Courts all the way up to the appellate level disagreed with me. But I stuck to my guns and continued to advance the legal theory that the statute was explicit and that Courts did not have the right to legislate from the bench.

The US Supreme Court eventually agreed with me recently overturning hundreds of final judgments, orders on dismissal and discovery. The effective on past cases is not yet known. If they have already been concluded right through sale it might be that local law might make the wrong decision final anyway. But my opinion is that if we go by what the statute says, once the notice of rescission was sent, the mortgage and note were nullified “by operation of law.” And the effect is simple: there can be no foreclosure on a mortgage and note that don’t legally exist, even if the mortgage is still recorded in the chain of title. Closings — even short sales — are cast into doubt as to whether the title or the money was handled properly.

As a result, the general consensus about the borrower was turned on its head. The “enforcement” of the rescission was not required by the borrower, it was required to be challenged within 20 days of the notice of rescission. The tender of money by the borrower is similarly turned on its head — it is the lender who owes money (a lot of it) to the borrower. And the threat of foreclosure is totally removed. The statute of limitations doesn’t just apply to borrowers. it also applies to “lenders.”  Once the borrower gives notice of rescission, the “lender” must file a declaratory action contesting the rescission within 20 days. If they don’t file that action, they waive any potential defense to the rescission.

Many individuals are sending notices of rescission even on old loans based upon the premise that they only recently discovered the defects in the loan and defects in the loan closing procedures. If the lender fails to file a lawsuit saying that they are a “lender” and where they prove their status as a lender, they lose. If they can’t prove that the disclosures at closing were true and correct within the tolerances specified in the statute (TILA), they lose. If they fail to file within 20 days, they lose.

The requirement that the “lender” record a satisfaction of mortgage and return the canceled note is just to make it easier for the homeowner to get alternative financing. And the requirement that the “lender” disgorge or pay all money paid in the origination of the loan including brokers’ fees, together with all payments of interest and principal was also teeth in the law to level the playing field, reducing the amount that the homeowner might need to pay to the lender LATER.

The idea behind the law was to address predatory or wrongful lending or enforcement tactics by banks whose dubious business plans were far too sophisticated for any normal borrower to understand what was really happening. TILA and Regulation Z were written to level the playing field. Once the borrower discovered material defects in the loan or loan procedure, they are allowed to get rid of that loan and go get another loan. The primary impact, from a legal point of view, is that the mortgage is gone “by operation of law” and the note is nullified, leaving a bare debt for the “lender” to allege and prove. But whatever the debt might be, it is UNSECURED, and thus subject to discharge in bankruptcy.

Rescission is a drastic remedy that puts the “bank” at a  spectacular disadvantage. But it is the law. and the same holds true when you have fatal defects in the origination of the loan. If the named lender doesn’t exist or didn’t make the loan, the note and mortgage should not have been released to anyone, much less recorded. That means that the mortgage was essentially a wild deed. The mortgage is not voidable, it is void. And THAT means, just like in the case of rescission that the mortgage must be removed from the chain of title on the property. Like rescission, the note and mortgage are void or nullified by operation of law, if the Judges would only apply it.

My group has several of these cases on appeal and we are confident that the appellate courts will turn the corner on proactive cases where the homeowner is current on the so-called payments due (and which are extracted under threat of enforcement and foreclosure). The current thinking of the courts in many cases is neither based in fact nor logic. If the borrower is declared in default they are regarded as deadbeats. If they are current, they are regarded as greedy deadbeats. We think that like several cases have already shown, the “servicer” or “lender” will be forced to defend cases that were dismissed by trial judges.

In the end, we think that homeowners will not only get rid of the note and mortgage, but potentially also the debt because only someone who actually did the funding could come forward with a legal or equitable claim for unjust enrichment. Such creditors will have a difficult time making the claim because (a) they don’t know anything about the case and (b) in order to do so they would be required to track and prove the money trail to show that they are in fact the creditors. Modifications by volunteer intermeddlers — like servicers who lack actual authority to service the loan because they are relying on the Trust that is falsely claiming ownership of the loan — will in our opinion also be deemed a nullity.

What Lawyers Are Being Taught in Current Seminars About Foreclosure

It might strike a note of dissonance when you realize that all the knowledge, facts and theories are well-known by title experts and they are teaching mostly correct things to lawyers. The problem is not whether the information is being disseminated. The problem is that the Lawyers are either not paying attention at these seminars or they are refusing or failing to follow what they have been taught. That includes lawyers who become Judges.

