NY Monroe Case: Default entered against homeowner — CASE DISMISSED on Standing — US Bank Never refiled.

multiple choice robo-pleading

NO PLEADING: HOMEOWNER WON ANYWAY

I have held off on discussing this case until some time passed. As far as I now know US Bank, like several cases I won, has not refiled for foreclosure. There is a good reason for that. US Bank is not the Plaintiff. The Plaintiff is named as a REMIC Trust, for which the attorneys claim that US Bank is the Trustee.

As such the Plaintiff does not own nor have any interest in the loan either as owner or servicer. Hence the named trustee (U.S. Bank) is named but it has nothing to do since the trust is nonexistent and in all events no attempt has ever been made to entrust the subject mortgage into the fiduciary hands of U.S Bank.

And THAT is because the only party with an equitable interest in the debt is a group of investors whose money was used to fund the origination or acquisition of the loan. The investors meanwhile think that their money was placed in trust and then used to purchase, not originate, loans.

Every once in a while a wily judge catches on from the face of the documentation. This judge ruled against US Bank as Trustee for a named REMIC Trust because he didn’t believe US Bank or the Trust was actually related to the subject loan. He gave them a chance to correct their pleading, but apparently out of fear of perjury, the lawyers for the nonexistent trust backed off, apparently permanently.

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see Memorandum and Order – USBank Trust NA as Trustee for LSF9 MPT v Monroe

Quoting from the complaint field by lawyers for their supposed client, a nonexistent trust with a completely denuded trustee, the court includes their own allegation in its ruling:

2 (“Plaintiff is the owner and holder of the subject Note and Mortgage or has been delegated authority to institute this Mortgage foreclosure action by the owner and holder of the subject Note and Mortgage.”);

What does that even mean? This is a perfect example of multiple choice robo-pleading. Either the Plaintiff is the owner and holder of the subject note or mortgage or they are not. If they own the debt,  they don’t say as much and certainly didn’t offer any proof at their uncontested hearing on damages. It’s pretty hard to lose an uncontested hearing but US Bank has done it multiple times, as reported in this case.

If they have been delegated authority by the owner and holder of the subject note and mortgage, they fail to say who delegated that authority and how the delegation occurred. Since the express purpose of the trust was to own the debt, note and mortgage and make payments to investors based upon the trust’s ownership of the debt, note and mortgage, Demoting the trust to the status of a conduit or agent would be completely adverse to the express wording and authority granted in the trust.

Actually that kind of wording is exactly what enables the players to claim interest in notes and mortgages adverse to the interests of the parties whose money was directly used to fund the origination and acquisition of loans.

 

Here are some revealing quotes from the District Judge:

The Complaint does not contain any details concerning U.S. Bank’s role as trustee or the powers it has over the trust property (including the mortgage here). (e.s.)

The party asserting subject matter jurisdiction carries the burden of proving its existence by a preponderance of the evidence. E.g., Makarova, 201 F.3d at 113; Augienello v. FDIC, 310 F. Supp. 2d 582, 587–88 (S.D.N.Y. 2004). This is true even on a motion for default judgment, since the principle that a default deems the well-pleaded allegations of the complaint to be admitted is inapplicable when a court doubts the existence of subject matter jurisdiction. Transatlantic Marine, 109 F.3d at 108.

2 While some of these issues were discussed elsewhere by U.S. Bank’s counsel, e.g., Dkt. No. 7, they were not included in the affidavit filed in support of default judgment.

“When a default is entered, the defendant is deemed to have admitted all of the well- pleaded factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch. Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); accord, e.g., Bravado Int’l, 655 F. Supp. 2d at 190. “[E]ven upon default, a court may not rubber-stamp the non-defaulting party’s damages calculation, but rather must ensure that there is a basis for the damages that are sought.” United States v. Hill, No. 12-CV-1413, 2013 WL 474535, at *1 (N.D.N.Y. Feb. 7, 2013)

In the past year, U.S. Bank’s attorneys—Gross Polowy—have repeatedly failed to secure default judgments in similar foreclosure cases before this Court. E.g., U.S. Bank Tr., N.A. v. Dupre, No. 15-CV-558, 2016 WL 5107123 (N.D.N.Y. Sept. 20, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Moody, No. 16-CV-279, 2016 WL 4203514 (N.D.N.Y. Aug. 9, 2016) (Kahn, J.); Nationstar Mortg. LLC v. Pignataro, No. 15-CV-1041, 2016 WL 3647876 (N.D.N.Y. July 1, 2016) (Kahn, J.); cf. Ditech Fin. LLC v. Sterly, No. 15-CV-1455, 2016 WL 7429439, at *4 (N.D.N.Y. Dec. 23, 2016) (denying a motion for default judgment due to a defective notice of pendency); OneWest Bank, N.A. v. Conklin, No. 14-CV-1249, 2015 WL 3646231, at *4 (N.D.N.Y. June 10, 2015) (same). In each case, Gross Polowy’s motion was denied for one of two reasons: either the complaint failed to sufficiently allege subject matter jurisdiction, e.g., Dupre, 2016 WL 5107123, at *2–5, or the motion for default judgment failed to meet the requirements of the Court’s Local Rules, e.g., Moody, 2016 WL 4203514, at *2. Here, both of these failures are present.

