The FBI convicts a small time operator while the Big Banks continue their Crime Spree unabated

The FBI proudly announces they have convicted a California mortgage rescue operation but pays no attention to the fact that banks are continuing their unabated crime spree that way surpasses a small time mortgage rescue operation.  The government has hard evidence that bank servicers are participating in criminal conduct that includes forging instruments, perjured affidavits, predatory servicing and modification scams and does nothing of impact to address the rampant fraud.

To date no executive calling the shots has gone to prison, further emboldening their illegal behavior.  In fact, most executives who designed the greatest financial fraud scheme the world has ever seen, are promoted or enter government.  Steven Mnuchin perfectly executed the OneWest master crime spree and instead of a stint in federal prison he was promoted to Secretary of Treasury.

The government has sanctioned and fined the banks hundreds of millions of dollars.   The paltry fines have done nothing to curtail their fraudulent behaviors.  A fine of $500 million is simply a tax write-off and a cost of doing business for the big servicers who are collecting billions in profits for foreclosing on loans they can’t prove they own.

At this point, servicing fraud, securitization fraud, foreclosure fraud and modification fraud are considered acceptable operating procedures for the big banks.    The Federal Bureau of Investigation has not done their job and are part of the cover up.  Meanwhile the FBI tries to distract people with stories about saving vulnerable homeowners from small time operators while the guilty go free.

In fact, if you have hard proof of fraud or criminal behavior and report it to the FBI, you will be told that your problem is a civil matter.   If the FBI is interested we would be happy to share dozens of cases where the bank and their counsel forged documents, submitted fraudulent affidavits to the court and foreclosed on homes they didn’t own by resorting to forgery and fraud.  The evidence we have is 100% conclusive and yet no governmental agency has any interest in what the big banks are doing to steal homes.

False Promises

California Man Sentenced for Operating Foreclosure Rescue Scheme

When California homeowners couldn’t make their mortgage payments and faced foreclosures during the Great Recession in 2008, some turned to a Long Beach church pastor for help.

For almost six years, Karl Robinson offered mortgage rescue services under his name and through companies such as Stay in Your Home Today, 21st Century Development, and Genesis Ventures Corporation. Now he’s serving four years in federal prison for his role in a scheme that brought in nearly $3 million in fees from unknowing clients.

Robinson and a group of co-conspirators attracted distressed homeowners with the promise of delaying foreclosures and evictions. They claimed to offer services that connected clients to experienced consultants who could keep them in their homes for an affordable fee.

It was all too good to be true—until an FBI-led investigation in 2013 determined that the mortgage rescue programs were far from legitimate.

“Robinson joined a growing number of con artists surfacing throughout the country during the subprime mortgage crisis focused on lining their own pockets instead of actually helping clients,” said FBI Special Agent Kevin Danford, who investigated the case out of the Bureau’s Los Angeles Field Office.

During the housing crisis, opportunistic groups like Robinson’s preyed on vulnerable and desperate homeowners through common scams such as offering affordable refinancing with lower monthly payments, low-interest deals, and delinquent mortgage pay-offs.

In 2008, Robinson began offering fraudulent foreclosure delay solutions by taking part in what were known as partial-interest bankruptcy scams (see sidebar). The process went on for months, providing Robinson with a steady flow of income as long as his clients were willing to pay.

Another scam delayed evictions for Robinson’s clients whose homes had been sold in foreclosure proceedings. Robinson falsely claimed in state court eviction actions that his clients still had tenants in those homes. Robinson would then file bankruptcies for the fictional tenants, postponing the evictions.

By 2011, clients and lenders were starting to catch on to Robinson’s scams. They turned to their local police, who confirmed the suspected fraud and alerted the FBI.

“Robinson joined a growing number of con artists surfacing throughout the country during the subprime mortgage crisis focused on lining their own pockets instead of actually helping clients.”

