Our good friend “Anonymous” has piped up with more vital information and expressed it more succinctly than I did.
“The senior tranches have largely already been paid and closed. Since the junior tranches are paid only if there is left over current payment – after the senior tranches have been paid. Thus, junior tranches are paid nothing (this is evident in investor lawsuits – damages do not deduct foreclosure recovery). If anything remains today from the toxic mortgage loan securitizations, it is the residual tranche – which has likely been resecuritized into a separate Trust – that is not a current pass-through security – but, rather, synthetically derived from a dismantled original Trust structure. “
Editor’s Note: In other words, if you have a high quality loan wherein you have a high credit score and received relatively good terms, it was in the “senior tranches.” The senior tranches were paid and closed. They were paid from the meager proceeds of the junior tranches, from insurance, credit default swaps etc. Bottom Line: If you got one of those mortgages, it has almost certainly been paid in full. So why are they still collecting your payments? Because they can.
Your obligation has most likely been satisfied long ago without any rights of subrogation. If you are in foreclosure now with one of these loans, the “Trustee” is in actuality out of the picture because the “Trust” was closed out (IF IT EVER LEGALLY EXISTED). All of this leads to the politically incorrect conclusion that people gt their houses for “nothing.” But that is not true.
ALL THE MONEY THAT WAS OWED ON THAT LOAN HAS BEEN PAID. WHY SHOULD ANYONE COLLECT ANYTHING FURTHER?
More comments from “Anonymous”
This is a very important post. I have been aware of cases where the defendant is sent to mediation without first identifying the real creditor. Some here have stated that the real party issue is not relevant because eventually the plaintiff will get his “ducks in a row” and proceed with the foreclosure under the real party name.
Not identifying the real party in court is not only fraud but also deprives the defendant of direct and timely negotiation with the real party true creditor. Thus, damages accrue to the defendant.
Although real party, in my opinion, is the single most important issue, I am not seeing courts enforce discovery to ascertain the real party. Once it can be established that the real party is not before the court, all the produced documents are also subject to question. I have seen cases where the real party is at issue – but most of the cases simply state that the plaintiff does not have standing – without attempting to demonstrate why the plaintiff is not the real party.
Since foreclosure cases most often are indicative of securitization, knowing the chain of sale/assignment in a securitization is crucial. Also, knowing what the “investors” are entitled to is important. Again, while I think this post is very important – i disagree with “there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded” 1) any investors who indirectly funded a “pool” – did not directly fund mortgages and 2) tranche “investors” – for which there a limited number of tranches – were only entitled to current income pass-through – not foreclosure recovery (which is not current and not passed on to pass-through security investors. (However, the residual tranche is not a pass-through – and is usually held by the servicer – who may -or may not be the current creditor). 3) the Trust is likely dissolved.
The fact that mediation is being conducted without identification of the current creditor – in whose name any modification must be contracted – is simply additional fraud upon the borrower defendant. This fraud is akin to “loan modification” scams that are being currently investigated by some state Department of Justices.
How and why the courts are allowing this to happen – and actually promoting it – is beyond me.
Editor’s Note: Legally this puts us at the horns of a dilemma. If we want to travel the path of “PAID IN FULL” then we are treading on the thin ice of accepting or admitting that the loan was actually legally and correctly assigned and indorsed into the pool, in addition to the usual “free house” talk. If we travel the path of UNSUCCESSFUL ATTEMPTED ASSIGNMENT then we get to the conclusion that the loan is still owned by the originating lender, who was PAID IN FULL at the time of the loan closing, but still is the owner of record. If we travel both paths, we are presenting a highly complex argument that most judges won’t understand. This is why the winners out there are not making big splashes with exotic legal arguments (even though they would be right), the winners are getting down to the details that any Judge would understand — SHOW ME THE TRUST DOCUMENT, SHOW ME THE NOTE, SHOW ME THE ASSIGNMENT, SHOW ME THE INDORSEMENT, SHOW ME THE ACCOUNTING, SHOW ME THE CREDITOR ETC.
MANY THANKS, ANONYMOUS!!!
Filed under: bubble, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure mill, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, trustee | Tagged: creditor, fraud, mediation, REAL PARTY IN INTEREST |
I must ask considering the “pretender lender” scheme of securitization …..
1. What was really “loaned” to the borrower?
2. What part of “Originator and Lender” is in conflict to the other?
3. Any “Investment” on Wall Street can fail…..who and or what continues to prop-up this residential securitization scheme for Wall Street?
DyingTruth,
ANONYMOUS does not live in California – but thanks for your support!!!.
ANONYMOUS is a female she lives in Northern California. Now I’m not going to reveal her name because obviously she chooses to remain ‘anonymous’, but hopefully that will ease some of the curiosity so people will lay off of her.
