MERS and Countrywide v Agin Trustee D Ct Mass Aff’d B Ct on Avoidance Mtg 20091117

NOTE FROM EDITOR SEEKING HELP: Rumor has it San Diego has stopped all foreclosures. I need this corroborated or debunked quickly. Can I get a little help here?

The case in this POST comes out of Massachusetts where the cases are not quite stopped, but almost so — AND where property title insurance companies are NOT underwriting ANY policy that covers a home whose mortgage was securitized.

Many thanks to MAX GARDNER for this case and best wishes for his speedy recovery. He’s one of the titans of this movement. we want him around!

The primary point that needs emphasis here is that as you read this case you will see that if you give the Court something SOLID to hang its hat on, you can get the results you want.

The mistake being made repeatedly out there is simple: either the homeowner or the lawyer goes in with a legal argument addressing the conclusions of the case instead of directing the Judge’s attention to the beginning of the case — discovery, motions to compel, TRO etc. based upon discovery requirements.

The obvious requirement that you need to know in your mind what you are talking about it so you know the significance of the issue legally seems to  have escaped all but a few lawyers. Many lawyers are taking half baked “audits” going to court and making legal arguments about a report they have not read, do not understand and which does not contains all the elements needed anyway.

You must educate the Judge not lecture him. You must NOT rely on securitization in your preliminary arguments because it sounds like legal maneuvering to get out of a legitimate debt.

Unfortunately these mistakes are being made even by people who have attended our survey courses. So we are expanding our offering by adding DVDs, Boot Camps and home study.

Our own efforts at providing forensic review and expert support to lawyers has been challenged by the growing demand vs manpower limitations. Consequently, we will embark on efforts to increase the bandwith or resources in terms of people through educational programs. We will then start to refer cases to forensic analysts and lawyers.

We  are starting courses to train, and certify forensic analysts who pick up even the most minute flaw in a document — like a document you you know in your heart is fabricated and forged but feel intimidated by the process of proving it.

In conjunction with specific courses on training forensic analysts we will also offer addtional courses on how to be expert witnesses, how to prepare expert declarations and affidavits and how to defend your expert declarations in deposition or in an evidentiary hearing. The course is also for lawyers who feel they could use a little support on direct and cross examination of experts.

21 Responses

    Greece’s fiscal woes, the exposure of the European financial system to them and the role played by Wall Street in hiding the problems all converge in a fifth-floor office near London’s Liverpool Street station where a company called Titlos PLC was created in early 2009.

    Just 22 days after Titlos was born, the National Bank of Greece SA and Goldman Sachs Group Inc. arranged for the company to sell €5.1 billion, or about $2.04 billion, in notes, according to U.K. and U.S. documents.

    But Titlos wasn’t a real company and the notes weren’t designed for ordinary investors. Titlos doesn’t make anything and its only directors are two British executives who work for a firm that specializes in the formation of corporations and the sale of pooled assets.

    Instead, Titlos, descendent of a 2001 deal to help Greece hide debt, was set up to take advantage of a European Central Bank effort to inject cash into a banking market hobbled by the financial crisis. Titlos’s notes were designed to be pledged for that program, according to filings by Titlos and the National Bank of Greece, and the buyer was the bank itself.

    The history of Titlos also illustrates how bank and government dealings, often deeply intertwined, can complicate efforts to unclog a global banking system.

    Gustavo Piga, a professor at the University of Rome Tor Vergata, says the opaque derivative trades that Greece and other countries engaged in “tarnishes the reputation of government” as it tries to police financial markets.

    “There is this huge mortal embrace between the government and the banks,” Mr. Piga says. “It creates huge conflicts of interest in the actions of government.”

    Behind Titlos and the notes sale are Goldman and the National Bank of Greece, a 169-year-old institution whose operations span Eastern Europe into Turkey, Serbia and Romania. The bank isn’t the country’s central bank, though the government owns a 12% stake through its pension system.

    Goldman, the National Bank of Greece and the Greek government have long had close ties. Last week, Greece named Petros Christodoulou, who worked at both Goldman and the National Bank of Greece, as the government’s new debt chief.

    Titlos’s origin dates to 2001 and a complex transaction that at its crux called for Goldman to loan Greece €2.4 billion. The structure permitted Greece to lower the debt it had.

    Over the next decade, the structure would prove to be malleable—and legal. In total, from 1998 to 2000, Goldman structured 12 currency-swap agreements with Greece, leading up to the 2001 transaction.

