Why the SPV (TRUST) is NOT THE LENDER: Using MERS Against the Pretender Lenders

the use of nominees or straw men doesn’t mean they can be considered principals in the transaction anymore than your depository bank is a principal to a transaction in which you buy and pay for something with a check. The fact that the money was processed through your depository bank doesn’t make them party to the transaction.

In answer to the central question being asked let me first state the strategic error being made by lawyers and pro se litigants: you can’t prove what you don’t know and you will lose credibility if you make representations you cannot back up. You can make allegations based upon Google information or an expert witness affidavit but you must accompany it with an allegation that the pretender lenders won’t give you the detailed information required by law. Then they come in and try to pin you with the burden of proof saying that you can’t allege or prove the details of the transaction. They are right. You can’t provide that information because only they have it and they refuse to give it you.

Here is what you DO know:

  1. Nearly all loans are securitized and your loan appears to be one of the loans that was securitized, which means that in a number of steps through intermediary conduits, the obligation either was transferred or was attempted to be transferred to what ultimately became a group of investors who funded the subject loan.
  2. If you have an expert witness affidavit you have a witness who says that your loan was securitized.
  3. A securitized loan by definition means that the lender is the person(s) or entity(ies) at the top of the securitization chain — i.e., the “investors” who purchased bonds that were mortgage backed securities.
  4. Those investors meet the definition of lenders — they advanced cash with the expectation of getting it back with interest.
  5. There are multiple stakeholders who purport to either had or have claims relating to the obligation, note or encumbrance. This creates a conflict, a cloud on title and doubt as to what to do with these people or entities that purport to have rights to enforce an obligation that was clearly funded by a real lender which was not themselves.
  6. The identity of the lender(s) is being withheld on the basis of confidentiality or some other ruse or obstruction fabricated by the pretender lenders.
  7. Federal Law (TILA, RESPA) requires the servicers to identify the lender, the name of a contact person at the lender, their address and phone number. They must supply the documents that show the identity of the lender. And the lender is responsible for providing a complete accounting of all transactions involving all funds paid and received by the Lender with respect to this obligation — from all sources.
  8. Federal Law and local laws or rules require an effort be made to modify, restructure or settle competing claims on these securitized loans.
  9. It is impossible to name the correct parties in litigation and impossible to comply with Federal Law without disclosure of the identity of the Lender.
  10. Any entity that meets the definition of a lender or creditor appears to be absent from the proceedings.

So the pretender lenders have come back with a series of arguments as they move up the securitization chain. First they said it was MERS who was the lender. That clearly didn’t work because MERS lent nothing, collected nothing and never had anything to do with the cash involved in the transaction. Then they started with the servicers who essentially met with the same problem. Then got cute and produced either the actual note, a copy of the note or a forged note, or an assignment or a fabricated assignment from a party who at best had dubious rights to ownership of the loan to another party who had equally dubious rights, neither of whom parted with any cash to fund either the loan or the transfer of the obligation. Katherine Ann Porter and April Charney were early leaders in exposing this deficiency.

Now the pretender lenders have come up with the idea that the “Trust” is the owner of the loan and that the Trustee is the proper party to represent the Trust and that therefore the Trustee has the power to enforce the obligation, the note and the encumbrance (mortgage or deed of trust). They first tell us that although MERS was named as nominee only and was not the lender even though it was named the beneficiary or mortgagee. Then they tell us that the Trustee and the “Trust” even though it is just a nominee (just like MERS) is the sole owner of the loans and that the real parties in interest (i.e., the investors who were the source of the cash) somehow don’t count. They can’t have it both ways.

My answer is really simple. The lender/creditor is the one who advanced cash to the borrower. The money used by the homeowner at closing when the homeowner purchased the loan product from the originating seller (pretender lender, actually a mortgage broker unregulated and unregistered) came from the Lender (investor). Therefore the investor is the lender. And the use of nominees or straw men doesn’t mean they can be considered principals in the transaction anymore than your depository bank is a principal to a transaction in which you buy and pay for something with a check. The fact that the money was processed through your depository bank doesn’t make them party to the transaction.