Don-CA – and – Thank you Cheryl
See:
CONSUMER SOLUTIONS REO, LLC, Plaintiff, v. RUTHIE B. HILLERY, et al., Defendants.
No. C-08-4357 EMC
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2010 U.S. Dist. LEXIS 37857
March 24, 2010, Decided
March 24, 2010, Filed
have there been any cases yet where the May 2009 TILA Amendment’s requirement to disclose the true creditor been argued?
Dave Kreiger…..can you please e-mail me at seekingremedy@gmail.com? 1. I want to buy the book and support your efforts, and 2. I would like to hire you for some documentation if possible.
Thank you!
Seeking Remedy
Anonymous –
I think you are a great person for trying to help other people and thank you for all your suggestions to me. They helped.
AONOMOUS ;Sorry if I hurt your feelings——-I must describe the enterprise——–I have been seeking Experts and insider witnesses.
Briedenbach–well then you should not make accusations and call anyone a ‘shill’ for the servicers.
You owe ANONYMOUS an apology. She has devoted her time and expertise to this site far, far longer than you have been on LivingLies.
You, mister lawyer, are out of line by calling names and making defamatory innuendos.
Abby
Thank you.
David C –
I can contact no one.
Sorry: I didn’t realize this was an online chat site–ill disconnect
http://pa.co.hancock.oh.us/pa.urd/pamw2000.o_case_sum?70830054
Breidenbach-
ANONYMOUS is NO Shill. She is the real deal.
Have you told people on this site you are an attorney–an attorney licensed in Ohio #0027582 since 1977.
So — are you a plant or just trying to extract from ANONYMOUS and other experts on LL free information?
Stop badgering.
Patrick
ANONYMOUS IS NOT BRAD!! What are you trying to do, give Brad credit where he is not due or to drum up his business further?
Patrick–you are way off this time!!
Ok Anonymous –lets pool our views and see if we are approaching the problem from different perspectives only–not conflicting ones. An elephant looks different from different angles -but its still the same beast.
In order to disclose specific information relating to specific entities and activities, Id prefer to go offline and later–if possible publish joint conclusions for the benefit of others -including most especially prospective regulators. that is my goal.
pls contact me at dcbreidenbach@aol.com if you so elect. The whole truth is my objective.
David C Breidenbach
Question for you – according to the May 2009 TILA Amendment – the creditor must now be identified – who would you identify as the current creditor – since the Trustee is not receiving current payments recorded by Collection/Distribution account. established by the original SPV??
David C Breidenbach and Patrick Pulatie,
!) I am not Brad Keiser – I am victim that has been researching for many years –
2) The waterfall structure of an SPV is simply a priority of payments – seniors are paid first – with any remaining payments paid to mezzanine tranches – losses are applied in reverse order. The POOL is allocated to all tranches.
3) What David C. is referring to as far as certain loan in certain tranches is for CDOs – not SPVs – and not relevant to us.
4) When SPV tranches are paid and closed by swaps – they remain closed. SPV tranches are only for pass-through of current cash payments.
5) Intervention in the original QSPE – means dissolution – and the bank must dissolve and bring back on balance sheet in compliance with new accounting rules.
6) You write – “but still owned the MBS” – MBS are only current pass-through – once in default – and swap is executed – there is no more current pass-through. This is not to say the swap holder (which could now be the US Government – in the case of AIG defaults- does not own some collection rights to the collateral that once supported the current payment stream. But, these rights represent removal from the Trust – and not payment to the Trust..
I do not dispute any of the methods here to challenge for foreclosure – as long as they are challenged.
I wish I could divulge more of what I have experienced – I cannot at this point. I am not an attorney – and not part of any network to market solutions to victims. I am divulging what I do know. Successful foreclosure challenges have been few and far between. If you do not like what I write – do not read it.
Much luck to the both of you – our goal is the same – stop fraudulent foreclosures.
The aggregation of info that we have on the securitization process and “Who receives the proceeds of foreclosure?” is critical to understanding of all this seemingly nonsensical activity by lenders–actually servicers.
Why no mods?
Why foreclosure when not rational?
Why would lenders intentionally create “designed to fail” loans?
Why take the risk of securities fraud by failure to make filings of loan lists as represented in the Indentures?
Is the fraud over –or just entering another phase?
How can the new Consumer Protection Agency respond and prohibit activities that caused the problems w/o knowing why they occurred in the 1st place?
It is not pursuit of conspiracy theories to ask these questions. If we do not yet understand the answers -the pattern will repeat.
