Foreclosure Defense: Financial Insitutions Attempt to Cure an Uncurable Position Through BuyBacks

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Dear Mario:

Both you and Dawn brought up the question about the buy-back of certificates on asset-backed securities. Dawn feels there is added urgency since the investment banks are buying these back to settle claims of fraud coming from the investors who purchased them in the first place. She might be right. The faster you get into court the less likely they are able to come up with documentation to counter your claim regarding assignments, holder, and holder in due course (see today’s blog posts).

I think Dawn has it right that at least part of the motivation for doing this is to at least give themselves the argument that says “Well, even if the borrower WAS right, we have taken care of the problem and so we can foreclose now.” Dawn is most likely correct in her assessment of the intentions of the lenders to use and anything else they can lay their hands on to (1) at least force the burden of proof onto the borrower and (2) maybe convince a judge that this is an easy way out of what would otherwise be complex litigation.

However, a holder in due course is one by definition holds title without taint of wrongdoing or defenses. Legally, my opinion (in Florida where I am licensed) would be that

  • (1) the buyback only removes the one (and ONLY) class of possible claimants who might be bona fide purchasers for value without notice of wrongdoing and therefore holders in due course — which gives rise to our argument that there might have been a holder in due course but the “lender” or foreclosing party never was a holder in due course and now the only class of people who could have been holders in due course are gone, according to the latest position now asserted by the lender
  • (2) the purchase by a person who committed part of the wrongful behavior that tainted title to the negotiable instruments does not remove the taint
  • (3) the buyback is suspect because the Seller might have reassigned, pledged or otherwise diminished his capacity to sell the certificates on asset backed securities
  • (4) the actual owner of the assignments and notes is not known and could be the Special Purpose Vehicle Corporation that issued the securities but also could could be one of half a dozen other entities — thus they may have purchased the wrong thing from the wrong people
  • (5) any of these entities might have and probably did enter into cross agreements, insurance agreements, and guarantee agreements including credit default swaps and insurance on the revenue flow from the notes
  • (6) the “lender” still must trace the specific note to a specific set of certificates on asset backed securities that are specifically backed by notes and mortgages including the one in this case and that no other series of asset backed securities and no other SPV issued certificates indicating they were backed by a pool of loans whose description included this particular note and mortgage and
  • (7) they would have to show by someone who can be cross examined and who actually states in his affidavit of “personal knowledge” that ALL of the certificates on ALL of the asset backed securities that are backed in part by ANY portion of the this Note and Mortgage are accounted for by the buyback. To say that I doubt that they will ever be able to do that is an understatement.
  • (8) Is this just another scheme (like the write-down scheme forcing the loss on investors) whereby the investment bank will make even more profit and fees that were and are undisclosed to the borrower ad which should be credited to the borrower?
  • (9) Why would ANYONE purchase worthless paper (certificates on asset backed securities) whether it was a buyback or anything else? This is a question asked in many cases by many judges in many opinions. The obvious answer is that the transaction is a mask for something else on someone’s agenda.

9 Responses

  1. Mike – Go to:
    http://timothymccandless.wordpress.com/about/
    He’s in California – His site is full of good information … Look on the right hand side under PAGES – “Been Evicted need a stay of execution till Fraud case against lender decided …?”.

  2. Hi Everyone,
    Mike in southern california here, Riverside county, looking for advice on how to fight a 3 day eviction notice i received. Have been fighting off lender for sometime, however my home was sold back to the lender(NdexWest) and the 3 day notice is from U.S. Bank. Sure would appreciate any help, or if there are any attorneys out there that can help. I do have some money, but at this stage, and havibg been turned down on two loan mods, need help desperatly. Thank you in advance.

  3. My bank PNC formerly National City Mortgage just sent my a forebearance plan with the 1st payment being due on Jan 15 2010, with the mail date of January 29. Although this is a resend letter because I clearly did not get their first one, I would like to know why do I have to enter into a illegal contract to start my forebearance plan that is clearly going to be a struggle…why?

  4. I have received from “U S Bank National Association As Trustee” for “ONEWEST BANK,” (Formerly Indy Mac Bank,” that I am in “default.”
    They have gone the “non-judicial” way in their process.
    I have no idea where they made this filing and they, as usual, don’t reply to any questions. Where would this filing be made by them? They don’t show any address for their filing.
    Also, am I right in believing that I should file a lwasuit of my own for their many procedural, etc., wrongs in the State Court in Riverside, California, and serve them and the place that they made their non-judicial filing at? I believe that I have to along with my filing get a “stay” order from the court when I create my papework and let them respond accordingly?
    Any good places to go to for forms for filing etc? That web site address is?

    Anything else you want to add or point me to would be helpful.

    Thanks,

    Don Kelly
    TEl: 951-243-7135
    Fax: 951-243-7166
    mbfna@earthlink.net

  5. Dama, just curious, you mentioned as pro se, I have seen forums and vids regarding successes in court right from the get go. what I have seen in common out of most of these cases with simple terminology stopping the judges in their tracks ,shutting them up or dismissing cases, hope these can show you what there are doing, Mary Croft and down loadable pdf book or live radio recording, Irene Gravehorst, and winston shrout,

  6. I have been fighting my foreclosure pro se. I have had several hearings and have observed the judge practicing law from his seat and he has blatantly tried to deny me my right to due process. Is it not the 5th amendment that states “NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF THE LAW”.
    A disposition has been entered by the Judge. I AM UNABLE TO VIEW MY FILE BECAUSE THE RECORD OFFICE SAYS HE HAS IT. I DO NOT WANT TO MISS ANY DEADLINES FOR FILING AN APPEAL. I AM SEEKING ADVICE ON HOW TO APPEAL AND TO DISCUSS MY CASE WITH SOMEONE VERY KNOWLEDGEABLE IN THIS MATTER. BROWARD COUNTY FLORIDA…

  7. Dear Rick,

    I would be glad to help with your foreclosure situation. I have represented banks in hundreds of foreclosure cases throughout Florida. Now I am working fighting back against the banks and using bank compliance officers to help me.

    Please call my office at (305) 350-5055 if you need assistance. You may also email me at jacobs@bpjlaw.net. My office is located in Downtown Miami. I look forward to helping you.

  8. Hello there,

    Can you assist with a case in florida?

    Please advise,

    Best Regards

  9. I like the way everything that these lenders are doing comes into question. As I understand it, thy can not use the holder in dues course defense for HOEPA claims.

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