Wells Fargo Steps on A Rake (We Hope) — EGGS — a New Country

And when that rakes hits them in the head, it will hopefully start a domino effect with the rest of the pretender lenders. OH Sup Ct – Wells Fargo Appeal

WF has decided to go for the brass ring by bringing an appeal from a case they lost. What they are saying to the Ohio Supreme Court is that if the borrower doesn’t raise the issue of “who owns the loan” early enough, they have waived it. They are also saying that when they finally record the assignment documents should have no effect on who can enforce the note and mortgage. Lastly, and most importantly they are really saying “this is the way we do things now and the courts must conform to industry practice even if it leads to unjust, inequitable, foul results.”All of this would have been considered a bad joke on a law school exam deserving an “F” for failure to have absorbed even the the most basic elements of Black Letter Law or even common decency. Now it is being treated as a real issue.

TRANSLATION: WF wants the Ohio Supreme Court to rule that ANYONE in the securitization chain can enforce the note and mortgage and that the effect on the marketability of title to the property and the clouding of title should be ignored. And they are saying they can do that without notifying, serving or suing anyone else in the securitization chain — even though WF never funded the loan, doesn’t have a dime in the deal and basically is using procedural devices the steal homes from unwary homeowners who do not have the legal expertise or access to to lawyers with sufficient understanding of securitization to oppose the obviously unfair and unjust result.

When we started this blog we predicted that the entire issue, in legal circles, would come down to whether the pretender lenders were successful in getting the courts to see only the individual transactions, rather than all the transactions in the securitization chain taken as a whole. In legal theory this is known as the single transaction doctrine or the step transaction doctrine. The basic test is whether the deal would have ever happened if all the parties knew what was going on. The answer is clearly “NO!”

  • Would an investor have knowingly invested cash into a pool where the loans were based upon obviously inflated property values that could not, would not and did not withstand the test of time (even a few weeks in some cases), NINJA (no income, no job, no assets, no problem) or were subprime borrowers with credit histories that were questionable?
  • Would investors have funded $800,000 for a bond (mortgage-backed security) where the proceeds were to be used for funding a $300,000 mortgage and the rest was kept for fees and profits? Who would buy something for investment where the moment they executed the paperwork they were taking a 60% loss? Never mind the fact that on the secondary market the bonds are selling for $.01-$.03 cents on the dollar. So what does that mean? They are either worthless, unenforceable or both. The mortgage and the note have been “separated” unlike what you have always heard about mortgages following notes and vice versa….the legal consequences of securitization are this…the note is at best unsecured and worst ….for the investor unenforceable.
  • Would borrowers have signed papers and put up their home for collateral if they knew about the inflated home values when they were depending upon the appraisers who were hired by the lenders?
  • Would investors have signed papers and put up the cash for the securitization chain if they knew about inflated securities values, bogus AAA ratings and security quality when they were depending upon rating agencies that were hired by investment banks who were the issuers of the bonds and insurance policies from companies insuring the potential default of the mortgages backing the cash flows that provided the return on the securities without  insufficient assets to cover the liability to pay in the event of a claim?
  • Would borrowers have signed papers knowing that the profit being made by intermediaries was as much or more than the amount of their loan? Obviously not.
  • How many borrowers would have knowingly signed papers and moved into a house from which it was certain they would be evicted? because the “lender” knew or should have know that mortgage would default with the first adjustment in payment…
  • This all occurred because Wall Street and all the intermediaries, banks, mortgage originators, mortgage brokers etc. kept the investor and the borrower from ever meeting or even knowing they existed.

Even if this tricky theory of WF was to be accepted arguendo, in order to have a complete adjudicate of all rights and obligations and in order to clear title and present a certificate of title that was marketable (not subject to being later overturned by claims of fraud on the court) ALL parties in the securitization scheme must be given notice and an opportunity to be heard. Just how well would some hedge fund like it if they received a notice from Wells Fargo or Countrywide or Ocwen or HSBC saying that there was a foreclosure going on, that the hedge fund was named as a defendant because their interest mortgages and notes they were told they had purchased were about to be extinguished and kept by an intermediary?

