Identity Theft as a Cause of Action

From Beth Findsen, Attorney in Scottsdale, AZ, she comments that ID Theft may just be the heart of the matter in seeking damages. The logic is simple: they used every borrower’s signature for selling a pool of loans that included OTHER borrowers and a huge undisclosed profit was generated by using the borrower’s signature. Without that signature there would have been no deal. This is especially true if the person was one of the top tier tranche borrowers with 800 FICO scores etc. Without them making the pool look pretty there would have been no sale. Those people were neither compensated nor informed of the use of their very personal information.

The elements are pretty clear. Use of a person’s ID without their consent. Loss to another person. This is another connection between the interests of the borrower and interests of investors.

The essence of securitization of loans has been the unauthorized use of the borrower’s ID to create a collection of loans that were sold as more valuable than any single loan would have been priced, based upon the presence of multiple parties who had no idea that their name and identifying information was being passed around the world like a “whiskey bottle at a frat party” as reported by MSNBC.

Privacy is a commodity. It is constitutionally and statutorily protected. It can be waived or it can be bought, if the person is willing to sell it or waive it. But it cannot be taken by a “lender” (pretender or otherwise) to use for their own profit. That profit belongs to the person or persons whose identity and privacy have been violated — along with punitive damages if it can be applied.

Quoted from Beth:

is it “consent” if it’s based upon a fraudulent misrepresentation or failure to disclose?

in AZ

13-2008. Taking identity of another person or entity; knowingly accepting identity of another person; classification
A. A person commits taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person’s or entity’s identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense, or with the intent to obtain or continue employment.

23 Responses

  1. Alina, a lot of what has been posited is not theory but speculation without a factual or legal basis.

    Everyone wants to blame the judges, the blame should go to attorneys and their specious arguments, that are continually being shot down by judges giving cogent legal and factual basis for doing so.

    Remember what Einstein said: “Insanity: doing the same thing over and over again and expecting different results.”

  2. good for you amicusman,

    It is a start to train attorneys so they can in turn educate the judges. One thing though, every legal argument is a theory. We in the legal profession call them legal theories because just like any theory, it never becomes fact until proven.

    Remember what Edison answered when asked about his 100 failures at creating a light bulb – he stated that he did not fail 100 times but rather discovered 100 ways not to create a light bulb.

  3. avirani0203, no questions we train attorneys on how to win these cases with competent legal argument, not theories.

    BTW, judges are not “reticent,” it’s these useless arguments being promoted hear that have no legal or factual basis in the law that the judges won’t buy. The majority of these arguments are just stalling tactics and the judges know it.

    The only process that works is to find a REAL legal dispute that a judge is willing to accept as a valid reason to declare the debt void, such as tortuous conduct (i.e.,appraisal fraud) or gross violations of lending laws.

  4. amicusman,

    I have read all the pleadings in the Florez case. that particular attorney did not “get it.” Case law regarding the bifurcation of the note and mortgage goes back to the SCOTUS decision in 1872 in Carpenter v. Longan.

    I agree with the judge in Florez that there is nothing wrong with the securitization of the mortgage loan. This has been around for many decades. Additionally, similar to the past (just look up some case from the 80’s and 90s S&L crisis), the bifurcation argument is VALID. The federal courts slammed the banks for sloppy paperwork in their haste to securitize and sell. It cost the banks big bucks. Two things happened following the court decisions: 1) the UCC-3 was amended to add 3-112, and 2) MERS was created.

    However, the judge in Florez did not get the nuance related to the fact that the note and mortgage are bifurcated. Just look up any pleading filed by MERS and they spell it out – MERS remains in control of the mortgage while the Lender walks away with the Note. Once this happens, the note and mortgage are BIFURCATED.

    The Note is then sold numerous times before it ends up in some sort of trust. The trust can only have LEGAL CLAIM to any note that was properly endorsed to them pursuant to the PSA. Bringing in securitization arguments when you are not a securities dealer is the wrong thing to do.

    I cannot emphasize enough how important it is to educate the judges. Judges are reticent because they incorrectly believe they are awarding the homeowner a windfall. Instead of blasting what Neil and others post on this blog, you should be out trying to get the word to the judges. Federal judges understand the concepts, why can’t state court judges?

    Btw, if you are in California, please read Judge Buford’s “Where’s the Note?”