If you don’t know these things, you should be a member of this blog, participate in our twice monthly teleconferences, and attend any seminar you can lay your hands on. NBI has several although they shy away from the third rail of securitization.

In the end BOTH the Max Gardner of approaching the documents and the Neil Garfield method of following the money will be needed to drill the point home — i.e., that the mortgages, notes and obligations were faked from beginning to end and then covered up with false assignments, indorsements, “allonges” and other affidavits or instruments that make it look pretty but fail to meet the test of a proper foreclosure.

And you arrive at the same conclusion regardless of whether you start with first money exchanging hands with the investor or first funding with the borrower at the time of origination.

As the pace picks up on government, borrower and investor lawsuits that soon will be facing statute of limitations arguments from the banks, the realities are closing in on the banks and servicers. Any Bank will tell you that you can’t go in in with a gun, make a “withdrawal” and then settle the case with pennies on the dollar. ALL the money is seized, and the perpetrator goes to jail. I predict some nasty surprises for the megabanks next year and some of those will lead to break up of those banks into smaller banks that are more easily regulated. Glass Steagel might not come back completely but administratively we are headed in that direction.

The following is from my notes taken from many different seminars at which the presenters were title examiners, real estate lawyers, professors of law and even executives from the title insurance industry who articulated the situation quite clearly. Title is corrupt, but they fault the banks for misleading the title carriers as to the character and content of the closing. They understand the problems with “credit bids” and that is why they charge extra for a title guarantee — an instrument that is usually not even mentioned to ordinary people buying property.

Heads up to those on the fringe of real estate transactions. Title must be clear, not clouded or defective and must be insurable. In the case of transactions in which securitization and assignment claims are being made, the “economic interest” rule of thumb and industry standard is the sticking point. When you actually follow the money the documents don’t add up, which is layman’s way of saying what lawyers call an absence of a nexus between the transaction and the documents.

This is where the giants will fall. In fact, it was the the improper, illegal and fraudulent use of the money and the signatures of the parties that got them to appear so fat to begin with. When the dust clears, banks like BOA, (which is already executing on a contingency plan for a breakup by quietly dumping all contested foreclosures into third party hands), will not exist in their present form.

MAIN TAKEAWAY ITEMS:

