Tag Archives: Real Estate Mortgage Investment Conduit

WHY UNDATED INDORSEMENTS FAIL

Under the subject matter of Debt Collection, Foreclosures and Chain of Title Education …  and Op-Ed as well:

UPDATED ON MARCH 19, 2017

The following diatribe is not to be construed as legal advice, but rather for educational purposes only.

A number of issues have surfaced in recent years, in light of the foreclosure crisis, two of which involvement indorsements on the promissory notes (or their respective allonges) and one regarding who the real parties in interest are when the MERS® System is involved.  By no means is any of this finite, as research is continually ongoing as to the “flaws” in the MERS business model, which to me, is impliedly criminal in nature. I don’t care whether this “business model” has been trademarked either.  It has left the door open for criminal RICO behavior and MERSCORP and its shareholders provided the platform for the thievery.

To me, the MERS® System was not only created as a platform by which to (as MERS’s own officers tell it) electronically transfer mortgages and notes within a database (owned by then-MERSCORP, Inc.), but also to act “as the getaway car” in the theft of tens of millions of residential properties across America ever since MERS became involved in mortgage foreclosures.  Like it or not, this smacks of criminal RICO.  MERS and its parent, of course, will deny any wrongdoing, like they did when I released the Williamson County Real Property Records Audit in January of 2013.

In fact, MERS was so vehemently upset with the release of the Williamson County Report that they caused to be published almost a full-page ad in the Austin American-Statesman newspaper on February 7, 2013, denying any wrongdoing and attempting to rebut the contents of the Report, which was reviewed by more than a half dozen foreclosure defense attorneys prior to its release and was accompanied by a legal opinion. One would have to ask, “How could little ole’ Dave Krieger write a report that would piss off the MERS hierarchy all the way to Reston, Virginia?”

I was inundated by phone calls from reporters at the time, attempting to elicit a comment as to MERS’s statement that “it didn’t do anything wrong”.  My simple response to them was: “If MERS didn’t do anything wrong, then why is everybody suing them?”  The reporters just laughed, affirmatively responding in kind and didn’t ask me any more follow-up questions.

In previous posts, I have attempted to identify who the real “agent” (MERSCORP calls it a “nominee”) is in the mortgage loan security instruments.  The term used in MERS-related paperwork is “Electronic Agent”.  There is only ONE “Electronic Agent” named in the back-office documents that virtually all foreclosure defense attorneys never get to see … and it’s NOT MERS.  I personally asked for those documents when writing discovery to MERS and MERSCORP in the Robinson case, which by the way is protected by work product privilege.   The Robinsons never got those documents because MERS and MERSCORP wouldn’t produce them.  Does this sound familiar to you?  Not if you didn’t know you had to ask for them, because they do in fact, exist. MERS just flat out want to verify its agency relationship with its members; frankly, because it doesn’t have any agency relationship with its members.  If you read the DiLibero case in Rhode Island, the Supreme Court noted that the executory contract was with MERSCORP, Inc. … or didn’t you pay attention to that part?  MERS obviously doesn’t want you to … and for good reason.

The “Electronic Agent” in the document I’m referring to is MERSCORP, Inc. (now MERSCORP Holdings, Inc.).  The Agreement I’m talking about is attached here: eta_warehouse_template_v6-mers-and-borrower4

In the foregoing document, in order to be successful in discovery, research shows you have to have a completed document between MERSCORP and the “member-user” of the MERS® System. The differences in your understanding of how these documents work appears to determine whether or not you’ll win your foreclosure case.  But that is only one element of liability here.

When I spoke of “the getaway car”, it generally means, an accomplice helped the robbers get away with the goods.  The getaway car driver generally is considered equally culpable in the crime (in this case, the theft of property by fraud) and is generally sentenced to prison, along with the perpetrators and actual actors in the scheme (the MERSCORP member-subscribers who use the MERS® System).  In criminal RICO, two or more actors are necessary, in a specific pattern of behavior, to orchestrate an act which results in an actual loss of money or property, which in this case, involved borrowers’ payments to a lender for a specific period of time, accompanied by a down payment (sometimes as much as 20% or more), in obtaining one of these so-called, MERS-originated Mortgages or Deeds of Trust.

I also have to mention identity theft here, because nowhere in any of these security instruments does it say that MERS, as an agent for the lender, should be allowed access to your social security number and other personal identifying information.  This becomes evident when anyone gets on the MERS Servicer ID Search system and wants to know who their “investor” is, which in of itself also promulgates fraud because MERSCORP, who owns the site, disclaims the site for accuracy because it’s just the driver of the getaway car.  The actual “actors” who perpetrated the fraud are the servicers who use the “System” to put whatever they want the borrower to see.  Borrowers actually believe the shit these servicers post on that site and use it in court. This is exactly what MERSCORP wants you to do.  And you fall for it?  Apparently, even the foreclosure defense attorneys don’t know what a Warehouse Lender template form is, because if they did, they’d be using it to unravel the MERS® System in front of the judge, demanding a filled-out, signed copy of the bloody form!  This is where the agency relationship was created folks … but not with MERS!  It was created with MERSCORP … as the “Electronic Agent”!  Nowhere in your security instrument does it say “MERSCORP” anywhere.  Look at all the millions of homes that were stolen using MERS and MERSCORP as the getaway car (in all those purported MERS assignments) when in fact, the corporate resolution giving then-Secretary William Hultman has never surfaced, despite being demanded to produce in discovery in the Ukpe case in New Jersey.

I spoke with former federal prosecutor Mark J. Malone by phone about this “corporate resolution”, supposedly generated in April of 1998, which he doubt even exists … which is why MERS won’t produce it.

I put those results in the OSCEOLA COUNTY FORENSIC EXAMINATION and caused them to be released to the Clerk of the Circuit Court of Osceola County, Florida on December 30, 2014.  After that Report was released to the public in 2015, there wasn’t a peep to be heard out of Reston, Virginia (where MERS and MERSCORP are headquartered), contrary to the stink they made when the Williamson County report was released.  That’s because the Osecola County Report intimated criminal RICO, “getaway car” implications for MERS and its parent.  Every one of the Board of Directors OF MERS and MERSCORP needs to be put in prison, and for well more time than what DOCX’s Lorraine Brown got.  Lorraine Brown was only an ass-puppet for Lender Processing Services, Inc., who quickly dumped DOCX to decrease its potential liability.  That’s pretty much like the CIA disavowing one of its agent’s actions when the agent is caught, to cut its ties to any potential liability down the road.  Instead, the U.S. Department of Justice, along with the Tampa FBI and the Osceola County Sheriff’s Department, whitewashed the Report by attacking the Clerk and myself.  It was more important to the Sheriff’s Department how much it cost to certify the 17 cases of evidence still in its possession, and who paid for it, rather than who was responsible for all of the criminal allegations that the Sheriff’s Department itself was involved in, because it got paid $90 per eviction, creating potential liability by extension of the fraud.  No wonder they all wanted to bury this by smearing me and the Clerk in the media.  This “issue” isn’t going to go away, because people (including attorneys and university researchers, are downloading this report and reading it in droves) are waking up to the real truths of the matter.  Giving the Sheriff’s Department in Osceola County the investigative powers regarding this Report is like the “fox guarding the henhouse”.