The pretender lenders do not want you to “meet” your Lender(s) (investor(s)). If you do, and compare notes, they will know that they gave an excessive amount of money that wasn’t really used entirely to fund mortgages and that the loans were structured in pools that were guaranteed to fail providing the underwriter, not the investor, with a windfall from the trigger of credit default swaps. The obvious answer is that if you meet your Lender (investor), you can restructure the loan yourselves and then jointly go after the pretender lenders for all the money they received and didn’t disclose as “agent” or nominees for either the homeowner who purchased the financial product consisting of a loan product with a promissory note and an agreement for encumbrance nor the investor who purchased a financial product consisting of a bond, deriving its value from the note executed by the homeowner, but which was insufficient on its face to actually cover the amount invested by the investor.

You will probably find that the trust has been dissolved or that the distribution reports provided by the CDO manager for the underwriter (investment bank) tell a very different story than the one being represented in court. The SPV (Trust) is a REMIC which is a conduit that keeps nothing. It might have the documents as a nominee but that merely makes them a records custodian, since the Trust clearly has no right to keep the money. In fact in order to maintain its status as an entity that has no tax “events” it CAN’T actually own anything or have any income, losses, assets or liabilities. Ask for a copy of the the financial statements and ledgers for the Trust and watch them go nuts.

43 Responses

  1. It is all about the spv trust is note the lender using mers against the pretender lenders blog summary..thanks to share it..please keep sharing..

  2. It is impossible to name the correct parties in litigation and impossible to comply with Federal Law without disclosure of the identity of the Lender.

  3. That’s a nice pic of luxury home like dream home….thanks for share it with detail..

  4. That’s great article of lander and the tips…..thanks for it…

  5. […] can assign nothing, and the chain of title has been irretrievably broken. As foreclosure expert Neil Garfield traces these developments: First they said it was MERS who was the lender. That clearly […]

  6. […] it can assign nothing, and the chain of title has been irretrievably broken. As foreclosure expert Neil Garfield traces these developments: First they said it was MERS who was the lender. That clearly […]

  7. […] it can assign nothing, and the chain of title has been irretrievably broken. As foreclosure expert Neil Garfield traces these […]

  8. […] can assign nothing, and the chain of title has been irretrievably broken.  As foreclosure expert Neil Garfield traces these […]

  9. […] it can assign nothing, and the chain of title has been irretrievably broken. As foreclosure expert Neil Garfield traces these […]

  10. […] can assign nothing, and the chain of title has been irretrievably broken. As foreclosure expert Neil Garfield traces these developments: First they said it was MERS who was the lender. That clearly didn’t […]

  11. usedkarguy

    OK – I am lightened up!!

  12. anonymous, lighten up! That was a compliment!

  13. Deontos

    Thanks. I am really a nice person and would never want to offend anyone.

    Been around this stuff for way tooooo long – need a vacation from it!! But It just eats away at you.

    I appreciated your response.

  14. Anonymous,

    I am just going to have some fun **guessing** the mind of msoliman……

    I think he is saying to you, That you and him are thinking exactly alike. So much so that you must have somehow looked into his computer hard drive to see something he wrote(A euphemism perhaps of sorts). The reference to “Kop” I think is a PUN, because of the connection to law enforcement and the frequent livinglies blog poster and ATTORNEY who’s last name is Kop.

    I am sure he will correct me too if he deems it needed. But it was a COMPLIMENT regarding your astute observations that he had “cited”.

  15. expert witness/Soliman

    What are you talking about?

  16. “ANONYMOUS said: that under securitization only current payments can be passed-through. Thus, foreclosures are charged off and removed from trust by derivatives or by direct sale of collection rights. There can be no legal title to charged-off loans – only transfer of the right to collection. Legal title to homes is not acquired until after homes are sold at foreclosure auction.

    SOLIMAN said: Hey BK Counselor; Can I have my hard drive back you stole…before i call a Kop! Amazing!

  17. Cannot act further right now and cannot discuss. Everyone should be filing complaints with state Attorney General. Enough is enough.

