Tag Archives: assignment of mortgage

HAWAII SUPREMES TELL U.S. SUPREMES TO PISS OFF … AND OTHER STUFF!

(BREAKING NEWS — OP-ED) — The author of this post does not posit legal advice here.  It’s is food for thought for your own educational value! 

Honolulu … Gary Victor Dubin has done it again!   This time, it’s a rehash of the Reyes-Toledo case “perfected”!

Bank of America, NA v Reyes-Toledo et al, Hi Sup Ct No SCWC-15-0000005 (Oct 9, 2018)

I know it’s a week old case, but it’s worth the commentary because of something the Hawaii Supreme Court basically told the U.S. Supreme Court (who basically came up with their own “plausibility” pleadings scenario when they ruled in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal.  It basically gave attorneys that represent the banks the opportunity to get 12(b)(6) dismissals of foreclosure cases simply by removing them to federal court and citing the two foregoing cases, which basically … in layman’s terms … requires a pleading to contain facts that are totally “fact”, enough to substantially prove their case.  That also meant (in Hawaii) that their “Notice” pleadings weren’t sufficient.  In the foregoing ruling, the Hawaii Supremes said otherwise!   That is significant for homeowners living in Aloha because the judicial foreclosures commenced there (because Hawaii is a mortgage state) get to review cases that have minimal allegations instead of having to write a non-fictional “book” every time an attorney had to answer or file a complaint to shut down the other side’s foreclosure attack.

In the foregoing instance, the Hawaii Supremes told the Hawaii Appellate Court and the Circuit Court, “You BOTH got it wrong!”

First, understand that the entire merger scenario presented by Bank of America, N.A. is false.  It did NOT happen that way.  Every time Countrywide Home Loans is mentioned (in any form), Bank of America conveniently neglected to mention Red Oak Capital or any other entity involved in the actual acquisition of Countrywide Home Loans, Inc.  That in of itself is false and misrepresentative and Bank of America had to have relied on an Assignment of Mortgage that was “manufactured” to create standing in order to bring its claim in the first place!  Therefore, B of A’s attorneys should be brought up on charges to the Hawaii Bar and either get heavily sanctioned for wasting the Court’s time or face disbarment for committing repeated ethical violations!  Yes, Hawaii does have “Misconduct” as a section in its Rules of Professional Conduct that mirror the ABA’s own set of rules.

Page 3 of this 44-page Ruling clearly cites how the Appellate Court applied the “plausibility” standard set by the U.S. Supreme Court, when in fact, Hawaii has its own set of pleading standards!  Page 4 at Paragraph 2 REJECTS the plausibility standard.  If this doesn’t send a clear message to all of the Circuit Court justices in Hawaii, nothing will.  In fact, this Ruling should be shoved up every one of their asses until they “get it”!  Otherwise, the system of things could see to it that each county in the State of Hawaii “pays dearly” out of its own coffers and each circuit judge is removed from the bench.  This is why we have Appellate Courts (because Circuit Judges do not always, in fact almost always, DON’T DO THE RIGHT THING!) and in this case, the Appellates applied the wrong standard as well.

As to where MERS is concerned … I don’t believe that any Court in the land has been tasked with having MERS and its representatives answer to HOW an agency relationship was established and HOW MERS had any right to transfer a mortgage loan, given the fact that on its own website (owned now by ICE), MERS declares that it has no interest in loans and doesn’t take any monthly payments.  Only one judge in Florida (that I am aware of) did the RIGHT THING in knocking out a servicer’s phony document from the land records because MERS never gave any rights to HSBC Bank USA N.A.!  How then can MERS transfer interests it doesn’t have?  It’s the phony document scam again.  It always has been.  And the banks’ attorneys keep relying on these phony documents to foreclose and no one does the right thing to expose the document for what it is and hold the attorneys liable.

You see, great discovery is like an enema.  It’s supposed to help flush out the shit!   Can I be any more succinct than that?

The problem is, MERS hardly answers any of the discovery propounded against it.  And now that MERS is owned lock, stock and server by the parent company of the New York Stock Exchange, how much of a conflict of interest is there in our court systems now?!?!?!?!?!?!?!?!?  MERS and its counsel seemingly don’t believe they have to answer any of the discovery served upon it.  If it does, it’s with an objection.  Homeowners would rather waste thousands of dollars plying discovery on MERS rather than go after the notary and the executor(s) of the phony document that contains the false representations the bank’s attorneys keep relying on!   It’s no wonder they’re losing!  Sadly, in one particular case I’m personally aware of, an attorney was paid $6,000 (by his client) to take the depositions of a notary and a robosigner that clearly lied on the assignment … and he took the money and spent it and did nothing.  In fact, the attorney didn’t even plead the phony document was phony!  When you have homeowner’s attorneys that can’t or won’t do their jobs properly, you wonder how homeowners are getting wins at all!

Such was the case in Alabama.  The attached case made its way to the 11th Circuit Court of Appeals.

Jackson v Bank of America NA, 11th App Cir No 16-16685 (Aug 3, 2018)

Needless to say, the attorney for the homeowners in this case is in real trouble!  To my personal knowledge, this is not the first case he’s had that has been mishandled or improperly filed.  (Let’s see what the 11th Circuit does!)

The foregoing represents a sheer waste of homeowner money and resources.  The foregoing represents a delay game gone wrong.  The foregoing represents clear attorney misconduct.  The foregoing represents an opportunity for a federal appellate court to really mete out a severe punishment hefty enough to put the attorney out of business for good without even having to bring him on on State Bar ethical violations!

The irony of the fact that both cases involve Bank of America NA … and they ended up with different results.

The system of things worked superbly in one instance … and clearly failed in the other.  Ah, the “learning curve” we all must face.  At least the Hawaii Supreme Court appears to have its stuff straight!

For those dealing in Bank of America merger issues, it’s all going to be about the assignments and all of the false and misleading statements contained within them!  Chase isn’t much better with its self-dealing assignments.  Sadly, title companies and the U.S. government are all “in bed” with them.  This is what happens when we move away from the truth and the liars are allowed to get away with it.  They get arrogant and believe they can keep doing the same thing over and over again.

History Repeats Itself … get ready for another round of subprime mortgage lending … a New York attorney just sent me the linked article.  Read it and weep.

SUBPRIME MORTGAGE LOANS BACK ON MARKET … 

Listen to Dave Krieger on City Spotlight – Special Edition on WKDW-FM, 97.5 FM, every Friday night at 6:00 p.m. Eastern.  This week, Dave will be discussing the attached article with co-host, R. J. Malloy (retired attorney and former Clerk to a U.S. District Court judge), along with Jacob Gil regarding Florida’s Amendment 2 campaign.  If attorneys and judges are listening to Dave’s show, you should too!  In fact, over 7,000 listeners dial us up every week on kdwradio.com from all over the globe!  Knowledge is power!

 

 

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GUTTING THE UNDERBELLY OF THE BEAST – PART 9

(OP-ED, first posted: September 25, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

As we near the close of this 10-part segment, I posit that this may not be the climactic end you were hoping for.