Also bear in mind that then-9th Circuit States Attorney, Jeff Ashton, declined to investigate the report (obviously, because it would be political suicide for him to “grow a pair”) and turned it over to the Sheriff’s Department, claiming “you have to follow the chain of command.  Meanwhile, Ashton decided that he’d rather “grow a pair”, among other things, viewing the AshleyMadison.com website on company time, which is one of the reasons he did not get re-elected in the Democratic Primary in 2016.  This means that the new 9th Circuit States Attorney, Aramis Ayala, is going to have to come out strong in favor of the people of her Circuit and do the right thing by investigating this report and convening a grand jury to investigate its contents.  If it means the Sheriff’s Department in Osceola County has to face civil litigation for its participation in eviction of all of those homeowners, so be it.

Look at your mortgage or deed of trust and tell me if you see MERSCORP listed as the “nominee”! 

Now … what is non-disclosure to you?

Were you ever told that MERSCORP was the “Electronic Agent” behind the scenes?  Of course not.  Is the MERS® System patent a matter of public record in the U. S. Patent and Trademark Office?  It sure is.  Is that constructive notice in the land records where the property is located?  Nope.  That’s because the “driver of the getaway car” had to remain the real secret here.

This is why I also believe that once the documents (notes an mortgages) were uploaded into the MERS® System, they were no longer needed; and thus, were shredded. I know that there are other contradictory opinions out there, but I relied on the 2009 Florida Mortgage Bankers Association letter to Judge Jennifer Bailey that implied that they didn’t need the original documents anymore.  Thus, I believe that there are no longer any original documents out there, just electronic copies that are reproduced for trial.  And because of UETA and eSign acts, electronic copies conveniently fit the bill … but they’re not the originals, are they?

Now the indorsements …

In the most recent decision, the Supreme Court of Hawaii, in Bank of America, N.A. v. Reyes-Toledo (see the 28-page opinion here: 2017-feb-28-hsct-pulished-opinion) opined (in part) the following:

“Bank of America has maintained that it was the holder of the Note based on the Egan Declaration and the blank indorsement on the Note. Accordingly, we consider whether the Bank produced sufficient evidence to demonstrate that it was entitled to enforce the Note as a holder of the instrument at the time that the foreclosure proceedings were commenced. The negotiation asserted by Bank of America involved negotiation by blank indorsement and transfer of possession of the Note. In contrast, a special indorsement occurs if the indorsement is made by the holder of an instrument and theindorsement identifies a person to whom it makes the instrument payable. When an instrument is specially indorsed, it becomes payable to the identified person and may be negotiated only by the indorsement of that person. Id. A blank indorsement occurs when an indorsement is made by the holder of an instrument and is not a special indorsement; in other words, a blank indorsement is not payable to an identified person.   When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer or possession alone until specially indorsed.

Here, the Note, which was attached to Bank of America’s motion for summary judgment as Exhibit A, contains two indorsements. One indorsement is a special indorsement by Countrywide Bank, FSB, to Countrywide Home Loans, Inc.  The other is a blank indorsement by Countrywide Home Loans, Inc.  Thus, because the Note was last negotiated by a blank indorsement, it may be negotiated by transfer of possession. Although Bank of America produced evidence that it possessed the blank-indorsed Note at the time it sought summary judgment, a material question of fact exists as to whether Bank of America possessed the Note, or was otherwise a holder, at the time it brought the foreclosure action. Indeed, the copy of the Note attached to the summary judgment motion does not reflect the date of the blank indorsement, and the Egan Declaration, which was made after the filing of the complaint in this case, does not indicate when the indorsement occurred. Further, there is no additional evidence in the record regarding the date of the indorsements or whether Bank of America possessed the Note at the time of the filing of the complaint. Thus, there is a material question of fact as to whether Bank of America was the holder of the Note at the time the foreclosure proceedings were commenced, which in turn raises the issue of whether Bank of America had standing to foreclose on the Property at the time it brought the foreclosure action.

Here, there is no evidence in the record, either through the Note itself, the Egan Declaration, or the other documents attached to the motion for summary judgment, showing that the blank indorsement on the Note occurred prior to the initiation of the suit. Consequently, there is a genuine issue as to whether Bank of America was entitled to foreclose when it commenced the proceeding. Thus, viewing the facts and inferences in the light most favorable to Homeowner, there is a genuine issue of material fact as to whether Bank of America held the Note at the time it filed the complaint. Accordingly, Bank of America failed to meet its burden of demonstrating that it was entitled to judgment as a matter of law, and the circuit court erred in granting Bank of America’s motion for summary judgment. For the reasons discussed, the ICA’s April 13, 2016 judgment on appeal is vacated. The circuit court’s December 9, 2014 Judgment is also vacated to the extent it grants summary judgment to Bank of America. The case is remanded to the ICA for a determination of whether the circuit court erred in dismissing Homeowner’s counterclaims.”

What the homeowners’ attorneys miss … 
The bigger picture here is the agency relationship claimed to have been possessed by MERS at the time of assignment.  Because the note indorsements are never dated, there’s no proof of when the effective date of transfer occurred.  Thus, in the foregoing instance, WHEN did Bank of America possess the Note?
Before, or after, it filed the complaint.  If the Warehouse Lender agreement says the Borrower, isn’t YOU, but the originating broker, and the interim funding lender is not the party you got the loan from,
As Bob Janes, J.D. has noted, agency must be proven by the Grantor, not the Grantee.  That means that MERS cannot self-authenticate its own agency relationships by and through its officers or through its counsel (“just take my word for it, your Honor”).  As much as you don’t trust lenders, their agents don’t fare much better if the lender lies and the agent repeats the lie in court.
I hardly ever see anyone specifically arguing UCC in court, let alone an undated indorsement and its relevant meaning when it comes to being able to enforce the note.  There is plenty of existing case law … and Hawaii just set another prime example of such.  This may mean a fight for another day, but when it comes to the recorded assignments involving MERS, one has to understand that the people in Reston, Virginia did not dot all their “i’s” and cross all their “t’s” when it came to allowing servicers to run rampant, using the MERS® System to defraud homeowners by publishing information on the MERS website to mislead homeowners, and then use contrived “Certifying Officers” (when the agency relationship of these employees, of the Servicer) is in question. We may not be able to challenge the assignment in every State, but then again, did the attorney even try to depose the robosigner and the notary to get more details.
UPDATE: 
I have had many folks present me with scenarios wherein the Allonge or “extra page” containing a blank indorsement was used at trial.  If you examine most of the case rulings, certain courts have presented us with commentary (discussion) on the subject of what constitutes a proper allonge under the Uniform Commercial Code.
EXTRA PAGES
These could involve document manufacturing, which might be sufficient to create issues of material fact necessary to avoid summary judgment and/or a motion to dismiss:  (1) what was scanned by the servicer (because that’s where we are assuming the copy of the note came from) that shows up as an extra page was either (a.) an extra page attached to the note that was separate to the note pages themselves, “created out of thin air”; (b.) an extra page attached to the note that was not a separate page from the last page of the Note, but was actually the “back side” of the note, which could be challenged as improper, as anyone could have rubber-stamped an indorsement onto the back page; or (c.) the document manufacturing by the servicer (of which we know Ocwen for example, does, because of reports indicating the same borrower’s note in 4 different stages of manufacture) in an attempt to create standing for its client lender.  The multiple creation of different notes has found its way into certain proceedings, which is enough to ask: Which one is the real note?
UNNAMED ALLONGES

Most courts I’ve read up on have issued rulings specific to HOW allonges are supposed to be attached to promissory notes and WHEN they are supposed to be used.  I would suspect that if a note has an extra page with no title on it (e.g., “ALLONGE TO NOTE”) that someone inside the servicer arbitrarily chose to attach an indorsement-in-blank stamp on an extra page to imply (or give the bank’s attorneys reason to imply) that it’s an allonge, when all it is, is a sheet of white paper with an indorsement stamp on it and does not constitute and allonge because it’s not properly labeled.