The Complaint also includes no allegations concerning U.S. Bank’s ability to proceed under its own citizenship, despite bringing this case on behalf of the “LSF9 Master Participation Trust.” Compl.

While U.S. Bank is the nominal plaintiff in this case, it is longstanding federal law that “court[s] must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980). “Where an agent acts on behalf of a principal, the principal, rather than the agent, has been held to be the real and substantial party to the controversy. As a result, it is the citizenship of the principal—not that of the agent—that controls for diversity purposes.” Hilton Hotels Corp. v. Damornay Antiques, Inc., No. 99-CV-4883, 1999 WL 959371, at *2 (S.D.N.Y. Oct. 20, 1999) (citing Airlines Reporting Corp. v. S&N Travel, Inc., 58 F.3d 857, 862 (2d Cir. 1995)). At issue here is the application of this rule in lawsuits brought by a trustee on behalf of a trust. —3 Gross Polowy should be aware of this rule because they were “foreclosure counsel” for the plaintiff-appellee in Melina, 827 F.3d at 216–17, though in fairness it seems they were replaced by Hogan Lovells for both the subject matter jurisdiction issue and the subsequent appeal, id. at 216; OneWest Bank, N.A. v. Melina, No. 14-CV-5290, 2015 WL 5098635 (E.D.N.Y. Aug. 31, 2015), aff’d, 827 F.3d 214.

In Navarro, the Court held that trustees can be the real parties in controversy—regardless of the type of trust—provided that they “are active trustees whose control over the assets held in their names is real and substantial.” 446 U.S. at 465; see also Carden v. Arkoma Assocs., 494 U.S. 185, 191 (1990) (noting that, if the trustees are “active trustees whose control over the assets held in their names is real and substantial,” they are brought “under the rule, ‘more than 150 years’ old, which permits such trustees ‘to sue in their own right, without regard to the citizenship of the trust beneficiaries’” (quoting Navarro, 446 U.S. at 465–66)). The continued validity of this rule was endorsed by the Court in Americold. 136 S. Ct. at 1016.

If U.S. Bank wishes to proceed in federal court, it must, within thirty (30) days, move to amend its Complaint to address the deficiencies identified in this order. This motion to amend must be prepared in accordance with Local Rule 7.1(a)(4), which establishes the form for such a motion and lists the required papers. With that motion, to resolve the Court’s doubts concerning subject matter jurisdiction, U.S. Bank must also provide its articles of association (along with any other documentation required to establish the location of its main office), the trust instrument for the LSF9 Master Participation Trust,4 and any other documentation required to show that U.S. Bank’s control over the trust assets is real and substantial. Failure to comply with this Memorandum-Decision and Order when moving to amend the Complaint may result in the denial of the motion or sanctions. L.R. 1.1(d).

 

4 In the Dupre case discussed above, U.S. Bank also was instructed to file the trust instrument for the LSF8 Master Participation Trust (presumably another securitization vehicle for mortgage debt) in order to establish subject matter jurisdiction. 2016 WL 5107123, at *2. When it did file the trust instrument, “the text . . . was almost entirely redacted,” and the only visible portion seemed to oppose the notion that U.S. Bank was an active trustee with real and substantial control over the trust assets. Id. at *2, *4. This failure should not be repeated here, and filing documents under seal or with redactions requires advance permission of the Court. L.R. 83.13; see also Lugosh v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006) (describing the standard for restricting public access to judicial documents).

 

Impact of Serial Asset Sales on Investors and Borrowers

The real parties in interest are trying to make money, not recover it.

The Wilmington Trust case illustrates why borrower defenses and investor claims are closely aligned and raises some interesting questions. The big question is what do you do with an empty box at the bottom of an organizational chart or worse an empty box existing off the organizational chart and off balance sheet?

At the base of this is one simple notion. The creation and execution of articles of incorporation does not create the corporation until they are submitted to a regulatory authority that in turn can vouch for the fact that the corporation has in fact been created. But even then that doesn’t mean that the corporation is anything more than a shell. That is why we call them shell corporations.

The same holds true for trusts which must have beneficiaries, a trustor, a trust instrument, and a trustee that is actively engaged in managing the assets of the trust for the benefit of the beneficiaries. Without the elements being satisfied in real life, the trust does not exist and should not be treated as though it did exist.

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About Neil F Garfield, M.B.A., J.D.

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The banks have been pulling the wool over our eyes for two decades, pretending that the name of a REMIC Trust invokes and creates its existence. They have done the same with named Trustees and asserted “Master Servicers” of the asserted trust. Without a Trustor passing title to money or property to the named Trustee, there is nothing in trust.