1. Title insurance only applies if there is an insurable interest. It was universally
accepted by the conference (including those who were there to protect the interests of the banks and pretenders), that an insurable interest includes two elements: (a) a recorded instrument naming that party and (b) an economic interest in the property. Thus if we take the position that an insurable interest is based upon law and not just policy, it can be argued that in the absence of an insurable interest, the title company will not issue the policy and the Court should not and may not validate the interest, since it is ipso facto, uninsurable.
2. As the number of transfer of the “indebtedness” (the note) increases, the duty to inquire increases, and the more nervous the title examiner or transactional lawyer becomes.
3. Producing the note is universally accepted as law despite some court decisions to the contrary. In Florida and other states the forecloser must produce and tender the original note to the court in order to obtain an order from a Judge to sell the property, and without the note, the forecloser cannot submit a credit bid. So even if the Judge lets the case go through, the sale can be attacked as being no sale (Void, not voidable) because the forecloser did not comply with the requirements of law to establish itself as the creditor.
4. Title insurance policies universally have an exception for the rights of the parties in possession. Presumably that means at the time of the transaction. So if the transaction was are financing (which accounts for more than half of all mortgage transactions, the party in possession is the homeowner. The argument can be made that the title carrier made the exception — and that assuming they are experts in title — that exclusion should be used in any litigation of the parties regardless of whether the issue involves the title policy. Thus the homeownerʼs rights include multiple affirmative defenses, counterclaims and cross claims which need to be heard in a hearing in which actual evidence is heard which means that actual COMPETENT witnesses must be heard to authenticate any documents proffered into evidence.
5. Any situation in which the named insured on the title policy is different than the instrument on record identifying the mortgagee or beneficiary results in an uninsurable interest which can be translated as non-marketable title. Hence the originated loan documents prove that the transaction was a table-funded loan in which the true lender was not disclosed. This means the original documents are fatally defective and cannot be cured without the signature of the borrower or a Court order which would require a hearing in which actual evidence is heard which means that actual COMPETENT witnesses must be heard to authenticate any documents proffered into evidence.
6. Only a creditor may submit a credit bid. If anyone else bids, the Trustee or clerk usually has no discretion but to issue a certificate of title (deed) which gives clear title to the grantee, which can either be the borrower or someone standing in for the borrower.
7. Title insurance is not a magic bullet. It does not prove the status of title.
8. Generally unrecorded instruments are not covered by title insurance. In Arizona and other states there is general acceptance of the idea that based upon statute and ATLA standards successors in interest to the debt do not need a new title policy. By inference this would mean that they are giving credence to the idea that the mortgage follows the note, whether the transfer was recorded or not. But upon questioning the experts who delivered the presentation agreed that as the number of transfers increased the transaction becomes suspicious and that the rule regarding successors was probably meant for single transfers.
9. A transfer by a corporation not in good standing in the state or states in which it is required to be registered may not transact business nor bring any judicial proceeding. Mere ownership of property is not considered doing business. But a pattern of conduct of transactions is all that is needed. If the entities (any of them) that are involved in the chain of title are either defunct or in bankruptcy, any assignment, allonge or other instrument is invalid. It can be cured but there are time limits on how long they have before they cure, and it may be that reinstatement may require a name change. After 6 months in Arizona the name of the entity that should have registered is up for grabs which means you can incorporate under that name. What you can do with that name is an interesting proposition that was not discussed.
10.Conflicts of interests apparent on the face of the document or otherwise known to the title examiner create a duty to inquire. Therefore, since the usual pattern is that these documents are created after notice of default and usually after the matter is in litigation and sometimes not until hours or days before a hearing in which the documents need to be produced, the matter is a question of fact that needs to be decided after hearing evidence which requires competent witnesses testifying from personal knowledge.
11.BOARD RESOLUTION REQUIRED: No officer may sign a deed without board resolution. It is possible that estoppel, waiver or apparent authority might apply in the situation where the complaining party is a bona fide third party arms length purchaser for value.
12.In Arizona the knowledge of the Trustee is not imputed to the Lender, but there is no reference or prohibition against imputing the knowledge of the Lender to the Trustee. The practice of ALWAYS substituting trustees instead of using the old one is a cover for the fact that the old trustee would probably ask some questions rather than simply follow orders and send the notice of default, notice of sale etc.

Retirees Buying Trouble When They Buy Foreclosure

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Editor’s Notes:  

there are a lot of good blogs out there on retirement. Some like the Top Retirement blog, whose link is included here, try to give retirees guidance on where to live in retirement. While these blogs do a pretty good job of covering many of the major issues in retirement, they are mostly targeting people who are looking at monetary issues, like taxes, rather than satisfaction and comfort. I’d like to see more people issues than money issues.

But if you want to talk money issues, these blogs are clueless about the mortgage meltdown and how that changes the equation. First and foremost the cost of buying a home that has been foreclosed or has a “securitized loan” in it’s chain of title greatly increases that either they or their loved ones are going to end up in a title dispute that can only be resolved in court.

So the admonition here is that before you consider that cute house with the low real estate taxes and no income taxes, figure in the cost of an attorney who can negotiate a REAL title policy rather than the junk paper they are giving out. That can amount to hours of work. And even after you get a qualified title policy you still need good title, so someone needs to file a lawsuit that asks the court to confirm the title. What if someone in the securitization chain didn’t get the memo and defends the quiet title action? Now you have an adversary proceeding on your hands.

The cost of getting good, quiet title can run high. But the people part of this is what really counts. Do you really want that hassle? Just check the title of any property you are buying and ask one question: has this property ever been the subject f claims of assignment or securitization of loans? If the answer is yes and you love the property then make sure you have a very competent property lawyer and lay the financial price to avoid trouble later.

Worst States to Retire 2012: Northeast and Midwest Come Up Losers

January 10, 2012 — There are plenty of best places to retire lists. But how about the places where it’s not such a good idea to retire? Last year our “worst 10 states” list caused quite a sensation, so we are back at it again for 2012. The purpose is to try to help baby boomers understand where, all other things being equal, they can enjoy their hard-earned retirement without taking on more problems. To make sure you don’t miss updates to this and other lists like it, sign up for our free weekly “Best Places to Retire” newsletter. And of course, don’t miss our 2012 list of the 10 Best States for Retirement.