The other problem with allonges is that commonly, the space under the Borrower’s signature is supposed to be “filled up” with stamps BEFORE extra pages are being used.  When there is a whole page of room for indorsement stamps, followed by an extra page (properly labeled or not) reeks of document manufacturing.  In any case, there should be a specific objection made on the record … or someone needs to go back and research what constitutes a proper allonge.
DOCUMENT EXAMINATION

I know of at least 3 document examiners across the U. S. that can show up in court and testify as to whether a note is “original” or not.  I have to ask myself WHY lenders wait until the last minute to show up with the “original note” for the judge.  In one case in New Jersey, the bank’s law firm showed up (via a cover lawyer and not the lawyer who filed the foreclosure complaint) with a “faxed copy” of the note, claiming that it was the original.  That was objected to, of course, but the judge bought it anyway.  That case is on appeal.  With a document examiner at the ready when and if a hearing can be scheduled (or a deposition for production of the note for examination) to vet the document properly through an examiner, might scare the bank from bringing it in at all … which brings me to the last point.

THE REAL KEY REASON INDORSEMENTS FAIL

Let’s assume the 424(b)(5) Prospectus has been obtained in certified form from the SEC.  I suggest using the entire prospectus because the Pooling and Servicing Agreement (“PSA”) just isn’t enough.  The information within the Prospectus ties the Borrower’s loan to an “offering” through the sales pitch, which is the Prospectus to the investors, signed under penalty of perjury under the Sarbanes-Oxley Act.  The PSA may contain the section, “Assignment of the Mortgage Loans” under § 2.01; however, the PSA does not make up the WHOLE of the document it is contained within, the Prospectus.

If there are 3 true sales, including transfer from the Depositor to the Trust, as prescribed by the governing regulations of the Trust under § 2.01, shown within the entire Prospectus, in the portion known as the PSA, then where in the chain of indorsements is the endorsement to the Depositor and from the Depositor to the Trust?  The PSA is only a portion of the entire “picture”.  Without the framework of the Prospectus to back it up, your evidence can be challenged by the bank’s attorneys.  Oh, believe me, they had this whole thing figured out before the issues with REMICs ever surfaced in Court.  No judge wants to read a 300+ page document.  Someone has to.

SECOND UPDATE: 

In continuing the pattern of misbehavior, a most recent case out of Florida’s Fourth District Court of Appeals shows us multiple indorsements (albeit undated) present an entirely different issue as to standing.  When a bank proffers more than one note and the indorsements are different, this provides us with more ammunition to rebuff its advances that it has standing to proceed against you in a foreclosure case, as demonstrated below, in a single-page ruling:

Carty v. Bank of America, NA, Fla: Dist. Court of Appeals, 4th Dist. 2017 – Google Scholar

It’s not that we haven’t explored this avenue in previous posts.  It’s just that the courts are now just starting to recognize that our arguments really do have merit!

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Filed under Chain of Title Education, Debt Collection and Foreclosures, Op-Ed Piece

SCOTUS DECIDES TO ENTERTAIN CIRCUIT SPLIT ON FDCPA CREDITOR-DEBT COLLECTOR ISSUE!

BREAKING NEWS — (DC) 

The U.S. Supreme Court appears to have granted a Writ of Certiorari to petitioner Ricky Henson, et al in his case versus Santander Consumer USA, Inc. coming out of the nation’s Fourth Circuit Court of Appeals.  There have been numerous disagreements among the circuits as to what constitutes a “creditor” by definition versus what constitutes a “debt collector” by definition, within the Fair Debt Collection Practices Act (15 U.S.C. 1692a et seq).   More about these definitions are specifically noted through the new book FDCPA, Debt Collection and Foreclosures (by the author of this post), anticipated to be released in its first 256-page first edition, sometime around the end of this month (January, 2017).

There is evidence of deeply-entrenched conflict among the circuits, which involves the definition of a “creditor”, which is succinctly defined within the FDCPA as: (a.) any person who offers or extends credit (thereby creating a debt to the borrower); and (b.) any person to whom a debt is owed … and that of a “debt collector”, also succinctly defined as: (a.) any person whose principal purpose is to collect debts; (b.) any person who regularly collects debts owed to another; and (c.) any person who collects its own debts, using a name other than its own.  You can see where these so-called variance opinions have formed as cases involving FDCPA complaints have worked their way through each of the federal circuits.

The hinge pin here however, is that the FDCPA also states that a person is NOT a “creditor” if that person “receives an assignment or transfer of a debt in default solely for the purpose of facilitating collect of such debt for another.”  That, by definition, would make most mortgage servicers “debt collectors”, which consumers, as mortgagors, now find useful to wage war in federal court by using FDCPA actions!   This is one of the reasons this author did the research of over 400 FDCPA actions, some successful and others not successful, for the purposes of illustrating not only the circuit split in definitions, but also because the only way circuit splits can be resolved in finality is by a Supreme Court decision on the valid merits of the case.

OP-ED

The key word here is “default”.  The Federal Trade Commission and the Consumer Financial Protection Bureau both concur that the default status of a debt at the time it was acquired determines the status as to whether the entity is a “creditor” or “debt collector”.  The CFPB used this model in an action against a large bank, finding the bank violated the FDCPA by failing to send validation notices on student loan accounts there were in default at the time they were acquired from another bank.  This puts student loan borrowers in a very interesting litigation posture when debts get “assigned” to entities like Pioneer Credit Recovery, Inc., Van Ru Credit Corporation, The CBE Group and Immediate Credit Recovery, Inc. (to name a few) to collect, which comprise the larger number of entities assigned to collect student loan debt on behalf of the U. S. Department of Education, which is the alleged “guarantor” (which cannot be sued, so don’t even try it).  Every case the the author has reviewed involving a state-based corporation designed to monitor the accounts of student loan borrowers and the Department of Education, wherein the Plaintiff borrower sued them for alleged FDCPA violations, got tossed out.  The smarter consumers appear to be going after the actual debt collection agencies that have been assigned to collect the debt.

When a debt is in default and has been assigned or transferred to another entity who then attempts to collect the debt, here’s where the splits stack up:

The 4th, 9th and 11th Circuits have held that a person is not a “debt collector” unless its principal purpose is to collect a debt, regularly in the business of collecting debts owed to another, or collecting a debt using a name other than its own.  The 11th Circuit has come out with some very pro-consumer decisions (like Reese v. Ellis) that have helped homeowners fighting foreclosures in going after the law firms trying to collect a debt (NOT enforcing a security instrument … there is a difference) using a different name than the one it operates under as a creditor.  These three “tests” must be met, in addition to the court’s determination that the debt was indeed in default at the time it was acquired by the person claiming the right to collect it.  These three Circuits also rejected the argument that any person taking assignment of defaulted debts is regularly collecting debts owed to another because the debts were owed to a different creditor at the time of default.  You can plainly see where the banks and their servicers (as creditors and quasi-debt collectors) want to confuse the issue, which, it appears they have done, over time.  Now the Supreme Court gets to interpret what the FDCPA means and what it doesn’t mean when it comes to these definitions.