    Greece’s finance minister last week said the original transaction met with the legal standards of the European Union’s statistics watchdog. Moody’s Ratings Service rated the 2009 deal.

    “This was a unique deal,” says Christoforos Sardelis, the head of Greece’s debt-management agency from 1999 to 2004. “It was made public, and there was no violation of any rules.”

    To hedge its credit risk, Goldman carried out a transaction with a small Dublin firm. The investment bank also agreed to a new deal with Greece that was structured as a way to hedge interest-rate risk. That deal compensated Goldman for losses it was experiencing from the currency swap, according to a person familiar with the transaction.

    Goldman then exited from the interest-rate-swap deal in 2005 when the National Bank of Greece replaced Goldman as Greece’s trading partner, according to people familiar with that transaction.

    In late 2008, with the financial crisis peaking and banks struggling to borrow from one another or sell pooled assets, Goldman and the National Bank of Greece identified a way to turn that interest-rate transaction into an asset that could be pledged at the European Central Bank for money as part of a program the ECB had set up to exchange bank collateral for billions of euros in loans.

    The program ended up offering a way for banks to easily make money because they could use the ECB’s cheap money to obtain or hold higher-yielding assets in what is known as a carry trade. The moves then freed up liquidity for banks, including those in Greece that have been big users of the ECB program.

    “There were a very large number of securitizations done during the financial crisis, of toxic waste, that were designed precisely for the purpose of creating collateral for ECB repo loans,” said Darrell Duffie, a Stanford University finance professor and derivatives expert. “The ECB knew this was happening and decided that they wanted to play along in order to get liquidity out there.”

    An ECB spokeswoman declined to comment.

    U.K. documents show that Titlos, which filed its incorporation records Feb. 4, 2009, is housed in a London financial district office occupied by Wilmington Trust SP, a firm that caters to corporation formations and securitizations. Both Titlos directors work for U.S. bank Wilmington Trust Corp. One director, who describes his occupation as a “director of special purpose companies for financing transactions,” also serves as a director of nearly 200 other enterprises, the U.K. documents show.

    To finalize the deal, the National Bank of Greece transferred, or novated, its role as counterparty to Greece to Titlos, which now meant that cash flow from Greece would be running through Titlos and that Titlos would sell notes that then could be pledged to the ECB.

    On Feb. 26, just 22 days after Titlos filed corporation records with the U.K., Titlos sold €5.1 billion in notes maturing in 2039. The notes, rated “A1” by Moody’s Investors Service, then were repurchased by the National Bank of Greece through a private placement, according to a National Bank of Greece securities filing.

    According to that report, “the notes will be used as security for obtaining liquidity from the ECB.” It isn’t known if the notes currently reside at the ECB. A person familiar with the situation said they were subject to a haircut, or charge, levied by the ECB.

    One question today is whether a party to the transactions remains at risk of a large collateral payment following a ratings-agency downgrade. That concern stems from what happened in 2008 when U.S. insurance giant American International Group Inc. nearly failed because its own counterparties, including Goldman, demanded payments AIG couldn’t cover.

    A Titlos prospectus indicates that Greece isn’t on the hook for a collateral payment to Titlos if Greece is downgraded. The National Bank of Greece, which remained in the transaction to provide hedges for Titlos, is responsible for collateral payments if the bank is downgraded to certain levels, according to Moody’s.

    The notes remain tightly intertwined, though, with Greece. In December, Moody’s downgraded the notes to “A2,” midway between the ratings agency’s highest triple-A rating and its first junk-bond grade, from A1 after the ratings agency had downgraded Greece to A2 from A1.

    —Charles Forelle, Alkman Granitsas, David Crawford
    and Susanne Craig contributed to this article.

  2. WASHINGTON (Reuters) – Securities regulators will consider new short-sale restrictions on Wednesday, more than a year after the financial crisis provoked cries to rein in investors who bet on a stock’s decline.

    The Securities and Exchange Commission is expected to vote on rules that would restrict short selling in a company’s stock if that stock fell precipitously, a person familiar with the SEC plan said.

    The rule being considered is seen as a compromise for traders who opposed further curbs and lawmakers and some companies who had been pushing the SEC to reinstate the so-called “uptick rule” which dates from the Depression.

