NY APPELLATE COURT: MERS IS A FICTIONAL CHARACTER — LIKE DONALD DUCK

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EDITOR’S NOTE: OK they never mentioned Donald Duck. But the point is the same. The appellate and trial courts, on virtually a daily basis are eviscerating not only the current foreclosure cases but casting a long shadow over the ones that have already been “completed.” It is clear that the designation of MERS was the designation of anon-entity. They might have well as not entered any name. Thus MERS could not foreclose and MERS could not not transfer what it did not have. The strategy of crating paper trails to give life to a fictional character and the illusion of securitization has been shattered in three states in about as many days.

 

KABOOM | NY Appellate Division | Bank of NY v Silverberg – MERS Does NOT Have The Right to Foreclose on a Mortgage in Default or Assign That Right to Anyone Else

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Submitted by 4closureFraud on 06/13/2011 13:04 -0400

Appeals Court Clarifies MERS Role in Foreclosures

The ubiquitous Mortgage Electronic Registration Systems, nominal holder of millions of mortgages, does not have the right to foreclose on a mortgage in default or assign that right to anyone else if it does not hold the underlying promissory note, the Appellate Division, Second Department, ruled Friday. “This Court is mindful of the impact that this decision may have on the mortgage industry in New York, and perhaps the nation,” Justice John M. Leventhal wrote for a unanimous panel in Bank of New York v. Silverberg, 17464/08. “Nonetheless, the law must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ensure the reliability of the chain of ownership, to secure the dependable transfer of property, and to assure the enforcement of the rules that govern real property.” The opinion noted that MERS is involved in about 60 percent of the mortgages originated in the United States.

From the ruling…

(Emphasis added by 4F)

Decided on June 7, 2011

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
ARIEL E. BELEN, JJ.
2010-00131
(Index No. 17464-08)

[*1]Bank of New York, etc., respondent,
v
Stephen Silverberg, et al., appellants, et al., defendants.

LEVENTHAL, J.This matter involves the enforcement of the rules that govern real property and whether such rules should be bent to accommodate a system that has taken on a life of its own. The issue presented on this appeal is whether a party has standing to commence a foreclosure action when that party’s assignor—in this case, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS) —was listed in the underlying mortgage instruments as a nominee and mortgagee for the purpose of recording, but was never the actual holder or assignee of the underlying notes. We answer this question in the negative.

On appeal, the defendants argue that the plaintiff lacks standing to sue because it did not own the notes and mortgages at the time it commenced the foreclosure action. Specifically, the defendants contend that neither MERS nor Countrywide ever transferred or endorsed the notes described in the consolidation agreement to the plaintiff, as required by the Uniform Commercial Code. Moreover, the defendants assert that the mortgages were never properly assigned to the plaintiff because MERS, as nominee for Countrywide, did not have the authority to effectuate an assignment of the mortgages. The defendants further assert that the mortgages and notes were bifurcated, rendering the mortgages unenforceable and foreclosure impossible, and that because of such bifurcation, MERS never had an assignable interest in the notes. The defendants also contend [*3]that the Supreme Court erred in considering the corrected assignment of mortgage because it was not authenticated by someone with personal knowledge of how and when it was created, and was improperly submitted in opposition to the motion.

Here, the consolidation agreement purported to merge the two prior notes and mortgages into one loan obligation. Countrywide, as noted above, was not a party to the consolidation agreement. ” Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident'”

Therefore, assuming that the consolidation agreement transformed MERS into a mortgagee for the purpose of recording—even though it never loaned any money, never had a right to receive payment of the loan, and never had a right to foreclose on the property upon a default in payment—the consolidation agreement did not give MERS title to the note, nor does the record show that the note was physically delivered to MERS. Indeed, the consolidation agreement defines “Note Holder,” rather than the mortgagee, as the “Lender or anyone who succeeds to Lender’s right under the Agreement and who is entitled to receive the payments under the Agreement.” Hence, the plaintiff, which merely stepped into the shoes of MERS, its assignor, and gained only that to which its assignor was entitled (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126; see also UCC 3-201 [“(t)ransfer of an instrument vests in the transferee such rights as the transferor has therein”]), did not acquire the power to foreclose by way of the corrected assignment.

In sum, because MERS was never the lawful holder or assignee of the notes described and identified in the consolidation agreement, the corrected assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff. Consequently, the plaintiff failed to show that it had standing to foreclose. MERS purportedly holds approximately 60 million mortgage loans (see Michael Powell & Gretchen Morgenson, MERS? It May Have Swallowed Your Loan, New York Times, March 5, 2011), and is involved in the origination of approximately 60% of all mortgage loans in the United States (see Peterson at 1362; Kate Berry, Foreclosures Turn Up Heat on MERS, Am. [*6]Banker, July 10, 2007, at 1). This Court is mindful of the impact that this decision may have on the mortgage industry in New York, and perhaps the nation. Nonetheless, the law must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ensure the reliability of the chain of ownership, to secure the dependable transfer of property, and to assure the enforcement of the rules that govern real property. Accordingly, the Supreme Court should have granted the defendants’ motion pursuant to CPLR 3211(a) (3) to dismiss the complaint insofar as asserted against them for lack of standing. Thus, the order is reversed, on the law, and the motion of the defendants Stephen Silverberg and Fredrica Silverberg pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them for lack of standing is granted.

FLORIO, J.P., DICKERSON, and BELEN, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Stephen Silverberg and Fredrica Silverberg pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them for lack of standing is granted.

Full opinion below…

It is well worth the read…

www.4closureFraud.org

9th Circuit BAP: HSBC, ASC Not Real Party In Interest, No Standing, MERS Has No Interest

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Fontes-MEMO-9th Ciruit BAP – Judge Jury a Member of the Panel

The collateral benefit MUST go solely to the homeowner. If the creditor chooses not to exercise any right or intention to collect, it is not a license for ANYONE to come in as a third party and make the claim.

“If you don’t want it, we’ll take it” is not a cause of action. Pretender lenders are not entitled to collect on the claim of the real creditor under any theory.

RON RYAN, ESQ. USES LIVINGLIES MATERIAL AND OVERTURNS BANKRUPTCY COURT DECISION

Interesting that the Judges on the panel had previously tossed out expert testimony from me and otherwise ruled against the theories and facts reported on this blog. Now, sitting on an appellate review panel, the same Judges decided that Judge Hollowell should be reversed, but like other favorable decisions, announced that their decision should not be used as binding legal precedent. In other words, they are creeping toward our conclusions, accepting them gradually with a toe in the water to see what happens. The primary new event is that these Judges are no longer giving lip service to the “free house” political argument that was previously made and accepted by pretender lenders. Things are changing! Hold on tight, this ride is not over yet.

