Livinglies's Weblog

From M Solimon: {Editor’s Note: Lots more here than meets the eye. You want to know what ledger entries were made by each entity and by what individuals and under whose supervision or instructions the entry was made. Besides being able to trace the holder in due course you will probably eliminate most of their claims by their own “admission” by how they accounted for the transaction — and how they paid taxes on these transactions. For example, if an entity claims to have received an assignment, what did they receive, where is the assignment, and what were the agreements (Assignment and Assumption Agreement, Pooling and Service Agreement etc.) that accompanied the assignment. If the “handling” of the transaction shows up as a zero balance transaction on the balance sheet (or does not show up at all on the balance sheet) under assets and liabilities, and if the transaction shows up as a service transaction in which the entity took a fee and reported it as income, including the “gain” on sale, then you know this was merely a conduit with no claim to the note, mortgage or obligation. For them to take a contrary position would be to say they lied in their annual reporting to the SEC and they lied to the IRS on their tax return. They may also have forfeited their REMIC (tax-free) status, which could mean that they owe Uncle Sam money on “Gains” that were passed on to other entities. Ledger entries from the mortgage broker, appraiser etc. along with agreements concerning fees and correspondence will tell a similar story of undisclosed fees. Just asking for them will likely lead to early settlements with the errors and omissions carriers. }
Counselors,

A logical, traceable public record and chronological orderly chain of assignments is required to tract the transfers of an asset. The transfer, to be arms length, should conduct itself with consideration amongst parties and a clear intent as to benefit of each of the parties (no material misrepresentations).

Basis accounting under FASB rules and regulatory demand mandate proper accounting for companies and using gain on sale accounting methods. The assignment can be documented for tax reporting purposes from ledger journal entries by the purchaser and seller.

The 2007 Decision by a federal Judge stopping 14 foreclosures in Ohio was because the actual mortgage notes could not be produced in court. If the Lost Note is in fact really displaced, there will also be a lost attached endorsement, Notary Jurat and missing corporate assignments. The missing assignment if delayed and not verified by a recording will make a dispute difficult to prevail after transfers are alleged. It will not be hard none the less for the Juris Pro expert to locate the notes where I expect to find it if allowed under a subpoena. Boyko 2007 Foreclosure Decision — Deutsche Bank Nat’l Trust Co. v. Steele, 2008 WL 111227

UCC SECTION 3-309 qualifies arguments addressing a missing note, under UCC §3-309. California law does not provide the same simple solution. Under the UCC provisions a party entitled to enforce an instrument which has been lost, destroyed or stolen may enforce the instrument. If the court is concerned that some third party may show up and attempt to enforce the instrument against the payee, it may order adequate protection. However, Parties seeking to enforce a missing instrument must be a person entitled to enforce the instrument, and that person must prove the instrument’s terms and that person’s right to enforce the instrument. §3-309 (a)(1) & (b). To represent MERS as beneficiary or other interests in a lawful assignment at closing and through subsequent assignments is solely to shelter the FSB using multiple combinations known as SPV’s.

Regulatory requirements imposed by the IRS for avoidance of a debt structure, supporting a bankrupt insulate entity enable the Special Purpose Vehicle (SPV) to insulate the platform from federal regulatory restrictions imposed upon a Federal Thrift (see 1989 – FIRREA) Therefore you are working around the FSB or Thrift exempt from participating in high yield and high risk commercial lending or the equivalent known as Sub Prime. FIRREA created two new deposit insurance funds. It abolished the Federal Savings and Loan Insurance Corporation (FSLIC); the fund originally administered by FSLIC became the Savings Association Insurance Fund (SAIF). It also created the Bank Insurance Fund (BIF).

Both of these funds were to be administered by the Federal Deposit Insurance Corporation. This section of FIRREA was amended by the Federal Deposit Insurance Reform Act of 2005, which consolidated the two funds. Critics of FIRREA assert that, rather than respond effectively to the S & L crisis, the act actually exacerbated the crisis and made it a true disaster.

Questionable third party, less than arms trustee sales (California) by financial institutions, after a rush to foreclose, and where obtaining a default judgment after MERS has sat on the deed is wrong. MERS Execs who want to challenge this Juris Pro Expert are forewarned – I will demonstrate why you cannot prevail here.

M Soliman

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, MODIFICATION, Mortgage, securities fraud, Servicer | Tagged: borrower, disclosure, foreclosure defense, foreclosure offense, fraud, Lender Liability, lost note, predatory lending, rescission, RICO, securitization, TILA audit, trustee |