Tag Archives: FHFA

COVID, COURTS, CIVIL UNREST, PANIC, FEAR AND FORECLOSURES = A COMBINATION FOR DELAY; UPDATE!

(BREAKING NEWS – OP-ED) — The author of this post brings you this not-so-humble opinion without the slightest intent of giving you legal advice.  The system has it all set up to favor the attorneys for that purpose, so that’s where you get legal advice.  On this blog, you get news, opinions and suggestive commentary and education, which is perfectly legal because freedom of speech … as I believe we still have freedom of speech … exists in a forum of expression as we know it. 

UPDATE: 

Regarding foreclosure potential … 

Remember Plan B?  Home prices are taking off, upwards, up 4.8% in May (from last year).  Much of this is due to two things: (a.) the low interest rates being offered home buyers, even in this “false flag pandemic attack”; and (b.) low inventory.  This means that home prices could stay “up” as long as the stimulus packages keep coming.  According to Black Knight Financial Services (who likes to make up shit documents catering to foreclosures and monitor its brouhaha and later brag about it), 4.1-million forbearance agreements have been inked.  This means homeowners will still have to pay all the back payments at some point in time.  With the economy still in the tank (somewhat), it’s highly likely that foreclosures will skyrocket towards the end of the year when this “thing” subsides.

I’m saying this because NOW is a great time to sell your home and scale down.  Move to the country.  Start a home-based business.  Move family in with you if possible and share in the savings.  There are a lot of things that can be said for creating a Plan B, instead of being stubborn about staying put.  If you’re seeing any kind of equity in your home, now might be a great time to cash it out and scale down to something more affordable.

I remember moving out of a bad situation in San Antonio, where I was facing a huge increase in my mortgage payments and I sold the house the day before the new rate kicked in. I moved to the country and ended up mortgage-free. Yes, I had to scale down.  It was a learning curve.  Some lessons were good, others not so much.  But my key point here is that this can be accomplished if you just put some effort into creating a Plan B and then ACTING ON IT!  While the moratoriums are in place is the time to start rethinking your financial strategies for the future, especially in lieu of potential anarchist behaviors (and not just in the major cities).

Regarding civil unrest … 

Two areas of particular interest to AVOID moving to … Minneapolis and Seattle.  Both are run by Democratic mayors.  President Trump just told Minnesota’s Governor (Tim Walz) to go piss up a drainpipe (Walz wanted $500-million from the federal government to repair the damage caused by rioters).  No federal funding for you sir! You sat idly by while Minneapolis burned, as did Minneapolis’s mayor.  You get no funding.  Why should we reward your bad behavior for failing to act in a time when your community needed you?

The same goes for Seattle, whose city council seems to think that cutting its police department budget to zero now will send a message.  It will alright.  1,100 police officers are going to lose their jobs.  Some officers will be transferred.  Analysts say that the major crimes unit (assault, murder, rape) will become virtually non-existent.  Is this a place you’d want to live in?  I look for a mass exodus from both locales.  Soon, we’ll have Democratic sanctuary cities which will have to self-fund and repair their own messes created by gangs, bands of thieves and repeat criminal offenders.  No police means no security.  Add the COVID panic created by the respective state and federal governments (I wonder when the new vaccine will come out and how many Democrats will rush to get it), and you have more political polarization afoot.

No police means increased crime and the federal government will respond only if asked.  Just ask the hierarchy in Kansas City, Missouri. 100 federal agents are moving into the area to arrest repeat offenders and help lower the crime rate.  Kansas City’s Mayor had to ask the Governor to ask the feds for help.  That’s how the system works.  As much as I used to work in media in Kansas City and lived in that area for many years, I’ve got a lot of reservations about ever moving there again.  Like Minneapolis, the riots were bad there too.

For those of you who haven’t heard the new Trump campaign commercial … it really drives home a point about police response (“Your estimated wait time is 5 days.”). I am not saying we can’t recover from this pandemic. But once the evil genie is out of the bottle, it’s hard to stop him from creating mayhem.  If you’re not in a “safe area” now, understand what future repercussions may occur (higher taxes to pay for the residual fallout from neglect) and why it may be best to rethink just how safe you really are.  I’m still a big fan of acreage in the country with a house parked in the middle of it.  It’s not a move to escape from reality.  It’s a way to grow food and survive.

END OF UPDATE!

FEDERAL GOVERNMENT EXTENDS MORATORIUMS DUE TO COVID

The Federal Housing Finance Agency (FHFA) has extended moratoriums on foreclosures and evictions until at least August 31, 2020.  If you have a mortgage that is backed by Fannie Mae and Freddie Mac, rest assured that single-family homeowners got a reprieve, at least temporarily. Roughly 2-million homeowners are affected by this extended moratorium. You can go do a loan look-up on the Fannie Mae or Freddie Mac websites to see whether this applies to you.  I would think by now, you’d know that, especially because you read this blog. You can anticipate that the moratoriums on the federal level will probably continue to be extended as long as we’re in the middle of a perceived pandemic.