The 3rd, 6th and 7th Circuit decisions in conflict with the foregoing Circuits have focused predominantly on the exclusions from the definitions of “creditor” and “debt collector”, declaring that any person who takes an assignment of a debt in default is a debt collector, while a person who takes assignment of a debt that is NOT in default is a “creditor”, because they actually BOUGHT the debt.  The 7th Circuit went further in explaining that any person acquiring a debt stands in the shoes of that creditor and acts similarly, as opposed to simply acquiring the debt for collection, wherein it acts more like a debt collector, by the strictest defined sense of the FDCPA.

Additionally, Also, both the CFPB and the FTC have adopted the view that the default status of the debt at the time of acquisition determines whether the entity is a “creditor” or a “debt collector.” The CFPB took this approach in a recent consent order with a large bank, finding that the bank violated the FDCPA by failing to send validation notices on student loan accounts that were in default at the time they were acquired from another bank.

VALIDATION OF STUDENT LOAN DEBTS

The CFPB just recently reported that a larger number of student loan debts have afflicted those aged 62 and older to the tune of $66.7-billion!  That’s pretty scary, considering many of these debtors are co-signers for their children’s (and grandchildren’s) education.

It is seriously implied here that in addition to mortgage loans, student loans (car loans and credit cards), have also be securitized on Wall Street into “common law trusts”.  Mortgage loans get securitized into REMICs (which stands for Real Estate Mortgage Investment Conduits), while other securitized trusts are listed as to their designed use.

To make things a little more “interesting” … here is one sample debt validation response sent to a debt collector, who sent an “initial communication” to a student loan borrower in an attempt to collect a debt (the names of the borrower and debt collector have been purposefully changed to protect their identities):

Certified Mail, Return Receipt Requested Number:

 

Date of Debt Validation Correspondence
Name and address of Debt Collector

 

Re: Your Unsigned Debt Collection Letter, dated ______, 2017.

To Whom It May Concern:

I am in receipt of a PAST DUE NOTICE, dated “______, 2017” and am responding accordingly. I choose to respond point for point to what I allege is in fact, an initial communication letter from your debt collection agency.

This is to inform you that I am a “consumer” as defined under 15 U.S.C. 1692a(3).  Further, I deem you as a debt collector, subject to the Fair Debt Collection Practices Act, which I have a copy of, under 15 U.S.C. 1692a(5).

First, you have provided me with no written proof of any of the claims you have made in this letter.  You have listed debt collection account reference numbers that I am not personally knowledgeable of.

There is no proof provided in the initial communication I received as to who purchased any alleged student loans under any guarantee agreement bearing my name and personal identifying information.  You also failed to provide me with a copy of the guarantee agreement or any of the loan paperwork that you allege or claim I owe you that is in default.   Therefore, I am disputing the entire balance of what you claim I owe you and further require that you provide me with following:

(a.) Proof of all indebtedness, including copies of any alleged loan paperwork you have in your possession, on which you base your alleged claim of default;

(b.) Proof of the entire chain of custody of each promissory note you claim that the entity you are collecting for was “required to purchase”, including but not limited to, copies of the “guarantee agreement” for each of the alleged loans contained within your initial communication to me;

(c.) Please send me a full accounting of ALL sums due that have been applied to this alleged loan balance, including alleged default insurance payments, credit default swap payments and any other insurance that was purchased to cover the entirety of the loan should an alleged default occur, including correspondence showing the payout dates of these alleged policies;

(d.) If this loan was securitized, along with other student loans, please provide me with the name of the trust and location of its trustee, including the its full contact information and telephone number;

(e.) Since you have threatened me with the garnishment of my wages, and based on the United States Code section shown below, I demand to be provided an opportunity to view all my purported loan documents and a hearing at a location close to my home;

31 U.S.C. § 3720D: US Code – Section 3720D: Garnishment

(3) The individual shall be provided an opportunity to inspect and copy records relating to the debt.

(5) The individual shall be provided an opportunity for a hearing in accordance with subsection (c) on the determination of the head of the executive, judicial, or legislative agency concerning –

(A) the existence or the amount of the debt, and

(B) in the case of an individual whose repayment schedule is established other than by a written agreement pursuant to paragraph (4), the terms of the repayment schedule.

Please be advised that I am responding with the above verbiage as you have indicated in your letter that you may utilize additional collection efforts, including an administrative wage garnishment, tax offset or assigning these alleged loans to the U. S. Department of Education, who, unless you can provide me with proof to the contrary, guaranteed these alleged loans in the first place;

(f.) Please provide me with the Name and Address of the Original Lender / Creditor and all correspondence you have in your possession related to these alleged loans.

(g.) Please provide me with the exact location of my purported loan documents, signed by me, including a direct phone number; and

(h.) Please provide me with copies of all correspondence between your agency and the U. S. Department of Education, including all loan documents, and any documents you have in your possession, bearing my legitimate signature, that prove you have the right to collect this alleged debt, including any agreements signed between you and the alleged creditor you claim to be representing in your initial communication to me.

Please be advised that, in providing the above response, John Q. Consumer is not limiting or waiving any rights or remedies he may now or hereafter have, whether arising under your purported loan documents at law or in equity, all of which rights and remedies are expressly reserved.

Further, since I cannot take your telephone calls into court, this is a demand upon you that you are restricted from contacting me at my home, on my cellular phone or at my workplace regarding the collection of any of the foregoing, until you can fully satisfy the demands set forth in this letter.

Failure to completely respond will also result in an FDCPA action being filed against your company in the appropriate forum.

All further correspondence (including your answer and supporting documentation) may be sent to the address shown below.  I expect to hear from you in short order, as this letter is intended to give you notice that I am disputing the entirety of this debt in full.

Sincerely,
John Q. Consumer (address)

Enclosure: Copy of Debt Collection Letter

Again, I managed to acquire this from a “consumer”, who sent a variation of this letter, regarding a student loan debt.  This letter is a SAMPLE and does NOT constitute the rendering of legal advice for your particular situation and may not draw any conclusions of law or guarantee any legal outcome.  If you intend on using any form of this for your own personal use, you should be aware that you do so at your own risk.  After reading this letter, I was tempted to contact “John Q. Consumer” to see if the debt collector ever responded.  It would seem to appear that when the issue of securitization is brought up, this may create a real dilemma, because the student loan itself may have already been paid in full upon the default of the borrower!  Entire of tranches of student loans may have been paid off over time!

I just thought I’d let you, the blog subscriber, know that student loan borrowers are also using similar tactics, more of which are in the new book on the FDCPA, coming out shortly, which you can pre-order on the Clouded Titles website. The book also goes into detail about how debtors have used FDCPA actions to repeatedly sue debt collectors in order to make a part-time income!  It is fascinating to see what the mind can achieve and the human condition to accomplish!  I’ve actually included an “exploded” view of an FDCPA lawsuit, both applied individually and as a class action, so you can compare notes!  I think you’ll find the 256 pages worthy of your time and consideration.