Creating a big, bad ass paper trail to be used to trigger those “safeguards” in “the system of things” takes time, time that a lot of litigants don’t have because they didn’t make the time.  Maybe they weren’t afforded the time … the time to learn about how “the system of things” works.   While I’ve always maintained that the Internet can be a dangerous place to search for clues or resolve to anything, the “safeguards” that make up “the system of things” have been maintained within the “status quo” for quite some time (decades).  You’ve probably heard that old saying, “Well, it’s the best system we’ve got!”   Why change it?   Maybe, because it’s NOT the best system at present.  In fact, the way that “the system of things” has been abused, perhaps we need to re-examine HOW “the system of things” is supposed to work and give the balance of what’s wrong with “the system” itself an enema.  In order to do that, we have to wake “the system” up … and you cannot do that in federal court … yet.

WAKING UP THE BEAST!

There are roughly 3,041 counties, boroughs, townships, etc. that now exist in America.  Most if not all of them are incorporated.  Most if not all of them are self-insured to a degree.  Most of them carry liability insurance for certain aspects of their “day to day affairs” in the management of county government.  The cities within the counties also have certain types of insurance that is supposed to safeguard the body politic from harm, in case a city (or county) employee injures someone while acting within the course and scope of their employment.   This is an important set of terms to remember: “the course and scope”.  Judges are also paid by the county in virtually every situation, to sit on the bench and administer the “day to day affairs” brought before them during the course and scope of their employment.

Waking “the system of things” up (and in your favor) would seemingly involve …

(1) identifying the statutory problem you (as a property owner) are faced with … which is legislation that was passed that allows every property owner to challenge the legitimacy of documents in the public record as being suspect;

(2) bringing forward a claim against the perpetrators who created-manufactured-executed the document in question … generally involving declaratory relief, which opens up the needed discovery to expose the liability;

(3) bringing forward an expert witness affidavit and testimony to support your claim … this is best done by an attorney who has figured out HOW “the system of things” is supposed to work and can help to build your big, bad ass paper trail;

(4) taking the entire “bad ass paper trail” in documented form to several different “layers” within the county government and within the private sector (insurance and bonding).  We see four (4) copies of this paper trail as a necessity!

Once class action lawyers figure out what we’re trying to accomplish here, they are probably going to get busier (in the future), once it becomes firmly fixed in their minds HOW TO raid a county treasury because of some judge’s screw-up in allowing felony behavior to spew forth from his courtroom.   It’s just like having a bailiff purposefully hover over you while you’re trying to speak to the judge.  It’s intimidating.  As long as the judge knows he can play God for 5 minutes and get away with it (because you’re broke, desperate and don’t know anything), you’ll continue to have a bad feeling about today’s justice system, especially foreclosure courts (whether you’re in a judicial or non-judicial state, it doesn’t matter).

THE BIG, BAD ASS PAPER TRAIL

For those of you who are still having trouble fathoming the substance of the “big, bad ass paper trail” … I shall endeavor to spell it out for you:

(1) The complete trial transcript (if you’re in a judicial state) of the foreclosure case, including all exhibits (or in a non-judicial state, by your own litigation filing and said responses from “the other side”);

(2) The complete oral transcript of every hearing involving your case, conducted by said tribunal, certified by your own court reporter;

(3) The complete certified set of all oral transcripts taken at every deposition of every party summoned to testify that was involved in the creation-manufacture-execution and recording of the suspect document;

(4) The complete set of every document in your chain of title to your property, from the Warranty Deed (i.e., see also Grant Deed, Special Warranty Deed, Quit Claim Deed, Statutory Warranty Deed, etc.); and

(5) A certified, original copy of all documentation and four (4) copies of same (for distribution within the “layers” of “the system of things”) to present to authoritative committees (the judicial review panel and the state bar’s disciplinary panel) and the insurers (E & O and bonds).

Copy #1: The Judicial Review Panel (against the judge, along with a judicial misconduct complaint);

Copy #2: The State Bar Disciplinary Committee (against the lawyer for the bank who came into court and misrepresented the truth about the documents he/she relied on);

Copy #3: The E & O carrier for the law firm and their attorneys (including the attorney being accused of felony behavior in your case); and

Copy #4: The County’s Risk Manager, in an attempt to obtain bonding information on the judge (to attack the bond, have the matter investigated by the insurance company and seek to file a claim against the bond and have it pay out and/or have it revoked; thus, unseating the judge from the bench).

You may wish to have a separate fifth (5th) copy available in case the county wants to keep its copy and not forward it to the judge’s bonding carrier.

The whole stack of stuff should be somewhere between 4″ and 6″ thick!

What I have just described to you are the “safeguards” (the preliminary ones) that are supposed to be in place to attack the lower echelons of “the system of things”.  The upper echelons (the federal system) are used to plunder the county treasury if the Risk Manager, the County Commission and the perpetrators themselves refuse to “do the right thing” (and/or settle).  You DO NOT do this on your own dammit!  You have no mandate to report wrongdoing to the bar or the judicial review panel … ONLY ATTORNEYS AND JUDGES DO!   So stop with the pro se, pro per, sui juris Patriot crap and start thinking “system” … as it is and has it has been set up to function.  Stop trying to cram your giant square peg into the small, round hole (that is “the system of things”)!  If you ignore this, you do so at your own peril.  You risk creating bad case law for everyone else by not knowing what you’re doing and you also risk potential, physical harm to you and your family (remember Ruby Ridge … I was going to post Vicky Weaver’s autopsy photos but my “legal voice of reason” talked me out of it).  I cannot begin to emphasize how serious this shit is once you’ve awakened “the beast” (in other words, you’d best have legal help … and not a Patriot, non-lawyer either).

The original, certified copy remains with you for the potential follow-through with the State Tort Claims Act suit, if one is necessary, against the county or city in question, which would force “the system of things” to either litigate the matter or settle with you.

You are NOT prosecuting a criminal action here.  This is a civil matter involving statutory and ethical violations!

THE NON-JUDICIAL SETTING

I haven’t spoken much about non-judicial issues here because it is incumbent upon the homeowner to do one of two things: (1) pack up and move; or (2) file a lawsuit to stop the foreclosure and fight.   If you look at your chain of title and you see a chain of assignments … ALL of them come into play here.  If one of those assignments can be proven to be false and misrepresentative (it’s likely almost all of them are or will be), then you can rattle the other side’s cage and topple the entire chain of assignments like dominoes.  Proving fraud on the court cannot come out of your own mouth however.  That determination comes out of the mouth of the judge, who does “the right thing”!   “The system of things” does not offer YOU that opportunity.  You have to put together a civil action (preferably based on declaratory relief and negligence), coupled with proving a civil conspiracy (NOT RICO!), which is easier to prove because the burden of proof is lower.

If you are frustrated because you are currently losing, it’s because you’re not paying attention to “the system of things”.   You are acting out of desperation and not using the common sense and wisdom God gave you.