    First adopted after the 1929 market crash, the uptick rule only allowed shorting if the last sale price was higher than the previous price. But the SEC abolished it in 2007 after concluding that it was no longer effective in modern markets.

    Short sales are used by investors who believe a stock’s price will fall. In a short sale, an investor borrows stock and sells it in the hope that its price will drop. When it does, seller profits by buying back the stock at the lower price and returning the borrowed shares.

    Under pressure from Congress, the SEC proposed a number of measures last year to rein in short selling. Although the activity is a legitimate form of investing, lawmakers and bank executives blamed short selling for contributing to the downfall of now-defunct investment banks Lehman Brothers and Bear Stearns.

    The SEC proposals include a version of the uptick rule and other restrictions that would apply across equity markets.

    The regulator also proposed curbs that would only apply if a stock fell by a certain percentage.

    The SEC is expected to consider a “circuit breaker” measure that would trigger a so-called passive bid test, which would only allow short selling above the national best bid, the source said.

    The agency is considering a circuit breaker that would kick in if a stock’s price drops by more than a certain percentage such as 10 percent, said the source, who requested anonymity because the proposal is in flux and has not been made public.

    The SEC had no immediate comment.

    Any new rule needs the support of the majority of the five SEC commissioners. The two Republican commissioners are not expected to vote in favor of the short-sale restrictions.


    At the same meeting, the SEC is expected to discuss a plan to allow U.S. companies to use international accounting standards instead of U.S. accounting rules.

    Under former SEC Chairman Christopher Cox, the agency had mapped out a plan that would allow U.S. companies to use international standards by 2014 instead of U.S. rules known as Generally Accepted Accounting Principles or U.S. GAAP.

    It is unclear whether current SEC chairman Mary Schapiro supports that timeline.

    Policymakers generally agree that there should be one set of global accounting standards instead of two sets of rules, the international standards and U.S. GAAP.

    But there is debate over how to achieve that goal and whether U.S. companies should be allowed to use the international standards, even though dozens of countries have already adopted them.

    The SEC is also expected to reaffirm its support for a single set of high quality global accounting standards.

  3. Greece Said to Have Arranged Swap Contracts With About 15 Banks
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    By Elisa Martinuzzi

    Feb. 22 (Bloomberg) — Greece arranged swap agreements with about 15 securities firms and only some included payments from banks that may have helped hide the country’s true deficit, according to a person with direct knowledge of the contracts.

    The swaps that allowed Greece to receive payments upfront date from before 2008, when European Union regulators changed rules to limit the use of the contracts, said the person, who spoke on condition of anonymity. Goldman Sachs Group Inc., which provided Greece with about $1 billion in funding in a 2002 swap, may have arranged the biggest of the contracts, the person said.

    The EU accounting watchdog ordered Greece last week to provide information on its swaps as it probes whether the country used derivatives to hide the extent of its budget deficit, and if other countries used them. Swaps are typically designed to help countries to manage their debt rather than generate cash, according to Cesare Conti, a business professor at Italy’s Bocconi University.

    “Upfront payments don’t necessarily lead to hidden debt,” Conti said in a telephone interview from Milan. “If swaps are used to manage obligations, rather than increase them, they’re beneficial.”

    The 15 banks that have swap agreements with Greece are among the country’s so-called primary dealers, said the person. Greece had 21 dealers last year, including Citigroup Inc., Barclays Plc and Morgan Stanley, according to the country’s central bank.

    Spokesmen for Goldman Sachs in New York and Morgan Stanley in London declined to comment. Officials at Barclays and Citigroup in London didn’t have an immediate comment.

    ‘At The Time Legal’

    “Governments seek a large number of swap counterparties to reduce the exposure to any one bank,” Conti said.

    An official for the Greek government didn’t have an immediate comment. The swaps used by Greece were “at the time legal,” Greek Finance Minister George Papaconstantinou said on Feb. 15. The government doesn’t use the swaps now, he said.

    A Greek government inquiry uncovered this month a series of swaps agreements that have allowed the government to defer interest payments to a later date, causing “long-term damage” to the country. Greece’s central government debt totaled 298.5 billion euros ($405 million) at the end of 2009, according to the Finance Ministry.

    German Chancellor Angela Merkel said on Feb. 18 it would be a “scandal” if banks helped Greece massage its budget. French Finance Minister Christine Lagarde, speaking on France Inter radio the same day, said that even if the swaps were legal, they probably contributed to instability.