    Great article written by the UCC Committee of which Judge Buford is a member. Additionally, there are other legal journals by the Cordozo Law Review, Northeastern University of Law School, etc. that I can direct you to if you still have questions.

  5. sizeonfoffer, if you think pointing out blatant misinformation and frivolous legal theories is unproductive, than just keep on following blindly!

    As to the Florez case, just another case in the REAL world, where REAL decisions are made. Not some theoretical babble that’s causing homeowners to not only lose their homes, but wasting their money trying to litigate nothing but made up theories with no legal backing.

    The same law firm, that “get’s it,” who argued Florez got slammed a month or so ago for making the same arguments before a different judge. Just recently, another lawyer who supposedly “get’s it” made the same arguments that were made in the Florez case, and cost his client $20K in legal fees to be paid to the bank.

    So if you want to live in theory land that’s fine, but hardworking homeowners don’t want to waste their money on poor legal theories, to only have their lawyer get them a loan mod they could’ve gotten for free!

  6. @ amicusman, your unproductive comments … If you want to pinpoint specific comments that you think are erroneous, knock yourself out, but don’t pretend that you are trying to be helpful. As for your Florez comments, you might want to take a second look at the holding and the dicta and was argued in the underlying motions. The judge got it wrong. He didn’t even comprehend that an entity does not have to “own” or securitize a note to participate in the CDS. The issue was the possibility of double recovery, not whether CDS are illegal, as the judge misconstrued. Moreover, the judge was not persuaded that the note was even securitized (because the banks withheld ev, of course) so the case is factually distinguishable to many cases where the PSA has been produced. Insiders at investment banks have indicated concern about fraud charges and identity theft issues (not to be confused with privacy laws as commented on earlier).

    this should not be construed as legal advice(I am not an attorney, I am a Streeter)…..whatever you’re selling–I have size on your offer!!!!

  7. i have the trust, the cusip numbers etc. i have even contacted td ameritrade bond trading desk and have spoken to them with regards to purchasing mbs that are in my trust.

    they have assured me that i can purchase these securities. i asked if i could purchase 10k face and it was going for 49cents on the dollar 4900.

    so my question is could this work.

    would that not also make me a potential plaintiff in this suit.

    I am really not concerned with the tax implications or the investment at all in terms of profit. however if it can/will get rid of the foreclosure action in some way, it is a good way to spend 5k.

    Again, any information would be greatly appreciated.



  8. Identity theft as a cause of action is total nonsense, that statute doesn’t even come close to saying what has been expressed.

    Kudos to Paul Pulatie, both his observations and comments are right on point. Moreover, it’s good to see others challenging some of the things being posted here. Personally, I’ve seen several statements posted here that are legally and factually incorrect. Misinformation doesn’t help anyone.

    As a side note: Florez is not the first case to say the same thing, so it’s very doubtful it would be overturned.

  9. Could it be that what we have in these cases are common law torts of conversion, misappropriation, fraud, etc.?? The homeowner’s promise to pay a stream of payments was converted by the sponsors for the basis for the sale of securities. The promoters profited from this conversion by the sale of the securities and also from the purchase of credit default swaps. It was the promise of the homeowners that enabled the promoters to sell securities. This promise was converted.

    Under the common law theory of conversion, could the homeowners join in a class action against all of the entities involved in the securities scheme for their particular pool? The homeowners’ damages would be a pro-rata share of all the profits and payoffs of credit default swaps. Since the promoters and their agents defrauded the homeowners and converted their promises to pay, they should be able to recover all the gains made by the promoters and all of their agents, plus punitives.

    Capture all of the entities through an agency or civil conspiracy allegation.

    Any thoughts?

  10. Ken-re your idea to go buy rmbs that your mortgage is in

    If you carefully read SEC docs related to the securities trust your loan is in, you may note that most of these securities trusts were aimed at large institutional investors, such as city government, state government, unions, federal government etc.

    The purchase price of one certificate may be listed in one or more of the SEC docs.

    One other point, these securities trusts are usually REMIC but if something happens and causes the trust to no longer be REMIC (such as assignments not being done by closing date), then the ‘investor’ may be hit with more taxes….like a very big wallop of taxes!!

    So—you can explore your idea, but advise caution.