Kevin Danford, special agent, FBI Los Angeles

The Bureau opened an investigation on Robinson in August 2013 and subsequently obtained an external hard drive from his home that contained documents such as fake driver’s licenses, false identities, and incomplete bankruptcy petition drafts—which revealed the steps he was using to carry out his fraud scheme.

Following his arrest, Robinson confessed to knowingly defrauding his clients and the state and federal courts. Robinson pleaded guilty in August 2016 to the role he played in running the multi-year foreclosure rescue scheme.

“Robinson was able to delay foreclosure sales for more than 100 properties, and he filed at least 200 bankruptcy petitions,” said Danford. “His scheme not only impacted more than 60 lenders and clogged both federal bankruptcy court and state and local eviction court systems but also caused undue stress to numerous purchasers.”

Partial-Interest Bankruptcy Scams

The scam operator asks you to give a partial interest in your home to one or more persons. You then make mortgage payments to the scam operator in lieu of paying the delinquent mortgage. However, the scam operator does not pay the existing mortgage or seek new financing. Each holder of a partial interest then files bankruptcy, one after another, without your knowledge. The bankruptcy court will issue a “stay” order each time to stop foreclosure temporarily. However, the stay does not excuse you from making payments or from repaying the full amount of your loan. This complicates and delays foreclosure, while allowing the scam operator to maintain a stream of income by collecting payments from you, the victim. (Source: FDIC)

USA v. Minas Litos and Adrian and Daniela Tartareanu | 7th Circuit halts fraud restitution, urges fine for ‘reckless’ Bank of America

http://stopforeclosurefraud.com/2017/02/13/usa-v-minas-litos-and-adrian-and-daniela-tartareanu-7th-circuit-halts-fraud-restitution-urges-fine-for-reckless-bank-of-america/?utm_source=feedburner&utm_medium=twitterutm_campaign=Feed%3A+ForeclosureFraudByDinsfla+%28FORECLOSURE+FRAUD+%7C+by+DinSFLA%29

The Indiana Lawyer-

Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order against them and urged the district court in Hammond to consider fining Bank of America for “facilitating a massive fraud.”

“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.

The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.

[THE INDIANA LAWYER]

http://www.theindianalawyer.com/th-circuit-halts-fraud-restitution-urges-fine-for-reckless-bank-of-america/PARAMS/article/42783

Editor’s note: This article has been corrected. In reversing a restitution order for Bank of America, the 7th Circuit urged a fine against the criminal defendants in this case.

Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order in favor of Bank of America and urged the district court in Hammond to consider fining the defendants instead.

“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.

The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.

Posner detailed the bank’s dubious mortgage-lending history during the real-estate bubble leading up to the Great Recession, noting for instance one woman to whom the bank issued six mortgages in a 10-day period. Posner noted that District Judge Philip Simon said during sentencing in this case, “Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re [of] equal culpability?”

“Indeed,” Posner continued, “and we are puzzled that after saying this the judge awarded Bank of America restitution — and in the exact amount that the government had sought.”

“Restitution for a reckless bank? A dubious remedy indeed — which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money,” he wrote. “We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any of  $893,015. 18  U.S.C. § 3571(d) authorizes a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any person either derives pecuniary gain or suffers pecuniary loss.”

The 7th Circuit vacated the restitution order as to the Tartareanus and remanded for full resentencing with the alternative remedy of a heavy fine on the defendants. The panel remanded Litos’ sentencing for the limited purpose of reconsideration of the restitution order with direction to consider whether a fine is possible.

 

Fill the Swamp: Former Goldman Sachs executive and “foreclosure expert”, confirmed as US Treasury Secretary

Editor’s Note:  The story below may induce your gag reflex.  Read at your own risk.

http://en.mercopress.com/2017/02/14/former-goldman-sachs-executive-and-foreclosure-expert-confirmed-as-us-treasury-secretary

A bitterly divided Senate on Monday confirmed Steven Mnuchin as United States treasury secretary despite strong objections by Democrats that the former banker ran a “foreclosure machine” when he headed OneWest Bank. Republicans said Mnuchin’s long tenure in finance makes him qualified to run the department, which will play a major role in developing economic policy under President Donald Trump.