    Greek government bonds tumbled last week amid concern the country may not deliver measures to trim its budget deficit, and as the EU promised assistance without specifying what form it would take. The yield on the benchmark 10-year Greek government bonds rose 32 basis points to 6.46 percent last week.

    The spread between Greek 10-year bonds and benchmark bunds widened 22 basis points last week to 318 basis points. The gap widened to 396 basis points last month, the most since the year before the euro’s debut in 1999. It was 8 basis points five years ago.

  4. Nineteen months after the catastrophic failure of one of Sacramento’s top lenders, Pasadena-based IndyMac Bank, a flurry of local lawsuits alleges that the bank’s successor – OneWest Bank – is systematically working to push home loan borrowers into foreclosure.

    The allegations filed in the Eastern District of U.S. Bankruptcy Court claim that OneWest can make more money by foreclosing than by keeping borrowers in their homes. That’s due to its so-called “shared-loss” agreement with the Federal Deposit Insurance Corp., at least 10 local lawsuits allege.

    A video made in Fairfield and circulating widely on the Internet also alleges that OneWest stands to earn millions from taxpayers by foreclosing on borrowers as a result of its shared-loss agreement with the FDIC.

    The FDIC declined to comment on the Sacramento lawsuits, but it recently denounced the video’s “blatantly false claims.” The agency told The Bee that its agreement with OneWest contains provisions to make sure the lender is taking adequate steps to modify loans.

    OneWest declined to comment on either the lawsuits or the video.

    The FDIC, which seized IndyMac in July 2008, sold the failed institution to Pasadena-based OneWest in March 2009.

    As part of the deal, the FDIC agreed to absorb some losses from the troubled loan portfolio. That’s after OneWest absorbs the first $2.5 billion in losses, the FDIC said.

    But Sacramento bankruptcy lawyer Peter Macaluso claims the shared-loss agreement will reward OneWest for foreclosing on homes. Here’s how, he said: The company bought IndyMac’s troubled portfolio at a 30 percent discount. It can count on the FDIC eventually reimbursing 80 percent or more of its losses – and also can keep proceeds from the foreclosure sales.

    “They’re deliberately blowing people out in a systematic pattern,” said Macaluso.

    He has filed eight lawsuits in U.S. Bankruptcy Court on behalf of area IndyMac borrowers who have filed for Chapter 13 bankruptcy protection.

    Macaluso alleges that OneWest improperly boosted his clients’ monthly loan payments – sometimes by more than $1,000 – by doing a new escrow analysis after they had filed for bankruptcy protection. He said his clients can’t afford the increases and are in danger of losing their homes.

    On Friday, he said OneWest has since rescinded the extra payments in three cases.

    Elk Grove bankruptcy attorney Mark Wolff makes similar allegations in two lawsuits in U.S. Bankruptcy Court.

    “We made the allegations that it’s a systematic approach they’ve employed, and it’s a violation of bankruptcy code,” said Wolff. He said he previously filed similar actions against Bank of America and JPMorgan Chase. His clients also are still in their homes.

    A third attorney, Sean Gjerde of Elk Grove, recently filed a civil suit against OneWest in Sacramento Superior Court. It alleges violations of the Truth In Lending Act, claiming that OneWest is unresponsive to attempts to modify an Elk Grove client’s IndyMac mortgage.

    “As soon as OneWest took over, the communication stopped,” Gjerde said. “My client has been in default for a long time and it’s been like heck to even get them to talk to me.”

    The local lawsuits represent another messy aftermath of IndyMac’s implosion in July 2008, a development that added to fears of an imminent U.S. financial collapse.

    IndyMac was a leading Sacramento lender, ranking 10th in loan volume during the riskiest part of the housing market: mid-2005 to mid-2007. Statistics from researcher MDA DataQuick show IndyMac made 5,312 home loans worth $1.4 billion during this period in Sacramento, Placer, El Dorado, Yolo, Sutter and Yuba counties.

    A Treasury Department performance report last week showed that OneWest has temporarily or permanently modified 25 percent of its loans that are 60 days or more late. Twelve lenders reported higher modification rates and nine reported worse rates. The report said OneWest had permanently modified 3,087 of its 112,000 delinquent loans by the end of January.

  5. Lee and Mario,

    How do I get in touch with either of you. Was served last week, have an atty but want to be sure the motion to dismiss is substantial and meaningful.


  6. Neil,

    Did you get any verification on your San Diego request?