WF is trying to make the Ohio Supreme Court a party to fraud. Isn’t that why Countrywide was sued by Greenwich Financial et al? The investors were saying that Countrywide had no right to agree to short sales, modifications or anything else because the Hedge fund owned the loans not the servicer. This is not theoretical… it is actual. Why did “mortgage modifications” come to a halt last fall and early this year? Despite Obama and Financial Institution rehetoric about assisting homeowners and modifyin “millions of mortgages” the Greenwich vs. Countrywide suit “froze” all modifications because the parties, from servicers to “loan mod” companies claiming to assit borrowers have NO authority to modify the mortgage and would not act for fear of similar litigation. WF admits in its brief that the issue is multiple liability for the borrower because ANYONE in the securitization chain can sue, but says that doesn’t matter. Probably true. It doesn’t matter to these interlopers but it sure matters to the “borrower” and the “investor” (both of which could simply be regarded as VICTIMS). They are the only parties that stand to lose money or assets….READ: actually be damaged.

Of course the effect on title to the property is horrific. Think about it. You have a homeowner who is on the deed and upon foreclosure a certificate of title is issued to a party that was not named in the mortgage or deed of trust. You have a bondholder who has received a bond (mortgage backed security) listing the borrower and the security interest in the property as being conveyed to the investor. And it is all in the public record and public domain. You have a mortgage or deed of trust that when all the smoke and mirrors are cleared away says “we are going to pass the title around here to whomever we want and when we are good and ready we’ll tell you who has title.” So the notice of record declares that there will off-record transactions but that nobody can know until private parties declare the effect of those transactions. What they are advocating is the judicial act of ignoring the requirements of federal law, state law and common law.

Why don’t they just come out and say it like Dick Durbin, Senior Senator from Illinois said it “When it comes to banking, they own the the government.” They certainly used the government as their private bank account (TARP, Federal Bailout, U.S. Treasury bailout and credits, etc.). Why don’t we just come right out and say it — forget the constitution, forget the declaration of independence, forget the rule of law, forget federal legislation, executive agency rules, state laws and common law, we are now the Empire of Great Goldman Sachs.

And they are saying this is “industry practice” now. True, it IS industry practice and that is why the indsutry as a whole has put itself in the position of potential civil, administrative and criminal liability and sanctions. But up until the last few years any such practice would have have been properly condemned.

Everything is relative, a new “common industry practice” over a brief 5-10 years  is not what changes Black Letter Property Law, which for 200 plus years has been belonged to the states. Just because the banking industry quit crossing their T’s and dotting their I’s and devised a scheme, using their own proprietary, member based, electronic system(MERS) to avoid the various state and local taxes and fees dues states and counties for recording an interest in real property.

In a society of laws (not men) it is government that has the power to declare true title of record. It is only in a nation where we governed by the rule of privileged men instead of laws that we grant such powers to private entities and bind public branches of government to the edict of companies like MERS (Mortgage Electronic Registration Systems). EGGS seeks to complete its bloodless coup turning a republic into an oligopoly and unfortunately the Obama administration doesn’t seem to get it even though the citizens of this once great country see it clearly. If this doesn’t turn the rule of law on its head, I don’t know what does.

We can only hope that as these cases slowly move up the appellate process that all judges come to realize this is not an ideological issue it is a moral issue and a constitutional issue. We are under attack — even the people who don’t think they under attack. The most basic rights enunciated in the United States Constitution and the Declaration of Independence are being siphoned away. This is no longer about the people who have lost their homes or the people who are in the process of losing their homes. This is about the clear and present danger that any of us could lose anything we have by edict from the rich and powerful. If the Courts go along with it, we are doomed as a nation, as a society and as hope for the world.

The genius’ on Wall Street forgot that we are dealing with REAL property here and more importantly REAL people…and families. When we talk about “Black Letter Law” we are not just talking about circa last 200 years adopted from the English Lords where the issue of “standing”  came from….Go back to your Bible and read the Old Testament Book of Ruth….even Boaz took off his shoe and had 10 elders in the town witness the legal transfer of interest in real property from Naomi’s heirs so there would be no “cloud on his title” or one might say today that he “perfected his interest” in that property.  Wells Fargo’s argument is that a group of us in the mortgage industry came up with our own set of rules a few years ago and in recent history(the last 10 years not the last 100 years) it kind of became industry practice so ….we expect the courts ….after the fact to adapt to OUR standard….yeah right. Talk about a weak argument….it would get you an “F” in Law school…consequently the American public knows it doesn’t hold water.

Judges are you listening?

10 Responses

  1. […] WELLS FARGO PROVES OUR POINT IN OHIO: SUPREME COURT WON’T EVEN HEAR IT Posted on October 12, 2009 by livinglies SEE wells-fargo-steps-on-a-rake-we-hope-eggs-a-new-country […]

  2. It would seem the Ohio Supreme Court IS speaking. I refer to Wells Fargo v Jordan. there’s a link in this article to it… http://dannlaw.wordpress.com/2009/10/04/ohio-supreme-court-lets-wells-fargo-v-jordan-stand-foreclosure-plaintiffs-who-do-not-own-the-mortgage-at-the-time-of-filing-lack-standing-to-pursue-cases/ Enjoy!