“He has experience managing large and complicated private-sector enterprises and in negotiating difficult compromises and making tough decisions — and being accountable for those decisions,” said Sen. Orrin Hatch, R-Utah, chairman of the Finance Committee.

After Mnuchin’s swearing-in ceremony in the Oval Office Monday night, Trump said Americans should know that “our nation’s financial system is truly in great hands.”

Votes on President Donald Trump’s Cabinet picks have exposed deep partisan divisions in the Republican-controlled Senate, with many of the nominees approved by mostly party-line votes. The vote on Mnuchin followed the same pattern. He was confirmed by a mostly party-line vote of 53-47. Democratic Sen. Joe Manchin of West Virginia joined the Republicans.

Like others in Trump’s Cabinet, Mnuchin is a wealthy businessman. He is a former top executive at Goldman Sachs and served as finance chairman for Trump’s presidential campaign.

As Treasury secretary, Mnuchin is expected to play a key role in Republican efforts to overhaul the nation’s tax code for the first time in three decades. Trump has promised to unveil a proposal in the coming weeks. Mnuchin will also be in charge of imposing economic sanctions on foreign governments and individuals, including Russia.

Senate Majority Leader Mitch McConnell, R-Ky., said Mnuchin “is smart, he’s capable, and he’s got impressive private-sector experience.”

Democrats complained that Mnuchin made much of his fortune by foreclosing on families during the financial crisis. In 2009, Mnuchin assembled a group of investors to buy the failed IndyMac bank, whose collapse the year before was the second biggest bank failure of the financial crisis. He renamed it OneWest and turned it around, selling it for a handsome profit in 2014.

“Mr. Mnuchin has made his career profiting from the misfortunes of working people,” said Sen. Debbie Stabenow, D-Mich. “OneWest was notorious for taking an especially aggressive role in foreclosing on struggling homeowners.”

CitiGroup Whistleblower Richard Bowen: The Immaculate Corruption

bowen

http://campaign.r20.constantcontact.com/render?m=1118575381433&ca=a2e5c0b7-db56-42f8-9a03-3310d938cb61

Watch the video here: http://fullmeasure.news/news/cover-story/immaculate-corruption

Full Measure with Sharyl Attkisson: The Immaculate Corruption featuring Richard Bowen. Photo: Sharyl Attkisson

Full Measure News is broadcast to 43 million households in 79 markets on 162 Sinclair Broadcast Group stations, including ABC, CBS, NBC, FOX, CW, MyTV, Univision and Telemundo affiliates and streams live Sunday mornings at 9:30 a.m. ET.

In some markets they are seen more than the cable news competition in that time slot, and by more viewers than CNN, MSNBC, and CBNC combined and equal or surpass the audience size of CBS’ “Face the Nation,” NBC’s “Meet the Press,” and ABC’s “This Week.” They explore “untouchable topics in a fearless way,” from immigration, terrorism, government waste, national security and whistleblower reports on government and corporate abuse and misdeeds. It is hosted by Sharyl Attkisson, a five-time Emmy Award winner and recipient of the Edward R. Murrow award for investigative reporting.

This past Sunday, I was honored to be featured on my “experience” at Citigroup, which many have called “The Immaculate Corruption.” [watch it here].

Sharyl Attkisson and Richard Bowen

The interview started with, “This is the story of how systems intended to hold people accountable failed and Bowen claims even helped cover for them… Richard Bowen knew where the figurative bodies were buried at banking giant Citigroup, once the largest company in the world. As a senior vice president, Bowen blew the whistle on Citigroup’s practices leading up to the banking crisis – practices like buying and selling risky mortgages and misrepresenting them to the public and investors.”

Sharyl noted, ”Not much has happened in terms of from what I can see to the actual people at Citigroup who were allegedly responsible for this behavior.” “That would be very accurate,” I responded.