  11. RE Identity Theft
    suggest all counsel and others really delve into reading
    Gramm-Leach-Bliley Act and the changes that were made in the financial industry regarding particular data about a person who obtains a loan. They crafted this to allow sharing of certain data elements of the person obtaining a loan…in other words, they made it in their favor, not ours.

    Thus, unless thoroughly examined, it may not be identity theft for the sharing of certain of your data elements.

    Gramm-Leach-Bliley Act was signed by a President so I think it trumps state laws.

    Counselors, after you have read Gramm-Leach-Bliley, would like your comments here.

    Here is something I had emailed to Dan a while back:

    NonPublic Personal Information = NPPI (e.g. a consumer’s name, address, social security number, account number, status as a customer, credit history, etc.).

    BUT everyone should pour over any docs they signed to see if they gave a waiver.

    How do I protect my privacy?

    A privacy notice will describe two different “Opt-Out” rights that allow you to take action to restrict how your
    financial institution may disclose your personal information to an unrelated business and your credit
    information to a related business. A “related” business is a business that shares a common ownership with your
    financial institution.

    A financial institution may state in its privacy notice that it will never disclose any type of nonpublic, personal information to any type of related or unrelated business except as permitted by law. If your financial institution totally restricts disclosure of nonpublic personal information, then it does not need to describe any “Opt-Out” rights.

    What is nonpublic personal information?

    Nonpublic personal information is any information about you that is not available to the general public. For example, if you have a listed phone number, it is available to the general public. If your phone number is not listed, it must be treated as nonpublic personal information.

    Nonpublic personal information includes any information about you collected by a financial institution, either from you or from other sources, that is not available to the general public. It also includes any information about your account, policy or credit card purchases or payment history. Even the fact that you applied for or received a
    financial service or product is nonpublic information. If you “Opt-Out,” your name cannot appear on a customer list for that financial institution.

    Exceptions and Limitations

    These “Opt-Out” rights do not apply to the disclosure of information allowed to be shared by law, or to the disclosure of information necessary to process your application, or to provide a financial product or service.

    How can you Opt-Out?

    The privacy notice you will receive will explain how to Opt-Out. Your financial institution is required to provide you with a reasonable means to Opt-Out, so your privacy notice may include:


    a reply form or prominent check-off box to Opt-Out;

    a toll-free number to Opt-Out; or

    an electronic Opt-Out, if you have agreed to the electronic delivery of information.

    You may be required to follow one procedure to Opt-Out of disclosures to unrelated businesses and a different
    procedure to Opt-Out of disclosures to related businesses.

  12. Understand the legal definition of things. Normal definitions are not the same in a court of law. We have been taught by the very people we are defeating. They controlled the public education, so we learned what they wanted us to know. That’s part of their game. There are two definitions. One we use in everyday world from a regular dictionary and the one they use in court from a ‘legal’ dictionary.

    You may use an everyday dictionary term in court and it may mess up your case because you may argue something the wrong way by the terms you chose, or you may agree to something thinking it means one thing when it ‘legally’ means another.

    The statute of frauds is a law in every state which requires that certain documents be in writing, such as real property titles and transfers, leases for more than a year, wills and some types of contracts. The purpose of the law is to protect against false claims for payment from contracts that were not agreed upon.

    …notice it says the ‘law in every state’ and it also says ‘certain documents be in writing’, and it further says ‘such as real property…transfers’.

    In order for a judge to decide a case in your favor, what you claim in your dispute has to be proven above their claim, and which ever side would get an ‘unjust enrichment’ from the dispute will be ruled against, so there can be ‘equity’ in the resolution.

    Those who wanted to see a Note as proof of the Mortgage servicer’s claim that a debt is owed, were able to win when the Note was not produced by the ‘supposed’ Holder of the Note. But you have to understand their case, to know if this will work for you.

    The news that you can sue a Debtor for violation of FDCPA. The attorney told the woman unless you dispute this claim in writing I will assume it’s valid. It made it to the Supreme Court because FDCPA doesn’t state the answer has to be ‘in writing’.

    For this to work for you, you have to read the FDCPA.

    Servicers refer to RESPA Section 6 when the send things and yet, if you read it, you may find they violated its terms.
    Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also be made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.
    (there is more…read it.)

    Do not rely on someone else’s case, trial, or settlement as the one-size-fits-all solution. As each case is won, the other side it trying to fix their procedures to thwart another win.