Just because SCOTUS is deciding this narrow issue does not mean that FDCPA actions will be put “on hold” either.  The definitions of the FDCPA do merit clarification by the nation’s highest court, so the lower circuits will (once and for all) STOP QUIBBLING over what the terms really mean.  This is why it pays to know the FDCPA and get an education in debt collection before getting yourself into debt!

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Filed under Breaking News, FDCPA Education, Op-Ed Piece

POINT – COUNTERPOINT: SECURITIZATION FAILURE EXPLAINED

“JANE … YOU IGNORANT SLUT!”

(As exclaimed by Dan Akroyd to Jane Curtin on Saturday Night Live …)

Sorry … I had to do that because you can’t say that to opposing counsel in foreclosure court … as much as you’d like to!  Still, I’m not an attorney, I can’t render legal advice, but I have been listed on at least one attorney’s “expert witness list” for upcoming trials! 

My blood boils when I’m consulting at a foreclosure trial and I hear the bank’s attorney claim that the borrower has nothing to do with the PSA because I know damned well that the borrower (nor his counsel) has a comeback that they can waylay on the bank’s attorney in point-counterpoint fashion, which is why I went with the opener that I did.

The bank’s attorney doesn’t want the borrower opening up the subject of securitization failure, because in so doing, the REMIC finds itself without standing to foreclose.  End of story … because the last attempt is always (when Fannie Mae and Freddie Mac aren’t involved) the use of MERS (through servicer fraud) “assigning” a note a mortgage years later into a REMIC trust. Securitization failure may look obvious on paper (what’s recorded in the land records) but it cannot account for the path the note didn’t travel.

The last trial I attended, I saw the bank’s attorney “step in it”.  You could hear her tiny little heels squish in the pile of dung she just sunk into asking the expert witness (who understands securitization) about the “closing date”, then suddenly realizing that she opened Pandora’s Box.  Sadly, the foreclosure defense attorneys need to climb on board with this thought process, as elaborate as it might be.  I’m going demonstrably put it into as easy a graphic as I can, using various scenarios (“submitted for your approval”, as the Twilight Zone‘s Rod Serling would say from the grave). You have to educate the judge!  You have to!  I don’t care if the other side jumps up and down with objections, you have to keep on keeping on.

FEW ATTORNEYS REALLY “GET IT”

First, let me share a pdf with you, written by (in my book) one of the most brilliant attorneys on record:

charlies-wallshein_securitization-fail-part-one-001

The foregoing even has “affirmative defenses” included in this paper, if you know what you’re looking for.  Thanks to Charlie, I used a chunk of his explanation and diatribe in a Texas Rule 736 motion I drafted for use by counsel, which, when coupled with a Rule 12 motion by the attorney (a motion demanding to know who the law firm was representing in its Application to foreclose), the law firm “non-suited” the foreclosure case (made it go away)!

I shall further elaborate, as I do in chain of title assessments where the last party to allegedly have the note and mortgage transferred to them is the REMIC … years after the fact.  The borrowers and their attorneys focus on the Pooling and Servicing Agreement and miss the whole enchilada completely.  It’s not just the PSA we’re talking about here folks!  It’s the entire “sales pitch” … I’m talking about the 424(b)(5) prospectus (and none other than).

The PSA does NOT contain your loan number!  The prospectus contains your loan number!

The prospectus contains well more of the governing regulations than the PSA, all neatly signed under penalty of perjury under the Sarbanes-Oxley Act!   When the bank’s attorney says the Borrower has nothing to do with the Assignment, why then are you stumped?  Why can’t your attorney object?  It can’t be because of ignorance, right?

However, just because your loan number is listed within the prospectus doesn’t mean that your loan is actually in the pool (or made the pool before the cut-off date).  Look at it in the simplest of terms:

  1. Why do lenders use the MERS® System?  

The lenders use the MERS® System as a means to register and securitize mortgage notes within the secondary markets.  However, before the note (and its accompanying electronic paperwork) can be traded (transferred, sold, resold, multiple times over), it has to be digitally uploaded into the MERS® System, which was created for the purposes of electronically transferring the note!  

This is why (when you look at your loan on the MERS® Servicer ID page, the loan reads “ACTIVE”.   That means, it’s “actively” being transferred (potentially multiple times over) from one entity to another while the Servicer’s name remains constant.  When you see the word “INACTIVE”, it means the loan is no longer being traded, most likely because it is NON-PERFORMING!  Who could get away with selling non-performing loans?  Only in the securities market can you get away with that!  This goes back to the late Judge Arthur Schack in the HSBC v. Taher case, which was reversed and assigned to another judge, because the powers that be (the Appellate Department) said Schack went too far (in vetting the truth about robosigning using parties claiming to be officers of MERS). So, as long as the note doesn’t end up in its “final resting place” (as claimed by REMICs in millions of foreclosures), we have an “ACTIVE” note trading within the MERS® System.

2. The servicers who subscribe to the MERS® System purposefully abuse it!

The MERS® System, as I have previously noted in other posts, as well as in the OSCEOLA COUNTY FORENSIC EXAMINATION, allows servicers and their minions and subordinates within their default divisions or their contracted third-party document mills, to “manufacture” standing by creating assignments out of thin air, utilizing the name Mortgage Electronic Registration Systems, Inc., accompanied by what is proclaimed an “official title”, with only flimsy, non-notarized proclamations by William Hultman or his “successors” within MERSCORP Holdings, Inc. potentially attached to the pleadings as a means of “verification” of the use of the title by the “nominee” (who also thinks it’s a beneficiary, which it’s not).

Regardless of their “signing authority” or other Limited Power of Attorney proof of anything (as Limited Powers of Attorney can be falsely created to reinforce a claim by the REMIC that certain servicers are covered to do exercise certain powers under the power of attorney), there is nothing in the MERS Rules of Membership that forces the users of the MERS® System to “play by the rules”.  In fact, all of the users of the MERS® System have to “indemnify” MERS and its parent of any liability in connection with the creation of these documents, which means it’s “open season” in the fraud department in the creation of these documents.

   3. Parties outside of the MERS® System are allowed to participate with the servicers in creating the documents employing the use of the MERS® System! 

During the Osceola County Forensic Examination, my team discovered (in hundreds of assignments) the use a law firm in the creation of the assignments.  Many times, the assignment itself contained the words, “Prepared by:”, with either the name of the law firm, a law firm attorney or a non-lawyer working for the law firm.  My take here is that this is where you have RICO issues because the servicer, a law firm, a notary and multiple employees of both, are tasked with the creation of the document.  We are not just talking civil RICO issues here, but also criminal RICO, because the document is generally created under the direction of the law firm handling the foreclosure (in mortgage states), or in the alternative, a document processing company (e.g. LPS, CoreLogic, etc.) being involved in engineering the “proper parties” onto a piece of paper that is going to be relied upon in court to foreclose on the property.  The law firm handling the foreclosure will then rely on an assignment that it was involved in creating to steal the home, knowing full well that the assignment contains multiple misrepresentations which are not provable because the assignments clearly show the note and mortgage were transferred into the REMIC years after the Cut-off Date!