  18. anonymous, I have a contact at DOJ in washington.
    Can’t post here, but if you e-mail me I’ll e-mail it back. I have a contact at Comptroller of the currency monitoring a case I sent to Customer Assistance Group in McKinney, TX. WIsconsin Department of Financial Institutions blew it off to the Attorney Generals’ Office. Maher told me 8 month’s ago about the FDIC being stymied by prospect of total insolvency of the “bionic banks” if the truth was ever acknowledged, the inaction here only reinforces his announced suspicions.

  19. Agree. Just got off phone with government agency (cannot say) – had half hour conversation. All government agencies care about is the investors. Told there would be no investors if there are no consumers. Everyone wants to have another agency help. There is no real agency for consumer – OCC is worthless. All of these problems are for the Department of Justice – and what are they doing????? Nothing, I am sure

  20. Anonymous: This is the defense that John (oliver@ipa) has mentioned. This is exactly the point I would like to make to a federal judge instead of a county/state court judge (If I am allowed)via appeal. My trust was all Wells Fargo except for the Securities Underwriter (read buyer and reseller)CitiGroup Global Markets, which took a $62BILLION writedown. Bear Stearns was the counterparty. They’re gone and acquired by JP Morgan Chase The actual loan shows up in an SEC Statement for a Wells Fargo Trust that was formerly a Norwest Asset Securities Corp trust. This is the “bucket #3” that they talk about. These are the bogus SECURITIES they gave up in TARP, AFTER THEY HAD BEEN WRITTEN OFF AT PLACES LIKE CITIGROUP AND THE EUROPEAN/ASIAN BANKS THAT WERE PAID (secretly) by AIG. The enforcement truly does lay at the feet of the FDIC, and if the FDIC is there telling the banks that this IS THE WAY TO CLOSE OUT THESE OFF-BALANCE-SHEET SPV’s, then they are in on the deal. Period. end of story.

    Now read this little diddy that came to me via “Market Watch”:

    Ladenburg Thalmann analysts started coverage of Bank of America /quotes/comstock/13*!bac/quotes/nls/bac (BAC 16.77, +0.15, +0.90%) , JP Morgan /quotes/comstock/13*!jpm/quotes/nls/jpm (JPM 44.56, +0.31, +0.70%) and Wells Fargo /quotes/comstock/13*!wfc/quotes/nls/wfc (WFC 29.04, +0.46, +1.61%) , all with a buy. Firm calls them “bionic” banks. The banks are likely to perform with growth investments, dividend increases and share buybacks after their TARP-related capital raises, the analysts said. “In our opinion, BAC, JPM and WFC will be the end-game winners” of the financial crisis.

    There you go! They have gone from criminal enterprises to “bionic banks”.

    And now I’m going political: all this health care crap is the smokescreen for this “scheme” to continue. The media is happy to ignore this issue for as long as they can.

  21. Prayers for the Haiti earthquake victims.

  22. Here is the question – and no one appears to be able to answer. Would appreciate an answer from someone.

    In the process of securitization, mortgage loans are removed from security underwriter balance sheets and converted into securities by an accounting conversion process. Only an entity that is able to convert mortgage loans into securities is required to now report these loans (converted into securities by off-balance sheet conduits) on their current balance sheet – whether or not it take 2 days or 6 months to actually record the true accounting.

    I want to know why mortgage assignments exclude sale of of loan to security underwriter who converted (purchased) loans into securities for placement in an off-balance sheet conduit – such as ABCD Series 2007. Clearly, the mortgage loan had to be first sold before any securitization (or trust set-up) occurred. The loan was converted (by accounting gimic) to a security, which is now held by a trust for the pass-through of current payments (only current payments can be securitized).

    So, if this process occurred in the translation of mortgage loans into securities held in trusts, where are the assignments/sale of the original loan to the security underwriters? Only the purchasing security underwriter could manipulate a conversion of the loan into a security via the purchase of the original loan. This has caught the eye of certain judges – but not enough.

    Conclusion – no securitization can occur – or assignment to trust/trustee – without first a sale of the mortgage loan to the security underwriter (loan purchaser). Where are these sale/assignment documents?? Who was the party that accomplished the accounting conversion of the loan into a security??? On whose balance sheet does the actual LOAN really belong?????