Therefore whatever duties, obligations, powers or restrictions that exist under the asserted trust instrument do not apply to assets that have not been entrusted to the trustee to administer for the benefit of named beneficiaries.

The named Trustee or Servicer has nothing to claim if their claim derives from the existence of a trust. And of course a nonexistent trust has no claim against borrowers in which the beneficiaries of the trust, if they exist, have disclaimed any interest in the debt, note or mortgage.

The serial nature of asserted transfers in which servicing rights, claims for recovery of servicer advances, and purported ownership of note and mortgage is well known and leaves most people, including judges and regulators scratching their heads.

An assignment of mortgage without a a transfer of the indebtedness that is claimed to be secured by a mortgage or deed of trust means nothing. It is a statement by one party, lacking in any authority to another party. It says I hereby transfer to you the power to enforce the mortgage or deed of trust. It does not say you can keep the proceeds of enforcement and it does not identify the party to whom the debt will be paid as proceeds of liquidation of the home at or after the foreclosure sale.

As it turns out, many times the liquidation results in surplus funds — i.e., proceeds in excess of the asserted debt. That should be turned over to the borrower, but it isn’t; and that has spawned a whole new cottage industry of services offering to reclaim the surplus proceeds.

In most cases the proceeds are less than the amount demanded. But there are proceeds. Those are frequently swallowed whole by the real party in interest in the foreclosure — the asserted Master Servicer who claims the proceeds as recovery of servicer advances without the slightest evidence that the asserted Master Servicer ever paid anything nor that the asserted Master Servicer would be out of pocket in the event the “recovery” of “servicer advances” failed.

The foreclosure of the property proceeds with full knowledge that whatever the result, there are no creditors who will receive any money or benefit. The real parties are trying to make money, not recover it. And whatever proceeds or benefits might arise from the foreclosure action are grabbed by a party in a self-proclaimed assertion that while the foreclosure was brought in the name of a trust, the proceeds go to a different third party in derogation of the interests of the asserted trusts and the alleged investors in those trusts who are somehow not beneficiaries.

So investors purchase certificates in which the fine print usually says that for their own protection they disclaim any interest in the underlying debt, note or mortgages. Accordingly we have a trust without beneficiaries.

The existence of those debts, notes or mortgages becomes irrelevant to the investors because they have a promise from a trustee who is indemnified on behalf of a trust that owns nothing. The certificates are backed by assets of any kind. Even if they were “backed” by assets, the supposed beneficiaries have disclaimed such interests.

Thus not only does the trust own nothing even the prospect of security has been traded off to other investors who paid money on the expectation of revenue from the notes and mortgages claimed by the asserted trust through its named trustee.

In the end you have a name of a trust that is unregistered and never asserted to be organized and existing under the laws of any jurisdiction, trustee who has no duties and even if such duties were present the asserted trust instrument strips away all trustee functions, no beneficiaries, and no res, and no active business requiring administration nor any business record of such activity.

Yet the trust is the entity that  is chosen as the named Plaintiff in foreclosures. But the way it reads one is bound to believe that assumption that is not and never was true or even asserted: that the case involves the trustee bank for anything more than window dressing.

It is the serial nature of the falsely asserted transfers that obscures the real parties in interest in both securities transactions with investors and loans with borrowers. The unavoidable conclusion is that nothing asserted by the banks (players in  falsely claimed securitization schemes) is real.

Bondholders Clash With Ocwen Over Bad Servicing

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

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see http://dealbook.nytimes.com/2015/01/26/ocwen-and-bondholders-clash-over-mortgage-services/?_r=0

And if you are in the mood to drill into Ocwen’s Business, see http://www.sec.gov/Archives/edgar/data/1513161/000119312513024292/d474092dex991.htm

Every once in a while you get a peek at what is really happening behind the scenes. The view from here is startling sometimes even to me. Here we have theater of the absurd. Ocwen is accusing the bondholders of forcing Ocwen to foreclose rather than modify or settle claims regarding the bogus mortgages and the bondholders are accusing Ocwen of bad servicing practices.

Absurdity #1: Bondholders don’t have any say about when or how the mortgages or notes are enforced and don’t know whether the debts followed the notes or mortgages. So Ocwen’s claim is blatantly false in its attempt to point the finger elsewhere. But this is done with probable tacit agreement of all parties concerned.

Absurdity #2: The bond holders still have not figured out or they are ignoring the fact that the loans never made it into the trusts and thus their position as bondholders has nothing whatever to do with the loans.

Absurdity #3: This may have been leaked intentionally to give support to the illusion that the notes and mortgages were valid, not bogus. It’s the Kansas City shuffle — look right while everything falls left.

Absurdity #4: Ocwen is not the Master Servicer — ever. The Master Servicer is the underwriter or some entity controlled by the underwriter of the mortgage bonds. It is the underwriter/Master Servicer who calls the shots, not Ocwen, and the bondholders know that. So why are they accusing Ocwen of something?