Your retirement is unique
.  Every individual has to consider his or her own criteria for identifying the worst or best states to retire. One of the most important factors for anyone is proximity to family and friends. So, if you want to be near your grandchildren the worst state on our list could be the best state on your list. Likewise, you might not share the same considerations we used to develop this list. Tax issues might be most important for you, or you might not care about spending winters in a warm state. Our 2012 list is based on 5 considerations that we think will be important to most people, but freely admit that these factors could be totally irrelevant to many other folks.

Our Top Weighting Criteria.  
This year we expanded the criteria we used from 3 to 5 factors. The factors for 2012 are: Fiscal health, property taxes, income taxes, cost of living, and climate. Each criterion was worth up to 1 negative point. If these are not key factors for you, your list might look very different. Also new this year is a page where you can customize your “worst states” list by eliminating criteria that might not be important to you. You will find detailed explanations of these factors along with our sources following the list. The negative point range this year went from 4.05 for #1 CT to 2.45 for #10 WI.

The 10 Worst States for Retirement – 2012
  Three new states made our list this year: Vermont, Minnesota, and Maine. That means that 3 states were lucky enough to leave the list: Ohio (low property and income taxes), Nevada (in terrible financial shape but no income tax and low property taxes), California (bad financial shape and high property taxes, but almost no income tax on our prototypical couple, plus a great climate). The additions and subtractions do not necessarily mean that these states got worse or better since last year; that probably has more to do with the changes from our new rating factors. And, since the data is always trailing, the ratings might not be a perfect reflection of today’s reality.

1. Connecticut. We actually had a numerical tie for 1st place. CT won the tie-breaker because it has much higher property taxes, income taxes, and cost of living than Illinois. Most pension income is taxable, although there are some significant exemptions for social security, depending on income. CT had the 3rd highest tax burden of any state in 2009. The Nutmeg State does have considerable charm and some terrific places to live like the resurging city of New Haven, the quaint village of Stonington, or upscale Madison.

2. Illinois. Illinois (along with Nevada) faces serious economic troubles. Its pension funding, deficit spending, unemployment, and foreclosure rates are among the worst of any states. The state began to address its problems last year when it raised income tax rates. Although Illinois does not tax most pension or social security, other earnings and investment income are taxed at a fairly high rate thanks to its 5% flat tax rate.

3. Rhode Island. The Ocean State has severely underfunded pension/health liabilities and budget deficits. It has the 5th highest median property taxes paid. Our prototypical couple would face much higher income taxes here than they would in most other states. It does have some great places to live like in the bustling city of Providence, or along its extensive coastline and numerous bays and harbors in towns like Westerly.

4. Vermont. The Green Mountain State has very high median property and income taxes, with a top 10 cost of living. Winters here are better for skiing than golf.

5. Massachusetts. In the Bay State our prototypical retiree couple would face property taxes that are among the highest of any state. Even though social security income is exempt, income taxes would be high for our couple because of the flat rate applied to other earnings. Most government pensions are exempt, but private sector ones are taxed. The cost of living is high. See reviews of great places to retire like the college towns of Williamstown or Northampton.

6. New Jersey. New Jersey residents are the biggest losers when it comes to property taxes – the median property tax in the Garden State is the highest in the U.S. at $6579. It also has the highest tax burden (as reported by the Tax Foundation), a large budget deficit issue, and a very high cost of living. New Jersey has both an estate and an inheritance tax. On the plus side, it excludes most pension and social security income for couples making less than $100,000.

7. Minnesota. Another newcomer to our list, Minnesota, would impose the 4th highest income tax on our prototypical couple. That is mostly due to the absence of any pension or social security exemptions. Property taxes are just below the top 10. Minnesota has a

large budget deficit issue. Anyone care to winter in Minnesota?

8. New York. The Empire State was essentially tied with #9 Maine. We broke the tie because New York has the 4th highest median property taxes and one of the highest tax burdens. Surprisingly, the state did not earn any negative points for income taxes, since it offers generous exemptions for social security and pensions, along with a high standard deduction. Its cost of living is one of the highest, plus a very cold winter climate. On the plus side, New York’s Governor Cuomo is waging a campaign to limit property tax increases and improve the state’s fiscal condition. College towns like Ithaca can be awfully nice though.

9. Maine. Maine’s property taxes are much lower than New York’s, while Maine’s income tax on our prototypical couple would be about $1000 higher. Winters are even colder, but cost of living is lower. Maine’s governor has vowed to try to exempt retirement income from taxation, although nothing has happened on that front yet.