This is why I intend to write a follow-up paperback aptly titled, “How To Screw MERS!” (or something like that), to explain how to circumvent the MERS®System in your dealings in real estate (part of your due diligence before you buy a piece of property using a “MERS Member”, which is false, because the alleged “MERS Members” aren’t really “members”; they’re user-subscribers of the MERS® System, through the use of an executory contract with MERSCORP Holdings, Inc. (which is nowhere to be found on your note, your security instrument or the assignment).

4. The “Electronic Tracking Agreement – Warehouse Lender” clearly shows who the “players” are … and MERSCORP Holdings, Inc. is one of them!

If you look at the attached: eta_warehouse_template_v6-mers-and-borrower4, you will see what I am describing here, as to who the “electronic agent” really is. Is this disclosed to you at closing?  Hi there boys and girls, can you say “Truth-in-Lending Act violations right out of the gate?” … sure you can!  (playing on Mr. Rogers’ voice).

Do you see where your “name” is inserted as to “Borrower”?   Didn’t think so.  That’s because you’re not the Borrower, the originating lender or mortgage broker (like that pesky “Rocket Mortgage” and other digital online services that make it so easy to “get approved in minutes” for a mortgage loan).

Notice in the third paragraph where it says, “the Borrower is obligated to pledge the Mortgage Loans to the Lender”?  Notice the term used “Loans” is in the plural?  That’s because the “Borrower” in this agreement is the originating mortgage broker/lender and the “Lender” in this agreement is the “Interim Funding Lender” (like Countrywide, WaMu, IndyMac, etc.).  Look who the “Electronic Agent” is:  MERSCORP Holdings, Inc.!   What is an agent?  (hint: a nominee)

Then why isn’t MERSCORP Holdings, Inc. (the parent of MERS, the entity with all the money) plainly stated on your loan paperwork, including your Note? Where is the Truth-in-Lending Act when you need it regarding non-disclosure of the real “truth”.  It was hidden from you at closing?  That might even bring about suspicion for a RESPA violation as well.

Notice within Paragraph 4 of this agreement where it says that the “Lender and the Borrower desire to have certain Mortgage Loans registered on the MERS® System (defined below) such that the mortgagee of record under each Mortgage (defined below) shall be identified as MERS;”   Did you ever sign a paper like this at closing?   I’ll save you the time looking for it.  You didn’t.  That’s because the “Borrower” in this agreement, involving the placement of your loan into the MERS® System IS NOT YOU!  Did you agree to that?   Didn’t think so.  But it sure the hell explains how your loan got “registered” on the MERS® System, doesn’t it?

This was all created to be part of the securitization process.  This is why the entire process is flawed … and why it needs to be eliminated … and why the parties who created it need to be in prison!  The MERS®System is the platform through which the RICO acts were committed.  Indemnification or not, the platform is there … and it’s knowingly being abused.

YOUR NAME AND ORIGINAL LOAN NUMBER IS ON THE ASSIGNMENT!

This begs the question: How can you NOT be involved?  The assignment is talking about your very loan and mortgage (or deed of trust) being conveyed by the employees of the mortgage loan servicer (who can’t get the originating lender to do it because it’s more than likely defunct), whose employees create the document out of thin air, under the instruction from: (a.) one of the major title companies; (b.) the foreclosure mill attorneys involved in the litigation; and (c.) a third-party document mill tasked by the servicer to keep the transaction at arms length to avoid suspicion.  In any case, the document is a fraud.  They know it. And you know it.  But the judges don’t know it because no one knows how to tell the judge a thing or two about the real aspects of securitization because they know that 99% of these assignments are fraudulent and by ruling against the bank on securitization failure, they would open up a “three-ring circus” in their courtroom while jeopardizing their political futures.

The servicer uses its own “loan number” which generally does not match yours.  But when the bogus assignment is drafted (and many times backdated for a purpose) by the servicer’s employees or that of the law firm or third-party document mill, your original loan number and name is on the assignment.  Why not simply ask the judge to take your name off that document (since you’re not involved in it) and we’ll call it a day?   You know how that will end up, right?

You first have to object to the attorney’s comment that you’re not involved in the PSA, because technically, the PSA talks in general about operations within the REMIC itself.  If you’re going to enter the PSA as evidence, you’re shortchanging yourself and your case.  What you should be entering is the entire 424(b)(5) prospectus.  It still costs $4.00 a copy from sec.gov on their forms page.  They have a contract with United Parcel Service to ship it to you at no charge.  You pay $4.00.  Get the whole prospectus.  The front end of the prospectus is what contains the cut-off and closing date, not the PSA.  Have you ever noticed that, or did you just take someone’s word for it?

exhibit-9_occ-asset-securitization-comptrollers-handbook

Notice the foregoing “Page 8” and where it came from … the 1997 Comptroller’s Handbook issued by the Office of the Comptroller of the Currency.  This handbook was issued before MERS Version 3 came into being.  Notice how the first paragraph below the diagram talks about the Borrower being a party to the securitzation chain?   Do you understand why?  Because in simple fashion, in order to make the chain work (the whole system), the Borrower’s payments facilitate the income stream to the investors, who received non-recourse bonds on the Closing Date (or Start-up Date, according to IRS terminology) of the REMIC.

That is, unless securitization failure occurred at the Start-up Date.  This begs the use of an expert witness at trial to can testify as to the facts, followed by the use of depositions of the parties creating the document (the assignment) to reinforce the fraud being plied on the court.

Actually, securitization failure occurred BEFORE that!  It occurred at the Cut-off Date!

It couldn’t have happened because after the note and mortgage was uploaded into the MERS® System database (owned by now-MERSCORP Holdings, Inc.), I believe the original paperwork was no longer needed and was shredded.  My forensic examiners and I have heard this on more than one occasion, right out of the mouths of the bankers!  Thus, when the Borrower went into default: (a.) the servicer handling the loan dummied up an assignment, knowing already that it didn’t have the original loan; (b.) the servicer went into the MERS® System and downloaded the “uploaded electronic copy” and printed it out and took it into court (after adding a bunch of other “allonges”, “indorsements” to the note to try to tie the chain of title together with the chain of custody of the note.

Let me be clear here!  I do not believe that the allonges and the indorsements were completely added until AFTER the original note was retrieved from MERS. The latest article by Neil Garfield, which contains a statement: “I have obtained confirmation from a large bank vendor (Visionet Systems, Inc.) that it rectifies “lost notes” by reapplying the “signature images” upon stored copies. –Bill Paatalo, December 10, 2016.” goes to the core of the following scenario:

My wife and I attended a trial in Fort Myers, Florida where Bill Paatalo was admitted as an “expert witness”.  I went for two reasons.  First, I wanted to see what kind of questions the bank’s attorney and the judge were going to ask Bill about his expertise and the facts of the case; and second, we had dinner with Bill after that to further discuss the case, which ended up without a Final Judgment being issued that day (in court) because the judge wanted more education, in the form of trial briefs by the attorneys, which were due yesterday (I have not seen the brief).