” Summary of the Matters
The nature of the fraud underlying the entire scheme ending with this foreclosure action can be simply described. The originator created and marketed predatory loans with the aid of investment bankers. The toxic loans were stuffed into purported trusts to support securitization. The toxic stuffing was concealed from investors by misrepresentations and failure to file descriptive loan lists in required governmental repositories subject to ready review. The trusts allow the servicer to shift current period payments from safe conventional fixed rate loans, indirectly owned by teachers and other pension funds, to more senior investors as an incident to the stuffing. The stuffed predatory loans had 3-5 year payment resets. The reset, when coupled with other predatory features, enabled the servicer to predict default of these “designed to fail” loans with reasonable accuracy. The servicing agreement and other trust documents allow the servicer to collect and hold net foreclosure proceeds derived from the “designed to fail” loans for decades. During this holding period the servicer has the near unbridled exclusive right to determine how these proceeds are invested. The entire income stream of these investments flows to the exclusive benefit of the servicer for the duration of the holding period. The Servicer realizes this windfall income stream only if there is a liquidation of the borrower’s home. The Servicer has little incentive to modify loans, and every incentive to liquidate the loans—even if the net proceeds of foreclosure are a fraction of the net present value of the modified loan cash flow. The originator intentionally created toxic loans to generate front-end fees and to create a pool of cash from foreclosure proceeds to benefit the future owner of the servicing rights. The predatory loan was created to feed the securitization process—which was not actually followed—except to the extent the servicer today asserts the authority to foreclose homes, and divert the proceeds from investors to its own uses. It is a chain of events initiated in deception on homeowners and investors—and continuing today in the same vein. “
Dave – thank you for that awesome information in re Box and about UCC. Especially helpful is the emphasis on using state cases 🙂 Thanks Dave – and everyone else 🙂
I’ve been following your column and am currently reading “Chain of Blame” about the behind the scenes developments in the mortgage industry. I happened to be reading about subordinated tranches just as these posts hit. Louis Ranieri , who created the MBS, spoke about the problems in a industry conference , pgs. 216-225. This book may be a goldmine of pieces to document known industry practices and warnings as it discusses the big players, the warnings, the meltdowns.
THE A MAN – whoever you are – and you have been here for at least as long as me – you are right again!!! – WE NEED BOTH!! Too much power on the other side – need to get our own. It is in reach – just needs to be implemented.
In re Box order can also be found here:
http://www.mow.uscourts.gov/bankruptcy/opinions/federman/box_order.pdf
The basic quiet title actions follow to form and purpose. You use whatever basis for your claim as necessary. There are a lot of templates you can use out there. Many attorneys use ProDoc which have state specific stuff in it. If you look at cases that are specific to your cause and you go to the law library to look them up … find cases that are specific to your area or where someone has filed pleadings in a court near you. Then go to that court with the case # and get a copy of the pleadings directly from the case file. You can then see how it was formatted. Before you pay for pleadings though, make sure the outcome was positive via the case cite. No sense pulling case pleadings that were incorrectly plead. The case cite itself will tell you whether or not the case was successful in the case of the homeowner. My two quiet title actions were against a defunct corporation in Arkansas over resort property I acquired from the state. They did not challenge, thus I was awarded. I didn’t have to prove fraud. This is part of how you make money on tax deed sales, by quieting title BEFORE you sell. Since I invest in real estate, quiet title actions have been a particular interest of mine for some time.
In Re Box has now been uploaded to scribd.com …
The name of my book is Clouded Titles … @gmail.com
Stupendous Man–the case Dave is referring to is “In Re Box” decided June 3 before Arthur Federman in the United States Bankruptcy Court for the Western District of Missouri. I sent dave that case. It is a wonderful decision, especially the last page. A bit of an update on that case as I spoke to the Trustee’s office as a followup. Apparently BAC continues to ask to be heard at creditor’s meetings on this matter even after relief from stay was denied BAC. The trustee is refusing to acknowledge BAC has a position at the creditor’s meeting because it has not proved it holds the note in question as Judge Federman found. The last page of Federman’s decision told BAC that when they had the note or claimed to have the note they could ask for an evidentiary hearing that showed they had the note and could establish agency for being able to seek foreclosure on the note. To date, some 7 weeks later, they have yet to do so and given that the Trustee continues to deny them the right to speak at creditor’s meetings.
Dave, may I have your email address?
Oops, Krieger. Sorry.
Yes Mr. Kreiger,
Please do post the specific “Federman decision” you are referring to. It sounds like an important and interesting read.
We do not need a street protest. We need to tar and feather the real culprits. Ship them to Nigeria for one year with nothing but bread and water. Their savings, 401K plans and pension funds should be seized and given to those who have upside down home loans.
Their property needs to be seized and turned into A McDonald house for the children they robbed. The families of these culprits need to be kicked to the streets and need to eat cat food for the next 5 years. These people need to understand what pain and suffering is all about. This is not a crisis, it has become financial war ! This government has done nothing to stop what they created. I am mad as hell and will remain this way until I drop dead !
Dave Krieger can you post the cases you referred to in Scribe and post the link here? Also if you could post your successful quite title actions as well that would be much appreciated.
Thank you Dave Krieger and Neil Garfield and Brad Keiser and Patrick Pulatie
But I still say we need both, Street legal protests..