Sharyl continued,

In 2009, Congress created the Financial Crisis Inquiry Commission. Six members were appointed by Democrats, four by Republicans.

Bowen was asked to testify. And he was eager to do it. It was a setting where he says he could publicly tell what he knew, exempt from his Citigroup confidentiality agreement. He wrote up his testimony, naming names and laying blame. However, shortly before he testified Bowen was told to “take out much of the damning evidence that they had originally told me to put in.”

He says the commission wanted major edits; “what they also conveyed is that the edits were not optional. If I did not make the edits I would probably be taken off the witness list.” Bowen says he had to cut out eight pages, almost a third of his planned testimony. And almost nobody knew that when he testified on April 7, 2010.

Last March, the financial commission’s records were quietly unsealed for the first time. And we were able to obtain copies of Bowen’s original testimony, including parts that were cut.

Sharyl: “Did they have you take out names of people responsible”?

Richard Bowen: “Yes. They had originally wanted me to put in the names and the specific instance of cover-ups that I had witnessed. All of that had to be taken out, at least the names”.

Sharyl continued…

Financial commission staff members who dealt with Bowen say the reason his testimony was shortened is simply because it was too long. They deny suggesting any edits, say there was no attempt to censor or silence Bowen, and say that all acted with the best of intentions and followed the highest ethics…

And there’s something of a bombshell in the formerly hidden documents: In 2011, when the Financial Commission concluded work, it secretly determined some of the world’s largest financial institutions had possibly violated securities law.

The Financial Commission privately referred 11 charges against nine executives, including Robert Rubin and two other Citigroup officials, to Justice Department Attorney General Eric Holder for possible prosecution. 

Now that the documents have finally been released after 5 years, Senator Elizabeth Warren has written the FBI and Justice Department Inspector General asking why nothing came of those criminal charge referrals.

“The [Department of Justice] has not filed any criminal prosecutions against any of the nine individuals,” writes Warren. “Not one of the nine has gone to prison or been convicted of a criminal offense. Not a single one has even been indicted or brought to trial.”

On the program I expressed my concern, ”If we do not hold people accountable, then we’re going to see the same behavior. In the 1980s and the banking and S&L crisis, we sent over 800 senior bankers to jail. This crisis which is 70 times worse, I’d say, maybe even greater than that, we have sent no one to jail. And, and I think we basically are saying, there’s no downside to doing this.”

I fervently believe that by allowing the big banks to get away with fraud we are condoning their behavior and it will happen again. The large banks have a stranglehold on the financial services industry. If we are going to institute real change, then we must first break up the large banks, then repeal parts of the Dodd-Frank act to open up the banking industry to real competition.

Although Dodd-Frank was originally passed to reign in the large banks, it has turned into a gift to the larger banks because they have the wherewithal to lobby and gut those provisions that directly affect them. This leaves a disproportionate share of compliance costs on the smaller banks; which then has them selling to the larger banks as they can’t afford to compete.

And Sharyl concluded the interview, “As for Citigroup, it continues to rack up the fines. Last week, it paid $28 million more to settle claims that it gave homeowners the “runaround” when refinancing their home mortgages.”

http://www.richardmbowen.com/first-time-televised-smoking-gun-evidence/

LA Times: Report says Treasury nominee Steve Mnuchin misled senators about foreclosures by OneWest Bank

http://www.latimes.com/business/la-fi-mnuchin-treasury-onewest-20170130-story.html

An Ohio newspaper reported that Steve Mnuchin, President Trump’s nominee to be Treasury secretary, misled senators about foreclosures by OneWest Bank while he was chief executive, providing more fuel to opponents ahead of a contentious committee confirmation vote scheduled for Monday.

The Columbus Dispatch reported Sunday that Mnuchin denied in written responses to questions from the Senate Finance Committee that OneWest engaged in so-called robo-signing of mortgage documents.

The paper said its analysis of nearly four dozen foreclosure cases in Ohio’s Franklin County in 2010 showed the bank “frequently used robo-signers.”