Despite the acknowledgment by the Bankruptcy Chapter 13 Petitioner that ASC had a secured claim, the appellate panel said that relying on the Petition is not enough. As we have said repeatedly here on these pages, many lawyers suggest that the Petition be filed such that these issues don’t even arise, thus bolstering at the administrative level in Bankruptcy or the Trial level in civil litigation the argument that the borrower already admitted that this was a secured liquidated claim. The truth is, in my opinion, and in the opinion of many other lawyers and Judges, that the claims being presented in nonjudicial (which is the subject of this Fontes case) and judicial proceedings are neither secured nor liquidated.

Whether you look at the Herrera case, reported earlier, or any of the recent cases we have reported in the last week, you will see very clearly that the courts no longer have the automatic knee jerk prejudice to rule against the homeowner. A bad mortgage is a bad mortgage. The securitizers created these table funded loans with undisclosed lenders and messed up almost everything that was a clerical task. If the end result runs negative to the foreclosers, too bad, they never showed they had any loss anyway (because in fact they had no loss).

The real party in interest is the investor-lender who has chosen NOT to enforce against the homeowner because they don’t want any part of the multitude of affirmative defenses and counterclaims for fraud, predatory lending, statutory violations etc. Instead, they are suing the investment banks who sold them “mortgage bonds” without the mortgages.

The collateral benefit MUST go solely to the homeowner. If the creditor chooses not to exercise any right or intention to collect, it is not a license for ANYONE to come in as a third party and make the claim. “If you don’t want it, we’ll take it” is not a cause of action.

Pretender lenders are not entitled to collect on the claim of the real creditor under any theory.

QUOTES FROM THE CASE:

“Under sec 362(d) only a “party in interest” may seek relief from the operation of the automatic stay from the bankruptcy court.”

In Weisband “the court concluded that MERS did not have constitutional standing and, if MERS did not have constitutional standing, its assignee could not satisfy the requirements of constitutional standing either. Id. see also Wilhelm, 407 B.R. at 404 (discussing validity of MERS’s assignments related tot he note). We do not perceive a different result is warranted…”

“it is axiomatic that HSBC must show that it has both constitutional standing and prudential, or party in interest, standing to bring the motion for relief from stay. Satisfying one standing requirements and not the other is insufficient. See Valley Forge Christian Coll. v Ams. United for Separation of Church and State, Inc. 454 U.S. 464, 474-75 (1982)”

“The only manner in which HSBC links itself to ASC in the record is through its repeated assertions (e.s.) without any reference to any evidence that ASC was its “Servicer.” No further details were given [Editor’s note: nor are further details EVER given, thus the importance of this statement in the case]. Does HSBC mean that ASC was its agent at thet ime fo the debtors’ filing? Or, does HSBC mean it somehow became the sucessor in interest to ASC? The record does not support either theory.”

“The record contains no servicing agreement between ASC and HSBC indicating that ASC was HSBC’s agent, and ASC’s proof of claim did not state it was acting as the agent for HSBC.”

“… the only inference to be drawn from the record is that ASC was acting as the servicer for some other party than HSBC when debtors filed their petition.” [Editor’s Note: The court recognized the shell game and put a stop to it]

Cochrane: How Deutsche Bank as a Trustee will attempt to harm you in bankruptcy court.

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EDITOR’S NOTE: When you actually READ the securitization documents, you will find, as I did, that all of them are quite disingenuous. They mislead the casual reader and even some careful readers who don’t understand what is actually being said. The prospectus says the investor is buying into a pool, but as you continue to read, you find the pool has not been formed, much less filled with loans to satisfy the definition of “asset-backed mortgage bond.” So the investor is buying into a non-existent pool, which may or may not have been formed at a later date, with nothing in it except the income received from selling credit default swaps on the most toxic tranches of a CDO, usually in the same Special Purpose vehicle (Trust).

The so-called “Trustee” seems at first to be an intended fiduciary of a bona fide trust, but as you read the PSA and other securitization documents you find that with each passing page the powers of the Trustee are stripped away until they are at best the contingent agent of a dubious trust that has nothing in it except the income from credit default swaps and whose principal asset, as represented, is neither present nor was there ever any intent to make any legal transfers of legally constituted documents that would fill the pool with assets and thus create the “res” over which the Trustee has power.

With each passing page of each document it is obvious that the powers of the “Trustee” are actually in the hands of the master servicer, who in turn hires a subservicer who actually does the work, but without “knowledge” (plausible deniability). The subservicer in turn has multiple sets of books which it uses for reporting purposes — one for the borrower, one for the investor and one for the securitizers, to start with. Like MERS, the subservicer never lays hands on any document evidencing ownership of the borrower’s obligation which of course is at variance with the undelivered note and undelivered mortgage or deed of trust.

And since the subservicer does not handle or control the payments to securitizers and the investors, it has no way of knowing or accounting for payments that were made — except its own payments to the securitizers, despite the declaration of default against the borrower. The borrower, not knowing the payments are continuing, accepts the allegation that the obligation is in de fault even though it is being paid. UNTIL THE COURT IS MADE AWARE OF THE MULTIPLE SETS OF BOOKS, IT HAS NO WAY OF KNOWING ABOUT THE FRAUD. AND IF IT ISN’T EVEN ALLEGED, THEN THE ISSUE IS NOT BEFORE THE COURT.

The Trustee meanwhile has no idea what is going on in the courts (plausible deniability) and neither do the investor-lenders. Payments of principal and interest made to the securitizers, who are agents of the investor-lenders are neither reported to nor paid to the investors in many cases. While often named as the foreclosing party, the Trustee has no attorney client relationship with the attorney who is representing to the court that he represents the “lender” or “Holder” of the note, which of course does not describe the transaction that was disclosed to the borrower in the loan documents, note and mortgage. Hence the borrower-debtor, is led to believe that the loan documents are the written instruments governing the transaction when in fact they are a lie — but without putting together the securitization documents, the loan level accounting, the title and securitization analysis and the forensic analysis, the borrower and his/her attorney is in the dark about the truth of the matter. Hence the representation in court by the pretender lender appears true because the borrower does not deny them.

