NV Judge Grants TRO and Denies M/Dismiss

Please send pleadings motions and order to ngarfield@msn.com

NEVADA case law.

Joseph Brown, Plaintiff vs. Wells Fargo Bank.

Plaintiff Brown wins a temporary injunction against mortgage giant Wells Fargo.
Also, defendants Motion to Dismiss was denied. The case is bound over for trial.

17 Responses

  1. Daniela Mars

    Are you referring to American Home Mortgage Servicing Inc?

    If so, WL Ross & Co (distressed debt buyer) owns them.

    Ian

    I think you are right. But, the repurchase agreements discussed in the article are specific. They were just an “arrangement” to rid their balance of the “toxic” securities – in order to shore up capital (make thinks look better). But, the repurchase agreements were only for a “temporary” sale – BOA was obligated to buy them back.

    Nevertheless, your analysis appears valid – and may have been a motivating factor.

  2. Thank you Anonymous.

    the latest is that i found out that my loan is not listed on the Sec fillings for the Trust AHM 2005-4 that is foreclosing on me. AHM is no longer, Bears is no longer, Lehman is no longer …
    Who owns my loan ???

  3. Ian

    Think you are referring to the BOA post here – regarding:

    “wrongly classified as much as $10.7 billion of short-term repurchase and lending transactions as sales from 2007 to 2009 to reduce its end-of-quarter assets.”

    Short -term repurchase agreements – are agreements to purchase back securities transferred etc. They are are not a permanent “sale.” But BOA says this was a “mistake” – and not intentional —– yeah right.

    However, the issue of true sales in SPVs – is the focus of the changes in accounting rules (FASB 166 and 167). In effect, most of the SPVs must be brought back onto the balance sheets of the big banks that purchased the mortgage and set up the off-balance sheet conduits.

    Special Purpose Vehicles (SPV) are also called SPE (Special Purpose Entities) . According to the FASB new rules the concept of the QSPE (Qualifying Special Purpose Entity)(s) is eliminated.

    Quote:

    “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.
    Both Statements can be accessed here .”

    End Quote

    There are many issues as to whether or not a “true sale” of the mortgage loans to an off-balance sheet conduit ever occurred. One issue is continued control or involvement by the issuer – which would negate a true sale (as in the case of BOA repurchase agreements) (there were also repurchase agreements in SPVs). Since the crisis caused much intervention in the SPE/SPV – it is very likely that even if a “true sale” occurred at the origination – it has now been negated by the issuer intervention. Thus, the reason for consolidation back onto the bank’s balance sheet. Many banks have already complied with FASB 166 and 167. Some may be still trying to figure out ways to avoid – heard this about Wells Fargo – but that was a while ago.

  4. Ian, you are onto something there. M. Soliman has been discussing this for a long time now. You can search for his posts on this site. What he is saying, and he used to be in the business, is that these loans are booked as sales as they go into the securitization platform. They can be booked as sales or secured borrowings and depending on which one, the seller will either retain or lose rights to the assets. They choose sales accounting for certain reasons such as derecognition but also because the trusts have to possess all control in order to qualify the securities they sell. The way these platforms are set up, they must sell the assets. So what he is saying is that they sold the notes, they lost control of them, and now they are trying to come back in after the fact and reclaim control.

    Now MERS keeps the deed and doesnt publicly record the transfer into the securitization platform. Technically, the moment the sale into the trust holder occurs, MERS should reconvey the deed to the last holder in due course. But they stay out of the whole mess until foreclosure and then they just bypass around the entire platform as if the note was never sold and assign it to the securities trustee or whoever is the moving party. They show up with that assigned deed as it the debt was attributable to it alone and fail to mention that the note itself was paid off in full the moment it was securitized. So the final party who is claiming interest has no actual interest in the note and is holding a deed with no asset behind it!