STATE GOVERNMENT MORATORIUMS … NOW THAT’S ANOTHER STORY ALTOGETHER

Virginia’s moratoriums ended in May and eviction hearings have resumed. Some 3,000 people are facing being kicked to the curb, mostly for nonpayment of rent. Landlords are reportedly filing lawsuits to overturn the states’ moratoriums, all the while sending tenants threatening letters and text messages demanding rent in lieu of locking the tenants out of their homes. The Low-Income Housing Coalition published a partial list below:

In the following states, the courts have suspended evictions: California (indefinite on evictions), Connecticut, Delaware, Kentucky, Minnesota and Pennsylvania.

In the following states, the governors have suspended evictions and foreclosures: Florida, Indiana, Maryland, New York, New Jersey and Washington State.

In the following states, the legislatures enacted (or are enacting) laws to suspend evictions and foreclosures: Massachusetts and New Jersey (for an indefinite period of time in New Jersey, due to the COVID pandemic).

You should probably check with your individual state’s websites (I’m not going to do all the work for you) to see what moratoriums are in effect and for what purpose and for how long, especially if you’re delinquent in paying either your mortgage or your rent.

In non-judicial states, the banks don’t need the court’s permission to conduct a non-judicial foreclosure; however, where the governors have imposed moratoriums, the banks simply cannot act outside of that mandate.

All of this is because of COVID-19, stay at home orders, lockdowns and loss of income.

Many foreclosure courts have suspended or limited (to Zoom conferences) foreclosure and eviction proceedings because of COVID. Check with your local court to see whether it’s open for business or is conducting emergency petitions as needed.

There are certain states that are definitely NOT homeowner/borrower friendly, where it will be extremely difficult (if not impossible) to get a case fairly decided upon in  the lower court systems without having to resort to the appeals process … my picks are (1) Maryland; (2) Minnesota; (3) Michigan; (4) California; and (5) Washington State.  These are the worst in my opinion, given current case law.  The states that actually have judges who can get past their biases and get to the truth of the matter, or in the alternative, make getting an appellate reversal possible include (my picks): (1) New Mexico; (2) Maine; (3) Tennessee; (4) Florida; and (5) New York (especially in the boroughs). Most of my picks are based on how the courts treat the MERS System® and securitization.  Moreso, it’s about how one approaches the courts and how much attention is paid to their Rules of Civil Procedure and Rules of Evidence. When the judicial prejudices creep in … and you’re not smart enough to object to these prejudices as they apply to civil procedure or evidence, you end up getting screwed with no chance of appeal (all the legal doors are closed) … at least, that’s what the courts want you to think.

In my book, the States that have the MOST corrupt judges are (my picks): (1) Alabama; (2) Georgia; (3) New Jersey; (4) Colorado; and (5) California.  I ranked Alabama first because of its staunch prejudices. Georgia was ranked second because of its history (debtors’ prisons).  New Jersey was ranked third because of several cases I’ve been involved with that should have gone in favor of the homeowner but even in light of the Kemp decision, judges there are all pro-bank … and there’s no getting around that stigma. In Colorado, judges there can get you killed without any remorse from them or political blowback on them.  I base that on the several cases, including the death of Martin Wirth, which seemingly never got justice because the homeowners got boo-f00ed in the Rule 120 courts.

Add COVID-19 to the mix … given the fact that 99% of all government-paid employees … and that includes judges … believe everything their government tells them, even if it has no scientific basis in fact.

NOW THAT WE’VE COVERED COVID AND THE COURTS … LET’S TALK ABOUT CIVIL UNREST

The Mayor of Atlanta (who is of African-American descent … shit … you mean if I’m not politically correct, I’m screwed?) has urged her city’s residents to stop the violence.  21 people were shot overnight, including an 8-year-old girl who was a passenger in a car.  None of the shootings involved police officers, but rather what appears to be black-on-black crime.  How can you even think the BLM movement can sustain its credibility when shit like this is perpetuated?  I see her point.  BLM made their point.  Everything else past that is nothing more than hate crimes against society.  If the anarchists want Civil War (even on a limited basis), those cities run by Democrat mayors are breeding grounds for it because police response has been limited and no one is calling for federal help to stop the violent behavior.  Those in the major cities are probably stocking up on whatever guns and ammunition they can get their hands on and frankly, I don’t blame them.  They see what I see as a potential for spread of the violent behaviors to the suburbs and even the urban and rural areas as anarchists unite to spread their agenda, which rests on NO law and order.

The real problem with BLM is they’ve allowed (collectively) the anarchist movement to infiltrate their ranks and change their “direction”, which had … and is still having … a diametrically opposed negative effect.  It’s driving prejudices deeper underground and making people more “aware”.  It’s enough to be scared of getting COVID, which most have little understanding of it.  But then compounding that with unrest extrapolates that fear mongering into perceived action (uptick in gun and ammo sales).

For every action, there is an equal and opposite reaction.  If the sheriffs can’t grow a pair, the citizens will do it for them by taking matters into their own hands, vigilantism or not.

I was shocked to learn (earlier last month) that the Austin Police Department Headquarters (at I-35 and 8th Street, Downtown Austin), which I visited a time or two as a news reporter-news anchor for KLBJ (the station Pres. Lyndon Johnson used to own), was destroyed by rioters.  Knowing what I know about APD, I’m still in shock and surprised that this was allowed to happen.  It’s no wonder Governor Greg Abbott (who rules the Executive Branch from a wheelchair) is under fire for not doing enough in some areas while doing too much in other areas.  He didn’t do more to stop the violence in his own state capitol.  But then again, Austin’s “Keep Austin Weird” slogan speaks volumes when it comes to indifference.