How Deutsche Bank as a Trustee will attempt to harm you in bankruptcy court BY MARY COCHRANE

See Case No 07-077227-PB7 (Bankr.S.D.Cal 6/9/2008)
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for WaMu Series 2007-HE1 Trust, its
assignees and/or successors

The TRUSTEE will argue against you if you claim Deutsche Bank may not foreclose on the property because the Assignment was not recorded.

US Bankruptcy denied relief as to: CC 2932.5 if DBNTC could not provide ownership documents it could not….

An Assignment of the Note amounts to an Assignment of the Deed of Trust.

Deutsche Bank has provided no convincing evidence that the Note was ever assigned to Deutsche Bank. Furthermore, even if the Note was assigned to Deutsche Bank, Deutsche Bank is not the party asserting a security interest in the Property. Rather the motion is brought by Deutsche Bank as TRUSTEE for HE1 Trust. The record is devoid of any further assignment to HE1 Trust.

In summary, the only question before the Court is whether Deutsche Bank and/or HE1 Trust has an interest in the Proeprty. The Court holds that Deutsche Bank has failed to provide evidence that it, let alone HE1 Trust has a security interest in the Property. Accordingly, the motion is denied. Deutsche Bank’s motion for relief from stay is dened without prejudice.

WaMu retains possession of Note and Deed of Trust as Agent for Deutsche Bank.

The Trustee, Deutsche Bank, argues that based upon “…..” may not foreclose on the Property because the Assignment was not recorded. That may be. However, that is an issue the TRUSTEE can raise with the state court if relief from stay is ultimately granted.

Both parties allotted much ink and paper to issue of whether Deutsche Bank has a perfected security interest in the Note. The Court finds this discussion beyond the scope of the motion before it. Deutsche Bank has moved for relief from stay to proceed against the Property. Whether or not it holds a security interest in the Note is irrelevant. Since we are not concerned with a security interest in the Note, all talk of a ‘perfected lien’ on the Note is beside the point.

http://www.scribd.com/doc/28277345/US-BANKRUPTCY-DEUTSCHE-BANK-NTC-AS-TRUSTEE-DENIED-RELIEF-AS-TO-OWNERSHIP-VIA-TRUST-2932-5

Regarding Asset Backed Securities, could be Depositor, Underwriter, even one of its Special-Purpose Vehicles SPV’s could be a national banking association or sent in during a foreclosure or bankruptcy as a substitute trustee:.

Deutsche Bank National Trust Co.
Formerly Bankers Trust Co of California NA 8/1/96
3 Park Plaza 16th Floor, Irvine CA 92614
Maiing: 1761 East St. Andrew Pl, 2nd FLoor Santa Ana CA 9270a
IRS 13-3347003
7,443 SEC Filings 5/6/97 – 2/14/11
As ‘Filer’ ‘Owner’ ‘Filing Agent’

Deutsche Bank National Trust Company (Deutsche Bank), as Trustee for

In MERSONLINE.Org registry
DB Structured Products Inc.
60 Wall St. NY NY 10005
212-250-9340 Fax 212-797-516
Primary Contact: MERS Dept c/o Deutsche Bank NA
MEMBER ORG ID: 1002829
Lines of Business: Servicer, Subservicer, Interim Funder, Investor, Document Custodian
eRegistry Participant: NO
eDelivery Participant: NO

Business Entity: New York State
Jurisdiction: Delaware
Active – Initial DOS Filing: 4/30/1970
1/11/2002 changed name to DB Structured Products Inc.

Mary reveals below information on Deutsche Corporate Trust Services and imagine name change in line with DB Structured Products Inc. name change. Was Deutsche Bank Shapres Pixley Inc. 1/7/1994 – 1/10/2002
And was 1/6/1994 thru 4/30/1970 Deutsche Bank Sharps Pixley Inc. former name Sharps Pixley Inc established 4/30/1970.

During foreclosure or bankruptcfy in CA for example, the Deed of Trust may list ‘WaMu’ as the beneficiary and “California Reconveyance Company’ as the Trustee. On the SEC, you’ll find Deutsche Bank Trust Company/National Association to be a ‘Filing Agent’ of Deutsche Bank AG and 1 SEC File as ISSUER SEC File 028-12000 13F-NT/A and 13F-NT. First Filing 8/15/06 – Last Filing 2/15/11.

Don’t be frustrated if you are not understanding these facts. The more you read them and try to understand them you’ll realize you are smarter than the average bear. I could not spell ‘SEC’ when I started October 2008.

Deutsche Bank Trust Co National Association
280 Park Avenue
New York NY 10017

How does Deutsche Bank have a perfected lien against the Property and Chain of Title?

Deutsche Bank will assert to the court it is the ‘current beneficiary of a primissory note and deet of trust by way of Assignment’

What is the ‘Trustee’ I mean ‘are’ the TRUSTEE’s in SEC Reconstituted and/or their Reconstituion Servicing Agreements going to do now? regarding

Assignments in CA for example:

MERS Fatal Flaw in Ca, on May 12, 2011 at 10:19 am said:
In California it’s coming down to one key issue, MERS NOT having an assignment of the Note from the Original Lender to MERS, legally recorded.
“The assignment of the lien without a transfer of the debt was a nullity in law.”
“A lien is not assignable unless by the express language of the statute.”
CALIFORNIA SUPREME COURT, DAVIS, BELAU & CO. V. NATIONAL SUR. CO., 139 CAL 223, 224 (1903)
“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”
CARPENTER V. LONGAN, 83 U. S. 271 (1872), U.S. Supreme Court
More info at https://sites.google.com/site/mersfatalflawsincalifornia

Well in the USA Deutsche promoted itself 2002 forward Trust & Securities Services

Deutsche Bank`s Trust & Securities Services provides an extensive range of trust, agency, depositary, custody, fund administration and related services on over EUR 7 trillion in debt and equity securities worldwide. Its six globally integrated product groups ensure that every service is provided by expert, specialist staff.
Debt Services offers a range of products for bonds, CP and MTN programs, project financings, escrows, restructurings, syndicated loans, auction rate securities and Islamic financings
Structured Finance Services specializes in asset and mortgage backed securities, collateralized debt obligations and asset backed CP conduits
Corporate Services provides management and administration for a variety of tax-neutral and tax-advantaged structures
Alternative Fund Services provides administration for hedge funds, fund of hedge funds, private equity and other alternative investment vehicles
Equity Services covers ADRs, global shares, German shares and German capital transactions
Direct Securities Services provides safekeeping and clearing services for securities in more than 32 markets worldwide.
For information about Deutsche Bank residential property foreclosure and REO (real estate owned) inquiries please click here
NOTICE OF CHANGES IN TEMPORARY FDIC INSURANCE COVERAGE FOR TRANSACTION ACCOUNTS
All funds in a “noninterest-bearing transaction account” are insured in full by the Federal Deposit Insurance Corporation from December 31, 2010, through December 31, 2012. This temporary unlimited coverage is in addition to, and separate from, the coverage of at least USD 250,000 available to depositors under the FDIC’s general deposit insurance rules.