This is why we wrote the 40-page booklet explaining it:

I do not hand this work out likely, for what’s in this book is that “baby with a stick of dynamite with a short fuse” … and you are NOT going to abuse “the system of things” out of sheer desperation.  We are not going to allow that to happen.  There is a right way and a wrong way to approach how the scenario plays out.  We have to create the big, bad ass paper trail, starting with your chain of title.  Every chain of title tells a story.  What does yours say?   BTW, leave the word “fraud” out of your vocabulary here.  The new words to affix in your brain are:  “statutory violations”, “ethical violations”, “false and misrepresentative”, “negligent misrepresentation”, “negligence”, “misrepresentation” and “felony behavior”.   Why?  Because the insurance companies clearly understand what these terms are and are NOT likely to pay out claims based on these terms!  THAT can work to your advantage and to the other side’s disadvantage!

If the judge does the right thing (like the cases noted in Part 7 of this series of posts), and you get your evidentiary hearing, you may find yourself either settling out of court or in the alternative, awarded hefty damages by a jury or sanctions by a judge (like your home).   One thing is for certain, every insurance company in your state is going to know what’s going on … as you cannot allow the law firm you would be pursuing or its attorneys an opportunity to become “re-insured” through another carrier due to their propensity to commit the same torts and felony behavior.  If you’re going to do a takedown … well … it’s like that old saying, “If you’re going to shoot the King, you’d better make sure you kill him!”   That means, whatever judge allows the felony behavior to continue in his court … and/or … the ethical violations … without doing due diligence to “peel away the onion” and expose bank illegality for what it is … will expose the county (as well as the judge) to a very long-winded, unpleasant experience in U.S. District Court … and you better make sure that judge never returns to the bench (otherwise, you face possible retribution)!

ALL THE WHILE MAINTAINING CIVILITY

And remember, we’re being “civil” here.  This is not politically motivated speech, like “push back”, a statement used some time ago by a congresswoman who doesn’t even live in her own district which has polarized America.  This same congresswoman even said, “if you shoot me, you better shoot straight”.  What kind of B.S. is that?  I’m sure Steve Scalise didn’t find that at all funny.   But then again, this is America, where BOTH parties have contributed to the mess we’re all in. BOTH parties voted “the system of things” into being.

Don’t think that barricading yourself in your house is going to make a statement either.  Remember what happened to Martin Wirth?   We don’t want to see you end up like that.  Or Vicky Weaver.  Or David Koresh.  These people were stubborn and all became victims of their own ignorance and political beliefs.  This is what “the system of things” is geared towards.  Absolute power corrupts absolutely … and if you’re going to lock horns with the beast, you’d better make sure you’re within striking distance of its underbelly; otherwise, all of this is for naught.

THE STATE TORT CLAIMS ACTION = SHTF

The “other side” knew that at some point I’d be getting to this part.

Remember that suit the two Oregon lawyers filed against their own state bar?   It was filed in U. S. District Court, right?

Why is that so?  Because the attorneys were quoting federal statutes, which put it firmly within the jurisdiction of the federal court!

You can’t expect the “county” or “state” itself to allow you to sue it, do you?

Major obstacles, if not a total cover-up.   Major threats will probably be bandied about.

Late night phone calls.  Silence, followed by breathing and maybe, if you’re lucky, a whispered,  “I know where you live.”

Stalking by suspicious vehicles either outside your home or at places you frequent.

Tapping your phones without a warrant.

Breaking into your home and putting keystroke technology into your computers to read your emails.

Bugging your home or office.

Bribing federal court clerks to hide your paperwork so it’s not timely filed and thus gets excluded.

Texting death threats to your cell phone (showing pictures of your kids playing in the front yard).

Changing the locks on your doors when the foreclosure sale hasn’t even happened.

Cleaning out the contents of your home before the foreclosure sale has even occurred.

Real estate brokers showing up to your home wanting to know when you’re going to move out.

Your family pets disappear.

Oh, you think I’m joking?

Every one of the things I just described above has happened to homeowners in the course of the last twenty (20) years, since securitization and bad banking behavior started running rampant across America.  We’re talking billions of dollars of insurance payouts here and the banks and their henchmen (their servicers) are going to ratchet up their illicit behaviors.  You will have to be strong when it comes to this point in “the system of things”, because this is no longer a “game of thrones”, to see who will be King.  This is a matter of survival for those who are able to procure the most evidence in the shortest amount of time, because the other side is going to have fair warning and is going to have ample time to either come to the table or retaliate.

You cannot file one of these actions unless you give the county (the political subdivision) fair warning.

THIS is what risk managers are for.   If the county is too small, then the County Executive gets the warning.  They have to be warned to be given time to settle.

That is a statutory requirement in most states.  Sorry … you don’t get to ambush the county with a lawsuit in federal court without trying to negotiate settlement first.

Yes, it’s administrative bullshit.  But it’s “the system of things”, right?

Most counties have general liability insurance and vehicle insurance to cover the expected … a slip and fall on an icy courthouse step … a collision with a county vehicle driven by a county employee performing his lawful duties … yet no one expected “the system of things” to “right itself” on the backs of phony documents, did they?

There comes a breaking point, when someone has to “cry Uncle”!   … and this is that breaking point.  There has to be a way to deal with phony assignments.  The system of things has had that in place all along.  We just didn’t realize it … and what it was going to take to make it work the way it’s supposed to.

There’s more to the story in the final segment (Part 10) of these posts, so stay tuned!

 

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GUTTING THE UNDERBELLY OF THE BEAST – PART 6

(OP-ED, first posted: September 11, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

In my last episode (Part 5) of this series of posts, I talked about risk aversion and the creation of a paper trail.  In this episode, I cover the “why” this becomes necessary.

DOCUMENTATION IN SUPPORT OF A CLAIM

The very first thing I look at (as a title consultant) is the chain of title, especially the warranty or grant deed (proof of ownership), the mortgage (or deed of trust) and any subsequent assignments coming against the chain of title.  All of these documents (in certified form) become the initial evidence in support of any claim I may have against a law firm, a judge or any other party that put that false and misrepresentative information into the public record and then relied on it to steal my property.  After all, in judicial states, where I see most of the atrocities committed, the foreclosure mill attorneys are the ones attaching these documents in their pleadings, as exhibits, or in the alternative, making reference to said exhibits, to be used as evidence to support their complaints to justify the foreclosure.

The pleadings themselves (in original or amended form) also become part of the evidence package in support of my claim, because they contain the language that relies on the false and misrepresentative statements where an assignment was posited or referenced therein as evidence in support of their claim.  This package should include every single document placed within the court docket, including the index sheet … certified copies (and 1 plain copy for review). 

You’re probably asking yourself where the promissory note comes into play here, because judicial states mandate you have to have the original note in order to foreclose. In non-judicial states, possession of the note is not required to foreclose; thus, all foreclosures are assumed to be legal unless otherwise challenged.  This means that if you’re in one of the non-judicial states, you have to institute suit based on the chain of title you have, in order to start the paper trail.  Thus, non-judicial state property owners are at a distinct disadvantage because they must spend the money filing a lawsuit to stop the foreclosure and obtain a temporary restraining order (TRO) and they are limited at best as to what is provable and what isn’t because the other side has not responded to the suit.  You can’t make boisterous claims either, as you will be denied the TRO and that is what you’re seeking to shut down the foreclosure sale.   You see, until the other side responds, they’ve created no paper trail you can assert contains false and misrepresentative statements, which is why I like using a C & E (an acronym for Cancellation & Expungement Complaint) “right out of the gate” if I realize I might not be able to make my mortgage loan payments any more.  Waiting until the 11th hour to file one of these Complaints (in of itself) has been definitely proven to be a waste of time and financial resources.  Filing a wrongful foreclosure action (before the fact) is also a waste of time and financial resources because the foreclosure has not occurred yet (and this is supported by case law).  I mention all of this because your research becomes fundamental as part of creating the paper trail.