Absurdity #5: Ocwen’s position as servicer is governed by the trust document — pooling and servicing agreement for a trust that never actually purchased or received or accepted delivery of the debt, note or mortgage. Thus Ocwen’s authority is derived from an instrument that has no relevance to the loans. If the loans never made it into the trusts, then the PSA has no bearing on the alleged loans. Hence Ocwen is a volunteer with at best apparent authority but no real authority. This is why you are seeing courts order disgorgement of all money paid by the borrower — i.e., forcing the servicer to pay all money received from borrower back to the borrower.

Absurdity #6: The Emperor (the investors) has no clothes. [see one of earliest pieces 7 years ago). Like the old fable, the investors are sitting out there buck naked.  Their claim is against the underwriter who never funded the trust in the IPO offering of the mortgage bonds. Other than that they have nothing in the way of a claim, much less a secured claim, in the loans made to the borrowers — even though it was their money that funded the origination and/or acquisition of loans. Since the federal and state disclosure laws were violated as a pattern of conduct, the loans were predatory per se (REG Z), even though the investors neither knew about the loans nor consented to them. Their best claim is against the underwriters/master servicers; but they probably have a partial claim against the borrowers for unjust enrichment, but it would not be a secured claim that could be foreclosed.

Empty Paper Bags: Loans Never Entered Pools

Hat Tip to Ken McLeod, private investigator serving livinglies

LIVINGLIES VINDICATED!!!

99% of the Loans Never Were Transferred into Trusts

Editor’s Comment: The truth is coming out piece by piece. In this complaint a thorough examination revealed what we have been saying all along — the loans were NOT pooled, bundled or put into any trust. That means the entire securitization chain is a scam, supporting a Ponzi scheme that should result in criminal prosecutions.

What effect is there on mortgage documentation? Well for starters we already know that the payee, lender and secured parties were acting as sham entities even when they were otherwise real entities, like Wells Fargo.

The banks had to make some OTHER connection between the so-called pools that were in actuality unfunded trusts — and that explains why instead of producing real, accurate, truthful documentation they resorted to fabricated, robo-signed, robo-notarized documents executed by $10 per hour people whose only purpose was to act as “authorized signor” or “assistant secretary” neither of which designations is recognized by law. If you went to the bank to open an account or take a loan and insisted on signing with those designation they would refuse to open the account and rightfully so. But in millions of foreclosures, the reverse was NOT the case — they relied upon such bogus documents in order to sell bogus mortgage bonds backed by unfunded pools, SPVs, Trusts, REMICS or whatever else you want to call them.

The investors are clearly taking up the cause of homeowners and they have more clout, credibility and now the proof that their money was channeled in ways neither contemplated nor agreed as per the false pooling and servicing agreements and false prospectuses that were offered by Wall Street.

We are left with defective instruments that in the end bear no connection with those pools but which have documentation fraudulently obtained from homeowner borrowers in order to get money fraudulently obtained from investor lenders. They siphoned off the money using a variety or ruses and paid the investors as though the pools were real and funded with money or assets when in fact they were empty paper sacks.

They they traded on the loans pretending that they, the banks were the owners, and they sold them multiple times. Then they foreclosed on the properties alleging they were authorized agents of the pools when the pools did not exists. No trust exists if it is unfunded. When they were done, they took the profits and put it into their own pockets, leaving both the investors high and dry and doing the same for homeowner borrowers.

They took the losses and tried to throw them at the investors and used the losses in trading to beg for Federal bailout claiming that they were on the verge of collapse, which was true as to many of them, since they were reporting assets on their balance sheet that did not exist, and they were therefore both overvalued in the stock market, over-rated in the bond market, and always on the tip of collapse. This isn’t the final nail in the coffin of the mega banks but it certainly ties things down.

For homeowner borrowers, it is just as I said — the money was never channeled through trusts and instead of was kept by the banks to use for reporting trading profits in which the left hand sold to the right hand, plus fees, expenses and various other charges. They paid the investors out of continuing sales of bogus mortgage bonds — the classic signature of a PONZI scheme.

Thus the homeowner borrower attorneys take note: the origination documents are 99% invalid, the foreclosures are 99% invalid, and that means that the secured part of the obligation was never perfected and is fatally defective so that it can never be perfected without a signature of the homeowner borrower. That makes the obligation unsecured — money potentially owed to unknown creditors who were not disclosed contrary to the requirements of TILA, RESPA and state deceptive lending laws.