The term “noninterest-bearing transaction account” includes a traditional checking account or demand deposit account on which the insured depository institution pays no interest. It also includes Interest on Lawyers Trust Accounts (“IOLTAs”). It does not include other accounts, such as traditional checking or demand deposit accounts that may earn interest, NOW accounts, and money-market deposit accounts.

For more information go to http://www.fdic.gov

2/06/2002 Deutsche Bank wins Trustee Awards in Securitization Markets

2003 – Deutsche Bank Corporate Trust Chicago Office Opens

Deusche Bank expands Municipal Trustee Services

Deutsche Bank Coporate Trust wins EURO CP Award

2004 Deutsche Bank opening new Corporate Trust Office San Francisco

Deutsche Bank also has regional corporate trust offices in Charlotte, NC; New York; Chicago; Olive
Branch, MS; and Santa Ana, CA.

NEW YORK, JANUARY 20, 2004 – Deutsche Bank’s Trust & Securities Services today announced
the opening of a regional corporate trust office in San Francisco, California. The new office is the
latest in the continuing regional expansion of traditional corporate trust services launched by
Deutsche Bank in June 2002 in the US.

Raafat Albert Sarkis heading Unit in CA was a Vice President in US Bank’s corporate trust unit. Head of Global Debt Services within Deutsche Bank’s Trust & Securities Services. “Raafat’s wealth of industry knowledge, his client relationships and his proven track record will help ensure that our clients in the Western states benefit from localized expertise and a commitment to exceptional customer service.

Deutsche Bank ranks among the global leaders in corporate banking and securities, transaction
banking, asset management, and private wealth management, and has a significant private &
business banking franchise in Germany and other selected countries in Continental Europe.

Deutsche Bank’s Trust & Securities Services is one of the leading global providers of trust and
securities administration services.

Through a fully integrated network of specialist offices worldwide, the group provides domestic custody in 23 securities markets as well as trustee, agency, registrar, depositary, SPV management and related services for a wide range of financings. Products serviced include bonds, auction rate securities, medium term note and commercial paper programs, asset backed and mortgage backed securities, CDOs, SIVs, project financings, escrows, syndicated loans, American Depositary Receipts and German equities.
——————–
FDIC Chairman Shelia Blair sure looked uncomfortable in her ‘skin’ on 60 Minutes. What do you think?

Regarding Deutsche Bank… The first chart depicts the mortgage transaction as many (most?) of us still understand it:

Here’s Chairman Bair’s second chart, “Borrowing Under a Securitization Structure”, depicting the typical mortgage transaction in 2007 (click to enlarge):

The County Auditor’s database says the owner of this house is Deutsche Bank National Trust Company. It says Deutsche Bank NTC paid $50,000 for the house in a sheriff’s sale in March 2007. The sheriff’s sale was the outcome of Case CV-05-554639, an action for foreclosure against the previous owners, filed in Common Pleas Court in February 2005 by Deutsche Bank NTC “as Trustee”.

But Deutsche Bank never held a mortgage on 4111 Archwood. And Deutsche Bank doesn’t really own 4111 Archwood now.

We’ll get back to Case CV-05-554639 and that magic word “Trustee” in a minute. But first, a short tour of the New Mortgage Industry, courtesy of the Chairman of the Federal Deposit Insurance Corporation, Sheila Bair.

Chairman Bair testified before the U.S. House Committee on Financial Services last April. Her entire testimony is well worth reading, but it’s modestly famous for two charts.

The first chart depicts the mortgage transaction as many (most?) of us still understand it

As Chairman Bair explained to the Committee:

Securitization takes the role of the lender and breaks it into separate components. Unlike the more traditional relationship between a borrower and a lender, securitization involves the sale of the loan by the lender to a new owner–the issuer–who then sells securities to investors. The investors are buying “bonds” that entitle them to a share of the cash paid by the borrowers on their mortgages. Once the lender has sold the mortgage to the issuer, the lender no longer has the power to restructure the loan or make other accommodations for its borrower. That becomes the responsibility of a servicer, who collects the mortgage payments, distributes them to the issuer for payment to investors, and, if the borrower cannot pay, takes action to recover cash for the investors.

And she listed some of the roles in this modern mortgage transaction:

o Issuer – A bankruptcy-remote special purpose entity (SPE) formed to facilitate a securitization and to issue securities to investors.
o Lender – An entity that underwrites and funds loans that are eventually sold to the SPE for inclusion in the securitization. Lenders are compensated by cash for the purchase of the loan and by fees. In some cases, the lender might contract with mortgage brokers. Lenders can be banks or non-banks.
o Mortgage Broker – Acts as a facilitator between a borrower and the lender.The mortgage broker receives fee income upon the loan’s closing.
o Servicer – The entity responsible for collecting loan payments from borrowers and for remitting these payments to the issuer for distribution to the investors. The servicer is typically compensated with fees based on the volume of loans serviced. The servicer is generally obligated to maximize the payments from the borrowers to the issuer, and is responsible for handling delinquent loans and foreclosures.
o Investors – The purchasers of the various securities issued by a securitization. Investors provide funding for the loans and assume varying degrees of credit risk, based on the terms of the securities they purchase…
o Trustee – A third party appointed to represent the investors’ interests in a securitization. The trustee ensures that the securitization operates as set forth in the securitization documents, which may include determinations about the servicer’s compliance with established servicing criteria.
“Bankruptcy-remote”. What a great adjective.

So what does this all have to do with 4111 Archwood? While I explain, you might want to keep that second chart handy.