Any oral statements made in court have to be supported by some sort of record.  This is why we have court reporters.  Most pro se litigants and uneducated homeowners conveniently forget to retain a court reporter to document everything said in open court to their disadvantage. This means that with no court record, there’s nothing to take up on appeal or challenge because you’ve “stiffed” yourself out of a paper trail.  Besides, having a court reporter has been shown to keep the judge honest.  Don’t think that just because the county can afford to have its own court reporter there means you can simply rely on getting a copy of the transcript from the county’s court reporter.  They are backlogged with work and will take their time getting anything to you, at a time when having a transcript of the proceedings might be timely necessary.  This always works to the homeowner’s disadvantage.  That is deliberate!  Why?  Because the county is using its own court reporter to “cover its own ass” and you can bet stuff will be left out of the record.  Then it’s your word against the county’s.  So, tis better to get your own court reporter!  You need to create your own “timely paper trail” for future use and reference.  This is not a traffic ticket we’re talking about here!

Discovery is vital whether or not you are doing a C & E (which allows you to do discovery of the party executing the assignment and the notary who acknowledged the assignment) or a full-blown complaint to stop the foreclosure.  Discovery responses becomes part of your evidence package … and the “paper trail”!  If you don’t propound discovery on the other side or at least the relevant parties (the ones who created the assignment), you’re on a sinking ship.  All of the discovery (and the responses you get) become part of the paper trail.

Depositions are a must!  These are taken using a court reporter who writes down every single word that is spoken and many of them use video cameras (which is allowed) to take taped statements, which is even more intimidating.  I find that going after the creator of the document, the executor of the document and the notary who acknowledged the document are vital to creating a proper paper trail (not so much the creator of the document, unless you’re trying to solidify that the law firm or servicer was involved in a civil conspiracy with the agents who executed the assignment).  You’re only talking a minimum of TWO DEPOSITIONS here … the executor of the assignment and the notary who acknowledged it.  What authority did they have to execute the document?  Where is the notary’s bond?  Is there even a bond?  Can we attack the notary’s commission even though there is no bonding requirement?  YOU BET!  Attacking a notary’s bond (if there is one to go after) can be a source of cash flow to support your court fight. You can bet the other side will object to everything you ask for because they don’t want anything said on the record that can be used against them in court.

In all matters related to your case, PHONE CALLS DO NOT WORK!  You cannot take phone calls into court!  DO NOT CALL THE NOTARY!  Do not contact the notary by mail!  If you’re sending them a subpoena to appear at a deposition … their deposition … you do it through a process server … which is also a legitimate part of your paper trail!   I have people who have contacted me who do exactly what I just suggested NOT TO DO.  They scare the notary into hiding.  When it does come time to serve them with a subpoena, they can’t be found.  Duh!  And these people actually think they’re doing the right thing?  Seriously?  What part of desperation is incorporated into stupidity?  This is where you have to put your emotions aside and start thinking “common sense”.

THE EXPERT WITNESS AFFIDAVIT AND LIVE COURT TESTIMONY

I’m talking “expert witness attorney” here, not your average forensic loan or securitization auditor (who thinks they’re an expert witness).  Why an attorney for an expert witness?  Allow me to re-arrange your brain’s priorities through the following three reasons:

REASON #1: Litigation Consultant … your expert witness attorney can also serve as a litigation consultant to help you frame some damning discovery centered around statutory violations!  This is important because using the stuff I mentioned previously in The Quiet Title War Manual has nothing to do whether or not you can challenge assignments because you’re not a third-party beneficiary.  That is a bullshit banking argument that has nothing to do with the statute in question!  The statutes speak directly to the recording of documents known to contain false and misrepresentative information!  Separate the two distinctions in your mind because the borrower’s name is in the assignment; the borrower is a party to securitization (if that’s an issue) and because the document involves misrepresentations that may include “MERS” (in whatever form), which claim that Mortgage Electronic Registration Systems, Inc. had something to do with negotiating the instrument (the note), which runs contrary to what’s in the assignment, generally.

REASON #2: Personal Knowledge of the Facts … this happens when the expert witness attorney reviews all of your documents.  He can testify as to their factual basis AND render a legal opinion … BOTH under oath and under penalty of perjury as a lawyer!  This is way different than having a so-called “expert” that’s NOT an attorney testify as to anything factual … they can’t give legal opinions; otherwise, in doing so, their testimony could be impeached or effectively diluted under cross examination. Not only that … because the attorney who serves as your expert witness is sitting in the court (prior to giving his testimony), he actually gleans personal knowledge listening to the other side’s attorney further the false and misrepresentative information to the court … for which the damage is immediate (see In re Wilson, U.S. Bkpt Ct E.D. La No 07-11862, Memorandum of Law in Support of the United States Trustee’s Motion for Sanctions against Lender Processing Services, Inc. and the Boles Law Firm), which says:

“Untruthful statements made in bankruptcy proceedings undermine the integrity of the bankruptcy process. The bankruptcy system relies on the candor and accuracy of information presented by all parties, creditors and debtors alike. To ensure candor before this Court and to protect the integrity of the bankruptcy system, this Court should impose on Fidelity and Boles monetary sanctions and other non-monetary relief as this Court deems appropriate pursuant to its inherent authority to sanction abusive litigants coming before the Court, and pursuant to 11 U.S.C. § 105(a).”  And from the following footnote, No. 16):

“Rule 9011 provides a 20 day “safe harbor” in which a party may withdraw the challenged written representations, unless they are contained in the bankruptcy petition. If the challenged paper is withdrawn, it would not be considered by the court in its decision making process. However, there can be no safe harbor for untruthful statements made in open court, because the harm that results is likely to be immediate.”

(I just told you the Expert Witness Attorney would be there to hear all of the “immediate” misrepresentations.)  This is an actual case where Wells Fargo Bank got hit with a $1.3-million sanction!

This is an attorney, namely, the Bankruptcy Trustee, reporting misconduct! He is telling the other side (through his memorandum, they’ve been given fair warning to recant what they’ve placed into the court record).   If you didn’t catch that so far … let me make sure to clarify this in the following “reason”:

REASON #3: Rule 8.3 – Reporting Professional Misconduct … this is a mandated state bar rule (how many foreclosure defense attorneys actually follow it?)

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

The foregoing mandates (which is what “shall” means, not “may”) are put there to hold attorneys accountable to report misconduct. What forensic loan auditor or securitization auditor is mandated by the Bar’s own rules to to this?  Come on, think?  Where’s the mandate?