Civil unrest can be predicated on civil disobedience.  Civil disobedience basically means ignoring government mandates in protest.  The right to assemble is protected by the U.S. Constitution. The right to riot, burn down buildings and shoot people is not protected.  Folks are still blaming President Trump for not doing enough; however, the 10th Amendment clearly reserves those powers not vested with the federal government to be reserved solely for the states themselves. If you’re going to blame anyone, look at your own town Mayor and commission first, then your state reps, then your Governor.  This is where the blame lies on the state level … first.  Not with the President.  Mr. Trump is doing exactly what he’s supposed to be doing … running the executive branch of the United States Government as promulgated under Article 1 of the U. S. Constitution.  You may not like the way he does things.  He’s a CEO remember?  He’s not a politician.  But like politicians, he plays favorites. What politician hasn’t, especially if there’s under-the-table sex involved?

Civil unrest is further precipitated because Americans (a majority of them, you decide if you’re one of them) are quick to place blame on everyone but themselves.  Given what is going on in Atlanta and the fact that 1,000 National Guard troops have been called out there, the BLM movement’s credibility is tanking.  Not only that, the systemic violence has further driven prejudice deeper into the souls of most of the citizenry.  The way I’m starting to see things (and you can disagree if you like), anyone who talks about their rights being infringed upon or oppressed because of their race … is espousing racism.  Anyone who feels as if they’re entitled to free shit because of their race (they got a bad break) espouses racism.  Anyone who thinks they’re more “privileged” than their fellow man because of skin color espouses racism.  Civil unrest and the propensity for it is exacerbated by racist behavior.  Racist behavior begats violence.  Racist behaviors are learned.  They do not occur in the natural state of things. They are taught.  White supremacists teach their kids to love the “white race” and that they are the only race that matters.  Kind of like Hitler.  That’s where the anti-fascist movement came in because every action brings an equal and opposite reaction.  With Congress polarizing America with its inept behaviors, it’s no wonder the “trickle down effect” has brought with it a different, diametrically opposed outcome.

We all have to sit back and examine where we learned these behaviors and why we were taught these behaviors.  I remember my own father taking offense to an activist who was invited into his church in order to survey the congregation to see how many “white folk” would sit down to dinner with a black person.  THIS is how these types of behaviors are engrained into society (and this was back in the late 60’s).  My dad worked with black people in his office (corporate America) and he respected them for what they stood for and knew they had the same opportunities as everyone else to succeed.

But NO!  We’d rather have a pity party and rant about how we were (and are) being oppressed.  Yet, admittedly, certain public figures of African-American descent have outspokenly told their kids how to react when stopped by the police. Now why on earth would they do that?  What precipitated the thought process that cops weren’t human?  Could it be that society gave a gun and a badge to citizens who didn’t (and shouldn’t) deserve one?  One of the most dangerous precepts of a civilized society is to let someone with severely-repressed racial attitudes play God in a squad car with someone else’s life.  We know that behaviors are learned.  Now we have to restructure what we’ve created, take out all the “bad apples” and move forward.

AS TO THE PANIC AND FEAR … 

These two processes drive stupidity.  Panic is what happens when you are not comfortable with the situation you’re in and if something went wrong, you couldn’t cope.  Fear is what it is … False Evidence Appearing Real.  Panic is the precursor to fear because the person displaying the mindset overcome with panic will allow fear to creep in based on the perception of what he sees and hears around him.  Assumptions can get you killed … as much as they can make you a perpetrator.  False beliefs not corrected will jeopardize a civilized society because people aren’t thinking rationally because they’re being “programmed” by what they see and hear on TV (mostly).  This is why cop shows and violence-filled sitcoms are more popular because people are being “conditioned” and “desensitized” to what is really happening in the real world. This is how governments take advantage of their citizens.

FORECLOSURES … SAVING THE BEST FOR LAST … 

While foreclosures are no laughing matter, being in denial that they could occur in one’s life is fundamentally bad for society, especially in communities where they are randomly prevalent.  Knowing your financial position in life should be your first priority because it is how you are able to develop a Plan B.  As much encouragement as I can muster here, nothing can compensate the loss of a home, especially if it has a lot of equity in it.  This offers you (if you’re in that position) a unique opportunity to get yourself upright and mortgage free!

A reader of my blog called me one day to ask about fighting a foreclosure on her rental property.  I asked her to weigh the possibilities based on the facts.  She had $150,000 in equity in the home and it was rented.  It’s just that with COVID, her renters weren’t making the payments, so the renters decided to vacate at the end of the month.  I asked her to evaluate the stress that would be added to the equation if she were to compare the monthly rent versus the amount spent in litigation trying to save that monthly rent. We both came to the conclusion that while the market was short of inventory, NOW would be the time to sell the property, pay off the note (and stop arguing whether the lender screwed you or not), save the stress, take the equity … and find a place in the country where you can park that equity and live within your means or at best, mortgage free.