    If you think you have to ‘fight’ them, then your claim may be weak. That’s my opinion and it means nothing…I know nothing…but your claim may be weak if you think you have to fight. We should not have enemies, nor see people as enemies. There is a group of people who are employees, doing their job, and someone up high orchestrating this mess. Everyone you meet is not the bad guy. They are feeding their families while doing their job.
    The real party of interest is the person who created the conflict and you will not see that person in court.

    In court, the judge is a referee over a disagreement between two parties about the agreement they had with each other.

    When both parties hire representatives (attorney’s) the court can proceed…but when one is pro se, (not represented) they can request to know who the real party of interest is behind the ‘representative’ who appeared on their behalf in court.

    The Deed of Trust / Mortgage is the agreement.
    Who broke rank and failed to perform first.

    Did you fail to perform first? Did they fail to perform as soon as you signed the document?

    Learn what you can. We got into this mess because we let someone else take care of “our” business. We signed documents that had the word “Trust” on it, but we didn’t determine whether the person who created the document was really trustworthy.

    An untrustworthy person can be sloppy in their deceit.

    Each of us can get out of what we helped create, but it will take us growing up in some capacity, and learning things we didn’t know before, and ‘not fighting’ because there are no enemies, it’s just a world of people working and making good choices and bad choices and we are dealing with people who are making bad choices that are hiring good people to do the bad deeds as part of their job. Let’s not fight. It divides and separates us and makes us weak.

    A person who ‘fights’ may think their opponent is stronger than they are. Imagine Mr. Clean and Pee Wee Herman. Will Mr. Clean really fight Pee Wee Herman? Strong people just stand up for themselves, and don’t budge when being pushed, to show their strength. They come at you as if they are strong. They all have a weakness. Find it and show it to them, and like a vampire that saw a cross, they have to go away.

    Now’s the time for you to become ‘The One’.
    When Neo asked the Oracle in the movie, The Matrix,
    “Am I the One?” I’m paraphrasing. She said, “No one has to tell you, you are in Love, you just know it.” Then she told him, he was not.

    [No one had to tell him he was ‘The One’, he’d just know it]
    BTW, “Neo” is a scrambled version of the word “One”.

    People, ‘no one has to tell you; that you are ‘The One’, who can solve your problem with this industry.

    When “you” know, what you need to know.
    You will do what you need to do.

  13. Jan van Eck,
    Several assumptions are made that makes it hard for people, like you and others, to hold their claim.

    1. I don’t care what the bank does with my Promissory Note after I sign it, like I don’t care what happens to a check I sign when my job pays me.

    If I promise to pay one entity by name, [it didn’t say bearer]m it matters not that they endorse it and make it a subsequent transaction with the instrument and sell it with “pay to Bearer”. That’s still a third party agreement between them and whoever, Bearer, is. As long as I ‘promise to pay A’, then A had better stick around to get paid. A sets up a servicer. I pay A through servicer. Stick around so I can pay A. But there is no way A is going to sell to B with no record of the sell [assignment/transfer as per our Trust Deed] and B is going to walk up to me and say, A signed your promise to pay over to pay me.
    I will say, if A did that, he should have given you the Deed of Trust too, and you can file an Assignment/Transfer in the county. They will change the name on the Deed of Trust, and then I’ll pay you, and you are subject to the terms of the Deed of Trust.

    See, I’ve filed things in the county. They take the original, they stamp it, file it and send you the original in the mail. If you need to fix or correct something on it, you make the changes to the original and re-file it.

    If it’s not “expressed” in the Deed of Trust, it’s NOT allowed.
    I am the Creator/Settlor/Grantor of that Deed of Trust.
    If it doesn’t say we can use Substitute Trustees, you had better use the original Trustee who’s doing his job.
    If it says the Note can be sold, transferred, or assigned along with the security instrument and you look at the definitions and Note means Promissory Note and security instrument means ‘this Deed of Trust’, then by golly, if one goes somewhere, sold, transferred or assigned, then the other had better go with it.

    I’ve seen people get caught up in what the banks do after they get the Note and then they try to bring it up in court. What they do with the Note is their business. I gave it to you, you can tear it up. I promised to pay you. Once you fail to fulfill your obligations in the Deed of Trust you ‘fail to perform” The terms were “expressed” [not implied].