    This is a technicality you could say. It doesnt mean that there is no moral obligation to repay. But who would you pay? These guys are the ones who created this convoluted mess as a way to obfuscate and deceive so this technicality is one of several that we may use. They offered you a loan mod, they have no authority to do so. They sold the note. They told you to try a short sale, they will never approve it. They cant. The securities platform has no model or method for assisting the borrower. The lender or servicer has no ability to pull out your loan and to alter its terms. The borrower had no ability to cure. Never did. It was all lies to look like they were offering help. Now, they need to recycle the ponzi scheme with a new borrower and they need to have that title back in order to sell it again. So the foreclosure is a scam to get title back into the hands of the party who will re sell it and send a new loan back into the platform to make up for the defaulted one and to make new profits as well.

    Soliman has explained a ton of other areas of interest to me, and its taken a long time to understand him because its so technical and he is speaking banker-speak, but what I just wrote is the main point. A securitized mortgage has no holder in due course who has the ability to foreclose. That just can not exist with the way these are built. A judge looks at it like its a mortgage, a well known type of arrangement. But that not what it is. its an entirely different kind of beast. So as long as it outwardly looks similar, they dont see what has happened. They cant imagine that there is no holder in due course.

    The more we can understand the securities platform and how it is booked on the accounting side, the more we can assert that this is not a traditional mortgage and that it needs to be looked at from an accounting point of view. FAS 140 explains the rules for booking a sale into a securities platform.

    Colin

  5. ANONYMOUS- Can you please explain in layman’s terms the direct effect which this week’s “mistakes” by BOA and Citi regarding erroneously (on purpose) booked “sales” were in fact “borrowings”. I believe that the reason that all the assignments of mortgage are made just prior to, or up to 3 or 4 weeks after, a notice of default, is that the holder? has,up until that point in time, seen no clear way in which to get rid of the individual mortgages, as in destroying the evidence. This is why all we see are assignments of mortgage, as opposed to original notes. These mortgages have been pledged to multiple entities AT THE SAME TIME as collateral for numerous loans. Let’s face it, most of the bankers and financial industry people are as dumb as a sack of rocks, but they are greedy, have no sense of morals, and are underhanded. With that in mind, it is easy and realistic to expect the worst from these morons. Apparently, Freddie and Fannie’s problems are not ending with the Taylor Bean and Whitaker debacle. This is only the beginning.

  6. Daniela Mars – I have been away. Trying to read through all posts.

    Sharp SP is resecuritizer of “Net Interest Margin” – residual claims. Residual claims are often held by the servicer.

    This, to me, is further evidence that the original SPV is gone. The residual tranches were never securitized. Defaults pass through the bottom tranche for removal by the servicer (swapped out). The servicer then sells collection rights to third parties. Thus, servicer will service for an unknown party – including foreclosure rights.

    Seems that the residual tranche is just being repackaged into another name. Must find out who the servicer is servicing for – either their parent corporation – or another third party who now owns collection rights (likely for pennies on the dollar).

  7. Hey Neil,
    You are going to love this:

    Hope the link works if not email me and I will attach to an email that I know will work…

    Forensic Mortgage Audits and Foreclosure Defense
    oliver@ipa.net
    john

    http://4closurefrau d.org/2010/ 07/10/kaboom- jpmorgan- chase-credit- suisse-bank- of-america- barclays- citigroup- countrywide- deutsche- bank-goldman- sachs-merrill- lynch-morgan- stanley-ubs- et-al-sued- for-fraud/

  8. please Anonymous: can you look at this link. My MSB Cusip number is listed on this.