And to the judges who are on this blog I hope you make the decision that will put you on the correct side of history and the law. You have been entrusted and given a very powerful position. And please act accordingly. 1 million foreclosures this year alone not to mention business that also are affected= mass economic cleansing which is no different than modern day ethnic cleansing.
NEVER AGAIN
This is a great post from Dave who I am using myself to help me in my pro se case–I am a former trial attorney of some 30 yeasr in civil rights cases in Fed and State Courts so “pro se” for me is a bit different. Dave is always right on with his case law and his theories. The def are attempting to remove my quiet title action to fed ct and I am objecting. I have also filed a complaint with the FBI alleging the fraud in the HAMP program based upon what is going in in my case and the fraud in the MERS filings which when you look at all the docs at the courthouse TOGETHER the fraud becomes clear in several different ways. Dave is the brightest paralegal I have ever met and should be a lawyer. I have never had one thing he sent me prove to be wrong–this guy has also got the common sense approach to this and is not out there with legal theories that are hard to prove. He knows too what dis we need. You all would do well to listen to him, get his posts and use his services.
Dave Krieger,
Very good comments as well. People can learn from you also.
David,
Thank you!!!!! You explained in an easy to understand manner what I have tried to say here many times.
The arguments that Neil presents regarding the paying off of the tranches and the extinguishment of the debt is pure b.s. If people read your words carefully, then they will really get the full picture.
I get calls weekly from people who want to present these arguments in court, and want me to evaluate their loan documents, and write up the results to represent these ideas. I refuse all the time, because I will not destroy my credibility on specious arguments with no merit.
BTW, Anomyous is Brad Keiser.
Avirani and Indigo …
I have been working on a book about this whole mess for quite some time and it is about to be published. The book presents several angles on attacking the lenders. Your takes on WITHOUT RECOURSE are a blessing, since you are citing case law.
All of these posts (pertaining to anonymous) do come with a caveat. Bear in mind when you post that the banks are reading this blog too. I happen to know of a few law firms right now (foreclosure mills) that read this blog on a daily basis. I also know of a few judges that are reading this blog as well. All of this I know through direct contact with clients, as well as assisting their attorneys as a paralegal with case work.
RE: UCC … every case is state specific. You can’t quote the federal UCC because the states have adopted it into their own versions and altered it to please the political machinery. Max Gardner told me this. In my research for the book, I have talked to hordes of attorneys about this stuff and they are very candid when they say that these foreclosure mills, all part of the grand scheme, are fully briefed by the banking community as to how to answer these suits and what they can and cannot get away with. The mavericks that tend to become arrogant (like Stern) get caught bringing fraud on the court. Aside from that, the individual attorneys I have spoken with admit that they do not have the resources to share information as readily as the foreclosure mill networks do. This is why we have a problem. Attorneys have egos and the more successful ones know that if an outside source brings them something credible that sounds plausible enough to win with then there’s a chance the homeowner is going to get results.
Seemingly expected … not all of the stuff I share with the hosts of this blog get shared with the community. When you know that the “other side” is watching what homeowners are posting on this and other related blogs, you will find bits and pieces of interjections that are designed to sway the reader or as in a court case, “get them off point”. The best way for a defendant lender to win is to get the Plaintiff homeowner off point, to where the plaintiff goes off on serious, unproven, unchartered, unsupported (without case law) conspiracy theories that have no merit because they are just that, theories.
This is true … your allegations of disinterested counter parties lodging false information on these blogs has merit.
One can only verify through (1) research; and (2) discovery.
This is why I wrote my book on quiet title actions (along with everything else in the kitchen sink). In order to weaken the other side, thousands of lawsuits a week are going to have to get filed, because there are NOT enough foreclosure mills to defend them. True, the court system will be clogged like a sewer with these actions. True, a lot of these banks will typically get their attorneys to remove the case to federal court, thinking they can get a slam dunk on diversity jurisdiction (multiple defendants from other states makes in federal according to their rationale) so they can get a 12(b)(6) ruling. This is why the entire cause must be centered around quieting title.
Instead of going after all of these counts, as I have seen in the past, take only the quiet title as your lead cause and build your case using key points (not as counts, but as predicators) … this is what I have seen the good attorneys do in their pleadings … and believe me … these class actions inure to the benefit of the attorneys that file them and because of the class, only one law firm needs to take it on. If you’ve got thousands of homeowners filing quiet title suits in state court (sticking to state statutes) the lenders do not know how to react. They usually are in the driver’s seat, foreclosing on the homeowners. They have a scheme for that. They have a tested methodology that has worked up to a point. They know what they can get away with … at least up until now. You will notice that the suits that are winning are individually filed or individually defended.