  7. Libra 99,

    But remember my lawyer thus far has done little for me in reality, It was Neil who indirectly educated me to the largest extent, mixed with good fortune and hard work.

    My lawyer is there as a shield, to fool the silly plaintiff, plus Florida is a unique Judicial State, where a litigant can put up a fight , of sorts, and in the short term beat back a fake lender.

    The lawyers for the Banksters are working very hard to change the law and the UCC, to exclude the promissory note as a basic requirement to proceed with a taking of one’s home. Standing is just the most powerful element in any case today.

    Florida may have some good lawyers, but only a few, I have met very few, of those that I have met, I rival them, plus I am associated with some very powerful pro se forces in Florida and in the Nation at large.

    Remember also and in addition, one of the first things Neil wrote here on this blog, is that, the plaintiff has few defenses, the litigant actually is better able than the Plaintiff, the pro se litigant has enough defenses, to fight, mark these words my friend, mark them.

    I have been able to put up a substantial fight, and I did so even without an audit. Now comes the Judges and if you are fortunate you can attain some measure of success, note the word “some”, I have heard horror stories, and I hear them daily, of lawyers just lunching on the litigant’s limited resources.

    What I have seen is even more disturbing than what I have heard, with regard to lawyers, I know that people concerned do not like anyone talking down lawyers because we need them so much but, and this is a given, but there is a huge life before and after the lawyer, who for the most part are just making a living, on a daily basis, it’s a business, a way to pay their mortgage.

    The most successful pro se I have known, fight without a lawyer, but not every person is able to stand this measure of pressure, many times I am broken, but I often stand again, inner strength is what keeps me going my friend, “inner strength”.

    I have recommended many lawyer to many people but in the end, the lawyer just disappoints me so very much, I may be wrong, but I just do not really know what to say, I must however put the record straight and at least be honest.

    I am honest because these are our homes I am talking about here, the place where we rest our heads, and procure the future of our families.

    I am not trying to delude anyone or to state that one does not need a lawyer, but there is a happy workable medium. Finding this medium is sometimes illusive, just keep trying.

  8. I’m a forensic loan auditor that uses UCC statutes as well as the TILA and RESPA and am in the process of getting a home free and clear for a client based on a break in the chain of assignment.

    I couldn’t agree more; I think I spend the same amount of time re-auditing audits as I do auditing! There’s a lot more to the auditing process and these auditing mills are not giving people proper traction for their cases.

    You can win your cases, people!! But you need a strong audit, with exhibits, and something substantial that will make your lender sit up and listen. I’ve canceled foreclosures on the strength of the audit alone – I know it can be done.

    Don’t give up people! Fight on! : )

  9. Mario,
    You are indeed very fortunate to have a good attorney who “gets it”. At this stage of the game, I don’t think anyone can win without one … especially in California. Keep up the fight !!

  10. I often wonder if Neil did not teach us all this stuff where would we all be right now? .

    Most of us would have lost the home, well most people did lose their homes, many just could not take the pressure. I am super grateful that I still have my home and I have helped many people with great pleasure, it is very tiring but I worked hard, its fun for the most part. But so sad to see millions lose their homes, many people are now on the streets without jobs, it very frighting, but I will fight forever, I know some people who are having a really hard time, and sometimes I feel so helpless.

    “security in numbers”, is what I think is very good.

  11. the biggest story on TV is Tiger woods, can you believe this ? when millions are out of work and homeless

  12. I would like to find out about these DVD’s, home corse’s, and training thats being offered as well.

  13. Yeah, whatever Allan says. I’m all in.

    Trying to find a law firm to tag team with, got a couple of feelers out.

    and, Mario, where was that patent/mortgage case you just posted? I can’t find it. Thanks, R

  14. Would be most interested in your training.Thanks

  15. Sir,would like to know about your training,and the cost.Thanks

  16. I would also be very interested in this training service. Thank you!


  17. Have examined fraud and undertaken a comprehensive forensic accounting for one of my charges when I acted as their caretaker. Would be thrilled to build on that experience.

    Sign me up.

    B e M o v e d @ A O L . c o m

  18. I would like to sign up.

  19. Neil,

    I would like to be trained, would you please train me?

  20. Let me know when you start the training. I’m in.

    Charles Cox
    Santa Cruz, CA

    Livinglies for shining light on the companies that hide in shadows and make clandestine deals behind closed doors (ours The investors and the Judges)..

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