The obligation remains, but there are no creditors who are making the claim because they could subject themselves to predatory lending claims, fraud and other charges resulting in treble damages. The note is a recital of a transaction that never existed. It recites a loan from the payee or lender when neither of them funded or even purchased the loan. Make the allegation and ask for the discovery. They will collapse.

http://www.labaton.com/en/cases/upload/HSH-v-Barclays-Consolidated-Complaint.pdf

Salient Quotes from Complaint

1. This action arises out of Defendants’ conduct in connection with the offer and sale to Plaintiffs of certain residential mortgage-backed securities (“RMBS”). Plaintiffs purchased approximately $46 million in RMBS certificates (the “Certificates”) in connection with three securitizations issued and/or underwritten by Defendants. These three securitizations are commonly known by their abbreviated names, SABR 2005-FR4, SABR 2006-FR1 and SABR 2007-NC2 (collectively, the “Securitizations”). Plaintiffs’ holdings in the Securitizations, including purchase dates and amounts invested, are detailed in Table 1, infra Section I.

3. Through investigation of a large sample of publicly recorded mortgage documents, Plaintiffs have discovered that more than 99% of the mortgages in each of the three Securitizations were improperly or never assigned. In particular, many of these mortgages remain in the name of the loan’s originator or its nominee, and have never been assigned to the Trusts. While others were purportedly assigned to the Trusts, this was long after the securities were issued, contrary to the representations in the Offering Documents. Similarly, the promissory notes were not properly assigned in approximately 81.9% of the sampled loans.

9. By reviewing a large sample of loans in the Securitizations and comparing the representations made about them in the Offering Documents to publicly available data concerning those same loans, Plaintiffs have discovered that the Offering Documents understated CLTV by more than 10 percent in approximately 37% of the loans, based on the sampled loans.

Plaintiffs’ investigation has also revealed that the Offering Documents overstated owner occupancy rates by approximately 14.3% – 19.2%, based on the sampled loans.

14. Prior to their issuance of the Certificates, the Issuer Defendants were specifically informed that large numbers of loans in the Securitizations did not conform to the underwriting guidelines of the originators, including with respect to CLTV ratios and owner-occupancy rates, in reports from their due diligence vendor, Clayton Services Inc. (“Clayton”), and had no compensating factors. Despite having been expressly advised that many of the loans failed to comply with underwriting guidelines, the Issuer Defendants nevertheless included large percentages of these non-compliant loans in the Securitizations, and falsely represented their quality and characteristics to Plaintiffs and other investors.

32. HSH is the subrogee of both Carrera and of Rasmus as to their rights and claims relating to their purchases of certain of the Certificates. At all relevant times, a majority of the credit risk associated with the Certificates was borne by HSH, because Rasmus’s and Carrera’s ability to repay their debts was dependant on the value of, and/or cashflow expectancy from, the assets each held, which included the Certificates. HSH’s rights of subrogation flow from its acquisition of Certificates from Rasmus and Carrera at or near par value subsequent to the losses.

This acquisition was necessary in order to protect HSH’s economic interests, which were at risk due to HSH’s contractual obligation in their role as Liquidity Provider, Capital Noteholder and/or Letter of Credit Provider to cover certain debts, and/or absorb certain losses, of Rasmus and Carrera.

53. Through investigation of publicly recorded mortgage documents, Plaintiffs have discovered that, contrary to the Issuer Defendants’ statements in the Offering Documents, virtually all of the mortgages and promissory notes that were represented to have been assigned to the Trusts were not in fact assigned to the Trusts at the time the Certificates were issued.

Plaintiffs have conducted two separate investigations, with a combined sample size of more than 2,000 mortgages from the Securitizations, and have found that not one of the sampled mortgages, which were all represented to have been assigned into the Trusts prior to issuance of the Certificates, was in fact timely assigned to the Trust.

55. This belief was an essential part of the contracts to sell the Certificates. Plaintiffs would not have purchased so-called “mortgage-backed” securities that were not actually backed by the mortgages represented to be in the pool, for at least two reasons: (1) when these securities are not backed by actual mortgages or notes, the Trust is left without any recourse against a borrower that ceases to make payments; and (2) valid and timely assignments of the notes and mortgages are essential to the Trusts’ tax status as REMICs, and therefore are necessary to avoid highly punitive tax consequences.

60. Plaintiffs have investigated and analyzed loan-level information for each of the Securitizations to determine the accuracy of certain representations made in the Prospectus Supplement, including the assignment of mortgages and notes to the Trusts.

61. In two separate investigations, Plaintiffs have conducted a review of publicly available mortgage documents at county clerk’s offices across the country for the mortgages and/or notes that were represented to have been deposited into the Trusts.

62. Both investigations have independently revealed that over 99% of the mortgages and notes were not properly and/or timely assigned to the RMBS Trusts.

64. This investigation revealed that of the 987 total mortgages sampled, none were assigned to the Trusts at the time of the issuance, as was represented in the Offering Documents, and only seven were assigned to the Trusts within three months thereafter, as is required by REMIC tax laws. Thus, over 99% of the sampled mortgages were either improperly assigned to the Trusts more than three months after issuance or were never assigned at all – in direct contradiction to the representations in the Offering Documents provided by Defendants and relied upon by Plaintiffs.