If you do not have the Federman decision … I would be happy to send it to you, as it doesn’t seem to be posted on here. The last paragraph of the order invites Bank of America and MERS to come forward and produce documentation to prove agency. Hon. Arthur Federman is a very smart and highly regarded bankruptcy judge. It’s just too bad that people don’t read his decisions BEFORE filing bankruptcy. (I sent the Order to Neil but I haven’t seen any reference to it being posted on here yet. hint hint)
The banks either (1) can’t produce the note; or (2) tie themselves in some way through contract to prove agency. I write about that in my book. These flaws are NOT hard to prove. I have talked to attorneys who say that the banks’ attorneys come into court with a pomposity that reeks when they walk in the door. They are not expecting any attorney to be able to wade through the gobbledygook of paperwork and arguments they present, because generally, the homeowner has hired a lawyer that doesn’t know his a** from a hole in the ground. (Neil is right on that point.)
In quiet title actions, supporting state case law is very relevant, because the judges’ law clerks can research it and apply it to your case. If you start putting in federal questions, you give the other side cause celebre to remove it to federal and slam dunk you. Quiet title actions are a state right and no federal judge can quiet title to property sitting in state jurisdiction. The filings are in the county recorder’s offices (and I seriously doubt that 99.9% of all borrowers signing the Deed of Trust even knew what the hell they were signing).
The theories of who loaned who credit and who got paid first and who got screwed second is NOT the crux of your case. It’s the original documentation that created the fraud and the subsequent filings in the county courthouse that become part of your quiet title action. You see, most states declare in statute that as long as you retain possession at the time you file a quiet title suit, you can move forward, even if you are in foreclosure. Some states even allow quiet title actions to be filed POST FORECLOSURE, POST EVICTION! Again, this is state specific, where federal law and rules cannot be applied. This I know from research. I cannot give this out as legal advice obviously.
Blogs are great sharing tools provided the information being shared is credible and can be verified.
The lenders’ foreclosure mills shrink up like a man with erectile dysfunction when placed under this kind of stress, because of the burden of proof is virtually split between the Plaintiff, who makes allegations supported by case law and the Defendant lender that has to tie all of the ends together. Once the quiet title action is filed the lender can’t go back in and record documentation after the fact to perfect their security interest … they have to bring it into open court, where you can impeach it. I have two successful quiet title actions under my belt personally, so I know how they work.
I also happen to know what the “four corners” rule/doctrine is. It’s the entire content of the page taken as a whole versus the specifics contained therein. This is very useful in wrongful foreclosure actions. Couple a wrongful foreclosure action with quiet title … and then find your state statute that makes it a state jail felony to file such fraud with the county court clerks/recorders/register of deeds … bring the local county recorder and the DA into your case; show them the docs; show them where they are suspect; get them on your side; the judges ruling on your cases are more likely to see reason because you have the county working with you to stomp out fraud. Even as a pro se Plaintiff (which I shudder to think could pull this off, but could) it would lend a lot of credibility to your case if you have outside sources with credibility jumping into the fray. This is how County entities that record documents, such as deeds of trust, become aware as to WHY they are being deprived of income because of MERS. … and let me tell you here and now MERS ain’t no Viagra. If you look at your original deeds of trust and see who the players are, you will figure out WHY the whole thing is a fraud, without me having to get on here and tip my research to the banks who are wondering the same thing.
Anonymous is either misconstruing bits anf pieces of info or is an outright shill of the servicers—spreading dis-information. He entirely misapprehends the nature of the waterfal trust scheme. The waterfall of cash flow from junior to senior tranches occurs because the bottom-most loan group–originally matched to the most senior tranche–is stuffed with the worst, most predatory loans. These were designed to fail: illussory teaser rates to baitn switch, negative amortization to create a growing loan balance, which grows because the teaers rate never actually applied. Add in excessive appraisals and a 3-5 year payment reset that doubles the payments by forcing amortization of the full –now ballooned with accrued unpaid interest relating to the illussory teaser that was supposed to apply for 1 or 2 years or longer, and you have a borrower hitting a steep cliff.
These loans supposedly supported payments to the most senior tranche. However they went South at the fastest pace of any loan group in the trust. Look at the Moody’s report on the loans remaining and the rating of the original senior class. The waterfall starts when the loans associated with the most senior tranch ceased current payments. Thats when the “safe” conventional fixed rate loans in higher groups –originally matched to junior MBS tranches begin to be diverted to distributions to the senior tranch-holders. The junior investors who thought they were supported by the safe loans find their cash flows headed for the waterfall to the senior tranche whose loans have ceased performing.
The author here has it right though–the seniors are still out there getting paid –track the CUSIP–look at Moodys. Although the holders of these tranches may have received post-securitization arranged insutrance or swap proceeds ———AIG for example did not obtain subrogation. The payments for value reduction enabled the investor to receive payment of substantial amounts –but still owned the MBS. That investor was able to sell at remaing net investment -for a fraction of face–and then the buyer keeps on collecting the payments for the life of the senior securities–which may be 20 years to match the expected payout of the loans–typical finace match funding. The new MBS holder is collecting on a windfall –very high returns. Out of monies expected to be received by teachers pension funds. Beware of Anonymous.