In August 2003, the couple that had owned 4111 Archwood since 1996 refinanced it for $93,500. Their lender was Argent Mortgage Company, LLC, a division of ACC Holdings of Orange, CA, which also owned Ameriquest Mortgage and AMC Mortgage Services. Argent was the biggest single subprime lender in Cuyahoga County between 2003 and 2005, going from no originations in 2002 to nearly 2,400 in 2003, 4,900 in 2004, and 3,800 in 2005. (Following several years of lawsuits and other problems, ACC recently closed Ameriquest’s doors and sold Argent, AMC and Ameriquest’s servicing contracts to Citigroup. Argent is now doing business as Citi Residential Lending.)

Less than two months after the mortgage on 4111 Archwood was signed, Argent Mortgage Co. LLC transferred it to Argent Securities, Inc., which “deposited” it, along with thousands of other Argent mortgages into something called “Argent Securities, Inc. Asset-Backed Pass-Through Certificates Series 2003-W5″.

Let’s just call it “ASIABPTCS2003W5″ for short.

As you may have guessed, ASIABPTCS2003W5 is one of those “bankruptcy-remote special purpose entities” Chairman Bair mentioned. It was set up by Argent to be the vehicle by which all that mortgage paper, with a face value of $1.5 billion, would be sold to investors. Once that was accomplished, the mortgage on 4111 Archwood became a tiny piece of the paper assets owned by ASIABPTCS2003W5, a corporate entity owned not by Argent but by its investors.

The “Pooling and Service Agreement” that created ASIABPTCS2003W5 named Argent’s sister company, Ameriquest Mortgage, as “Master Servicer” for all those mortgages.

And it named Deutsche Bank National Trust Company as the “Trustee” of ASIABPTCS2003W5 — the party paid to represent the interests of the investors and oversee the Master Servicer’s performance.

This all happened at the beginning of October, 2003.

Sixteen months later, in February 2005, the borrower was in default and Deutsche Bank — as the Trustee for ASIABPTCS2003W5 — filed an action for foreclosure in Common Pleas Court.

But — funny thing — nobody had bothered to tell the County Recorder, who’s legally in charge of keeping track of these things, that Argent Mortgage had sold the mortgage to ASIABPTCS2003W5. Ten months into the foreclosure proceeding, the magistrate somehow figured out that Argent was still the mortgagee of record and that Deutsche Bank lacked standing to foreclose on the property. (As the case summary, entry for 12/21/05, puts it: “PLAINTIFF’S MOTION TO VACATE CASE AND PLACE ON THE ACTIVE LIST IS DENIED. THE PARTY PURPORTEDLY GRANTED RELIEF FROM STAY IS NOT THE PLAINTIFF IN THIS ACTION.”)

The lawyer for Deutsche Bank quickly filed a motion to make Argent the “substitute plaintiff” in the case. The magistrate agreed to this, putting the foreclosure back on track. Then Argent’s lawyer got it together to file the correct document — it’s called a “Release Assignment” — with the Recorder’s Office in February, confirming the sale of the mortgage on 4111 Archwood to, ahem…

“DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE OF ARGENT SECURITIES INC., ASSET BACKED PASS THROUGH CERTIFICATES SERIES 2003-W5 UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF OCTOBER 1, 2003″

Finally, seven months later — after the foreclosure was granted to substitute plaintiff Argent, which had sold off its interest in the mortgage three years earlier — the magistrate granted a second plaintiff substitution, swapping Argent out and “Deutsche Bank National Trust Company as Trustee of ASIABPTCS2003W5″ back in.

So it was “Deutsche Bank National Trust Company as Trustee of ASIABPTCS2003W5″ listed as plaintiff on the sheriff’s sale notice, and as the grantee (buyer) on the sheriff’s deed. And now it’s “Deutsche Bank National Trust Company” listed as the owner on County records — with a tax mailing address at 505 City Parkway Suite # 100, Orange, CA, which just happens to be the last-listed address of Ameriquest Mortgage. (Remember them? Master Servicer for ASIABPTCS2003W5. Now defunct. Mortgage servicing contracts bought by Citigroup.)

But of course Deutsche Bank NTC doesn’t actually own 4111 Archwood, any more than it actually ever owned the mortgage.

ASIABPTCS2003W5 — that “bankruptcy-remote special purpose entity”, a paper creation owned by nobody in particular — owns 4111 Archwood.

Deutsche Bank, as Trustee, just represents ASIABPTCS2003W5 for certain purposes. Ameriquest Mortgage was supposed to take care of ASIABPTCS2003W5′s properties, but Ameriquest is out of business; this job may have passed to Citi Residential.

So who’s actually responsible for 4111 Archwood? Good question.

That’s just one house. Deutsche Bank currently “owns” over 900 houses in Cuyahoga County through foreclosures in which it acted as Trustee for some “special purpose entity”, commonly an entity created by Argent. Argent alone organized at least thirty-one of these billion-dollar mortgage-backed investment pools from 2003 through 2006.

So maybe you can see why Judges Boyko, O’Malley, Rose, et al are making a big deal about checking Deutsche Bank’s paperwork.

This entry was posted on Wednesday, November 21st, 2007 at 2:46 pm and is filed under Deutsche Bank. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

http://foreclosingcleveland.wordpress.com/2007/11/21/whats-this-boyko-deutsche-bank-thing-all-about-anyway/

ANOTHER CALIFORNIA BANKRUPTCY JUDGE SLAMS PRETENDER LENDERS AND MERS

CLE SEMINAR: SECURITIZATION WORKSHOP FOR ATTORNEYS — REGISTER NOW

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary SEE LIVINGLIES LITIGATION SUPPORT AT LUMINAQ.COM

SEE MANN order_br_cally_so_dist_salazar_vs_us_bank_denying_mfrs_mers_4_11_2011

Bankruptcy Judge Margaret M. Mann GETS IT!

1 Posted by Dan Edstrom on April 12, 2011 at 8:19 pm

Bankruptcy Judge Margaret M. Mann GETS IT!

By Daniel Edstrom
DTC Systems, Inc.

Coming off of the heels of in re: Agard (http://dtc-systems.net/2011/02/mers-agency-york-bankruptcy-court-agard/), the Honorable Judge Mann from the United States Bankruptcy Court Southern District of California took 76 days to review the Motion for Relief From Automatic Stay for the in re: Salazar Chapter 13 bankruptcy (Bankruptcy No: 10-17456-MM13).   The findings of fact and conclusions of law were an amazing reading that confirms many of the issues we have been discussing in regards to loans, securitization and foreclosure.  Like Judge Grossman in the agard case, Judge Mann goes to great lengths to research the details that are applicable to this case.   Here are some highlights:

  • Assignments must be recorded before the foreclosure sale

  • Civil Code Section 2932.5 applies to Deeds of Trust

  • Recorded assignments are necessary despite MERS’ role

  • The Gomes case does not apply [to the Salazar case]

  • US Bank or MERS cannot contract away their obligations to comply with the foreclosure statutes

  • As a matter of law, Salazar’s acknowledgment cannot be read as a waiver of his right to be informed of a change in beneficiary status.