    Heard new Bank of America CEO – Moynihan – questioned today regarding origination of subprime mortgage. Questioner states that Ken Lewis has stated before Congress that Bank of America ceased originating subprime mortgages sometime ago. Questioner also stated that Mr. Lewis failed to explain to Congress that Bank of America purchased the subprime originations for securitization (conversion of loans into securities).
    Just read about a case in Maryland that judge tosses out foreclosure complaint because Bank of America says they have nothing to do with the Countrywide loan (the loan was sold to Countrywide). Thought Bank of America was obligated to modify any Countrywide originations or purchases – at least until some “investors” (really default debt buyers) challenged this in NY.

    Further, did your mortgage loan even make into any Trust, was it ever conventionally securitized, or was it securitized as a “scratch and dent” by removal from any original earmarked trust?? Where are the assignments/sale of the loan under either scenario????? And, if loan was in default, even the purchasing securitizer has sold it to a distressed debt buyer – by removal from any trust -required since securitization is only for CURRENT payments- whether by off (gimic) or on corporate balance sheet record.

    For all you first time home-buyers – who think you are getting a great deal on tax credit – check your chain of title. Your chain of title is flawed – or “clouded” as they say in the industry.

    Also, cannot understand why an inflated loan for say $600,000, on a home now valued at $250,000, is still required to be paid (or foreclose), when the bank, security underwriter purchaser, has received a tax write-off – and taxpayer bailout for the tax write-off. Short sale and foreclosure accomplish the same thing as a principal reduction – the home is devalued to the current market price. Only the current homeowner is left homeless with sale to a first time homebuyer – who gets a home at a great price with a tax rebate. What has happened to America?? What has happened to courts??

    Congress admitted today – that they know little about the whole process. Maybe that is why they continue to foreclose America. Should not be enough for us for the ‘poor’ CEOs to stand up in Congress and say “I am sorry.” Anyone have a suggestion? Have to start New Year better. No one person can do it alone – despite any individual battle.

  23. Appears that usedkarguy is right. FDIC gave some breathing room to financial institutions on Dec. 16, 2009. However, this does not mean that the QSPEs are valid. Financial institutions were simply given transitional time to bring the QSPEs onto balance sheets by accounting records and regulations. Thus, this is simply a transitional period to record the transfer of the QSPEs. The financial institutions have six months to start and 12 months to complete accounting records.

    QUOTE

    “The agency’s final rule gives banks the option of excluding risk-based capital and allowances for lease and loan losses related to RMBS, CMBS, and other securitized loans for the first two quarters of next year. Banks can use the next two quarters as a phase-in period, in which they are allowed to include only 50 percent of their securitized assets in risk-based capital and loss reserve calculations.”

    Guess this may also mean delaying in court for as long as possible to allow for accounting record to complete..

  24. I thought the bank lobbyists were successful in delaying these changes?

    From DSNews 12/19/09:

    The FDIC finalized a new regulatory capital rule Wednesday that will give lenders who package and resell mortgages and other loans a little breathing room when it comes to accounting for these assets on their books.

    The federal agency’s rule directly addresses the Financial Accounting Standards Board’s (FASB) adoption of FAS 166 and 167, which beginning January 1, 2010, move most securitizations – including residential mortgage-backed securities (RMBS) and commercial mortgage-backed securities (CMBS) – back onto the issuer’s balance sheet.

    For years, banks have been able to sell bundled mortgages in the secondary market and essentially pass the debt and the risk associated with it off to investors. While this approach gave banks additional liquidity to make more loans to consumers and businesses, many pundits argue that it was the dirty little secret that ultimately brought the financial system to its knees because it fostered unsound lending practices since the loan originators weren’t retaining any of the risk.

    The move by FASB to institute FAS 166 and 167 was a direct push-back to Wall Street banks to help reign in the lax lending practices that sent the economy into a tailspin, but the financial institutions that peddle in the secondary market argue that the additional capital requirements that come with the new accounting rules could foil the beginnings of an already fragile recovery and make credit even tighter.