The practice, prevalent throughout the mortgage industry in the aftermath of the financial crisis, involved employees at financial firms signing foreclosure documents en masse without properly reviewing them.

Democrats sharply criticized Mnuchin during his confirmation hearing on Jan. 19 concerning OneWest’s foreclosures while he ran the Pasadena bank from 2009 to 2015. They called the institution, which formerly had been troubled subprime lender IndyMac Bank, “a foreclosure machine.”

“Mnuchin ran a bank that was notorious for aggressively foreclosing on homeowners, and now he’s lying about his bank’s dismal track record in his official responses to the Finance Committee,” Sen. Elizabeth Warren (D-Mass.) said Monday. “Working families simply cannot trust him to be the country’s top economic official.”

At the hearing, Mnuchin blamed the large amount of foreclosures on bad IndyMac loans he inherited. Mnuchin and other investors put up nearly $1.6 billion to buy IndyMac and renamed it OneWest. They sold the bank to CIT Group in 2015 for $3.4 billion.

The new report is expected to be raised by Democrats when the committee meets at 3 p.m. PST on Monday to vote on his nomination. Many if not all the Democrats on the committee are expected to oppose his nomination.

Sen. Sherrod Brown (D-Ohio), who sits on the committee, has said he would vote against Mnuchin.

“Mnuchin profited off of kicking people out of their homes and then gave false testimony about his bank’s abusive practices,” Brown said Sunday. “He cannot be trusted to make decisions about policies as personal to working Ohioans as their taxes and retirement.”

The Columbus Dispatch cited a foreclosure involving a mortgage signed by Erica Johnson-Seck, a OneWest vice president who said in a deposition in a 2009 Florida case that she signed an average of 750 documents a week.

Barney Keller, a spokesman for Mnuchin, said Monday that several courts had dismissed cases involving allegations of robo-signing by Johnson-Seck.

“The media is picking on a hardworking bank employee whose reputation has been maligned but whose work has been upheld by numerous courts all around the country in the face of scurrilous and false allegations,” Keller said.

In written questions to Mnuchin, Sen. Robert Casey (D-Pa.) asked if OneWest engaged in robo-signing.

“OneWest Bank did not ‘robo-sign’ documents,” Mnuchin said. He added that the bank was the only one to “successfully complete” an independent foreclosure review process by federal banking regulators looking into robo-signing allegations.

In 2011-12, several mortgage servicers agreed to pay a total of $3.9 billion to borrowers for foreclosure errors as part of a settlement with regulators.

OneWest was not part of the settlement because an independent consultant hired by the bank completed its own review and “remediation checks have been issued to those borrowers where financial injury was identified,” according to the Office of the Comptroller of the Currency.

Casey said Mnuchin “continues to deny his bank robo-signed documents, while evidence from court cases, bank regulators, and news reports continues to show the opposite.

Investigator Bill Paatalo: “Who Is Private Investor ‘AO1?” JPMorgan Chase Refuses To Reveal The Identity Of This Investor.”

Evidence-Puzzle-via-TouroLawReview

http://bpinvestigativeagency.com/washington-mutual-bank-sold-these-67529-toxic-loans-and-not-one-single-foreclosure-by-the-investors/

In relation to my previous article, let me continue a bit further. More and more cases continue to come across my desk showing that WaMu loans claimed to be owned by JPMorgan Chase, through the “Purchase & Assumption Agreement” with the FDIC, were in fact sold by WaMu to “Private Investor – AO1” prior to the FDIC’s Receivership. Here is an excerpt from a recent affidavit I produced:

———————————————————————

“Private investors own the subject loans, and their identity is being concealed.

Attached as Exhibit 5, p.1 is a servicing system screenshot titled, “3270 Explorer” which was provided to me by Plaintiff through discovery efforts. This screenshot is dated 03/02/2009 and refers to “Loan Number [“REDACTED”] which is associated with the [“REDACTED”] mortgage. This document shows an investor code “AO1” directly beneath the top line. The same investor code “AO1” is shown on the servicing screenshot for this loan on 12/31/2005 (Exhibit 5, p. 2). Exhibit 5. P.3 is the servicer screenshot for the [“REDACTED” mortgage (“Loan Number [REDACTED]”) dated 12/31/2005 which also shows the same investor code “AO1.”