People get frustrated examining situations like this because there are options to litigation but they won’t entertain them, even if it means simply staying put in your home (that’s going to be foreclosed on) while trying to make a Plan B work. Nope. That’s their home and they’re staying put until the sheriff kicks them to the curb.  That’s the opposite of why I started this blog in the first place.  If you had 10 rental properties that were all going to be foreclosed on, but they could bring you a net equity of $25,000 each … sell them, take the $250,000 out of the deal and restructure your life with it.  The Chapter 11 case in Tampa that I wrote about on this blog in earlier posts, where 52 properties were put into the BK and a fourth of them had their liens disallowed by the court and they did cram downs on the rest of them and got an angel to buy the paper on the remaining properties and refinance them all at a lower rate cost $160,000 to complete.  You can only do this if you have the reserves.  It’s a great Plan B and the judge loved it!  It was the chief judge too!

But seriously, how many people have 52 houses to put into a Chapter 11?   You have to scale down those factors and figure your litigation costs, whether you’re going to answer pleadings pro se … plan on how much time you need to “re-group” … and execute on your plans.  The bank doesn’t have to win the way they think they should. You can win by flushing your equity out ahead of time, scaling down … and restructuring your life.

With COVID-19 and the courts being stymied, you do have time to act.  However, this “pandemic” isn’t going to last forever and at some point, you will have to face the music.  How you deal with it is what makes you a winner or a loser.

As a parting thought … DON’T TAKE A VACCINE THAT YOU DON”T KNOW WHAT’S IN IT!  They’re looking for “test subjects” now and I’m not sure they’re paying. Not a good plan if you intend on enjoying any plausible future, eh?

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Filed under BREAKING NEWS, OP-ED

AMERICA BRACES FOR MASS FORECLOSURES AS ECONOMY RE-OPENS!

(UPDATE: SEE ADDENDUM TO THIS POST AT THE BOTTOM!)

(BREAKING NEWS — OP-ED) — The author of this post has spent the last 12 years researching securitization, foreclosure issues and other consumer-related, debt collection topics.  The opinions offered here are the authors and should not be construed as legal advice. 

FOR MANY BORROWERS, THE SHIT WILL HIT THE FAN! 

As expected, I’m getting backchannel feeds on the serious uptick in foreclosures, especially in the GSE-related foreclosure arena.  So here’s the immediate concerns, based on my current research:

  1. The government (through Congress) issued a moratorium on foreclosures due to the corona-crisis.  You can anticipate that it’s the calm before the storm because when the moratorium is lifted, the mortgage loan servicers for Fannie Mae, Freddie Mac, Ginnie Mae and conventional lenders have already made plans to ramp up on those lulled into a false sense of security. Congress will not interfere with the “pulse of the economic backlash” when it comes to the government’s own interests, FHFA or not.
  2. The mortgage loan servicers have been paying advances to the GSE’s REMICs (Real Estate Mortgage Investment Conduits) since Congress imposed the moratorium. Under their contracts, the servicers and/or subservicers  are required to pay investors the principal and interest on every loan alleged to be in “default” under the terms of the mortgages and deeds of trust these mortgage loan servicers are collecting payments from borrowers on that are allegedly contained within the REMICs.
  3. The longer an extended moratorium lasts, the more “in the soup” the servicers become because their surplus funds accounts they use to pay the advances with are being further depleted and they would logically be forced to “borrow” from everyone’s escrow accounts (“rob Peter to pay Paul”) to make good on their contracts, knowing full well that when (not IF) the moratorium is lifted, they will force the shit to hit the fan in order to foreclose, sell and reimburse themselves for all their losses.
  4. Those who have been able to make their mortgage payments every month despite the moratorium might want to check their escrow accounts to make sure they are solid and accurate and haven’t been “borrowed from” (the “robbing Peter” side of the equation). The servicers will emphatically deny they’ve raped every account they could grab money from; however, if notations aren’t made of the alleged “robbery”, how would the servicer actually know WHICH ACCOUNT they borrowed from, meaning the innocent borrowers who’ve made their payments every month will see a shortfall in their escrows, which could inadvertently put their accounts in default, which in turn could force borrowers to have to make up the shortfalls (through no fault of their own) to make up the difference to bring their accounts current.  This may be one of the reasons that Ocwen Loan Servicing and its parent issued $600-billion in securities to shore up their “advance” payments.
  5. Because the moratorium is set for 60 days out, whatever delinquencies occurred during that time will be calendared for default on that magic date I’ve talked about before … DAY 91!  Expect a rash of threatening letters from the mortgage loan servicers to borrowers in trouble as they push their collection activities forward another 30 days past the moratorium to hit that magic date!

DAY 91 FACTORS INTO THE ACCOUNTING, MORATORIUM OR NOT! 

It matters not whether you were given a “grace period” with this moratorium, the mortgage loan servicers are in business to make money by foreclosing on properties they can’t resolve; thus, if you don’t have a windfall to bring your loan delinquencies current, it will trigger DAY 91.

Prior to “DAY 91”, you may see the following actions taken by the mortgage loan servicers:

  1. DSNews is already reporting intended aggressive pricing on foreclosed properties to sell to third-party investors as quickly as possible.
  2. Anticipate MERS-related documents, particularly REMIC transfers and indirect transfers to the servicers themselves, as a means of justifying the upcoming foreclosures, which means those assignments are going to hit the land records just prior to the start of the actual foreclosure process.
  3. The faster the servicer can sell the property to the third-party investor, the faster it can convert title to the GSE “after the fact” and “lose” that REO inventory to the new buyer (with transfer of title) before the homeowner even knows what hit them. The GSE will then do a direct title transfer (through the mortgage loan servicer) directly to the third-party investor who will assume all risk of acquisition of a property stained by title issues.