    Many people think the Deed of Trust is a contract. Contracts require a meeting of the minds and two signatures. A Trust document is under a whole different law. It can have only one signature.

    If someone doesn’t do what their part of the trust details, then they ‘breached the trust’.

    I am a first time homebuyer, so you can’t tell me that under full disclosure I signed some papers and a Note that can be handed to anyone and they can come to me and demand money without proving in the public I owe them.
    Does Mafia ring a bell? That’s why people mention RICO when this situation (you so easily accept, occurs).

    Some of you have heard the same arguments over and over and you believe the same things. If my Deed of Trust doesn’t say I have to pay the new holder of the Note, then I’m not paying. My Deed of Trust said they can change the servicer, and I’d be given the address of the servicer (Address, not Name and Address). Because it can be sold, transferred, or assigned. That means, I don’t have a right to tell them to produce the note in order to keep my promise to pay them. That makes sense to me.

    All they had to do is keep A around and they’d still get money, month after month. But Statue of Frauds says all transactions regarding real estate needs to be in writing, so if a new entity is coming up and claiming a right to my real estate, there had better be something in writing.

    Homework for you. Look in the Official Public Records for Assignment/Transfers. You will see how it’s supposed to be done before they got corrupt.

    Now, you would pay them, and establish a contract and then later on, you’d question whether they have a right to collect the debt. “Too late, you’ve already established a contract.” You’d have to figure out another way to challenge their claim.

    My case is unique, as all of ours are. A sent a letter saying welcome to B. Then the letter said ‘they changed their name to B”. Then they said, start paying B [establishing a new contract]. I know better than to do THAT!
    I’m sounding like Judge Judy, “show me”. Basic contract.

    So now, I still have all the protections afforded me. FDCPA, RESPA, Statute of Frauds, Deceptive Trade Practices.

    My suggestion to those of you here, please, if you know anything, the same understanding is losing the same fights. You must ‘READ’ your Deed of Trust and find out what is allowed. If it’s not ‘expressed’ [learn what expressed is], then don’t accept ‘implied’ agreements.
    Stay firm. Once you accept an implied agreement, it’s yours. A whole new contract.
    If you ask me if my name is BuckyBoo and I shake my head ‘yes’, then that’s a verbal agreement (contract). I agree with you my name is BuckyBoo. Contracts can be created verbally, written, or by gesture (shaking head yes/no, handshake, thumbs up, Uh Huh, Okay, Sure, etc).

    A Trust does not have to be conscionable, but the terms must be adhered to in order to enforce the Trust.

    Reminds me of a time someone asked to see some ID, and another person offered their Drivers License. I asked the person, “can I show you my work ID and a credit card with the same name? I don’t carry a drivers license.” She said, your work ID is fine. See, people ‘assume’ thing and imply things and they never realize that some things are ‘hard coded’ and any deviation from what is written in the agreement is not part of the agreement.
    Judges know that…
    If you read your Deed of Trust, it says the Note and Deed belong together, you’ll have to read the definitions to know that. (Law of Confusion). Judges didn’t make it up when they settle cases with that ruling. It’s right there, written. The bank split the Deed and the Note and breached the trust.
    The client was smart enough to show the trust was Breached. So if a judge knows that if it’s expressly written in the Deed of Trust, you had better do what it says, how is someone going to tell me that a Note, that is not part of the Deed of Trust, carries its own contract terms and I have to accept that it can be modified as payable to Bearer and I’d better turn around and pay the Bearer. Nope, not buying it. AND – I read the Promissory Note…not on it.

    Write a check to a friend, and owe them $4000, and let them sign it to me, and let me walk up to you and tell you, you owe me $4000 because I have the check, and tell me you won’t ask me, “Who are you, and why do I owe you money!?” You would refuse to pay me because your agreement was with your friend, not me.

    Why treat this any different? Why? If I want my promissory note payable to Bearer, it would have been payable to Bearer. If the bank wanted me to know, they would have put it on there. (there was no full disclosure and you accept that as normal?) That’s not normal.

    Why would a judge push back on a Note, “endorsed in blank”? If it’s payable to anyone, A bank can write “Pay to Bearer” and it would be the same thing?

    Banks have an interest in putting the wrong information in these blogs to throw you off track.