(long pause, heavy sigh)  Come up with one yet? Didn’t think so.

This means that when the expert witness comes into personal knowledge of the facts that the other side’s lawyer has committed felony perjury by making false and misrepresentative statements in open court, he has a mandated duty (for which the State Bar must listen) to report the other lawyer’s misconduct!

This also means that if the judge hearing your case doesn’t give a shit and let’s this scumbag attorney for the bank say whatever he wants and get away with it and hands your property over to the bank AFTER your expert witness attorney advises (through a legal opinion) that the other side’s lawyer, in both pleadings and exhibits and oral statements made, has committed misconduct, not only is the judge exposed and now at risk, but the county he is employed by may also be “on the hook”.

At least bankruptcy judges have the decency to “do the right thing”.  I recently noted the results of the Sundquist ruling in California.  Sundquist-Memo-Opinion

A lot of this depends on how “stacked” your paper trail is and what evidence of misconduct you were able to actually PROVE (not just assert).

EXPOSED RISK FACTORS 

BTW, for those of you “Patriots” out there … a majority of the judges’ oaths of office I’ve seen were actually recorded in the public record in the county they serve in!  This is important to recognize the WHY you’d want a certified copy of their oath of office.   THE PAPER TRAIL!   It’s proof he/she (as a judge) is serving IN THAT COUNTY!

Most counties are self-insured.  The county has either a County Executive or Risk Manager who handles their claims because of something an employee did wrong.  Who would think to tag a judge?   After all, aren’t the judges bonded?   What happens if the bond is attacked, challenged and successfully revoked?   The judge can’t sit on the bench, right?  He will probably be placed on administrative leave while the county investigates what happened.  But that’s not all the county has to worry about.

As a result of the trial or hearing (whether it be evidentiary or just one of those 5-minute “rocket docket” style pieces of crap), there are two other complaints that must be reported … a complaint on the lawyer to the State Bar that can discipline him … and a complaint on the judge to the appropriate judicial authority.  More paper trail to show the County … to give them fair warning that they need to step up or face the consequences!

ALL OF THIS HAS TO BE DONE BY THE EXPERT WITNESS ATTORNEY … WHO IS MANDATED TO “PULL THE TRIGGER”!   PRO SE LITIGANTS (who think they know more than the expert witness attorney) WILL ONLY F**K THIS UP IF THEY TRY TO DO IT THEMSELVES (calling into the county or the bar or the judicial review board and whining about their silly little issues, or filing crap judicial misconduct complaints, which is how the major insurance players in this game will view their cheap efforts to avoid having to pay for an expert witness attorney).  I put this part in the back end of this post as a caveat, because it’s the expert witness attorney who has the “big stick of dynamite with the short fuse” … NOT YOU! 

It gets better … stay tuned for another round of insight into the insurance game in the next segment! The title companies are also in this up to their ears (among other places)!

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THE JOURNEY BEGINS WHEN THE PITY PARTY ENDS … STEP TWO!

Op-Ed — (continued from the previous post) STEP TWO … 

The Internet can be a dangerous thing, especially when doing research, trying to find answers to questions surrounding a potential financial issue that could become a crisis, like a foreclosure.

One of the reasons why I post blogs is because people share them.  Others who are in despair happen to run across these posts and some of them walk away with reason.  The “reason” I speak of is the need to recognize when there is a problem and the HOW TO’s to do something about it. Being in denial solves nothing.  It simply prolongs the problem.  Sometimes, it makes the problem worse.

The bigger part of the problem is the second issue I spoke of in the previous article: Confusion.  Understanding what is happening in its most blatant aspects is that there is the potential of losing one’s home.  The WHY of it all stems from the alleged lender’s assertion that payments were missed and that the loan is in default.

In mortgage states, or states that are commonly referred to as judicial states, you not only get your “day in court”, but the bank has to actually PROVE that you are in default AND that they hold your promissory note AND have the right to enforce the terms of the mortgage (and note).   In all cases, the mortgage FOLLOWS the note.  The mortgage is a recorded security instrument, which is found in the public record in the county in which the mortgaged property is located.  It contains terms and conditions which must be adhered to in order to keep the note holder from foreclosing and taking their “security for the loan” back.

In deed of trust states, or states that are commonly referred to as non-judicial states, you don’t get your day in court unless you file a lawsuit and demand that the court issue a temporary restraining order (TRO), which prevents the lender (or its alleged servicing representative) from advertising and conducting a sale of your property on the courthouse steps at a prescribed point in time.  The deed of trust is also a recorded security instrument, which operates similarly to a mortgage, and if properly recorded, is also found in the public record in the county in which the mortgaged property is located.

You should know that if lenders had their way, EVERY STATE would be a deed of trust state.  That way, the lenders and their henchmen would have nothing to prove when it came to advertising and selling homes on the courthouse steps.  Until they actually bribe every state’s legislature to change over to non-judicial from judicial, homeowners still have their day in court. This is the only way the banks can win.  Knowing of this potential makes me wonder why people are taking out loans to buy property when, if they know there is a possibility of their financial future turning dismal, they don’t just buy a small plot of raw land and “build as they go”.  This would seemingly make more sense and involve the banks less.

Another reason the lenders prefer a deed of trust to a mortgage is that when examining the 2007-08 financial crisis, homeowners were affected to the point where most in financial straits could not afford an attorney let alone keeping food on the table.  Knowing the homeowner won’t fight back increases a successful outcome by the lender of taking the property back without much hassle.  Now that the Dodd-Frank Act has been molested and degraded to the point of history repeating itself, how many potential homeowners will be sucked into taking out mortgages from the mega-banks, which the gutting of Dodd-Frank was clearly designed to benefit.  You can bet the major lenders had a lot to do with those major changes to the most recent passage of the “Economic Growth, Regulatory Relief and Consumer Protection Act”.  Because these bills are so voluminous and partisan, they create more “confusion” for the average person on the street who didn’t go to law school.

Your “property” has a chain of title … 

Researching your property’s chain of title is like peeling away the layers of an onion.  The more research you do, the more layers you peel away, leaving the real truth on the table, which, after peeling an onion, leaves most people in tears.  This is why I used the “onion” analogy because peeling onions makes my nose run and my eyes water.  Finding out what really happened to you as the result of your being duped by an unscrupulous mortgage loan officer would make anyone cry, especially when they discover that they made a mistake getting that particular mortgage loan in the first place.  And now, you’ve opened “Pandora’s Box” and found the onion.

Accepting the “truth” for what it is … 

During the times prior to the 2007-08 financial crisis, banks and mortgage companies were loaning money to anyone who could “fog up a mirror”, altering mortgage loan applications, baiting loan applicants with teaser rates tied to adjustable rate, interest-only and negative amortization loans and mortgages that looked normal, only to end up finding one got stuck with a balloon note or interest rates that put their monthly payments out of reach of their paychecks.  This was deliberate and calculated.  The banks played both sides of the coin when they lured the investors into the schemes of securitization and lured the homeowners into loans they neither could afford nor deserved.  The first “truth” you need to recognize is whether you’ve bitten off more than you can chew.  Once you realize what the truth is, it makes it easier to come to grips with and deal with HOW the mistake was made that got you into the dilemma you’re in now.  I went through this “dilemma”.  I got stuck with an “80/20 loan”.  That’s two separate mortgages, wherein the second mortgage (the “20”) had a much higher interest rate and was generally tied to another Wall Street security altogether. I used the foregoing phraseology to describe “securitization”.