65. Specifically, approximately 38% to 61% of the mortgages sampled have never been assigned to the Trusts. Moreover, based on the sampled loans, approximately 38% to 61% of the mortgages were assigned to the Trusts more than three months after the Securitization closed. The overwhelmingly large percentages of mortgages for each of the Securitizations that were never assigned to the Trusts, and those that were not assigned at or three months after issuance, are set forth below in Table 2.

70. Additionally, in a separate investigation Plaintiffs analyzed a different sample of 600 mortgages from SABR 2005-FR4, 600 mortgages from SABR 2006-FR1, and 400 mortgages from SABR 2007-NC2. This investigation independently confirmed that the vast majority of the mortgages in the pools underlying the Securitizations were never assigned to the Trusts. Moreover, this second investigation also showed that of the mortgages that were eventually assigned to the Trusts, none were assigned prior to the issuance of the Certificates, as was represented in the Offering Documents, or within three months thereof, as is required by the REMIC tax laws. The results of this additional investigation and analysis are shown in Table 4 below.

74. The assignment of the mortgages and notes into the Trust is perhaps the single most essential part of the mortgage-backed securitization process. Without these assignments, the securities are not truly “mortgage-backed” at all.

76. Moreover, apart from foreclosure, the only other remedy available to the Trust to collect on the obligation where a borrower ceases to make payments is to bring an action in contract under the promissory note. However, the Issuer Defendants’ failure to transfer the notes into the Trusts prevents the Trusts from pursuing this remedy, meaning that where the mortgage and note have not been assigned, the Trusts have no legal recourse if a borrower ceases to make payments to the Trust and must incur a significant loss.

103. Accurate appraisals are crucial to the accuracy of CLTV ratios, as the value of the property (i.e., the denominator of the CLTV ratio) is the lower of either the purchase price or the appraised value of the property. If an appraisal is inflated, it will change the CLTV ratio such that the credit risk of the loan is understated.

104. As with owner-occupancy data, even small inaccuracies in CLTV ratios are material to investors, such as Plaintiffs, because they can have a significant impact on the risk of investing in the Certificates.

110. Apparent from this data is the fact that the appraised values reported in the Offering Documents for the pooled properties were significantly higher than the actual property values. These overstatements led to a material understatement of the CLTV ratios, and a corresponding understatement of the investment risk.

117. Clayton scored each loan it reviewed on a scale of 1 to 3. A score of “1” meant that the loan complied with the underwriting guidelines of the originator. A score of “2” meant that the loan did not comply with the originator’s underwriting guidelines, but had unspecified “compensating factors.” A score of “3” meant that the loan failed to comply with the originator’s underwriting guidelines and did not possess any compensating factors.

118. Approximately 27.3% of the loan files Clayton reviewed for the Issuer Defendants received a score of 3. Clayton provided detailed reports to the Issuer Defendants containing the scores of the reviewed loans prior to and during the preparation of the Offering Documents.

125. All of the loans in the three Securitizations came from two originators: Fremont and New Century. SABR 2005-FR4 and SABR 2006-FR1 were both entirely comprised of loans originated by Fremont and SABR 2007-NC2 was populated solely with loans originated by New Century.

131. The U.S. Senate Permanent Subcommittee on Investigations issued a 646-page report entitled “Wall Street and the Financial Crisis” (the “Levin Report”) which found that Fremont and New Century, in particular, were both “well known within the industry for issuing poor quality loans.”

133. New Century ranks number one on the Office of the Comptroller of the Currency’s (the “OCC”) “Worst Ten in the Worst Ten” list of the nation’s most egregious originators. This means that more foreclosures were instituted on mortgages originated by New Century in 2005 through 2007 in the ten cities with the highest foreclosure rates than any other originator in the country. This is the result of New Century’s dramatic departure from its own underwriting guidelines, which were supposed to prevent loans from being made to borrowers who clearly did not have the ability to repay them.

138. Ms. Lindsay further testified that appraisers faced extreme pressure from their superiors, and deliberately distorted data “…that would help support the needed value rather than using the best comparables….”

see HSH-v-Barclays-Consolidated-Complaint

DELAWARE TO MERS: NOT IN OUR STATE!

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Delaware sues MERS, claims mortgage deception

Posted on Stop Foreclosure Fraud

Posted on27 October 2011.

Delaware sues MERS, claims mortgage deceptionSome saw this coming in the last few weeks. Now all HELL is about to Break Loose.

This is one of the States I mentioned MERS has to watch…why? Because the “Co.” originated here & under Laws of Delaware…following? [see below].

Also look at the date this TM patent below was signed 3-4 years after MERS’ 1999 date via VP W. Hultman’s secretary Kathy McKnight [PDF link to depo pages 29-39].

New York…next!

Delaware Online-

Delaware joined what is becoming a growing legal battle against the mortgage industry today, charging in a Chancery Court suit that consumers facing foreclosure were purposely misled and deceived by the company that supposedly kept track of their loans’ ownership.