    We are a collective conscious, but you must think…and do not imply anything. This is a major document….what is ‘specific?’…what does it actually say?…not what you ‘think’ it says”…if it’s not written’s not part of the agreement.

    Do not help them hurt you by agreeing to something that is not written on anything you signed.

    Be wary of anyone who tries to convince you otherwise.

  14. A quick comment about that Virginia decision–I think it might be reversed if they decide to appeal. The judge’s statement about credit default swaps fails to take into account that there is no case law regarding the effect of credit default swaps on these notes that were originated, rated, and securitized on false terms, because this is a new application of existing law, as caused by the bubble, the ratings scams, the corruption of securitization, and the crisis. In my opinion, of course…
    I agree that the black letter law holds (Carpenter v. Longan S. Ct) that it is ordinarily presumed that the deed follows the note (as corroborated by Hill v Favour in AZ), because the note is the principal thing, however, as Neil commented in his annotation of Bellistri, the defendant banks’ own contracts (compare the identification of relevant principals on the original notes and deeds of trust to the timeline set forth in the securitization PSA). Thus, there is a fact issue of what actually happened, followed by a legal issue of what it means.

  15. Obviously, these are criminal statutes and in a civil action you might want to try to cobble a theory where this underlying crime forms the basis for civil fraud or conspiracy or aiding and abetting liability. However, what I found interesting was how broad the definition is, and if you review applicable criminal case law, it’s used by prosecutors as a bit of a catchall like tax evasion. Basic torts and/or contract law form the meat and potatoes in these civil actions, combined with statutory claims where advantageous (might land you in federal forum) and not subject to limitations problems, depending on your jurisdiction and whether it is favorable to same.

  16. just a few thoughts. would appreciate some feedback.

    1. would it not be possible to buy rmbs for the investment that your mortgage is in. theoretically, it should be selling at a discount to par in that people are not making their payments. so, if hypothetically you owe 500k on your mortgage, you can buy 500k face of the mbs and then relinquish those shares/interests (purchase for 250k +-) to basically purchase your own mortgage. Are there any cases of this that anyone knows of. Would mortgage servicer be willing to accept this as payment to settle mortgage in full?

    2. and maybe more important. can’t an individual purchase say 10k face value of the mbs where their mortgage is held. and when it it time to go to court to contest the foreclosure, lets face it, no other shareholders/investors are going to be there. so now you as a shareholder/investor of the investment in the mbs that is filing suit, can state that the plaintiff’s lawyers do not represent the investors of the trust. and you as an individual owner of that trust can testify to that aspect. in addition, since no other investors will be there, there will be no one to contest your statement/evidence.

    3. i have contacted my servicer and they do not know. How do i find out which traunch my loan is under. there appear to be over 40 traunches in my mbs trust. i have all of the cusip numbers for each of the traunches, but have no way of knowing which traunch my loan is actually in. any help would be appreciated.

    Just some thoughts. Have not seen anyone approch it from this point of view yet.

    Please email me at if you have thoughts or comments.

    Thanks again.


  17. Jan,

    You are absolutely correct. I have noticed that though Neil talks about Bellistri, he nor anyone else has posted the Virginia decision. Forez v Goldman, where the decision states that the Deed does follow the Note. That is common law most everywhere.

    Furthermore, this same ruling blows a hole in the Credit Default Swap “paying off the loan” argument. See the following.

    Forez v. Goldman Sachs Mortgage, Lexis 35099 (E.D Va. 2010) “no provision in the U.S. or Virginia Codes supports [their] argument that credit enhancements or credit default swaps (“CDS”) are unlawful. No decision from any court in any jurisdiction supports such a claim.” “Plaintiffs’ double recovery theory ignores the fact that a CDS contract is a separate contract, distinct from Plaintiffs’ debt obligations under the reference credit (i.e. the Note). The CDS contract is a “bilateral financial contract” in which the protection buyer makes periodic payments to the protection seller. See Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 172 (2d Cir. 2004).”

    BTW, when anyone reads 226.34 which Neil and Brad continuously cite about the requirement of the lender to determine the ability of the borrower to repay a loan, will someone please read the statute in full?

    226.34 applies to HOEPA loans, nothing else. And HOEPA loans are hard to find. I have reviewed no more than 10 in over 2500 exams I have done. (BTW, HOEPA does not apply to the CAP on a mortgage as some try to argue. It is the APR.)