From experience, I have seen and reviewed JPMC’s servicing records for WMB originated loans within JPMC’s “3270 Explorer” servicing platform. This system / platform contains a specific screenshot which shows the “loan transfer history” (Screen: “Explorer 3270 – LNTH”) for these loans.

From experience, I have seen complete LNTH screenshots for these WaMu loans provided by JPMC, but usually they are produced with great reluctance and through motions to compel. When produced, these LNTH screens tell an entirely different story about the loans; specifically, all the sales and transfers conducted prior to the FDIC’s receivership.

Attached as Exhibit 6 is a “3270 Explorer: Loan Loan Transfer History (LNTH)” screenshot provided by JPMC in a very similar case which I have been involved captioned Kelley v. JPMorgan Chase Bank, N.A., U.S. BK CT, ND CA, Adv. Case No. 10-05245. Like the [REDACTED]loans, the Kelley loan was also originated by Washington Mutual Bank, F.A. Exhibit 6 shows the entire LNTH from origination through the FDIC receivership. The beginning “Investor Code” at the inception of the loan is “030” on 08/07/07. The loan is then sold and transferred to a “New/Inv” (new investor) on 09/01/07 with the “Investor Code – AO1”: the same code for both [REDACTED] loans on 12/31/2005. It can be logically deduced from this evidence that the same originator code of “030” should also exist on the [REDACTED] loans if WMBFA was the originator.

A deposition of JPMC employee “Crystal Davis” occurred in the Kelley case on August 13, 2014. A copy of the Davis Deposition Transcript was filed in the PACER System and a copy is attached to this affidavit as Exhibit 3. Exhibit 4 is a glossary of codes exhibit provided by JPMC in that deposition. Crystal Davis explains the investor codes on p.42 as follows:

(In reference to Exhibit 4).

Q. Now if you look to the right of that, it states that the claim – the investor IDs begin with an A through V; is that correct?

A. In the current MSP platform, yes, indicates private investor loans.

Q. And what would X,Y,Z indicate?

A. Those would indicate bank-owned assets.

It is very likely that the complete LNTH screenshots for both subject loans, if ever produced, will show similar sales transactions from WMB to “New/Inv – AO1.” The identity of investor “AO1” has not been disclosed and is being concealed from the Court and the Plaintiff. I believe this is intentional.”

————————————————–

What also appears to be intentional is the fact that when JPMC is now pressured to produce these “LNTH” screenshots per my findings and recommendations to counsel, JPMC or the servicer comes back with incomplete LNTH histories for the loans; the LNTH screens begin AFTER September 25, 2008. What this means is, not only was no schedule of assets ever produced in association with “Schedule 3.1” of the PAA, but now in some of my current cases, JPMC takes the added position that it owns these WaMu loans to which there is also no record of the sales and transfer histories of the loans within their servicing platform.  So, my opinion that WaMu sold and securitized the loan(s) prior to September 25, 2008 becomes a bit more difficult to rebut.  The question to ask any Chase representative in a deposition is this, “If no schedule or inventory of WaMu loans has ever been produced, and there are no servicing records in existence from WaMu showing whether or not the loan was ever sold or securitized, could it be possible the loan(s) were sold by WaMu prior to September 25, 2008?” (As a reminder, few if any Chase witnesses have any personal knowledge of WaMu’s business practices.)

Bottom line – Chase’s own witness testified that “Ao1” is a private investor, and this code does not mean “bank owned.” With the LNTH screenshots now appearing with no pre-receivership sales and transfer activities entered by WaMu, it is almost too much to believe that one of the largest banking institutions in the world, would not have tracked the loans it originated and sold into the secondary market within its servicing systems.

C’mon Chase, who is “Private Investor AO1?”