THE GSE’S HAVE REMICS TOO!

One thing most people don’t realize (and this can be verified) is that the government sponsored entities set up REMIC trusts to obtain investor money they use to back the loans they guarantee.  If you’ll go to irs.gov and type in Publication 938 for 2009 forward in the search engine, you’ll see the listings (by quarter) LOADED with GSE-backed REMICs!  Depending on what year you took out your loan is the year you’d search for on that website, plus subsequent years in case your loan was traded into another related REMIC until trading stopped within the MERS System®.  The securitization process is a virtual “shell game” until the foreclosure starts and the roulette wheel stops on the particular REMIC the servicer is paying.  The servicer will then move toward the final DAY 91 objective … to cash in on the credit default swap, default insurance, PMI, LMPI or whatever other cash cow it can get its hands on to reimburse itself for all of the advance payments it made during the absent of the borrower’s payments.

In the meantime, Fannie Mae and Freddie Mac are now going to buy home loans going into the government’s forebearance program just after they close, something neither had done before, in order to provide liquidity to the mortgage markets so originators can keep lending.

So as not to keep regurgitating a point, I put a news story in the top link so you can see where the forbearance programs are headed.  The CNBC article (above) affirms everything I’ve been saying … as noted in the following paragraph:

“The four-month servicer advance obligation limit for loans in forbearance provides stability and clarity to the $5 trillion Enterprise-backed housing finance market,” said FHFA Director Mark Calabria. “Mortgage servicers can now plan for exactly how long they will need to advance principal and interest payments on loans for which borrowers have not made their monthly payment.”

So you see, the servicers took a gamble on the advances and went into the hole doing it … and the government is in bed with this.

Some friend the government is, huh?  They claim to give you relief yet who’s really getting relief?  The banks and their minions.  The Fed claims to have loaded $2.3-trillion into the economy, yet where did that money go?   Not into our pockets I can assure you.

Know this … no matter what administration is running the United States, the end result is the same … protect the government at all costs … screw the dumb-ass taxpayer who doesn’t know any better (the way “they” think).  These Congresspeople think they know more than you do. Could they be right?  After all, who’s the smarter … the ones who got elected or those who elected them?  Based on what promises?  The existing Congress, a majority of whom have been serving for decades, have done their best to protect their power bases while kicking the can down the road … in the name of politics.

And we collectively let them do it.  We have collectively fallen for their bipartisan, two-party, political crap.

Congress made a deal with the banks … to protect the banks … it’s in 12 United States Code … Banks and Banking.  Congress has repeatedly let the banks screw us.  And we collectively keep letting them do it.  When is the merry-go-round of craziness going to stop?  When we have a civil war?  Or maybe a revolution?  At the polls?  Or in the streets?

And we should not worry about the mortgage loan servicer’s accounting practices, right?

IF YOU’RE NOT IN DEFAULT, HOW IS IT THEY’RE TRYING TO FORECLOSE ON YOU?

All the while the moratoriums have been in place, the servicers were stuck paying the advances on the mortgage loans, whether borrowers paid their monthly payments or not. Now the piper is coming to collect. If you didn’t (or couldn’t) work out a forbearance proposal or loan modification during the time you were a shut-in, the foreclosure process (unknown to you) was probably on the back burner and now things just got fired up again.

Those in non-judicial states will be suffering more dramatically as they try to figure out how to cope with aggressive mortgage loan servicer activities in stopping courthouse step foreclosures by publication and sale.  These borrowers are in a definite time crunch as they don’t have the luxury of court hearings unless they create them through the filing of a lawsuit. That means money spent out of pocket in order to stay in the current “survival mode” we’re already experiencing as the economy starts to bounce back from quarantines and lockdowns.

Those borrowers residing in judicial states will ultimately “have their day in court”.  It will be a 90-120 day average by the time the case gets to trial.  Keep in mind that most courts will be closed until at least mid-July 2020, so the uptick in foreclosures will probably start after the 2nd quarter ends (in 2020).

But if the advance payments were being made … how is it you’re in default and the investors have been harmed?

That’s something the banks and their servicers say is not up to you to decide … as you don’t have a contract with the investors!

You have a contract with the originating lender, which in a securitized mortgage … is a corresponding lender!

And logically, you’re going to be searching the land records trying to find that pesky assignment, right?

But wait!  The servicer’s attorney’s are going to argue that you’re not a third-party beneficiary; thus, you don’t have a right to bring a claim against the assignment.  How is that relevant?  Your name is on the assignment, right?  The originating mortgage or deed of trust is referenced on the assignment, right?  Who said anything about being a third-party beneficiary?  You see … this is how the bank’s attorneys get the courts to agree with them, because your loan was securitized and you and the investor have no “nexus” or commercial connection to each other.

POTENTIAL SOLUTION … ATTACKING THE DOCUMENT ON DIFFERENT GROUNDS!