  18. to “trespass unwanted”:

    You might wish to reflect on the basics: you did sign a Promissory Note, and that Note is “assignable” by the action of the Holder of it signing an Indorsement onto the Note. Your Note probably (not certainly) has an Indorsement that is signed out to either “Bearer” or simply left “in blank.” By that mechanism the “new bank” becomes the owner of your Note, and with the authority to enforce the Note. So he becomes a Holder – assuming of course that the Indorsement is done properly, and most are not. But (a big “but”, to be sure), if it is “done right,” the claim is fully enforceable against you.

    The general principle is that “the security follows the Note.” Just because the Assignment of Mortgage (or Deed of trust) is not yet done, does not imply that the Note cannot be enforced. However, if there are “breaks in the chain of title” or if the assignment chain has skipped over some intermediate owner of your Note, then you have some traction.

    Sorry to rain on your parade, but at this point the mere act of one party buying up a defunct bank and taking over their assets, by itself, does not provide much if any grounds for you to refuse payments on your Note. I would suggest you “escrow” the money so that, against the day the claim is properly made against you, the funds are there for release to the proper party.

    Of course, you can always go sue the “new lender” outfit for their imperfections, especially if: (1) they have violated specific Statutory requirements, and (2) if you have suffered damages.

    Best of luck with it.

  19. How about if a broker uses your identity to have your loan notarized as you, without your presence, or knowledge, that’s how my loan was made, i’m getting the state department of notaries involved and the FBI.

  20. istribution Date

    MY RAST 2007-A 5 REPORT
    —— Delinquencies % ——
    30 Day 60 Day 90 + Day
    BK % FC % REO % Cumulative
    Net Loss % 1 Month CPR Current Pool
    Apr 2010
    2.23% 6.34% 9.13%
    4.25% 25.46% 5.37% 10.76% 15.86% 129,880
    Mar 2010
    6.19% 6.18% 7.60%
    3.25% 27.21% 4.64% 10.47% 26.53% 131,834
    Feb 2010
    4.11% 5.93% 7.47%
    3.37% 25.90% 5.87% 9.69% 15.12% 135,335
    Jan 2010
    4.46% 4.83% 13.88%
    2.30% 18.71% 6.81% 9.27% 19.28% 137,268
    Dec 2009
    4.38% 6.48% 10.89%
    2.48% 18.97% 6.94% 8.69% 29.51% 139,812
    Nov 2009
    7.49% 6.41% 8.00%
    1.82% 20.25% 6.35% 8.08% 34.17% 144,019

    Pool Group 2
    Original Balance ($000) Original WAM Seller Servicer
    577,428 — IndyMac IndyMac
    Distribution Date
    —— Delinquencies % ——
    30 Day 60 Day 90 + Day
    BK % FC % REO % Cumulative
    Net Loss % 1 Month CPR Current Pool
    Apr 2010
    3.94% 2.42% 3.73%
    2.19% 9.09% 1.49% 3.04% 18.82% 451,069
    Mar 2010
    4.46% 2.34% 3.80%
    2.32% 9.73% 1.02% 2.82% 2.79% 459,251
    Feb 2010
    3.79% 2.71% 3.72%
    2.13% 9.50% 0.90% 2.80% 8.53% 460,611
    Jan 2010
    4.25% 2.56% 5.47%
    1.57% 7.44% 0.82% 2.58% 14.12% 464,320
    Dec 2009
    3.89% 2.09% 4.65%
    1.55% 7.51% 1.15% 2.27% 6.84% 470,520
    Nov 2009
    4.49% 2.33% 4.02%
    1.63% 7.83% 1.16% 2.15% 18.66% 473,578

  21. Neil Amen!

    “Without them making the pool look pretty there would have been no sale. Those people were neither compensated nor informed of the use of their very personal information.”

    and Amen again!

    “The essence of securitization of loans has been the unauthorized use of the borrower’s ID to create a collection of loans that were sold as more valuable than any single loan would have been priced, based upon the presence of multiple parties who had no idea that their name and identifying information was being passed around the world like a “whiskey bottle at a frat party””

    Have been saying this for a very long time… and this is at the heart of the problem for people that have been hit with a double whammy… going about their business with true AAA loans…that were “passed around like a whiskey bottle at a frat party” making the “pool look pretty” and now find themselves under-employed, unemployed or have watched their small business be reduced to life support status… as a result of the melt down.