I love this: ” SHOW ME THE TRUST DOCUMENT, SHOW ME THE NOTE, SHOW ME THE ASSIGNMENT, SHOW ME THE INDORSEMENT, SHOW ME THE ACCOUNTING, SHOW ME THE CREDITOR ETC.” It’s my mantra as I research my loan 🙂
I am not in foreclosure (yet but likely eventually will be). This is in Colorado.
In 2002, refinanced with Creative Mortgage Funding (now defunct local lender), at closing, servicing assigned and/or loan sold to Ohio Savings Bank, which in 2007 became Amtrust, and in December was closed by the FDIC. FDIC recently “sold” (at 37% of face value) the servicing rights to Residential Credit Solutions, effective August 1st (and FDIC kept a 60% stake in the “consortium of three companies” that “purchased” these loans that will be serviced by Residential Credit)
Looking through copies of my closing documents, found “Assignment of Deed of Trust or Mortgage Deed” – it is NOTARIZED BUT NOT SIGNED.
Didn’t think you could notarize something that isn’t signed!?
Pulled copy of the assignment from Clerk & Recorder’s office. The Deed of Trust and that first Assignment are both recorded, same day, 18 days after closing. The assignment is IDENTICAL to the copy I have, except it is signed. Signature looks an awful lot like the notary’s actually… but it’s signed.
I’m looking at this piece of paper and thinking it is proof of something… proof of improper notarizing… reading Colorado statutes, I think it may be enough to get this first assignment invalidated. Am I thinking this correctly?
There are other oddities and discrepancies, but this one hits me in the gut as The Big One, the one I need to focus on. Suggestions?
FYI: Nothing recorded changing the name on the assignment from Ohio Savings Bank to Amtrust. No other documents of any type recorded on my loan. It’s NOT a MERS loan. It’s not Fannie or Freddie either, I do know it’s “owned by a group of investors” – the FDIC told me that but would not tell me WHO that group of investors is. Will be sending out QWR once Residential Credit Solutions is the (purported) servicer after August 1st.
Also in regards to negotiability. The banks make it negotiable but it is originally non-negotiable. That’s why these complaints do not allege the are the holder in due course they merely allege they are the holder.
These notes when originally drawn are not “pay to the order” or “to bearer”.
This means you still have all the defenses that you would have against the original party.
U.C.C. – ARTICLE 3 – NEGOTIABLE INSTRUMENTS
..PART 1. GENERAL PR§ 3-106. UNCONDITIONAL PROMISE OR ORDER.
PROVISIONS AND DEFINITIONS
etc… If a promise or order at the time it is issued or first comes into possession of a holder contains a statement, required by applicable statutory or administrative law, to the effect that the rights of a holder or transferee are subject to claims or defenses that the issuer could assert against the original payee, the promise or order is not thereby made conditional for the purposes of Section 3-104(a); but if the promise or order is an instrument, there cannot be a holder in due course of the instrument.
§ 3-104. NEGOTIABLE INSTRUMENT.
(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
These notes are not negotiable when drawn up because they do not say pay to the order or bearer.
All the defense as between the original parties remain!
Such as set-off for them taking your note as a special deposit of an asset.
Or that the instrument was non-negotiable and can only pass by assignment and not endorsement only.