We are starting to see results in the use of the C & E (Cancellation & Expungement) Action as a viable way to throw a “monkey wrench” into the grind of the foreclosure machine.  The questions about this process vary but the crux is the same … what is it and how does it work?

In a brief step-by-step process …

  1. The borrower goes to the public record and obtains an office copy and one certified copy of the assignment(s) in question.  These are the suspect assignments, which may contain up to a dozen or so false statements and/or misrepresentations.
  2. The borrower then researches and procures evidence showing the statements contained within the assignment(s) are false and/or misrepresentative. You can bet that no right-minded cop or detective is going to investigate anything without being fully “briefed” on the subject matter showing why you believe the public record to be false and misrepresentative, constituting a felony recording under most state statutes.  Developing harder-to-find evidence may require the services of a private investigator.
  3. The borrower (still on title, generally) goes to the local police department and files a criminal complaint on the assignment(s). The complaint filing is designed to generate a police department case number.  The borrower can be expected to spend time with a detective or officer explaining the nature of the complaint, which is most likely going to be hand written on their complaint form. You can do this before or after you file (or respond to) a foreclosure action.  I generally prefer to do it BEFORE I file the action, that way, I can include the criminal complaint in my civil action for damages.
  4. I file a declaratory relief action against those responsible for the assignment(s). I would suggest following the criminal statute religiously and if applicable, couple it with the consumer protection act statute individually for the State (of the Union) I’m in, in a claim for damages.  I do NOT sue for wrongful foreclosure because the foreclosure hasn’t occurred yet.
  5. Make sure the other side’s lawyers get the criminal complaint included with the exhibits.  This not only lets the court know a crime may be connected with the foreclosure filing, but that the attorney for the servicer may be held as an accessory if they keep trying to insist the document is legal. No right-minded attorney, bank lawyer or not, isn’t going to risk being disbarred for going up against a criminal complaint.  If anything, it will certainly “shake them up”, possibly forcing a settlement.
  6. Make sure all parties (the party who prepared the document, the party who executed the document and the party who notarized the document) are served.  I find suing the servicer themselves is a moot issue if the foreclosure hasn’t occurred yet.  If the servicer sues and you find the assignment in question was prepared or ordered by the servicer or its law firm, then the law firm, if it prepared the assignment(s) are also named defendants because they knew or should have known that the information was false and/0r misrepresentative.  Include the law firm and the lawyer who prepared the document in the criminal complaint.
  7. If at all possible, keep the civil action and the criminal action going simultaneously.  Do not drop the civil complaint if the DA decides to prosecute the document and those responsible for creating it and recording it, in violation of the penal code.  By dropping the civil complaint, you’re sending a signal to the DA that you’re not serious about pursuing damages.  Two-pronged attacks are better than one.
  8. Prepare your deposition list.  You’d be surprised once you start moving for depositions of the parties involved they don’t come at you with a settlement, rather than risk a criminal complaint against them moving forward, thus reinforcing the civil action in the judge’s mind as being even more legitimate.  Do not hold back on the other side’s lawyer if the law firm prepared the document(s) that are suspect.
  9. Follow the court docket religiously.  That means twice a day for the entire duration of the lawsuit. Once in the morning and once in the late afternoon, before the court closes.  The other side will wait until the last minute to file stuff to screw with you, especially on Friday afternoon, when they can buy time over the weekend to screw with your calendar (your time off relaxing) and your ability to respond to their motion or brief.
  10. Be prepared for oral argument.  You never know when you’re going to get called into a hearing to determine the validity of your lawsuit. The judge may also query law enforcement to see what they’re doing about your criminal complaint.  In one instance we’re aware of, the local police department forwarded the complaints to the DA … AND the State Attorney General’s office for follow-up!  Also, make sure you have expert witnesses lined up that can validate both your criminal and civil complaint information.

I know we haven’t taught HOW to set up the criminal complaints in our regular C & E classes; however, this new injection of the police report does add a certain flavor of suspicion in our civil claim, don’t you think?  Imagine the consequences:

  1. The attorney handling the foreclosure matter attempts to interfere with the criminal investigation of the matter and ends up making the matter worse, potentially putting himself in a position of obstruction of justice.  The attorney for the bank cannot attempt to persuade authorities from looking into your complaint without lending suspicion of them being involved.
  2. The law firm or the attorney preparing the document ends up being indicted by a grand jury as part of the grander scheme of things.
  3. The judge handling the civil matter is found to be “side dealing” and interfering with the criminal case in order to further the civil case along to help the bank out, either through direct interference in the criminal investigation or by pushing the civil case forward in favor or the bank knowing a criminal prosecution is likely, which would make him an accessory to a felony … enough to remove him from the bench and potentially put him in prison!

There is also a potential chance that the criminal investigation will go nowhere because the investigators: (a.) weren’t provided with enough evidence or information by you to establish probable cause; or (b.) didn’t understand the nature of the complaint because of the way it was presented.

I have 18 sets of the C & E class (8 DVD-video set and the book, The C & E on Steroids!) available online on the Clouded Titles website.  Once these are gone, they will take time to re-order, more time than you might have. I don’t have to tell you that following this moratorium’s end, those in trouble … their days are numbered.

Remember, when you get the kit, I give you an hour of consulting on your specific case, which may include a call to a criminal attorney who can give me ideas as to how to posture your criminal complaint based on what evidence you have! 