10. Wisconsin. Property taxes are among the highest in the country. It has a high foreclosure rate. Wisconsin’s high income taxes are mitigated somewhat for retirees because social security income is exempt and because there is a high standard deduction. Madison, of course, is a great place to live.

See our entire list of great places to retire by state.

Criteria used in developing this listFiscal health. Just as the U.S. government is spending more than it takes in, many of the 50 states have serious financial problems of their own. “The Widening Gap:” from the Pew Center on the States provides a good understanding of the problem. To determine the fiscal health component of our rankings we used 4 inputs this year: deficit, unfunded pension liabilities, unemployment rates, and foreclosures. Why do we think these are important things to rate on, you might ask? Just think about the turmoil Greece and Spain are experiencing as they are finally start to address their deficits and borrowing. Social services are being cut, taxes are being raised, and there is civil unrest. Similarly for states that run into financial trouble, the pain will be acute when the piper is paid, and you probably don’t want to be part of it. We combined these factors; if a state was in the top 10 for all four problems it received 1 negative point in the rankings (.25 each).

Property taxes. In our opinion property taxes are usually the most oppressive taxes for retirees, since they can be so high in some states and bear no relation to one’s income. The 10 states with the highest property taxes were awarded 1 point on a sliding scale, with New Jersey actually earning 1.1 points since its median taxes are so much higher than any other state.

State income taxes. We think too many baby boomer retirees focus too much attention on state income taxes as a reason to move. That’s because unless you have a lot of income, they are not a factor. In our analysis we created a hypothetical couple that has $70,000 in earnings from social security, pension, earnings, and retirement savings; equal to the top earning quartile of people 65+. Using data from the Congressional Research Service we assumed this couple received 20% of its income from social security, 23% from pension, and 47% from earnings and investments. We used those inputs to estimate income taxes for each state at tax-rates.org. Obviously, your earning profile will probably be different. If your joint earnings are significantly below $70,000, this rating component is probably not significant. Here is where you can see the ratings with this component eliminated. The 10 states with the highest taxes on this factor earned up to 1 negative point.

Cost of living. Most people retiring today are very concerned about how they are going to make it work financially. We awarded states with the highest cost of living 1 negative point.

Climate. We believe the majority of today’s retirees have a bias towards places with warmer winters. States north of the Mason-Dixon line were awarded a negative 1 point for their colder climate. (See also our 2011 article – “Worst Places to Retire for Weather and Natural Disasters“)

You can customize your “worst states” list by using the rankings on this rankings page.

Other criteria for identifying the best or worst retirement state:
While our rankings concentrated on fiscal health, taxes, cost of living, and climate, here is a more complete list of possible criteria for developing your personal rankings of retirement states and towns:

– Proximity to friends and family
- Sales taxes (Not usually a deal breaker, but annoying)
- Inheritance and Estate taxes (Some states have neither, a few have both)
- Crime
- Recreation
- Transportation
- Healthcare
- Education including colleges
- Cultural resources
- Natural disasters
- Fitting in socially, politically, religiously

Should the States Be Trying to Attract Retirees – and What Should They Do?
There are some states that actively try to attract retirees – notably Texas, Louisiana, West Virginia, Mississippi, and Tennessee. They have bought into the idea that the “mailbox” economic value of retirees (the pension and social security checks arrive in the mailbox) is as important as attracting new industries. Most of those retirees are being recruited are coming from the high tax states up north, only a few of which are actively trying to stem that tide. Property tax freezes for seniors, taxation of pensions and social security, and investments in infrastructure are some ideas that could help states in the northeast and midwest avoid losing valuable citizens whose retirements are being compromised by indifferent legislators. Share your ideas with them, and us!

More about our sources and criteria:
Pension/Health Funding and Budget Deficit data – Pew Center
Budget Deficit data – Center on Budget and Policy Priorities
Unemployment data – Bureau of Labor Statistics
Foreclosure rates – CNBC.com
Property Taxes – Tax-rates.org
Income taxes – here we used the income tax calculator from Tax-rates.org
Cost of Living – Missourieconomy.org

For further reference:Worst States for Retirement – 2011State Retirement Guides

Tax Foundation Tax Burden by StateTax Friendly StatesThe Most Important Issue Might Not Be What You Think
Our 2011 List of the “100 Best Retirement Towns”
Best Retirement States for 2012

We were happy to have seen this article extensively quoted by Yahoo.Finance, Money.msn, MarketWatch, and AOL.DailyFinance

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