In Patterson r. Poindexter, 6 Watte & Sergeant, 227, 234, it was said by the Chief Justice, that the endorser of a note without negotiable words, was responsible on the contract, by reason that the endorsement is a new drawing: and in Brenzer v. Wighlman, 7 Id. 264, it is decided that a note made without the words ” or order,” or ” bearer,” is not, as originally made, a negotiable note, but that the payee, by endorsing it payable to order, makes it negotiable ; and after that, it becomes as between the endorser and the holder, an inland bill of exchange, in which the endorser stands in the light of a new drawer of a bill payable to the order of the endorsee ; and the holder, by taking it in this character, takes it subject to all the rules that regulate the relation between endorser and endorsee innegotiable instruments. Of course, it cannot he meant by this, that by the endorsement the note becomes negotiable as against the maker; but this decision, by requiring legal demand and notice, seems of necessity to imply that such a note is a perfect negotiable instrument, as well against the maker as the endorser; for unless the maker had engaged to pay any endorsee, and upon endorsement had become a principal debtor to the endorsee, no reason can be given why demand and notice should be necessary, and the strict requirement of them would be in derogation of justice. Ff it be said that such an endorsement is a non-accepted bill drawn upon the maker, which requires presentment for acceptance, the answer would be, that the maker having given one promissory note, the legal title to which remains in the puyee, could not be expected to accept another bill of exchange upon the same consideration, and therefore the endorser is in the situation of one drawing without funds, and not entitled to notice. As against the maker, the endorsement of a non-negotiable note is certainly merely an assignment in equity of the beneficial interest in the note, or an authority to receive the proceeds to the endorsee’s use, and to employ the endorser’s name for the purpose; the endorsee has no legal right of action against the maker, and therefore can have no legal right of demand ; he could not make a demand in his own right, or have the note protested in his own name, but must do both in the name and as the agent of the endorser; and how can legal notice be required between those who stand in the relation, not of endorser and endorsee, but of principal and agent, or trustee and cestui que trust 1 Can a principal contract be negotiablefor the purpose of giving to the dependent and accessary contract of endorsement, all the qualities of an endorsement of a negotiable instrument, and yet not be negotiable in itself? How is it that the original note can act upon an endorsement so as to transform an equitable assignment into a negotiable instrument, and yet that this negotiable endorsement, when it comes to act upon the original note, finds it wanting the very quality which it is continually deriving from i
” The true statement of the law upon this point, is believed to be, that the endorsement by the payee of a note without negotiable words, does not render the endorser liable upon the instrument, as the maker of a new note, or the drawer of a new bill; that the question whether any and what liability is incurred by the delivery of a note so endorsed, will depend upon the intention of the parties and the circumstances of the transaction, which may make the endorsement a guaranty of the maker’s solvency, or a guaranty of punctual payment, or an engagement for any thing else; but prima facie such endorsement and delivery is but a transfer of the beneficial interest in the note, without recourse in regard to any thing but the genuineness of the instrument, and that only, where there has been an absolute transfer for a valuable consideration.”
The easiest way in my mind on how to prove there was no consideration is to demonstrate the FRN’s used to pay the seller where accumulated by selling the note. You could also try and prove FRN’s are non-redeemable by trying to redeem them with a FED bank and getting more paper in return.
NO NO NO!
No recourse means there is no recourse to make whomever signs with the restrictive endorsement pay the note.
The banking signing No RECOURSE proves the trasnaction was a SALE not a loan or extension of credit.
The extension of credit is a loan. The key part is because the acceptance is “without recourse” no credit was extended. The bank guarantee’s nothing except that the endorsement is genuine.
An indorsement “without recourse” is nevertheless an implied warranty of the genuineness of the signatures to the paper. Challiss v. McCrum, 22 Kan. 157, 164, 31 Am. Rep. 181; see, also, Charnley v. Dulles (Pa.) 8 Watts & S. 353, 361
An “indorsement without recourse” of a past-due note impliedly warrants that the note is genuine, and that it is what it purports to be on its face—a living debt New York Security & Trust Co. y. Lombard Inv. Co. (U. S.) 65 Fed. 271, 277.
“The indorser without recourse contracts that the bill or note is in every respect genuine, and neither forged, fictitious, nor altered. Undoubtedly, and by universal admission, this principle applies to the signatures of the drawer, acceptor, and maker of the bill or note, who are the original parties, and it is often expressed in language to the effect that the indorser warrants that it is a genuine instrument—citing many authorities.” Palmer v. Courtney, 49 N. W. 754, 756, 32 Neb. 773
BANKS DO NOT LEND CREDIT OR GIVE CREDIT
WITHOUT RECOURSE.
The words “sans recours” or “without recourse” have no exact legal significance, except when employed by an indorser to limit his liability on a negotiable instrument which has been, by the act of indorsement by him, assigned to a third person. An indorsement followed by this phrase relieves the Indorser of liability for the payment of such a paper in the event it is dishonored by the maker or acceptor. Thompson v. First State Bank, 29 S. B. 610, 611, 102 Ga. 696.
Many authorities say that the transfer of a note or bill without recourse is a sale.Brittin v. Freeman, 17 N. J. Law (2 Har.) 191, 227
When the indorsement of a note Is “without recourse,” the indorser specially declines to assume any responsibility for its payment. According to the meaning of the term in the law merchant, this is the express condition of the contract, as much as if stated in detail in so many words. Youngberg v. Nelson, 53 N. W. 629, 51 Minn. 172, 38 Am. St. Rep. 497; Palmer v. Courtney, 49 N. W. 754, 756, 32 Neb. 773.
An Indorsement of a promissory note “without recourse” Is evidence of an unwillingness to be answerable for the solvency of the maker—a prudent precaution, particularly where the note has a long time to run before it matures. Such Indorsement passes the note, with all its negotiable qualities. Epler v. Funk, 8 Pa. (8 Barr) 468, 469.
An Indorsement on a note of the words “without recourse” is an express declaration of the absence of responsibility. It is no more than the expression of the implication of the law from a transfer by delivery merely, and, except as passing the legal title to instruments which under the statute are made assignable, and are not by the law merchant negotiable by delivery, its obligations and effect, as between transferror and transferee, is that of a transfer by delivery. Bankhead v. Owen, 60 Ala. 457, 461.