  • MERS System is not an alternative to statutory foreclosure law

  • US Bank as the foreclosing assignee was obligated to record its interest before the sale despite MERS’ initial role under the DOT, and this role cannot be used to bypass Civil Code section 2932.5.  Since US Bank failed to record its interest, Salazar has a valid property interest in his residence that is entitled to protection through the automatic stay

  • Cause does not exist to grant relief from stay

  • Denying relief from stay at this time is the least prejudicial option for both parties

 

JAMIE DIMON: WHEN DID HE KNOW THAT JPM WAS STICKING IT TO CUSTOMERS AND MAKING A PROFIT?

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SEE jpm-makes-2-billion-while-investors-lose-500-million

EDITOR’S NOTE: If the press can ask the questions leading right up to the top of the megabanks, why can’t the government? You have to remember that these people practically invented the term “due diligence” and before the securitization scam, it was very challenging to get a deal through where all the i’s were not dotted. The point here is not whether Jamie Dimon belongs in jail. The point is that the securitization scam was intentional and there are civil remedies for everyone who was hurt by it.

JPM set up an investment that they knew at the highest levels was going to fail, didn’t tell their investor (of course) because they were going to  make a lot of money BECAUSE the investor was going to lose money. This is what was done to investors in mortgage-backed bonds and what was done to homeowners who put up their house for an “investment” that was already doomed. Facts like these help make the case for appraisal fraud and other deceptive lending practices. And it shows how the megabanks were pulling the strings through remote vehicles and then defending with plausible deniability.

My answer is that their denial is not plausible and not even possible. Nobody accidentally makes $2 billion on a client’s loss of $500 million. We’re not talking the lottery here. We are talking high finance where the controls and command centers are limited to a few rooms with very few people in those rooms.

Investing in the Dark

NY Times Editorial

So what did Jamie Dimon know and when did he know it?

New documents unsealed recently in a class-action lawsuit against JPMorgan Chase — some of which name Mr. Dimon, the chief executive — paint yet another picture of a bank profiting while its clients suffer. At issue is a precrash investment vehicle, named Sigma, in which the bank had invested $500 million in assets from pension funds and other clients, nearly all of which the clients say was lost when the investment tanked in 2008.

The clients were blindsided because they believed that Sigma was a safe way to invest. JPMorgan was not taken by surprise. As Louise Story reported in The Times on Monday, court documents show that warnings by top bank officials about Sigma and similar investments went all the way up to Mr. Dimon’s office.

The gist of the warnings was not how to protect clients, but how the ailing Sigma presented the bank with what one e-mail described as “very big moneymaking opportunities as the market deteriorates.”

When Sigma did indeed collapse, JPMorgan collected nearly $1.9 billion, according to the suit, a figure the bank disputes, without providing any alternative figure.

It is possible that JPMorgan did nothing wrong legally — and that is precisely the problem. It clearly stinks to withhold information that may well have caused clients to change their minds — in effect, for the bank to treat clients’ money with less care than it treats its own. As long as banks operate that way, there is no restoring trust in the financial system, or, by extension, in the political system that props it up.

But is it illegal? JPMorgan has said that the unit of the bank that handled the clients’ investments in Sigma was not, by law, allowed to confer with the unit of the bank that benefited from Sigma’s demise. That may be true, but as Ms. Story pointed out, in this case, the information rose to executives who oversee the entire company and were in a position to intervene. That they did not is a failure to do the right thing, even if the court decides that the bank did not break the law.

In the meantime, efforts to write new rules to try to curb such conflicts is hamstrung by a Republican backlash against the Dodd-Frank financial reform law that was passed last year. There is proposed legislation to repeal provisions of the law, and the agencies that have to implement the law are in danger of not getting enough money to do the job. As the pension funds in the class-action suit against JPMorgan can certainly attest, only the banks will benefit from business as usual.

US TRUSTEES ATTACKING PRETENDER LENDER STANDING IN MLS

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

In his experience, Mr. Shaev said: “The attorneys who represent the banks invariably state that they will get the collateral file for us and prove that the banks had possession of the documents at the appropriate time. But then when we review the file it doesn’t show that at all.”

“The Central Question rising to the surface and now unavoidable is whether a party claiming to be a secured creditor would prevail if there was a normal adversary hearing on the merits where the normal rules of evidence apply” — Neil F Garfield

EDITOR’S NOTE:  In bankruptcy courts across the country, pretender lenders have been able to rely upon an unwritten code wherein a motion to lift stay (MLS) filed by a secured creditor would be unopposed by the trustee. The pretender lender would not only be free to continue with judicial or nonjudicial foreclosure and sale, they would also have the appearance of a court order  apparently confirming their right to foreclose.

When I first broached the subject with various US trustees around the country in 2007 and 2008 they were extremely skeptical. I proposed a business model to them which would provide the protection to the debtor that was intended by the Constitution and the statutes governing the substance of bankruptcy petitions.  I showed them that the US trustee, the attorney for the US trustee, the creditors, and the attorney for the debtor would all be able to share in a larger estate and thus earned more fees than was currently the case where a home was in foreclosure.

It was my opinion then and it is my opinion now that not only do the pretender lenders lack standing to pursue a foreclosure, but that there does not appear to be any credible party in the securitization chain who would possess such standing. It was my opinion that the participants in the securitization scheme had hopelessly obscured the obligation and split the obligation from the note and mortgage as well as splitting the note from the mortgage.

Thus while the obligation clearly exists, subject to offsets and counterclaims, there is no law or legal theory under which the obligation was in fact secured. The US trustees in bankruptcy were not only skeptical, they were actually opposed to my plan because they did not want to be part of any procedure by which a borrower abused the judicial process in order to gain a windfall or undue advantage.

In a major change of policy, US trustees in bankruptcy court are now challenging the standing and viability of the claims made by the pretender lenders. The premise was that if a lawyer came to bankruptcy court claiming to represent a lender that was secured by a mortgage on the property it was presumed that the representation to the court was true. As we have seen in various news reports there are good reasons to question whether the attorney represents anyone, whether any of the parties to whom the attorney refers is an actual creditor, and whether the claim is secured by a mortgage on the home.