It does not take an Einstein to figure out that when there’s more month at the end of the money, you’re not making it.  When you’re even one day late on your mortgage payments, the servicer handling your mortgage “red flags” your account and starts a file on you. The servicer is generally looking for excuses to take your home away from you.  No servicer in today’s times is “nice”; in fact, they’re all common liars from time to time, especially those $9/hour cubicle employees who tell you that you have to be 90 days late before you can apply for a loan mod.  THAT IS THE BIG LIE!  The servicer knows that on Day 91, the REMIC’s credit default swaps, default insurance and any other PMI or LPMI that’s been tied to the loan will be negotiated and the alleged “Lender” will reap over 200% profit off of your mortgage loan … and that’s without even applying for the title insurance payout (the principal amount of the loan less 27% administrative costs) because the chain of title is jacked up (due to the Lender’s own ineptness).

The next major ploy of disbelief is the then-servicer (on or before DAY 90) has its employees dummy up an assignment of mortgage or deed of trust and cause it to be recorded into the land records in the county where your home is located so they can “structure” or “manufacture” standing to foreclose.  The term “standing” in of itself intimates that the lender (or its servicer) has the right to do what it’s doing to you. Most attorneys I know assert “lack of standing” in almost every foreclosure defense, because the simple statements of the servicer (who claims to represent the real party in interest) are not sufficient enough to prosecute a foreclosure.

If your loan is in the MERS® System, it is likely to have been securitized, which means that the chain of title is really messed up an there is likely a REMIC (Real Estate Mortgage Investment Conduit), a tax-exempt entity that soaked investors for loan money, who has no idea you’re in default (the servicer knows!) and the servicer comes in disguised as the Lender, retains an attorney, obtains a foreclosure, sells the house post-judgment and runs away with your earnings.  This is why mortgage loan servicers are in business.  You make gobs of money when 95% of the homeowners run away and leave their homes to the servicer and their law firms, who split the booty, post-sale. MERSCORP (in whatever form) and its wholly-owned subsidiary, Mortgage Electronic Registration Systems, Inc. were created to bolster lighting fast transfers of loans electronically, that have allegedly been securitized (paid for with investor money instead of the bank’s own money) and sold and re-sold multiple times on Wall Street.  This can only happen if the loan is securitized.  MERS IS NOT (AND SHOULD NOT BE) USED IN PORTFOLIO LOANS!

If you just understood what I just said … the REMIC does NOT know when you are in default because the servicer is required to make your payments to the investors, even when you don’t.  When people realize this, they get really pissed off because all along they thought it was all their fault.  The “noose” was tightened around your neck when you signed the mortgage loan in the first place!  Speaking of fault … did you come to realize the word “fault” and “default” are similar?  How do you know you’re actually in “default” if the servicer has been making your mortgage payments all along?   This is the “power over” debt collection game they play with you when you’re late on your mortgage payments.  All this time, the servicer has been making the payment for you and you never knew it.

These are only a fraction of the “truths” I teach at my workshops!

Homeowners who think they’ve been defrauded want to sue everyone tied to the mortgage loan.  THAT is the first big mistake that homeowners make.  That’s because their confusion has caused them to become angered (the third phase of foreclosure) for all the wrong reasons, to the point where they lose all rational consciousness in making proper decisions about litigation. Listening to people putting forth information and then acting on that information (without first vetting it just because it supports some sort of rational argument they have in order to make a living steering people down rabbit holes) accomplishes nothing either.  This is why many people become confused. Once they enter the cesspool of foreclosure cases looking for answers, they get so overwhelmed they don’t know where to turn or who to trust.

My research shows me that if the banks and mortgage companies were conniving and calculated enough to pull one over on you at closing, then the obvious objective is to give them their just desserts in return.  “Wise as serpents, harmless as doves.”  Going out and filing big lawsuits against lenders without a reason or any “litigation logic” using that same rationale is futile and fatal.  Why waste your money and your time?  The fact you are being foreclosed on brings an undue psychological burden on the mindset, which in turn induces stress, which in turn affects both your mental and physical health.  This is why 95% of homeowners “run away” and don’t fight.  This is why America can easily be “taken over” by the “party elite”, because most do not know HOW TO fight, let alone WHY.  If you knew HOW TO fight, wouldn’t the WHY develop into something more logical?   This is like taking karate or some other form of martial arts training.  There’s no “false hope” here because you are confident you stand a chance of winning.  You either choose to fight or you don’t.  You can still walk away from a fight and save your mental and physical anguish by formulating an alternate plan (otherwise known as PLAN B).

Everything from taking out the mortgage loan to fighting the alleged “lender” in court has a certain amount of risk.  Some of this risk is calculable.  Some of it is not.   You chose the path you are on for a variety of reasons and now you must choose the right reasons to either run and hide from your creditors or to get educated, stand up and fight them.   Filing bankruptcy only aggravates your struggle and to that end, I will explain that in the next step.

The journey begins with the chain of title … 

There is only one place that you’re going to be able to locate the foregoing and that is in the office of the clerk or recorder of your county records.  These folks get paid to help you search out the necessary documents.  If you live in a rural area with an underdeveloped county recording system, it’s highly likely that you will have to search all of this by hand through the index, which is organized by last name, then first name until you locate the recorded copy of your warranty deed.  This is your proof that title has been vested in you and no one else.

As a title consultant for many years, I can safely say that in most instances, this is your starting point.  You do not need certified copies of everything, just regular printed copies you can scan and mail to others who may have more research knowledge than you.  Getting together with other homeowners to discuss your findings after a visit to the land records may expose you to more research truths, which you need to begin your quest to justice.

You MUST collect the entire chain of title for your property in order to be able to fully analyze it (or have someone else that is more formally trained analyze it).  Skimping to only obtain the first couple of pages of a mortgage or deed of trust is just plain penny wise and pound foolish.  You need to see the whole document to see HOW you got screwed.  The devil is in the details!

Mortgage = Payments until Death  (Duh … “mort” … in several languages, means “Death”)

STAY TUNED FOR STEP THREE!  (I will discuss HOW the chain of title is used to formulate your case for trial!)

For more information on the Foreclosure Defense Workshop, click on the link!

I’m only doing this once this year!

For more information on Dave Krieger’s information library, CLICK HERE!

NOTE: Foreclosure defense attorneys are attending this Workshop!

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Filed under OP-ED, Securitization Issues, workshop

The Pooling and Servicing Agreement: Why eat just half the enchilada?

Securitization Issues — Throughout the trials and tribulations of pouring over thousands of documents, the same issue keeps popping up in my head.  Why are attorneys claiming to rely ONLY on the Pooling and Servicing Agreement (the “PSA”) to establish REMIC failure and nothing else?