 

Bill Paatalo – Private Investigator – OR PSID#49411

Bill.bpia@gmail.com

(406) 328-4075

http://bpinvestigativeagency.com/who-is-private-investor-ao1-jpmorgan-chase-refuses-to-reveal-the-identity-of-this-investor/

 

 

Casting Doubt on Validity of Servicer Affidavits in Foreclosure Litigation

Christopher A. Gorman, New York Law Journal

October 19, 2016

Most institutional lenders, trusts and large financial institutions that loan money to borrowers or acquire distressed loans use loan servicers to service their loans after the loans are originated or otherwise assigned to them. Loan servicing is the process by which a lender uses a third party to, among other things, collect principal, interest and escrow payments from the borrower in connection with a loan.

Following a default on a loan, a lender will often rely upon its loan servicer to oversee the process of foreclosing on the mortgage securing the loan. In such instances, the foreclosure lawsuit will often be brought in the name of the lender holding the promissory note and the mortgage, but affidavits that need to be submitted to the court in order to prove the lender’s standing or the borrower’s default, among other issues, are submitted by a representative of the loan servicer that is involved in servicing the loan.

Until recently, this process by which the loan servicer oversees and manages the foreclosure litigation on behalf of a lender holding the defaulted note and mortgage that is the named plaintiff was not the subject of much controversy. Indeed, there are literally thousands of cases currently pending in New York State where a loan servicer, acting on behalf of the lender that is the named plaintiff that commenced the foreclosure action, submits affidavits and documents to the court in order to prove that the lender should be awarded a judgment of foreclosure and sale.

A number of recent decisions of the Appellate Division, Second Department, however, may cause lenders to re-think the arrangement by which a loan servicer that is not a party to the foreclosure action acts on behalf of a lender in overseeing and managing mortgage foreclosure litigation. Indeed, the court has held that documents and information attached to an affidavit of a representative of a loan servicer are inadmissible unless the loan servicer’s representative can attest to being familiar with the record-keeping practices and procedures of the lender (i.e., the plaintiff in the foreclosure action).

The statutory foundation for the recent Second Department decisions, of course, is the business records exception to the hearsay rule, which is embodied in CPLR 4518(a). CPLR 4518(a) states that “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”

‘Royal’ and Other Cases

The Appellate Division, Second Department’s most recent pronouncement concerning the business records exception to the hearsay rule in the context of mortgage foreclosure litigation can be found in HSBC Mortgage Services v. Royal, — A.D.3d —-, 37 N.Y.S.3d 321 (2d Dept. Sept. 14, 2016). The facts of Royal are similar to the facts underlying literally thousands of foreclosure actions pending in New York State, thereby suggesting that the decision could have a wide-ranging impact on mortgage foreclosure litigation currently pending in New York State.

In Royal, the plaintiff-lender commenced a foreclosure action on the basis of an alleged default by the borrower under a promissory note and mortgage. In support of its motion for summary judgment, the lender submitted the affidavit of a representative of “the loan servicer for the plaintiff’s successor in interest.” The representative of the lender’s loan servicer averred in his affidavit “that his knowledge of the relevant facts was based on his ‘examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of the successor in interest to the Plaintiff,’ and that he was ‘familiar with the record keeping systems that [the] successor in interest to the Plaintiff and/or its loan servicer use[d] to record and create information related to the residential mortgage loans that it services.’” On the basis of the information and documents submitted through the loan servicer’s affidavit, the Supreme Court granted the lender’s motion for summary judgment.

On appeal, the Second Department reversed. The court concluded in Royal that “[t]he plaintiff failed to demonstrate the admissibility of the records relied upon by” the representative of the loan servicer “under the business records exception to the hearsay rule…, and, thus, failed to establish the appellant’s default in payment under the note.” Specifically, the Second Department concluded that because the representative of the loan servicer “did not allege that he was personally familiar with the plaintiff’s record keeping practices and procedures,” he “failed to lay a proper foundation for the admission of records concerning the appellant’s payment history…and his assertions based on these records were inadmissible.”