By operating a shadowy and frequently inaccurate private database that obscured the mortgages’ true owners, Merscorp made it difficult for hundreds of Delaware homeowners to fight foreclosure actions in court or negotiate new terms on their loans, the suit filed by the Attorney General’s Office said.

[DELAWARE ONLINE]

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MISSOURI JUDGE: CERTIFICATES ARE PAPER — PAPER IS NOT A PERSON — GET OUT OF MY COURTROOM

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Banks Getting Royalty Fees

for Use of Their Names in foreclosures They know Nothing About

SEE Roberson Probate Judgment of Dismissal

SEE roberson second motion to dismiss[1]

SEE ATTORNEY WILEY WEBSITE: www.foreclosurelawllc.com

A Missouri judge in probate court got down to brass tacks. It is always in the details at the very beginning where mistakes are made. This Judge made no mistakes. He started at the beginning and that’s where it ended. It seems like it is the probate judges and the bankruptcy judges that actually read the documents in front of them and who apply the law. The number of other judges in civil cases is rising, but most of them are going by the seat of the their pants.

Simple situation repeated millions of times so far in our great country with its judiciary mostly asleep at the wheel. They start by naming a Bank as though it was acting as a bank, thus coloring the water already. Most Judges read no further. They see HSBC and they think “BANK.” We’ve already pointed out that Deutsch Bank has a robust Trust Department, and yet the “trusts” that are run through their name in foreclosures don’t seem to be anywhere near their trust department, employ no trust officers and are basically treated as an asset management fee-based service where the Bank is actually getting paid a royalty for the use of its name, with no work or responsibility.

This Judge in Missouri, Mark Stephens is wide awake — and raised an issue that I have been saying for 3 years but he said it better and more simply. His analysis consisted of just reading the name of the would-be forecloser, word by word and arriving at the only possible legal conclusion: HSBC and the Trust were a crock. Certificates are not people nor are they legal persons. They can’t sue or be sued and they can’t perform any legal act.

Here is how he did it: HSBC Bank USA, N.A. is a bank, but it wasn’t being named as a bank or for performing any function of a depository or lending institution. So the question is why mention HSBC? The answer is that the Banks are playing word games inside the heads of most Judges and it is working. Not with this Judge though.

So the “answer” is that HSBC appears as “Trustee” which makes it appear even more sacrosanct and important. It implies the existence of a trust and that HSBC is the trustee and therefore must discharge its very important fiduciary duties. But there is no trust, there is no trustor, there are no beneficiaries, and there is no “res” (anything in the trust). In fact, the trust does not exist and cannot exist because it lacks the elements of being a trust which could be a legal person under the law.

So the answer to THAT problem is that HSBC is appearing as Trustee for Nomura Home Equity Loan, Inc.. Another Bank! Boy this is sounding really important. I mean we have a big bank appearing as Trustee for a smaller bank right? Not really. And the Judge wasn’t impressed. he recognized that not only was Nomura not making an appearance here as a depository or lending institution, it was NOT making any appearance at all! HSBC was implying a trust for Nomura but what it was saying was something entirely different.

It turns out that Nomura is the first name of Nomura Home Equity Loan, Inc., Asset-Backed Certificates, Series HE1. So in the end HSBC was appearing as Trustee for a fictitious non-entity whose first name was Nomura and whose last name is HE1. Judge Stephens didn’t need to go any further because there was nothing further. Normally, there would be something like “a New York Corporation,” or a “Delaware common law trust” or a “Florida General Partnership”. Here there was nothing.

So the Judge said he wasn’t impressed and there was no proffer of amending to read anything different. You want to know why? It is because there is nothing else. It is all a fiction. He ruled that HSBC was nothing since it wasn’t appearing in its own right, and that Nomura…HE1 was nothing but paper which is not a person under the law. And THAT was the end.

Why is this important? Take a look at the millions of litigation cases where they played with the wording of who was being proffered as being in Court and shame on the lawyers who misled the Judges. Most follow the HSBC-Nomura model of saying nothing but some get more creative. Like US Bank as trustee “relating to” first name….he1… In the end they all say nothing.

When this blows up (and it will), you can bet that HSBC, Nomura and US Bank along with all their cohorts and the lawyers who “represented” them (how do you represent a fictional character and keep a straight face?) — when THEY get sued by people, class actions and government agencies for civil and criminal penalties, they will THEN say they don’t exist and that the entity was a legal fiction in which on advice of counsel it would provide asset protection that is recognized as allowable by law. They will say their names were used but it wasn’t really them acting and they will be right —– except that the laws of perjury and suborning perjury might have a bit more pinch to them than they realized when they started this scam.

CAL. AG DROPS OUT OF TALKS WITH BANKS: AMNESTY OFF THE TABLE

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EDITOR’S NOTE: California has approximately a 1/3 share of all foreclosures. So Harris’ decision to drop out of the talks is a huge blow to the mega banks who were banking (pardon the pun) on using it to get immunity from prosecution. The answer is no, you will be held accountable for what you did, just like anyone else. As I have stated before when the other AG’s dropped out of the talks (Arizona, Nevada et al), this growing trend is getting real traction as those in politics have discovered an important nuance in the minds of voters: they may have differing opinions on what should be done about foreclosures but they all hate these monolithic banks who are siphoning off the lifeblood of our society. And there is nothing like hate to drive voting.