The wrongful foreclosure damage actions are giving pause to everyone involved in the closing of these deals and in the processing of the “foreclosures.” Invariably, the old trustee on a deed of trust is substituted with one with whom the pretender lender has an ‘arrangement” concerning going forward, regardless of the obstacles.

The employment of  intermediaries used to obscure the fraud in the sale of the bogus mortgage bonds and the bogus mortgage loans are the business model for the employment of intermediaries used to obscure the fraud on the court in foreclosures.

These intermediaries — originators, brokers, title agents, escrow agents, appraisers, trustees, and foreclosure companies are all in the cross hairs of lawyers across the country who are suing for individual or class action relief. Any party moving forward at this point can be held to the “knew or should have known” status required for a fraudulent foreclosure or slander of title action. If it is negligence, there might be insurance coverage. If it is viewed as an intentional act of fraud, the insurer for errors and omissions might decline coverage for even the defense of the action.

The megabanks have intentionally and in so many words set up various “bankruptcy remote” vehicles that are intended to insulate them from liability in case this thing explodes in their faces. They wish to protect their claim of plausible deniability and point the finger at the actual people who got the hands dirty — as the recent closing of  David Stern’s office in Florida demonstrates. These remote vehicles are submitting credit bids at auction which are by all accounts not only illegal, but void.

Any issuance of a title document reflecting a “credit bid” is essentially a “wild deed,” — i.e., one that can and would be ignored by a title examiner. This leads to the inevitable conclusion that nearly all REO property is still legally owned by the homeowners who believe their home was foreclosed and sold.

The central question that is gradually rising to the surface is simply whether or not a party claiming to be a creditor could sustain its burden of proof in a normal evidentiary hearing. The presumptions that were used before the securitization of residential mortgage loans made sense when the transaction lacked the complexity and duplicity inherent in the scheme of securitization as it was practiced by Wall Street. It is now apparent to many judges, many lawyers, many people in the media, many homeowners, and now US trustees in bankruptcy, that the old presumptions do not apply.

In plain language, the parties claiming to be creditors are not creditors, because the bankruptcy estate does not owe them any money. The same is true in federal and state civil court. The mega banks took advantage of their appearance of propriety and the old presumptions and made the judicial system of vehicle for fraudulent conveyances. The resulting chaos in the chain of title, claims under title insurance, and the inability to obtain a satisfaction of mortgage from a party that is authorized to execute it is the major challenge confronting the legal system.

This has thrust an enormous burden on the offices of the  property appraiser and County recorder across the country. 66 million transactions involving “wild deeds” are now in the chains of title in tens of millions of homes.

The resolution to this crisis is obvious even if it is odious. It has happened in the past that title records have been corrupted beyond repair. It becomes necessary to push a figurative “reset” button with a window of opportunity for those affected to present their claims in a manner required by the court and the legislature of each state. It is in this process that the homeowners will receive an opportunity to obtain some relief while the investors who advanced the funds for the loans recover as much as possible.

LLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLL

November 27, 2010

Don’t Just Tell Us. Show Us That You Can Foreclose.

SYSTEMIC CHANGE NEEDED

By GRETCHEN MORGENSON

NY TIMES

AFTER examining their foreclosure practices for flaws in mortgage documentation and other procedures, many of the nation’s largest banks have resumed — or will soon resume — trying to evict defaulted borrowers.

JPMorgan Chase, for example, told investors this month that it had extensively reviewed its foreclosure controls, trained personnel in the unit and started new procedures to ensure that all legal requirements would be met when it moves to seize a property in default.

“If we find any foreclosures in error, we will fix them,” JPMorgan Chase said.

But while banks may have booted a few robo-signers and tightened up some lax procedures, one question at the heart of the foreclosure mess refuses to go away: whether institutions trying to take back a property can prove they even have the right to foreclose at all.

Some in the industry believe that questions about this issue — known as “legal standing” — are trivial. They say it’s just a gambit by borrowers’ lawyers to throw sand in the foreclosure machine. Nine times out of 10, bankers say, the right institutions are foreclosing on the right borrowers.

Maybe so. But the United States Trustee Program, the unit of the Justice Department charged with overseeing the integrity of the nation’s bankruptcy courts, is taking a different view. The unit is stepping up its scrutiny of the veracity of banks’ claims against borrowers, and its approach is evident in two cases in federal bankruptcy court in Atlanta.

In both cases, Donald F. Walton, the United States trustee for the region, has intervened, filing motions contending that the banks trying to foreclose have not shown they have the right to do so.

The matters involve borrowers operating under Chapter 13 bankruptcy plans overseen by the court in the Northern District of Georgia. In both cases, the banks have filed motions with the bankruptcy court to remove the automatic foreclosure stay that results when a court confirms a debtor’s Chapter 13 repayment plan. If the stay is removed, the banks can foreclose.

In one case, the borrower had her Chapter 13 plan confirmed by the court early last month. About two weeks later, Wells Fargo asked the court for relief from the stay so that it could foreclose.

Responding on Nov. 16, Mr. Walton asked the court to deny the bank’s request because it had failed to produce any facts showing that it was entitled to foreclose — either as the holder of the underlying note or as the agent for the holder.

The other case involves a couple who had their Chapter 13 plan confirmed by the court in March 2009. A month ago, Chase Home Finance, a unit of JPMorgan Chase, asked the court for relief from the automatic stay so that it could start foreclosure proceedings.

Again, Mr. Walton objected, asking the court to deny the request on the same grounds as argued in the Wells Fargo matter — in this case, that Chase hadn’t proved that it controlled the note on the property.

Jane Limprecht, a spokeswoman for the trustee program, confirmed that it was ratcheting up its scrutiny on banks’ foreclosure practices.

“The United States Trustee Program is engaged in an enhanced review of mortgage servicer filings in bankruptcy cases to help ensure the accuracy of the claim to repayment,” she said. She declined to comment on specific filings.

A Chase spokesman said the bank is the holder of the note in the Georgia case, giving it standing to file the motion.

A spokeswoman for Wells Fargo said that in its case, it is the trustee of a mortgage security that contains the loan, not the servicer. In its capacity as the trustee for mortgage loans serviced by others, it says it expects those servicers to abide by all required laws, processes and procedures.