This clearly also shows that the Notes were, at one time (as I suspected) electronic copies.  And riddle me this (as the Riddler said to Batman) … where do you think Visionet Systems, Inc. got the copy of the note?  Visionet is NOT a user of the MERS® System (check for yourself like I did) and therefore, they had to get the note from somewhere (more than likely the servicer, who IS a user of the MERS® System).  This now begs the deposition of someone at Visionet Systems, Inc. to verify this chicanery.

There are at least two cases supporting this conclusion! 

If you’ll simply Google a pdf of “In re Saldivar” (Texas) and “Glaski v. Bank of America” (California), you can see from these two cases that the court finally recognized that if the note and mortgage (or deed of trust) weren’t assigned until years after the Cut-off Date”, there is no verifiable evidence of WHEN or IF the note and security instrument actually “made it into the pool of loans” within the REMIC trust! This is what Bill Paatalo testified to at trial in Fort Myers.  When attacked by the bank’s attorney on the possibility that the note and mortgage made the cut-off date and that the assignment was strictly a memorialization of that fact, Paatalo responded to the “fact” that the assignment itself shows the date of the assignment being two years after the REMIC closed; thus, there is no possibility that the governing rules of the REMIC were complied with.  I am referring to the entire 424(b)(5) prospectus here, NOT just the PSA!

The OCC clearly contemplated that the Borrowers were the parties signing the notes and security instruments, which contained the provision (in paragraph 19 or 20, depending on which long form security instrument was employed at that time) that “the note, or a partial interest in the note” may be sold or transferred. It says nothing about the parties involved in that transaction, the “boss of the note” at foreclosure proceedings, or securitization of the loan.

Not only is the chain of title screwed up (because the right hand doesn’t know what the left hand is doing), certain parties came in contact with each other to “dummy up” paperwork to steal the house.  It’s that plain and simple.

That my friends, is a short-form explanation of the formula for securitization failure in roughly 3200 words, despite the fact I’m not an attorney nor do I render legal advice.  Share this with everyone because the life you save may be that of someone you don’t know that desperately needs to view this educational post!

BTW: For those of you wanting a progress report on the new FDCPA book I’m working on … I’ve about 40 pages to go!  I’m trying to get it done by the end of the year!  It contains some real damning information every “consumer” should know about, from foreclosures, to credit cards and car loans to student loans … all of which have been securitized … including relevant case law to back up the education I provide in this book! 

Dave Krieger, Clouded Titles

 

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Filed under Chain of Title Education, Op-Ed Piece

BLOOMBERG, LIVING IN A DREAM WORLD!

(Op-Ed Piece) — The opinions expressed are those of this poster and do not constitute legal advice nor seek to render a conclusion of law.

Drinking some real serious Kool-Aid!

I don’t know if you read the most recent article issued by Bloomberg’s Matt Scully (April 25, 2016) but after reading it, I’d say there are some real serious doubts about its credibility given the nature of the circumstances expressed in the article: America Is Finally Putting Home Foreclosure Crisis Behind It – Bloomberg

Maybe if Mr. Scully was in foreclosure, he wouldn’t be so quick with his statistics.  This article paints a rather slighted posturing of an uptick in the U. S. economy given the continuing numbers of afflicted by foreclosure proceedings.  In other words, none of this appears to matter to Bloomberg and most American homeowners, unless you’re either one of the 631,000 homeowners about to be foreclosed on or you’re facing foreclosure.

I cannot trust anything Black Knight Financial Services says because they chameleoned out of Lender Processing Services, Inc., which found itself in the crosshairs of the feds when one of its so-called “subsidiaries, DOCX (which it quickly spun off after realizing that its document manufacturing plant was about to get skewered) was found to have illicitly manufactured assignments of mortgage and assignments of deeds of trust.  As you probably already know, DOCX’s President, Lorraine Brown, is a guest at Club Fed.

A “Clean Slate”?  Seriously????

In my book, no one is getting back to a “clean slate” when I repeatedly see the same crap being initiated by the banks, their foreclosure mill law firms and their accompanying document manufacturing plants.  The U. S. DOJ appears to be doing nothing about it.  Since it’s obvious that you can get anyone to say anything about the condition of the economy, so long as it fits in with the scheme of your article, then statistically, you can use whatever tainted opinions to get whatever results you want to achieve.  You give me 10 Wall Street analyst opinions that the economy is back to normal, I’ll visit 10 bridge overpasses in every major metropolitan city in America and show you that things are far from normal!

Wells Fargo Dumping Robosigners????

The second part of the Scully article seems to pair with the first part in that now that the so-called foreclosure crisis is “ending”, Wells Fargo is cutting its staff.  The question remains however is, what staff?  None of this “staff” have been specifically identified, but when you look at the cities affected, especially Charlotte, North Carolina and Fort Mill, South Carolina (the document plants?), one would not be surprised to find that some of the “staff” being eliminated are those responsible for fabricating documents used to foreclose on homeowners.

New Home Sales Showing Monthly Declines????

I don’t know if you’ve been keeping track of the fracas around the country, but the credit markets have tightened in response to civil attacks on the lenders by the DOJ and the CFPB.  One thing we do know for sure, securitization is still alive and well on Wall Street.  Builders and developers however are having a tougher time getting credit to build new homes because borrowers are being declined mortgage loans because market conditions still have yet to improve with the shadow inventory still looming into the tens of thousands of homes that currently sit empty.

CAVEAT EMPTOR: Beware of REO Auctions!

Recently in Florida, a prospective REO auction in Southwest Florida netted some 30 bidders.  As expected, the highest bidder was awarded the home.  However, when it came time to close, the title company discovered that Select Portfolio Servicing, LP, who claimed to own the note and mortgage on the home, actually DID NOT own the home it claimed it sold! What does that tell you about the mysteries of chains of title.  How could you quiet a title to a property you don’t own?   Al West and I teach you about that in the Quiet Title Workshops we are hosting all over the country.  The next one is in Chicago on May 28-29, 2016.  Get more details here!

The Aftermath of the Foreclosure Conundrum

Every time that I look through a file on a foreclosed home, the first thing I focus on is the chain of title to the affected property. I’m specifically looking for assignments of mortgage or deed of trust.  That will tell me, based on what is on the face of the document, what potential issues the property might face in clearing title.  When I see that the law firm doing the foreclosing actually created the document using its own employees, I immediately think multiple felonies.

However, let’s not confuse the civil and criminal realms here.  Let’s just focus on the civil realm.  If title is still in your name, wouldn’t it make logical sense that you still had superior title to the property?   Even post-foreclosure cases can be resurrected and overturned.  The problem is, again, most homeowners don’t have the money to fight to “regain custody” of their property.  To those 631,000 property owners that Bloomberg claims are tied up in this “knot of a legal snafu”, I’d make a safe bet in stating that document manufacturing of an illicit nature is still the main concern on EACH AND EVERY property involved in these potential foreclosures.

The banks still shredded the notes and mortgages after they were uploaded into the MERS® System!  That means, when a borrower doesn’t make their payments for 90 days, someone, namely the REMIC trust, still gets paid, multiple times over.  So has the REMIC trust been injured?   I wouldn’t think so.  Then why are they the ones bringing the action?

I would wager that that law firms and the servicers are acting outside of the REMIC, without the REMIC’s knowledge!