This is a process, not an event. We are at the end of the 4th inning in a 9-inning game that may go into overtime. The effects of the mortgage mess created by the banks are being felt at the dinner table of just about every citizen in the country. The politics here is creating a huge paradox and irony — the largest source of campaign donations has turned into a pariah with whom association will be as deadly at the polls as organized crime.

The fact that so many attorneys general of so many states are putting distance between themselves and the banks means a lot. It means that the banks are in serious danger of indictment and conviction on criminal charges for fraud, forgery, perjury and potentially many other crimes.

IDENTITY THEFT: One crime that is being investigated, which I have long felt was a major element of the securitization scam for the “securitization that never happened” is the theft of identities. By signing onto what appeared to be mortgage documents, borrowers were in fact becoming issuers or pawns in the issuance of fraudulent securities to investors. Those with high credit scores were especially valued for the “cover” they provided in the upper tranches of the CDO’s that were “sold” to investors. An 800 credit score could be used to get a AAA  rating from the rating agencies who were themselves paid off to provide additional cover.

But it all comes down to the use of people’s identities as “borrowers” when in fact there was no “Lending” going on. What was going on was “pretend lending” that had all the outward manifestations of a loan but none of the substance. Yes money exchanged hands, but the real parties never met and never signed papers with each other. In my opinion, the proof of identity theft will put the borrowers in a superior position to that of the investors in suits against the investment bankers.

NO UNDERWRITING=NO LOAN: There was no underwriting committee, there was no underwriting, there was no review of the appraisal, there was no confirmation of the borrower’s income and there was no decision about the risk and viability of the so-called loan, because it wasn’t about that. The risk was already eliminated when they sold the bogus mortgage bonds to investors and thus saddled pension funds with the entire risk of loss on empty “mortgage backed pools.” So if the loan wasn’t paid, the players at ground level had no risk. Their only incentive was to get the signature of the borrower. That is what they were paid for — not to produce quality loans, but to produce signatures.

Little did we know, the more loans that defaulted, the more money the banks made — but they were able to mask the gains with apparent losses as an excuse to extract emergency money from the US Treasury using taxpayer dollars without accounting for the “loss” or what they did with the money. Meanwhile the gains were safely parked off shore in “off-balance sheet” transaction accounts.

The question that has not yet been asked, but will be asked as prosecutors and civil litigators drill down into these deals is who controls that off-shore money? My math is telling me that some $2.6 trillion was siphoned off (second level — hidden — yield spread premium) the investors money before the balance was used to fund “loans.”

When all is said and done, those loans will be seen for what they really were — part of the issuance of unregistered fraudulent securities. And you’ll see that the investors didn’t get any more paperwork than the borrowers did as to what was really going on. The banks want us to focus on the the paperwork when in fact it is the actual transactions involving money that we should be following. The paperwork is a ruse. It is faked.

NOTE TO LAW ENFORCEMENT: FOLLOW THE MONEY. IT WILL LEAD YOU TO THE TRUTH AND THE PERPETRATORS. YOUR EFFORTS WILL BE REWARDED.

California AG Harris Exits Multistate Talks
in News > Mortgage Servicing
by MortgageOrb.com on Monday 03 October 2011
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The multistate attorneys general group working toward a foreclosure settlement with the nation’s biggest banks suffered a blow Friday, when California’s Kamala Harris announced her departure from negotiations.

Harris notified Iowa Attorney General Tom Miller and U.S. Associate Attorney General Thomas Perrelli of her decision in a letter that was obtained and published by the New York Times Friday. According to the letter, Harris is exiting the talks because she opposes the broad scope of the settlement terms under discussion.

“Last week, I went to Washington, D.C., in hopes of moving our discussions forward,” Harris wrote. “But it became clear to me that California was being asked for a broader release of claims than we can accept and to excuse conduct that has not been adequately investigated.”

“[T]his not the deal California homeowners have been waiting for,” Harris adds one line later.

Harris, who earlier this year launched a mortgage fraud task force, says she will continue investigating mortgage practices – including banks’ bubble-era securitization activities – independent of the multistate group.

“I am committed to doing as thorough an investigation as is needed – and to taking the time that is necessary – to set the stage for achieving appropriate accountability for misconduct,” she wrote.

Harris also told Miller and Perrelli that she intends to advocate for legislation and regulations that increase transparency in the mortgage markets and “eliminate incentives to disregard borrowers’ rights in foreclosure.”

Harris’ departure is considered significant given the high number of distressed loans in California. In August, approximately one in every 226 housing units in the state had a foreclosure filing of some kind, according to RealtyTrac data.

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