UPDATE ADDENDUM:  As I mentioned on City Spotlight – Special Edition on WKDW-FM, which will repeat this coming Monday, May 4th at 2:00 pm. Eastern Time, CLICK HERE TO LISTEN, attorneys now have a duty to inquire whether the client is using their case to commit fraud or some other crime upon the defendant in a suit.  The American Bar Association’s Standing Committee on Professional Responsibility has issued Formal Opinion 491, to clarify this requirement in the wake of increased reporting of individuals using legal services for money laundering and terrorist financing.  But it goes beyond that definition, especially if the attorney(s) or their law firm participated in the drafting of the bogus assignment and then had it sent back to them once it was executed and recorded.  This is a way to: (a.) name the law firm in the suit; (b.) name the attorney in the suit; and (c.) force the attorney to inquire as to whether he knew before submitting the document to be executed that it contained misrepresentative statements, which could warrant criminal legal action against him and/or his firm.  This is where things get dicey for the other side because depositions and discovery can now target counsel who participated in any way in the drafting, execution and recording of a document that could be construed to be a third-degree felony in many states!

Here’s the formal opinion: aba-formal-opinion-491

 

 

 

 

 

 

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THE FHFA IS A CONSERVATOR … NOT A RECEIVER, COURT RULES!

(BREAKING NEWS, OP-ED) —

For those of you who might have missed this Memorandum and Order out of Rhode Island (whose courts typically favor the banks and their servicers), you may wish to read this 19-page ruling:

Sisti v FHFA et al, US D. R.I. No 17-005 (Aug 2, 2018)

The FHFA attempted to get a judgment on the pleadings, which the court denied!   While this isn’t much of a setback, it does make clear a few potential misconceptions about Fannie Mae, Freddie Mac, the FHFA, the FDIC and the mortgage loan servicers who deal with these entities:

THE BUCK STOPS WHERE?

(1) Following the subprime mortgage crisis, Congress passed the Housing and Economic Recovery Act, which created the FHFA (Federal Housing Finance Agency), giving it the power to supervise and regulate Fannie Mae and Freddie Mac (the government-sponsored entities, or GSEs). The FHFA pretty much has complete control over the activities of both GSEs, including their reorganization or rehabilitation.  In the fall of 2008, the director of the FHFA placed both GSEs into a CONSERVATORSHIP, NOT A RECEIVERSHIP!  The Director of the FHFA had a choice … he chose Conservatorship!

(2) There is no date set for when this conservatorship will end.  In the meantime, both GSEs are prohibited from paying any dividends to their common shareholders.

(3) The U.S. Government owns ALL of the senior preferred stock of BOTH GSEs. As a result, the U.S. Government gets perks that common stockholders don’t get.

(4) Both GSEs have received over $187-billion from the U.S. Treasury to maintain liquidity and have paid more than $249-billion in dividends back into the Treasury; however, the U.S. Government’s interest in the GSEs has not been diminished as a result.

HOMEOWNERS GOT SCREWED … AND SUED!

(1) Judith Sisti was foreclosed on by Nationstar Mortgage LLC, acting as an agent for Freddie Mac, where Freddie Mac was the high bidder and Nationstar signed and recorded a foreclosure deed, all non-judicially, and then attempted to evict Ms. Sisti.

(2) Cynthia Boss was foreclosed on by Santander Bank, acting as an agent for Fannie Mae, where Fannie Mae was the high bidder and Santander signed and recorded a foreclosure deed, all non-judicially, and then attempted to evict Ms. Boss.

(3) Neither homeowner had the opportunity to have an evidentiary hearing, to confront or cross examine witnesses, to present arguments and evidence, to be represented by counsel, or to have a neutral hearing officer adjudicate the matter, all allegedly in violation of their 5th Amendment, Constitutionally-protected rights to due process of law.  They filed suit against the Defendants and the cases, bearing many similarities, were consolidated into one case by the Court.  The FHFA, Fannie Mae and Freddie Mac all filed motions for judgment on the pleadings, claiming they were within their rights to screw both homeowners. DENIED!

THE COURT HELD THAT THE FHFA AND THE GSE ARE GOVERNMENT “ACTORS”, CONTRARY TO OTHER PREVIOUS RULINGS! 

(1) Despite all of the other case citations claimed by the Defendants in this case, THIS JUDGE held that none of the other citations were binding on this Circuit!  (We didn’t see that one coming!)

(2) The Court held under Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), that the Government created a corporation by special law; for the furtherance of governmental objectives; and retained for itself permanent authority to appoint a majority of the directors of that corporation, then the corporation is “part of the Government” for constitutional claims.  The rest of the citation contained further historical analysis.

(3) The government gave complete control of the GSEs to the FHFA, rendering said control effectively permanent, despite FHFA’s claims to the contrary (that this was only supposed to be temporary).  Well, we don’t see any “temporary”, do we?  It’s amazing how the FHFA (and its lawyers) can argue whatever suits them, whether it’s legitimate or not, huh?

(4) The Court stated that it “cannot defer to a congressional delegation that serves to disclaim the constitutional obligations of a government-created entity.”  So now there is a conflict over whether there is permanent control or temporary control.  The Court then continued to stick to its guns on the facts at hand … that the “unchecked control the government has over the duration of tis total takeover of the GSEs” is up to the discretion of the government, “in perpetuity, even though Congress authorized a facially temporary conservatorship.”