    Banks have been lobbying for a three-year transitional period to phase in the new accounting directives for securitized assets. **The FDIC gave them 12 months.**

    “I believe this rule moves in the right direction and will reduce the likelihood of a recurrence of some of the problems we have experienced in the financial and securitization markets,” said FDIC Chairman Sheila Bair. “The capital relief we are offering banks for the transition period should ease the impact of this accounting change on banks’ regulatory capital requirements, and enable banks to maintain consumer lending and credit availability as they adjust their business practices to the new accounting rules.”

  25. Deontos – thank you

    I wonder if financial institution are getting a reprieve from FASB 166 and 167. “Qualifying Special Purpose Entities” are the SPV “Real Estate Mortgage Investment Conduits” (REMICs).

    FASB 166 and 167 Set to Go Into Effect: New Rules Will Impact Loan Participations

    December 23, 2009

    The New Year will mark the beginning of a new accounting regime for securitizations and special purpose entities. Starting on January 1, 2010, financial institutions ending their fiscal year on December 31 will be required to abide the standards set forth in recent amendments to Financial Accounting Statement Nos. 166 (Transfers of Financial Assets) and 167 (Amendments to FASB Interpretation of No. 46(R)). (The amendments will be effective for financial institutions with a fiscal year end other than December 31 at the start of the institution’s first fiscal year beginning after November 15, 2009.)

    Statement 166 revises Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities. For most financial institutions, the key aspect of Statement 166 relates to the accounting treatment of loan participations. Statement 166 will prohibit an institution that sells a loan participation from removing the participation interest from its books unless the participation is sold on a strictly pro rata basis, as to both payments and default.

    Participations not sold on a pro rata basis will be considered secured loans and will remain on the institution’s balance sheet, leading to possible violations of legal lending limits and increasing the amount of capital and loan loss reserves that financial institutions must hold.

    Statement 166 will also require financial institutions to report more information about transfers of financial assets, including securitization transactions and other transferred financial assets for which the institution continues to hold risk exposures.

    Statement 166 also eliminates the concept of a “qualifying special-purpose entity.”

    Statement 167 will require financial institutions to provide additional disclosures about its involvement with variable interest entities and any significant changes in risk exposure caused by such involvement. Institutions will also be required to discuss the impact of this additional risk exposure on the institution’s balance sheets.

    Statement 167 revises FASB Interpretation No. 46(R), Consolidation of Variable Interest Entities, and changes how financial institutions determine when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. Among other things, the decision to consolidate in accordance with Statement 167 is based on the entity`s purpose and design and a company`s ability to direct the activities of the entity that most significantly impact the entity`s economic performance.

  26. Anonymous,

    I have published the section you identified to “scribd”

    X_http://www.scribd.com/doc/24917033/Federal-Reserve-System-12-Cfr-Part-226-Regulation-z-Docket-No-R-1378-Truth-in-Lending-e9-27742

    with the following “Caption”:

    =========================
    To bring better understanding to WHO the “real parties in interest” are in loan securitization.

    To use document excerpts for identifying “the creditor” officially in QWRs.
    =========================

    I have also referenced your two posts here regarding the document.

    I hope to encourage others in the livinglies cohort to go there and read
    the relevant sections and post back here at livinglies; hopefully conclusions and further advice in how to strategically use this VITAL clue you have so generously contributed.

    To EVERYONE, this could hold secrets in PLAIN sight. A lot of folks here will see connections I have no idea of. When time permits I’d sure like to hear back!

    Anonymous, you have been AWOL. Stop That! We need you here posting 24/7. So from now on you have to quit sleeping and just keep contributing these invaluable insights.

    Really though, Thank you!

  27. Read the section under “Mortgage Transfer DIsclosures”.

    Remember that under securitization only current payments can be passed-through. Thus, foreclosures are charged off and removed from trust by derivatives or by direct sale of collection rights. There can be no legal title to charged-off loans – only transfer of the right to collection. Legal title to homes is not acquired until after homes are sold at foreclosure auction.

    Investors in “pass through” or “Real Estate Mortgage Investment Conduits (REMICs) have only a “beneficial” interest in the loan “pool” pass-through, and therefore do not hold mortgage title on their balance sheets. The Federal Reserve is clear as to definition of creditor (covered person) under the TILA amendment interpretation.