How many cases have you read in the last two years that there was strict reliance on the use of the PSA to win a foreclosure case?

I have read of very few instances that go into extreme detail in an attempt to educate a judge (unless you’re in one of the “sand states”, which got hit the hardest and well before the rest of the nation caught on), who really didn’t major in securities law (unless you happen to be “seated” somewhere in the Southern District of New York), all the while opposing counsel is objecting to entering the PSA into evidence at trial.  At the end of the day, who has the note with the right to enforce it seems to be the bottom line.  This issue has also come under severe scrutiny, because when MERS and securitization are involved, it means the promissory note you signed is now an electronic memory and does not consist of what the bank’s attorneys claim is “the original note”.  (I will save the forensic discussion of promissory notes for another argument and another article!)

Perhaps it’s because some well-meaning individuals out there in the legal world told the attorneys that the crux of their argument was in the PSA.

I say, “No, it’s not just the PSA! You’re only eating half the enchilada!”

I am writing this piece (not for my own self-gratification) for the sake of those who have gotten past Securitization 101.  I know most of the blog readers understand what a PSA is and what it contains.  They subscribed to this blog in the past because there was something worthwhile posted on here, so the assumption is … the PSA to the readers of this blog is at least within their sphere of knowledge.  This may be a little “deep” for those of you reading this post for the first time.

In my travails, I have discovered that the “blind eye” seems to include such terms as “Cut-off Date” and “Closing Date”, when referencing the PSA, yet these terms are not found in the PSA.  They are merely referenced.  To find these two dates, what must one do?   Go to the front of the bloody 424(b)(5) Prospectus and find it within the first few pages of the document’s definitions.

I am not being paid by SECINFO.COM to tell you that it is much easier to search for REMIC information on this website than many of you have experienced on SEC.GOV.  I only use SEC.GOV to order complete certified copies of the 424(b)(5) Prospectus, because I want to eat and digest the whole enchilada. Why?  Because I’m hungry for the truth, that’s why.  I want the truth, the WHOLE truth and nothing BUT the truth (the WHOLE truth).  That means, if I have to peruse a bloody 400+ page prospectus that defines the parameters of how a REMIC behaves, I’m going to get this knowledge in my craw, because it’s going to come in real handy and some point and this is an RMBS Trust we’re talking about, it’s somebody’s house that is affected by what’s in this bloody document!

If man’s thought processes anything like electricity, it’s following the path of least resistance.  There are “securitization gurus” out there in the hinterland that I tip my hat to because they’ve gone above and beyond the call of duty in reading and understanding the entire “enchilada” (the sales pitch), and you know who you are, but they keep pointing to Section 2.01 (or its relative counterpart in some other types of PSA’s) and not referencing (and including as evidence) the WHOLE truth.

I say, the judge needs to “get smart” in order to play the game.  But … most won’t.

I’ve also heard that judges in America really don’t give a shit about you and whether you lose your home. You didn’t make your payments so you deserve to, whether someone else made them for you or not.  Judges just want to clear their court dockets as quickly as possible to convince the populace and hierarchy that keeps putting them on the bench that they are efficient in their duties and that their political careers and pensions are priority #1 (and go play golf and vacation with their families).

If you wonder what others are saying about judges across America, just dial up The Robing Room and see for yourself!

It seems like the foreclosure defense community just wants to “cut to the chase” to inform the judge that the “path of least resistance” is out there.  All of us lazy folk don’t have time to read the whole enchilada.  (“Your Honor, we know you have a full docket today, so out of professional legal courtesy, we’re not going to waste your time … because after all, we’re ‘officers of the court’ and we have a duty to represent the concerns of the court first, the public second and our clients … in last place!  We have a business model to run, Your Honor, and we can’t do that wasting time in court, when we can make money playing the delay game.  Oh, wait!  That’s part of Your Honor’s game too!  Drag the proceeding out as long as possible so the homeowner runs out of money, gives up and walks away, right?  Either way, the banks win!”)

The foregoing thought process sounds like many a pissed-off homeowner that has lost faith in America.  You know what?  I don’t blame you.  I’ve lost faith in America too.  I’ve learned that you cannot depend on the charity of others in your quest to survive. However, we live in a society that condones and promotes such behaviors (it’s called socialism) and the multiculturalized American society gobbles it up like a hot enchilada.  But … they eat it so fast they don’t take the time to digest it and it passes through their systems like “shit through a goose” (to quote Gen. George Patton). Yet these same pissed off homeowners are quick to criticize anyone else that’s trying to do the right thing, as if we’re all destined to be miserable in life.

This is the chief concern when I don’t see the entire 424(b)(5) Prospectus (in certified form) being offered as evidence at trial. One can always “tab” the document with miniature, self-adhesive type notes or make reference to those sections of the document in their written arguments so the judge will see it.  Bankruptcy judges have to deal with this all the time, because they’re concerned about debt, not chain of title.

So the question then becomes: Does securitization actually have anything to do with chain of title?  Do you know the answer?

YES! 

It’s just that Wall Street’s idea of “pure intellectual masturbation” hasn’t permeated into the crevices of America’s primary educational system.  Kids in school today don’t even learn “Checkbook 101”.  Nope!  They just want their allowance so they can go out and blow it on junk.  Wait a minute!  That sounds kind of like Wall Street in 2008 when everyone in the securitization game was being compensated into the millions so they could go out and party in blow, booze and hookers, doesn’t it?  Now, I suppose some of you out there are also picturing Dante’s Inferno, right?  Especially the Third, Fourth and Eighth Circles. 

When it comes to securitization, you simply CANNOT cut corners.  If you’ll notice, the entire 424(b)(5) Prospectus document, in whatever form, has some commonalities:

  1. It was signed under penalty of perjury under the Sarbanes-Oxley (“SOX”) Act.
  2. Virtually ALL of the REMICs have Cut-off and Closing Dates.
  3. The chain of title to the subject property (under attack) probably contains an Assignment of Mortgage or Assignment of Deed of Trust that makes reference to a REMIC by name (if it’s written correctly, some aren’t). This is where the REMIC shows up in the chain of title and becomes a “party” in the “adverse claimants to title” category.
  4. Most if not all of the time, the Assignment in question (also suspect to this very day) was drafted by the employees of the mortgage loan servicer you’re trying to deal with, using MERS or some other “made up” interest so the servicer can “hide behind the scenes”.
  5. All prospectuses make reference (somewhere in the document) of who the “players” in the securitization game are, generally they’re right up front.  These are offered to investors right up front, prior to investing, which also promoted the caveats (there were no guarantees), when the creators of the REMICs knew exactly what they were doing in running the reader around in circles (the “pure intellectual masturbation”) until they’re so confused they don’t know which end of the document is “up”.
  6. All make reference to who collects the money to support the distribution payments to the investors at the other end of the REMIC who claimed to be harmed when the REMIC drags you into court or announces it’s selling your home on the courthouse steps.
  7. In some way, shape or form, most if not all prospectuses contain a Pooling and Servicing Agreement of some sort, which explain HOW mortgage loans are supposed to be conveyed into the trust pool and when.