THE BEAUTY OF BEYOND END GAME STRATEGIES … 

Once you understand the elements of what the Court indicated on Page 14 of its ruling, you can see the differences between the FHFA as conservator and the FDIC as a receiver:

(1) The FHFA has complete power over the GSEs.

(2) The FDIC steps into the shoes of the failed financial institution, “as a private entity for state law tort claims”.   “Beyond End Game Strategies”, the new piece we recently put out, nailed that plan of attack.

(3) This would appear to indicate that going after the FHFA and the GSEs (in their present condition) would be more difficult than going after the FDIC (as the receiver for your failed banking entity that filed Chapter 11 bankruptcy).  Maybe not entirely (according to this court)!

(4) The most damning statement in the ruling is on Page 16: “Because only federal entities can waive sovereign immunity, it logically follows that FHFA-as-conservator is a government actor.”  For further research, see Brian Taylor Goldman, The Indefinite Conservatorship of Fannie Mae and Freddie Mac is State-Action, 17 J. Bus. & Sec. L. 11, 23 (2016).  Okay, whatever … I pulled it down for you … read it here:

The Indefinite Conservatorship of Fannie Mae and Freddie Mac is State-Action

(5) Conservators, unlike receivers, have a fiduciary duty running to the corporation itself (Goldman, p. 26).

And this ruling was from a federal judge that is typically NOT homeowner friendly! 

This case tells me that as a “beyond end game” plan of attack, once you learn the key differences between what a conservatorship is and what a receivership is, you’re at “Square One”!

I would recommend to all who attended BOTH Atlanta and Orlando workshops recently add the foregoing white paper to your arsenal of research involving a “plan of attack” under state tort claims laws, as described in the foregoing illustrated INSERT. Those of you who didn’t attend … darn.  You really missed out, given the holding in this case!  This is why what we’re teaching is so vital to your survival … and now I have case law to back it up!

 

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FIFTH U.S. CIRCUIT RULES FHFA UNCONSTITUTIONAL!

BREAKING NEWS — OP-ED — This just received out of New Orleans … 

Collins et al v Mnuchin et al, 5th App Cir No 17-20364 (Jul 16, 2018)

The 5th Circuit Court of Appeals denied damage awards to three investors who claim they lost money as shareholders in Fannie Mae and Freddie Mac due to the toxicity of the 2008 mortgage markets and challenged the constitutionality of the Federal Housing Finance Agency.  The Fifth Circuit failed to award damages (as expected) to the investors but ruled that the FHFA, by its very structure was unconstitutional due to the way it was structured to act as a conservator for the two GSE’s and thus violating the Separation of Powers Clause.  You can bet that the FHFA will appeal this ruling to save its own ass.

As you recall, the CFPB met similar fate in a ruling issued by a federal judge in New York.  The ruling is here:

CFPB et al v RD Legal Funding et al, U.S. S.D. NY No 17-Civ-890 (Jun 21, 2018) 00890-Order

Why doesn’t any of this surprise me?  This is why we need public banking.  The U.S. Government has set up legislation to protect the banks under 12 U.S.C. but it shows a poor example of financial leadership when its own GSE’s operate without transparency, hiding behind a wall of assignments and secrecy in the land records.  Most people recognize that when you put money into an investment vehicle, you risk losing it, which is exactly what happened to the three investors who sued Fannie and Freddie through the FHFA.

Tough toodles on the investors, huh?  Why do people keep trusting that the U.S. Government is managed by sound financial policy when its own Congress is self-serving and bipolar in its very nature.  This is why we need public banking and to hell with the federal reserve.  We have one public bank (The Bank of North Dakota) that IS properly managed and is financially sound (which represents the interests of business and consumers in that State).   However, that being said, fiat currency is fiat currency and as long as we have Congress writing checks its body can’t cash, further driving us as a nation into debt, taxing its citizens into oblivion, using “Federal Reserve Notes” (promises to pay) as legal tender, this country is in trouble, because there’s nothing backing that debt.  We went off the Gold Standard in 1975 (thanks to Nixon).

Most people also do NOT recognize that Fannie Mae and Freddie Mac are administrators for their own REMIC trusts, despite the fact that when properties are converted by assignment and “alleged transfer” to a given GSE that it is likely that the actual REMIC it manages it never mentioned.  Thus, it raises suspicions that the quasi-government entities created to back the mortgage and housing markets are swindlers on paper!

MORE BREAKING NEWS — 

Tonight at 6:00 p.m. EDT, hear Dave Krieger and co-host R.J. Malloy on WKDW-FM Radio (listen live at kdwradio.com; click the LISTEN LIVE button and wait for the show to start) to discuss news of the day as well as what attendees are going to learn at this weekend’s Foreclosure Defense Workshop in Orlando, Florida.  What we’re teaching may shock you, but we’re talking “risk aversion” and this means something to state and local governments whose judges are ruling for banks using phony documents and making false misrepresentations through their legal counsel to steal property across America!  This is NOT for the pro se litigant, so don’t even try.  We have a “game plan” set into motion involving attorneys and specialized witnesses to do the “takedown” in open court!  This show is a MUST LISTEN!

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