    The party who will write-off mortgage loan on their balance sheet is creditor (covered person) according to TILA Fed Res opinion. If collection rights are sold (write-off accounts cannot be sold) then that party is current creditor to whom the debt must be paid. At this point the SPV has nothing do to with the loan – it is written off – gone – but the right to collect remains – need to know with whom since trustee/trust no longer has it.

  28. Anonymous,

    Is the specific defining paragraph?
    _____________________________________________________

    FEDERAL RESERVE SYSTEM
    12 CFR Part 226
    Regulation Z Docket No R-1378
    Truth in Lending E9-27742
    X_http://edocket.access.gpo.gov/2009/pdf/E9-27742.pdf
    SEE PAGE: 60144

    II. SUMMARY OF THE INTERIM FINAL RULE
    Consistent with the legislative intent,
    this interim final rule implements
    Section 404(a) of the 2009 Act by
    applying the new disclosure
    requirements ****to any person or entity
    that acquires ownership of an existing
    consumer mortgage loan**** ,
    whether the
    acquisition occurs as a result of a
    purchase or other transfer or
    assignment. A person is covered by the
    rule only if the person acquires legal
    title to the debt obligation. Although
    TILA and Regulation Z generally apply
    only to persons to whom the obligation
    is initially made payable and that
    regularly engage in extending consumer
    credit, Section 404(a) and the interim
    final rule apply to persons that acquire
    mortgage loans without regard to
    whether they also extend consumer
    credit by originating mortgage loans.
    However, the interim final rule applies
    only to persons that acquire more than
    one mortgage loan in any 12-month
    period.
    _____________________________________________________

    I am referring to the “DEFINITION OF CREDITOR” for QWR preparation you suggested on your post:

    “ANONYMOUS, on January 6th, 2010 at 4:20 pm Said:

    Try including your request to identify the actual creditor in a Qualified Written Request. Use the Federal Reserve Interim Opinion for May 2009 to support the definition of ****”creditor”**** . Emphasize that the creditor is the entity who currently reports your mortgage on their accounting balance sheet. Let them know that a creditor is NOT a mortgage servicer, trust or trustee – and is not security holders (many times leveraged with derivatives) in asset-backed trusts (this is only for pass-through of cash payments). You have a right to know who will write-off your mortgage loan if there is a foreclosure action. ….”

  29. No

    Search “Federal Reserve” and type in “public comments” in the search box. Click on “Regulation Z – Truth in Lending R-1378” and review.

  30. http://www.federalreserve.gov/reportforms/supplemental/SI_FRY9_200903.pdf

    Here is the PDF anon was talking about

    its about 16 pages

  31. Try including your request to identify the actual creditor in a Qualified Written Request. Use the Federal Reserve Interim Opinion for May 2009 to support the definition of ‘”creditor”. Emphasize that the creditor is the entity who currently reports your mortgage on their accounting balance sheet. Let them know that a creditor is NOT a mortgage servicer, trust or trustee – and is not security holders (many times leveraged with derivatives) in asset-backed trusts (this is only for pass-through of cash payments). You have a right to know who will write-off your mortgage loan if there is a foreclosure action.

    Awhile ago, I emphasized to the press that if foreclosures are being pursued at the current “market value” of the homes, and that is all the bank can make on the foreclosure, then why not simply reduce the principal to the in-line current market price of the home for the current homeowner? The press agreed, but nothing was nationally reported. Just the other day, an anchor on major business network was presented with the same question. The anchor (an investor-sided advocate) was tongue-tied – he did not know how to answer. This is the major problem for many homeowners – those that are under-water – owing more than home is worth. The foreclosure will only reap the bank (who holds mortgage loan on balance sheet) the current market value of the home. Thus, numerous homeowners are simply giving their homes away to other “first time home buyers” – who get a tax write-off. What the heck is going on??? How are we allowing our government to get away with this???? Especially since many of these original mortgage were written under inflated appraisals and fraud (RESPA violations).

    The “investors” do not make out with foreclosures – they get the same whether the home is foreclosed or if the principal is written down for the current home owner (actually get more with the interest).