The problem is, none of the banks ever followed their own rules.  The servicers of the mortgage loans began paying your mortgage loans for you when you hit your financial “tipping point” and couldn’t make them any longer (or wouldn’t because you found out the truth).  When the borrower stops making payments, the servicer starts making the payments for the borrower.  This is mandated by the Prospectus, but again, how convenient THAT was left out of the legal equation brought before the Court.  We couldn’t have the judge thinking some rich uncle was making our mortgage payments now, could we?

UPDATE: A NEW TWIST OF THE TALE! 

Some REMICs have a third party involved.  That third party is called the Credit Risk Manager.  It’s generally an outside company that is paid a fractional portion of the REMIC’s gain to monitor the activities of the mortgage loan servicer.  This would mean that this entity has documentation (that it gets on a regular basis, IF it’s doing its job properly) being supplied to it by the servicer and the Trustee (if certain aspects of the REMIC’s operations are applicable) for evaluation to make sure that the servicer is doing its job correctly in compliance with the REMIC’s own governing regulations.

To insist that the Credit Risk Manager may be in breach of his fiduciary duties to the REMIC would depend on three (3) things:

(1) The Credit Risk Manager (if one is shown, not all REMICs have them) was not compliant in keeping track of the servicer and its records;

(2) The Credit Risk Manager failed to report the failure of servicer compliance to the Trustee; and

(3) The Credit Risk Manager was getting a paycheck for doing nothing.

This is another classic example of REMIC failure!

OCWEN FESSES UP!

The judges just want to give your homes to the bank.  They really don’t have time for details.  Right?

Again, I post the following for your consideration: Ocwen’s Letter to 6 Government Agencies

The foregoing transmission is 9 pages long.  I would suggest, as part of your digestion process of “the whole enchilada”, you focus on the parts of the Prospectus that talk about payments being made to investors to keep the REMIC going.  What happened in 2008 was pure “overload” on Wall Street’s financial system.  When you read this Ocwen transmission, you will probably be infuriated, because this affects NOT JUST OCWEN, but EVERY mortgage loan servicer out there!

Read the 9 pages again!  The servicers are the parties doing the foreclosures in the name of the lender.  The problem is, you don’t have a written agreement with the servicer.  You have a written agreement with the Lender.  If the lender’s out of business, the servicer is still collecting mortgage payments and is still paying the REMIC’s investors.  When you stop making the mortgage payments, along with your taxes and insurance payments, the servicer makes them for you!

In the case of a GSE, like Fannie Mae, Freddie Mac, Ginnie Mae or Sallie Mae (WHAT?  Student loans are securitized too?), they too manage REMICs and are knee deep in securitization failure just like the rest of the published REMICs contained within the SEC’s databases.  If there is default insurance involved anywhere in the securitization process, someone got made whole (or at least the payments kept coming in to pay investors), so who is “harmed”?

THE SECURITIZATION CHAIN

The way that the OCC Asset Securitization Handbook contemplated the path of cash flows through the securitization chain started at the top, with the Borrower.  Even U. S. Bank, N.A. admits the Borrower is a party to the Securitization Chain in its 4-page brochure, here:  US Bank Brochure – Role of the Corporate Trustee

So then, why do bank attorneys in court keep downplaying that the Borrower has nothing to do with the Assignment of Mortgage, when the Borrower clearly is AT THE TOP OF THE CHAIN? (taken from p. 8, virtually right up front, just like the Cut-off and Closing Dates are located in a Prospectus).

 

The “Originator” and “Servicer” work in tandem with (but independent of) each other to make the loans and then collect the payments so the investors who “buy into” the securitization scheme get paid (on the distribution date, generally the 25th of every month).   The “Rating Agency” issues ratings for the bonds the investors would be able to buy (this is shown in the Prospectus, NOT in the PSA).  How much more evidence do you need that the Borrower’s payments to the chain have everything to do with compliance of the entire Prospectus, even when the Borrower DOESN’T MAKE THE PAYMENTS!

For the purposes of this discussion, we move within the path of the securitization chain to discuss WHO makes your payments when you can’t.

The following item was taken from the front end of the Prospectus (NOT in the PSA, which I why I say ya’ll spend so much time focusing on the PSA, you miss the good shit**):

 

 

So, if you think I’m making this stuff up, think again.  This paragraph (taken out of the front end of a Free Writing Prospectus in conjunction with the REMIC paperwork offered on SECINFO.com, which I subscribe to) explains the same thing that the 9-page letter Ocwen wrote about who makes the payments when the Borrower doesn’t.  So, these are the “baker’s dozen” questions I leave you with:

  1. Is your written contract (the Security Instrument) with the mortgage loan servicer or with the lender?
  2. Does it say anything in your Mortgage or Deed of Trust that the Servicers may change during the life of your loan?
  3. Did anyone tell the mortgage loan servicer to make your payments for you when you couldn’t?
  4. Did the mortgage loan servicer handling your loan tell you that it was making your payments for you when you couldn’t?
  5. Did the foreclosure mill law firm mention in the foreclosure complaint that the servicer made the payments for you?
  6. When you asked the servicer (in discovery or through a QWR) for a payment history, did the servicer disclose ALL the payments made (including the payments the servicer made)?
  7. Did the servicer’s law firm misrepresent the character and status of the debt as being in “default” when it really wasn’t? [FDCPA § 807(2)(A)]
  8. As the result of Question #7, has the servicer been wrongfully trashing your credit reports? (FUTURE CREDIT DAMAGE, actual harm under Spokeo v. Robins)
  9. As the result of Question #7, did the foreclosure mill law firm attempt to collect payments from you that you believe were already paid by the servicer?
  10. As the result of Question #7, did the foreclosure mill law firm allege that the REMIC was the Plaintiff when the servicer had been paying the REMIC’s investors all along?
  11. If the servicer had been making the payments all along, was the REMIC and its investors actually harmed?
  12. In deed of trust states, are you non-judicial foreclosure victims now kicking yourself because you didn’t realize this information was in the Prospectus … and you could have truly fought this?
  13. If you retained an attorney to fight your foreclosure, why didn’t your foreclosure defense lawyer pick up on this?  (Remember, the path of electricity?)

Therefore, it would stand to reason that if everyone stopped making their mortgage payments on known securitization chains, the mortgage loan servicers now in existence would go broke overnight making everyone’s payments, as there isn’t enough money in their coffers to support doing that.  All of the RMBS’s on Wall Street would go under on the distribution date following the borrowers’ loan payment stoppage.

See how easy it would be to collapse part of the U.S. economy?

We’re not talking about the TBTF institutions that started all this garbage, we’re talking about the loan servicers that are the real parties filing foreclosure complaints trying to collect their “servicer advances” before the REMIC itself, which has been getting paid all along, gets any residual payments.  It’s the servicers that are lying to the courts in an attempt to reimburse their coffers for all the money they’ve stolen from everyone’s escrow accounts to keep securitization afloat! 

Eventually however, the investors would get stung.

Ignorance is bliss.

For now, I rest my case.

**The information shown above came from SEC filings on behalf of the Bear Stearns Asset Backed Securities I Trust 2006-AC1.

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