The Second Department concluded in Royal, therefore, that “[i]nasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law” and held that the lender’s motion “should have been denied…regardless of the sufficiency of the appellant’s opposition papers.”

Of course, Royal—standing alone—would be a significant decision for mortgage foreclosure practitioners. However, Royal is not a stand-alone decision, and the Second Department has articulated principles very similar to those underlying the Royal decision in a number of other recent mortgage foreclosure cases.

For instance, in Deutsche Bank National Trust Company v. Brewton, 142 A.D.3d 683, 37 N.Y.S.3d 25(2d Dept. 2016), the Second Department held that the lender “failed to demonstrate that the records relied upon by” the representative of the lender’s loan servicer “were admissible under the business records exception to the hearsay rule (see CPLR 4518(a)) because” the representative of the lender’s loan servicer “did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures.” Similarly, in U.S. Bank National Association v. Handler, 140 A.D.3d 948, 34 N.Y.S.3d 463 (2d Dept. 2016), the Appellate Division, Second Department held that an affidavit from the vice-president of the lender’s servicing agent “who did not attest that he was personally familiar with the plaintiff’s record keeping practices with respect to the note…failed to establish, prima facie, that the plaintiff had physical possession of the note prior to the commencement of the action.”

Finally, in Citibank v. Cabrera, 130 A.D.3d 861, 14 N.Y.S.3d 420 (2d Dept. 2015), the Second Department expressly held that where the lender’s affiant “who was employed by the plaintiff’s loan servicer, did not allege that she was personally familiar with the plaintiff’s record keeping practices and procedures,” the representative of the lender’s loan servicer “did not lay a proper foundation for the admission of the defendant’s payment history.” As the Cabrera court stated: “[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures.”

Thus, decisions such as Royal, Brewton, Handler and Cabrera, stand for the proposition that where the lender is the named plaintiff in a mortgage foreclosure action, the lender can rely on the affidavit of its loan servicer to get documents admitted into evidence under the business records exception to the hearsay rule only if the loan servicer’s representative can attest that it is familiar with the lender’s (and not the loan servicer’s) record-keeping practices and procedures. This would seem to be a somewhat difficult burden to satisfy for loan servicers, since loan servicers are often third-party entities that are separate and distinct from the lenders that are the named plaintiffs in mortgage foreclosure cases.

Meeting New Requirements

Lenders will need to find ways in which to meet the new requirements imposed in order to satisfy the business records exception to the hearsay rule announced in decisions such as Royal. For instance, lenders may seek to avoid altogether obtaining affidavits from third-party loan servicers, and instead use representatives of the lender, who can attest to their familiarity with the lender’s record-keeping practices and procedures, in order to submit affidavits and documents to the court.

Alternatively, if lenders continue to insist, even after Royal and the other decisions of the Second Department discussed above, to use affidavits from third-party loan servicers in mortgage foreclosure litigation, then the best practice will be to have loan servicers (as opposed to lenders) be the party to act as the plaintiff in the foreclosure litigation. So long as the loan servicer is authorized to do so by the lender, courts have found that loan servicers have standing to present claims for foreclosure and sale on behalf of the lender that owns and holds the note and mortgage at the time of the commencement of the action. See, e.g., Flushing Preferred Funding Corp. v. Patricola Realty Corp., 964 N.Y.S.2d 58 (Sup. Ct. Suffolk Co. 2012).

Regardless of what steps lenders and loan servicers take going forward to respond to Royal and similar Appellate Division, Second Department, decisions discussed above, it is likely that Royal is going to be cited by borrowers in already pending foreclosure cases where the requirements imposed by Royal may not otherwise be satisfied. It remains to be seen whether Royal and other Second Department authority discussed above will cause further delay in processing the already substantial backlog of mortgage foreclosure cases pending in New York State.

Casting Doubt on Validity of Servicer Affidavits in Foreclosure Litigation

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