Howard D. Rothbloom, a lawyer in Atlanta who represents borrowers in bankruptcy, welcomed the actions by Mr. Walton and said he believes they show a sea change in the United States trustee’s thinking on the foreclosure mess.

“Until now, what we had was homeowners complaining about a lack of due process,” Mr. Rothbloom said. “Now you have the federal government complaining about the abuse of the judicial process. That’s really what was missing before.”

The judges overseeing these matters have not yet ruled on the banks’ or the trustee’s requests. And Wells Fargo and Chase may indeed be able to persuade the trustee that their filings were proper.

But the trustee’s intervention in these matters indicates that it wants banks to show the courts that they have the right to foreclose, rather than simply telling them they do. That had been the custom, after all. Now, Mr. Walton’s motions may serve as a warning to banks that they need to be better prepared if they want to foreclose on a borrower.

“For years, the trustee would always take the creditors’ side,” Mr. Rothbloom said. “My strong opinion is the U.S. trustee’s perspective is that they exist to stop borrowers from cheating banks. Perhaps they are coming to the realization that banks can also cheat borrowers.”

FEDERAL trustees in other parts of the country have also intervened in borrower cases, but many of these actions have been related to questionable foreclosure fees or to dubious legal or documentation practices. The shift to a broader focus on the issue of standing suggests that the courts may no longer accept at face value the banks’ arguments that they have the right to foreclose or represent the institution that does.

David Shaev, a lawyer in New York who works with troubled borrowers, says the United States trustee there has also intervened in one of his cases, taking up the issue of a bank’s right to foreclose.

In his experience, Mr. Shaev said: “The attorneys who represent the banks invariably state that they will get the collateral file for us and prove that the banks had possession of the documents at the appropriate time. But then when we review the file it doesn’t show that at all.”

As many large banks renew their foreclosure efforts, Mr. Rothbloom says he hopes that the United States trustee will bring about a comprehensive change in bank practices.

“I’ve gotten resolutions for clients in individual cases, but I’m just a flea on the tail of an elephant,” he said. “Resolutions of individual cases don’t bring about systemic change.”

And systemic change is precisely what’s needed.

Why We Do What We Do

 “Without your blog I would not have found the right lawyer in my state.”          

                                                                                                                   – Meghan in RI

“Some of the most rewarding work of my career.”

                                                                                                                  – Chris Brown Esq.

While we understand the many reasons borrowers pursue their cause on a ProSe or ProPer basis,  it has been our position since the beginning that people need competent licensed local counsel. Also, you must understand that no matter what anyone tells you, no letter or correspondence from anyone, no “loan audit,”  no promise of modification will stop a foreclosure particularly in non-judicial states, the only thing that will stop a foreclosure is a judge or court order. Our first mission here is education and the desimination of information to the public, judges, lawyers, legislators and homeowners. Unfortunately, the executive and legislative branches of government have dropped the ball and still don’t get it(with some exceptions like Marcy Kaptur D-Ohio).

The bottomline is that the Judicial branch is the only hope, Judges need to open their eyes, ask questions they may have never had to ask because the facts and circumstances are really unlike they have ever been in the past. Lawyers who do “get it” and are actively practicing in this area and succeeding we need to hear from you. People need to know how to find you. There are simply still not enough lawyers that “get it.” We also believe that if someone has the desire and financial wherewithal to hire a lawyer, we want them to give there money to someone that will be effective and is staying up to date on this everchanging area of practice. When we get emails like the ones below or other feedback it makes us feel like we are in some small part helping folks through what is and will be one of the most difficult period for our country in our lifetime.  Lawyers who are listed here are doing good work and quite frankly in many cases have practices that are expanding and thriving. If you or your law firm is interested in being listed here email your contact info to:  foreclosuredefensegroup@gmail.com Also, if you are a homeowner and have a lawyer who you think knows their stuff and has been doing a stellar job for you, let us know about them.

Hi Mr. Garfield, Mr. Keiser and the Livinglies team 

   I am writing to say thank you for starting this blog. Without it, I would not have found the right lawyer in my state. I was working with another lawyer, originally, and all he did was buy me some time. Otherwise, he took a lot of money from me for nothing…and continues to pursue me for more. It is also comforting to know that there are other people out there fighting for the same cause, whether they are victims or not. I know there are some naysayers presently posting on your sight but, anyone in my shoes, fighting like all of us are, all of us know when to read between the lines. I have learned so much from your blog and referred your site to others.   I would love to see you have another seminar on the East Coast sometime. Thanks for what you’re doing and let me know how I can help at anytime

Meghan in RI

From: Christopher Brown, Esq.
To: Neil, Brad

THANK YOU FOR SENDING THIS!!
While I am at it, let me toss on some more praise for … you    I cannot thank you enough for the seminar I attended in August 2008, in Los Angeles, CA.  It has completely redefined my practice.  While we are still the only firm in Northern Virginia doing this, we are doing it well, and making HUGE strides recently .. it has taken a year to do it, but the foreclosing law firms are FINALLY beginning to concede they have a problem.
 
Every trial that has come up has been continued, or the case resolved with a “good” loan mod.  They have yet to put us to the test at trial, which we are eager to see happen, but our clients continue to accept the good loan mod offers that come before trial.  The client is the boss, and I can’t make guarantees, so they more often than not go for the mod, but I feel it coming.  We are making incredibly sound constitutional arguments (non-judicial foreclosure is violation of due process, no standing / article 3 injury for purported owner of the note/deed of trust), challenging title like no one else can (former 25 year in-house counsel for title companies on my staff since January), and raising all sorts of problems that were created by the securitization process (former NY securities atty on my staff as well).
 
This Kansas Sup Ct opinion closes the gap and makes us that much more confident in pursuing our clients interests. I am ecstatic about where my firm is right now and the work we are doing.  My staff, which is growing every few months, is ecstatic as well, as myself, my employees, and our families, are doing well in a recession, and we are helping families protect their homes at the same time.  I could not be happier – and with this Kansas Sup Ct opinion, things are going to get better even faster.
 
We have gone through several different strategies, and the one we settled on, ironically, is the one you espoused in the seminar (!!), file a suit claiming they can’t enforce the note, do discovery, and put the burden on them.  It is funny the trials and tribulations my office has gone through to get to this point, but it has also been some of the most rewarding work of my career.
 
Keep up the good work .. and …
Thank you.
 
Anything I can do for you, all you have to do is ask.
 
Christopher E. Brown, Esq.
Brown, Brown & Brown, P.C.

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