The law firms and servicers are working in concert with each other to steal the home using phony documents that both have a hand in creating.  When you focus on the litigation itself, you find affidavits tendered by someone inside the servicer, not the REMIC!  What should that tell you?  That the REMIC isn’t involved!  Why would it need to be if it’s been paid off by credit default swap payments, FDIC settlement payments, default insurance payments and title insurance payments?   That means that the REMIC’s investors, some of whom may be retirement plans that your very state judges are collecting residual payments from, really aren’t hurting, are they?  In fact, the REMICs have probably reinvested a lot of that money to keep the income streaming flowing into the judges’ retirement funds!   Talk about conflict of interest, eh?

Meanwhile, down below in the courts of hell, I suspect that the servicers and law firms are splitting the booty (your home; not to mention MERS with its hands out in many cases).  None of these entities have any right to anything … but they use phony documents to do their talking and the judges just keep listening.  This is why I developed the Chain of Title Assessment (COTA) Workshops.  The next workshop is June 3-5, 2016 in New York (first time there).  This is the only planned Workshop for 2016 and seating is limited. For more information, click here!

“My people perish for lack of knowledge!”

Don’t let these educational opportunities pass you by!

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Filed under Breaking News, Chain of Title Education, Op-Ed Piece, Quiet Title Education

WELLS FARGO, CARRINGTON MORTGAGE SERVICES GET A $5,000,000+ BEAT DOWN BY HOUSTON, TEXAS JURY!

The issues discussed in this post are for educational research purposes only and does not constitute the rendering of legal advice.

It was a glorious day for David and Mary Ellen Wolf when a Houston, Texas jury awarded them in excess of $5-million in damages in their case against Wells Fargo Bank, N.A. and Carrington Mortgage Services.  See the Charging Instrument here: Wolf v Wells Fargo Bank et al_2011-36476_Nov. 6, 2015_Charge of the Court

At issue for the jury to determine was whether the Assignment of Lien was valid under Texas Law … you be the judge: Wolf-Transfer-of-Lien-NCMC-to-WF-10.15.2009

If you’ll notice the robosigned signature of Tom Croft, claiming to have some authority vested in him by the then-defunct New Century Mortgage Corporation, it contains rubber stamped “markers” on the document and is overwhelmingly TOO LATE to be transferred into the Carrington Mortgage Loan Trust, Series 2006-NC3, whose cut-off date was August 1, 2006, as shown on page 9 of the pooling and servicing agreement (“PSA”), attached here: SEC Info – Carrington Mortgage Loan Trust, Series 2006-NC3 – ‘424B5’ on 8:8:06.

If you’ve never read a PSA, you’ll find it in an easy-to-read format on SECINFO.COM.  Once you get inside of the trust pool (all you have to do is conduct a search using the series number of your trust, e.g. “2006-NC3”) information, look up the “424(b)(5) prospectus” information.  The PSA is buried inside of that document, as attached above in the Wolf case.  Some of you may have had the pleasure of navigating this site already, so please forgive my indulgence on behalf of those who have not done so.

The reason these documents have to be filed with the trust by the Cut-Off Date is because on the Closing Date, which is the start-up date of the REMIC trust, the bond certificates are issued by the Trustee of the Trust to the certificate holders (the investors who put their money into the REMIC that allegedly funded your mortgage loan).  For those of you who do not know, “REMIC” is an acronym for Real Estate Mortgage Investment Conduit.

All documents, including the Assignment or Transfer of Lien, and the Note, have to be conveyed BY THE CUT-OFF DATE (which in this case was August 1, 2006) into the trust pool in order to be accepted into the REMIC and receive tax-exempt status, according to the Internal Revenue Code and through congressional mandates found in 17 CFR 210, 228, 229, et seq.  This CFR reference (Code of Federal Regulations) is a 127-page document that was given legal effect when in was published in the Federal Register.  You can find it online simply by Googling it and asking for it in “pdf” format.  This is one of the items we will be sharing with you in more detail in the upcoming online COTA Workshop, being published in sections, on the CloudedTitles.com website.  I highly encourage you to sign up for it if you haven’t attend a live COTA Workshop in the past.

There are many of you reading this blog for the first time that may not even know that DK Consultants LLC has held workshops of this nature since May of 2012.  We no longer hold them in live fashion because of the out-of-pocket expenses for the attendees for coming to these 3-day events.  However, the Quiet Title Workshops have been fine-tuned to a 2-day event (Saturday and Sunday), to allow you to fly or drive into an area and stay a night or two if that’s your choosing (and your schedule can accommodate it).  We are finalizing the 2016 Quiet Title Workshop schedule for the following cities and months:

  1. Redondo Beach, California (Crowne Plaza Hotel & Marina), January 30-31, 2016
  2. Tampa Florida, Tampa Airport Marriott Hotel, April 2-3, 2016
  3. Chicago, Illinois, May, 2016 (location TBA soon)
  4. Las Vegas, Nevada, July, 2016 (location TBA soon)
  5. Baltimore, Maryland, September, 2016 (location TBA soon)

Now that you have the tentative scheduling, you can make plans to attend one or more of these workshops. Al West and I will be lecturing at these events.  You get to ask questions about quiet title actions and learn how they are processed.  Subscribe to these posts for more updated information as it becomes available.

Sum and Substance of the Transfer of Lien

The problem with the transfer of the lien in the Wolf case is that the jury determined the transfer was fraudulent at the time the document was executed and the parties executing it knew it was fraudulent when they executed it.

This is one of the key issues portrayed in the OSCEOLA COUNTY FORENSIC EXAMINATION conducted by DK Consultants LLC, released to the Clerk of the Circuit Court on December 30, 2014.  You will also notice that the law firm’s name is mentioned on the Transfer of Lien as well.  This was done for a purpose: to create standing for the named entity (the “assignee”) to foreclose on the Wolf’s property.  Whenever a law firm’s name is mentioned on any assignment, you can bet: (1) the law firm had a hand in drafting the assignment; (2) the law firm had a hand in directing the execution of the assignment; and (3) the law firm had a hand in causing the assignment to be recorded in the land records where the property is located. This would make the law firm criminally liable under the RICO statutes.  There are over two dozen law firms mentioned in the Forensic Examination from Osceola County, Florida that are soon-to-be-scrutinized by the Justice Department, who the report was recently referred to by Congressman Alan Grayson’s office.

One of the other patterns demonstrated in the Forensic Examination was that it was customary to see an assignment “pop up” shortly BEFORE or AFTER the foreclosure sale or judicial foreclosure action was commenced in order to facilitate “phony standing” for the foreclosing party.  Ask yourself, “Why did it take them so long to issue the assignment, if they knew exactly when the transfer of the note and mortgage took place”?  Because the parties executing the assignment DID NOT KNOW WHEN the actual transfer occurred!  How can you testify to something you have no knowledge of?  I think there’s enough case law establishing that.  Give me any state, I’ll find you a case that says that you can’t testify to something you have no knowledge of.  This could be construed as hearsay, which is inadmissable in court in virtually all instances.

So the sum and substance is (for your direct benefit) … always check the real property records at or near the time of foreclosure to see WHAT “pops up”.  You may have similar issues as the Wolf’s.  They were lucky in the civil realm that this case went before the jury. You can bet Wells Fargo will appeal the verdict as will Carrington.  I still want to see criminal indictments handed down for the fraudulent filings because there are criminal penal codes in place for that very reason. I’ll bet you do too!

 

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