    All of this is happening – and without identification of the actual creditor/lender/whatever else you want to call them – who holds your mortgage on their balance sheet.

    I am not in foreclosure and not “under-water” – I am just very disturbed about what is going on.

  32. Can this be written up as a Qualified Written Resquest??

    Thank You

  33. ANONYMOUS,

    Good to see you are still around…

    4closureFraud

  34. Anonymous,

    That SPV – TILA – REMIC – FASB post was very informative. I think I even understood most of what you said. As I am the “Grasshopper” who has just learned to JUMP. Which means I sure as heck don’t know how to fly yet. Could I ask of you a “small” favor?

    Could you write all that up as a “Cause of Action” for a legal brief that would arouse “judicial anger” directed at the “Pretenders”?

    It wouldn’t have to be legal advice to a “Grasshopper” like me. I mean maybe you could say how you already have used it or already seen somebody else use it. NOT LEGAL ADVICE, just hearsay or something.

    Tkjueli
    (That’s Grasshopper lingo,
    NOT legal lingo;
    means: “humble thanks”.)

  35. I just looked at this article again. The last paragraph is excellent. The SPVs have been dissolved due to the interference by the security underwriters to support capital during the financial crisis. Problem with the beginning is that the Federal Reserve issued an Interim Opinion (November 2009) regarding the May 2009 TILA Amendment for disclosure of the actual mortgage/note owner to the borrowers The Federal Reserve clearly states that Investors in pass-through and REMICs are NOT the owners of the mortgages – and not the “Creditor” under TILA Amendment definition for owner/credtor (covered person) to be disclosed to the mortgagor.

    In addition, new rules to FASB 140 – Rules 166 and 167, state that off-balance sheet conduits must be brought back onto the balance sheet of the Bank/Financial Institution that now must account for them. Thus, the corporation that set up the off-balance sheet conduit must now account for removed mortgages. If this entity is now dissolved, the entity with the largest beneficial interest must account for the mortgages-notes in the off-balance sheet conduit.

    Together, the Federal Reserve Interim Opinion for TILA Amendment and Accounting Rules 166 and 167, will make it extremely difficult for the actual owner of the mortgage/note to continue to conceal it’s identity.

    Lastly, although the security underwriters, under SEC documents, purchase the certificates to the SPV trust, the security underwriters also had to purchase the mortgages/loans in order to securitize them. This means that the sale of the mortgages/notes to security underwriters is missing in the chain of title. The security underwriters, large bulk purchasers of the mortgages/notes, will now have to place these mortgages/notes (securitized in off-balance sheet conduits) back onto their balance sheets (Wall Street also converted mortgage/loan purchases into securities which will also have to be now reported on balance sheets). This will cause capital requirements to increase to the Wall Street security underwriters. This will be a big problem in 2010.

    Ask the entity that is foreclosing your home to demonstrate that your mortgage/note is accounted for on their financial accounting statements. No servicer, Trustee, Trust, or MERS, will be able to honor your request.

  36. I will be speculating here, but it may seem to me that these people and their attorneys used all the right laws but in all the wrong ways. Why complicate your pleadings if you have no sufficient info. I am pretty sure they may have not even used RESPA, and the compelling of proper discovery as a tool in their case.

    Why not go through a quiet title action here from the get go and amend your complaint as the parties start fighting with each other.

    But if they did everything right, there are judges that do not want to hear it at all. Well these people still have the appellate court and they should most likely appeal. But they need to further review and consult their pleading.

  37. Interesting, the captioned story (below) posted yesterday hasn’t made it to the national newswires yet? I was sure appreciative to be informed. We need to be cognizant of the good, the bad and the ugly of this ongoing crisis.

    ——————————————————————-
    CAPTION:
    “ny, on October 13th, 2009 at 5:24 pm Said:

    Residential Mortgage Lenders Victorious in Challenge to MERS Mortgage Recordation System”
    ——————————————————————-

    However, a Google search for the Headline, “Residential Mortgage Lenders Victorious in Challenge to MERS Mortgage Recordation System” brings up ONLY a reference to an apparent PRESS RELEASE by a “Pretender Lender’s” law firm.