  3. Couldn’t the Ohio Supreme Court refuse to hear this? It’s kind of a cowardly way to deal with this but if they refused to hear this, then the lower courts ruling would stay in effect and WF’s arguments would not be heard nor would there be a chance of the court ruling in WF’s favor. The Court is not required to hear this, right? In GA, they often refuse to hear cases. Some politically charged, some not.

    So, if the Ohio SC refused to hear this, that would be the end of this hogwash, right? Am I correct or am I missing something?

  4. These people and lawyers have no shame.

    Dear Mr. Garfield What can we do to promote the borrower’s case?

    Shall we write letters?
    To whom?

  5. If the cdo market trached their buckets of toxic mortgages and converted them to bonds to get the triple A ratings to be able to dump these new instruments on the world market, wouldn’t the note and mortgage simply have been converted in its form. Sam Adams uses the cup of water analogy…. how do you get the same cup of water back out of the pool? Can Wall Street have it both ways in securitization?

    Is “produce the note” defense stalling the inevitable even if the note truly was lost and has yet to be “found?”

    Was the note ever transferred physically beyond being sold to the pooling and servicing agreement?

    What about aiding, abetting, co-conspiracy and co-venture in the case of PROVABLE FRAUD by the lender? I have the case on WAMU, but JPMorgan claims no liability and they want “their” house back – tough luck for me… but they can’t find the note….

    Help! Pro Se, no more attorney money – two WAMU cases.
    I lose, I lose 20 years of hard work and playing by the rules…. and I lose everything.

  6. A question: All 4 in the Series Wells Fargo Asset Securities Corp, Wells Fargo Home Equity Asset-Backed Securities(Certificates)2005-1/2/3/4 “unsold on dealer shelves”, then turns up in the 1998 WFASC (formerly Norwest..)is that their “Bucket #3”? HSBC shows up as Trustee numerous times in the Filings search, does this create any “proof of agency”?

  7. Woops. I see now that this appeal was just filed June 5, 2009. My bad. Still, very troubling.

  8. So is it true that a case of this magnitude and potential far-reaching consequences for all of us is being argued before the Supreme Court of Ohio by financial behemoth Wells Fargo against a pro se litigant?!? What is currently going on with this case, which was filed in January 2009? Do the Appellees have counsel yet??? Has anything been put in to the Supreme Court by or on behalf of the Appellees?!? It seems that we should all be not only concerned, but directly supportive as well, perhaps with a fund?

  9. well said neil and thank you for your input. i think as a homeowners we should take drastic actions against the lenders, banks and other entity who tried to take our properties by suing them.. let’s bug our attorney general in every state about the “Fraudulent Transaction ” of securitization mortgages. let all the homeowners whose loan is under securitization back by MBA, CDO, REMIC, & ETC. my understanding some Pooling And Servicing Agreement (PSA) investor who bought the security certificate secured by the deed of trust has a wording WITHOUT RECOURSE meaning if the certificate the investor bought and the property owners defaulted the loan the investor cannot go against the securitizer who sold the certificate, in other words “buyers” beware. so if the investor who owns the certificate cannot go after the securitizer, the trustee can go after the borrowers and foreclose the house. so the profits goes directly to the trustee (banks) and it is the big loss for homeowers and the investors who actually put the money. i think the lawyers should know about this argument. if you raise the question who hold my original notes, you could ask the court also to produce a recorded copy an assignment of mortgage/ deed of trust and a recorded copy of Pooling And Servicing Agreement it says everything in that agreement. SEC has also provided a copy of both document aside from recording in the county record where properties are located. if assignment of deed is not recorded, i don’t think the trustee or the banks and lenders should have the standing to foreclosed until they have to show who really own the notes..

  10. My hope is that the Court see what you are saying , I for one don’t feel good about this , who ever has the gold makes the rules. The lobbyist for Banks own the Senate , it only a matter of time until they get the laws changed in their favor. ( I pray I am wrong on this .)

    We have President who laid down on cram down in BK , has done nothing to stop foreclosures and really stand up for homeowners. No change , pretty speeches that’s all.

    The media is clueless, and our courts are overwhelmed. Everyone is scared, confused and that is just how the powers that be want us to feel.

    ‘Buckle your seat belts everyone it’s going to get bumpy ”

    I hope for the best , but expect the worst.

    However I will never give up, will fight the good fight and spread the word .

    Thank you again Neil & Brad .

    Alan Baron

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