    Sharps SP I LLC
    Offeror and Depositor
    Offer to Exchange
    Trust Certificates and a Cash Payment
    for any and all Outstanding
    Residential Mortgage-Backed Securities and Asset-Backed
    Securities Listed in Schedule A,
    each of which is Guaranteed by Financial Guaranty
    Insurance Company
    This offer to exchange (the “Offer to Exchange”) for any and all of the outstanding residential mortgagebacked
    securities (“RMBS”) and asset-backed securities (“ABS”) listed in Schedule A (collectively, the “Eligible
    Insured Securities”), each of which is guaranteed by Financial Guaranty Insurance Company (“FGIC”), will expire at
    11:59 p.m., New York City time, on April 29, 2010, unless extended or earlier terminated (such date and time, as the
    same may be extended or earlier terminated, the “Expiration Date”).
    Each beneficial owner of Eligible Insured Securities (each, a “Holder”) that elects to participate in the
    Offer (as defined below) and validly tenders, and does not withdraw, its Eligible Insured Securities guaranteed by
    FGIC will be eligible to receive an uninsured cash flow trust certificate (each, a “UCF Certificate”) and a cash
    payment (the “Consent Fee”) as follows:
    • Holders that validly tender their Eligible Insured Securities on or prior to 11:59 p.m., New York City time,
    on April 15, 2010, unless extended or earlier terminated (such time and date, as the same may be
    extended or earlier terminated, the “Early Consideration Date”), will be eligible to receive a UCF Certificate
    and a Consent Fee, calculated by reference to the Unpaid Principal Balance (as defined below) of their
    Eligible Insured Securities as of February 28, 2010.
    • Holders that validly tender their Eligible Insured Securities after the Early Consideration Date but on or
    prior to the Expiration Date will be eligible to receive a UCF Certificate and the Consent Fee, calculated by
    reference to the Unpaid Principal Balance of their Eligible Insured Securities as of the Expiration Date.
    Validly tendered Eligible Insured Securities may be withdrawn only on or prior to 11:59 p.m., New York
    City time, on April 15, 2010 (such date and time, as the same may be extended, the “Withdrawal Deadline”).
    Participating in the Offer involves risk. See “Risk Factors” beginning on page 14.
    You are not eligible to receive or review this Offer to Exchange or participate in the Offer unless (A) you
    have previously delivered to the Exchange and Information Agent (as defined below) a completed certification
    letter in the form provided and (B) you meet the qualifications described herein. The Offer is only being made to
    persons who (1) are “qualified institutional buyers” as defined in Rule 144A under the Securities Act of 1933, as
    amended (the “Securities Act”), (2) are “qualified purchasers” as defined in Section 2(a)(51) of the Investment
    Company Act of 1940, as amended (the “Investment Company Act”) and (3) meet the other restrictions described
    herein. The UCF Certificates have not been and will not be registered under the Securities Act or any other
    applicable law of the United States and will be subject to certain restrictions on transfer.
    The tender of Eligible Insured Securities will not be possible through The Depository Trust Company
    (“DTC”) Automated Tender Offers Program (“ATOP”) system. The Depositary (as defined below) has established
    a website at http://www.sharpsoffer.com through which Holders may establish accounts that will enable them to validly
    tender their Eligible Insured Securities. See “Procedures for Tendering Eligible Insured Securities.”
    Neither this Offer to Exchange nor any of the documents related to the Offer have been filed with or
    reviewed by any federal or state securities commission or regulatory authority of any country, nor has any such
    commission or authority passed upon the accuracy or adequacy of this Offer to Exchange or any of the
    documents related to this Offer. Any representation to the contrary is unlawful and may be a criminal offense.
    The Dealer Manager for the Offer is:
    Deutsche Bank Securities
    The date of this Offer to Exchange is March 25, 2010.

    fixedincomecolor.net/download/doc…/238-fgic-exchange-offer-document

  9. BSE do you have an e mail that i can send you the link ?

  10. Daniela Mars

    This sounds interesting..Please keep us posted.

  11. DO WE HAVE A CITE FOR THIS, I HAVE A HEARING ON A TRO TOMORROW AND WOLD LIKE TO HAVE A CITE

  12. Neil I am sending you an email with a link to a conference call that my husband participated with a company that is recruiting AEs to purchase REO and I NEED you to listen.

    Anonymous – is there an e mail that i can reach you ?

    It has to be with some FAS act 1667.

  13. Yes, pleadings please!

  14. any pleadings?

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