    If I had access to PACER I would go see what the case file says
    about events cited in this PR piece.

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
    GOOGLE SEARCH RESULT:
    Ballard Spahr Legal Alert
    Residential Mortgage Lenders Victorious in Challenge to MERS Mortgage Recordation System. by the Consumer Financial Services Group …
    http://www.ballardspahr.com/…/2009-10-09_mersmortgagerecordation.aspx – Cached – Similar –
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    One thing is VERY CLEAR. This piece is only telling ONE SIDE OF THE STORY. It is obviously promoting only the **success** of the DEFENDANT and never even mentions the merits of the plaintiffs case.

  38. ny

    it sound rt now like the pleadings in those cases lack teeth and or not throughly enough pled. sorry …

  39. Residential Mortgage Lenders Victorious in Challenge to MERS Mortgage Recordation System

    I wonder wonder WHO appointed this judge to the Bench?
    This was an outright hangin’ in my opinion. NO MENTION
    IN THIS ARTICLE of the actual Kansas and Arkansas
    decisions………DISGUSTING.

  40. Residential Mortgage Lenders Victorious in Challenge to MERS Mortgage Recordation System

    OCTOBER 9, 2009
    The financial crisis has brought with it a flood of lawsuits filed against mortgage lenders by borrowers facing imminent foreclosure. Ballard Spahr lawyers recently won a significant victory for its clients in one such case.

    On September 24, 2009, the U.S. District Court for the District of Arizona, in Cervantes v. Countrywide Home Loans, Inc., et al., dismissed all the federal and state law claims made by three such borrowers in a complaint filed against a group of defendants that included their mortgage lenders.

    Two plaintiffs had obtained their mortgage loans from First Franklin and the third from Countrywide Home Loans. The deeds of trust securing each loan named the Mortgage Electronic Registration System (MERS) as beneficiary. In their complaint, the plaintiffs alleged violations of the Truth in Lending Act, Real Estate Settlement Procedures Act, Home Ownership and Equity Protection Act, Fair Housing Act, and Arizona Consumer Fraud Act, and asserted state law claims for conspiracy to commit fraud and conversion and intentional infliction of emotional distress.

    The use of MERS by the mortgage industry to track mortgage ownership rights is being challenged in numerous cases, including class actions. The plaintiffs had alleged that the MERS system constituted a conspiracy under Arizona law to commit fraud through the “sham” naming of MERS as beneficiary on deeds of trust. In addition to rejecting the plaintiffs’ characterization of MERS’ beneficiary status as a “sham,” the court observed that the MERS system did not impact the plaintiffs’ loan obligations and that plaintiffs had not alleged that it affected their decisions to enter into the loans.

    On behalf of defendant National City Bank, Ballard Spahr lawyers also successfully argued that all claims based on First Franklin’s lending practices should be dismissed as to the bank for lack of standing. The court agreed that the plaintiffs had failed to show participation by the bank in originating any of the loans and could not hold the bank liable based solely on First Franklin’s status as a bank division or subsidiary.

    Except for the HOEPA claim, which was withdrawn, all of the plaintiffs’ federal law claims were also dismissed as to the remaining defendants. The TILA and FHA claims were both dismissed as barred by the applicable statute of limitations, and the RESPA claims were dismissed on multiple grounds, including the absence of a private right of action for the defendants’ alleged violation of the requirements to provide a settlement statement, a special information booklet, and a good faith estimate of settlement costs and the plaintiffs’ failure to allege any damages resulting from the defendants’ alleged violation of the requirement to provide a notice of its transfer of servicing practices.

    The plaintiffs’ other state law claims fared no better. The Arizona CFA claim was dismissed on statute of limitations grounds, and the claim for intentional infliction of emotional distress was dismissed for failing to allege any conduct “beyond all possible bounds of decency,” necessary to establish such a claim. Finding that the plaintiffs had failed to specifically allege sufficient facts showing that the defendants had reached an agreement, the court dismissed their conversion claim, alleging that the defendants had conspired to deprive them of their property.

  41. Neil-again thank you.

    Could we use ‘unjust enrichment’ here against the pretender lender?

  42. This article is brilliant!! WOW

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