  22. Copy of the Certified copy of the Promissory note was from the Title company…so new name did not possess the original, nor a certified copy of the original. I at least have a copy of the original promissory note before it was lost, sold or transferred.

  23. Are you reading my mind?
    Out of the blue in Oct. Got a letter with my mortgage company letterhead stating “welcome to new mortgage company”. Said they changed their name. Separate letter said on Nov 6. stop making payments to them by their name and Nov. 7 start making payments to them by new name.
    I know about contracts so I attempted to not contract with new name. It’s been a disaster.

    1. No assignment 5 months out, in the Official Real Estate Records.
    2. Real Trustee still holds title. I contacted him, but he only represents the beneficiary ‘who has the note and an interest secured in the home”.
    3. Checked all three credit reports, 5 months out. Two show old name one show new name all have the same info. I disputed new name in the credit report that had it – stating I didn’t know them.
    4. I disputed old name in another credit report since they are no longer exist to force identification of who is updating that report. Got copies of all.
    4. Checked SEC filings. Investors bought the first name corporation in 2008. Then on Nov. 6, 2009 they merged the bank into their business. That explains why they said to stop paying one name.
    5. Foreclosures under old name on file in Deed of Trust has been without assignment or transfer filings. Using Substitute Trustee. Three problems. Original Trustee still holds title. I already wrote him and know this. Deed of Trust on file has no provision for Substituting the Trustee. By virtue of the ‘merger’ they should have the original documents.
    6. Spent 5 months asking them to validate their claim. They send a copy of the Certified copy of my Deed of Trust on file in the public (that does not name them), and a copy of a Certified copy of the Promissory note (that does not name them). Two problems They can’t attach to the Deed of Trust without change or not…their name is ‘not’ the named Lender nor beneficiary in the Deed of Trust. And the Promissory Note was made out to a specific entity. You can’t possibly assume that I have to know that when you sell it, they can come up and say ‘pay me’ when the promissory note is supposed to be held by the person you promised to pay. If they sell it, that’s a different agreement between them and the other buyer, but I can’t be forced into their third party agreement as long as I agree to pay stay right there and let me pay you..but don’t force me to pay someone I did not ‘promise to pay’.
    7. They’ve hired a law firm (setting up for a substitute trustee situation). I contacted the firm. (not pro bono, not pro se, no attorney..just me and told them I don’t recognize the other company and I have asked them to validate and they respond with stronger demand for money.) Maybe that’s why I got the ‘copies’ I did get from the mortgage company that does not support their claim.
    8. Informed the attorney of their violation of FDCPA by forwarding information to another party and by not disclosing the amount attempted to collect is in dispute.
    9. I wouldn’t trust an attorney at this time. The United States is in Bankruptcy, China filed a lien for 45 Million dollars in December 2009.
    10. Have a copy of a Substitute Trustee sale by this company. They never released the lien on the debtor they foreclosed on after the sale. If they had the papers they could have released the lien.
    11. Once you admit there is a contract you can’t use Statue of Frauds which helps me because I have refused to contract and have refused to pay and requested validation of their claim of a debt owed to them.
    Thinking seriously about filing SEC complaint and sending the ‘Communications, Notice and Order’ to the named person listed in their SEC filing and a copy of that to the law firm listed with the words “With a copy to” – in their SEC filing
    My identity has been stolen by the company. When I establish an account with one firm, that does not give a right to another firm to step up and say I have the account, change the name, change the terms of your initial agreement and start paying me now because I have a ‘new name’. How can you have an account demanding payment when there is no agreement and you are really a new entity, not just a new name?
    I’m learning about Statute of Frauds. It would also appear that Deceptive Trade Practices can be proven in this mess. A company who has no contract attaches to your credit report as if you’ve established business agreement with them? They have no definition in your Deed of Trust, yet they can get an attorney to represent their interest in your document and start nonjudicial foreclosure proceedings. If they have the papers it takes to change the name on the credit report, they should have the papers it takes to file an assignment/transfer and change the name on the Deed of Trust.
    I’ve not paid them any money, but I have filed FTC and Attorney General complaints. Not sure if I have to pay the 5 months in arrears as Threat, Duress, and Coercion to get some action done by these public resources I’m using to filing the compliant.

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