An assignment of a negotiable instrument without recourse only relieves the assignee of the responsibility by reason of the insolvency of the obligors, but there is an implied warranty that the signatures are genuine, and the assignee is not required to use the same diligence in testing the genuineness of the paper as is required in testing the solvency of the obligors in case of a mere assignment for value. Maze v. Owingsville Banking Co., 63 S. W. 428, 23 Ky. Law Rep. 574.
As you can see they do not give any credit to the solvency of the maker. Credit is trust. If someone won’t put money where their mouth is there is no trust in fact. The are giving no credit or trust to the financial solvency of the prior maker or indorsers.
Banks are not loaning their credit. The are not giving credit. They are taking the note as if it were cash. It’s a straight up asset.
Believe it or not, I live in a home stead older than dirt. Some time many years ago as the “White Man” was driving the “Cherokee Indians” out of the land they lived on. Where they called home, but were forced out by the white man who had the guns. They traveled on “The Trail Of Tears” and they rode in front of my property. I do not know the year, but I have a friend that has roots long, deep and wide here in Georgia. His name and ancestry goes back to the “Chief Joseph Vann Hamby.” of the Cherokee Indians. The Trail of Tears marched on past my home on towards their destination, The exact year and time I do not know, however it was far from here. Seems to me that we are experiencing the same type of Exodus as that which was inflicted on them. This time it is the white bankster’s who are driving out the white middle class out of their homes and no reservation or place to go. The Indians before they where completely driven out, they would shot arrows and kill the white man as much as the white man tried to kill them. Soon the Indians where out numbered and forced to go. (no deeds or courts or fairness or due process?) The comparativeness is arguable and that was then, and this is now. I am glad, proud and happy to have been given the opportunity to have lived the “American Dream”, and even though the banksters picked on me, cut off my ability to access credit, had my business shut down because of the rapid inflation and deflation of property, so I will fight to keep what ever business I can come by and do with “Cash”, good old cash. I love America and dislike what the leaders have allowed to happen in our faces, “SHAME ON THEM”.
GOD BLESS AMERICA!
Anyone have any input on this sequence of events?
We closed on a refinance in May 2001. We applied in early December of 2000. We have only ever had 1 mortgage at a time. ON MY CREDIT REPORT, (and in the county courthouse) There were 2 additional mortgages recorded on Dec.28 2000. Neither of which we took out. Both have our signatures, identical to the actual May 2001 refinanced mortgage signatures. We never signed them, because we never applied for or received them, or made payments on them. They were “paid off” in May and August of 2001.
Is it possible that someone realized that our original note had been paid off when we were subject to a bogus manufactured default which we paid off? Can anything be learned from the loan numbers? thanks for any input. There’s more, but this is the gist of it.
And, Christine, if anyone holds collections rights – can they prove it?? If so, then much exposure of already orchestrated fraud – and fraud upon the court.
Christine Springer,
Issue is not that someone has been paid – issue is – who now owns collection rights??
INFO ALERT: A case was just referred to the Kansas City branch of the FBI for investigation for mortgage fraud …
Film at 11.
blah blah blah blah blah blah
this is how it gets done
http://latimesblogs.latimes.com/lanow/2010/07/bell-paid-huge-salaries-residents-paid-huge-tax-bills-records-show.html
1 million foreclosure this year is all the proof we need.
AND YES CHRISTINE SPRINGER I HAVE ATTORNEY FRIENDS THAT SAY THE SAME THING.
ASK THE JUDGE TO EXPLAIN THE CONTRACT THAT YOU SIGNED AND HE/SHE WONT BE ABLE TOO AND TELL HIM/HER THAT YOU WOULD NEVER HAVE SIGNED THIS CONTRACT IF YOU KNEW WHAT WAS REALLY GOING ON.
JUST LIKE IF A MAN SEDUCED A WOMAN UNDER FALSE PRETENCE TO HAVE A RELATIONSHIP WITH HIM THAT IS CONSIDERED RAPE. AND YOU MUST PROOVE THAT IF THE WOMAN/MAN KNEW THAT YOU THE MAN WAS REALLY MARRIED, BROKE, ALCAHOLIC DRUG ADDICT ETC…. NOT OF THE SAME RELIGION YOU WOULDNT HAVE A RELATIONSHIP. THAT IS RAPE.
NEVER AGAIN
Stupendous Man,
damon715leo@yahoo.com
Richard,
Are you comfortable displaying your email address? If so I’ll contact you.
Does the fact that the loan has been paid off really get a homeowner out of paying for the loan? I’ve heard of judges saying that the loan may be paid off, but the borrower signed a note and agreed to the transaction. Does anyone know of any cases where the “paid off” argument works?
This is what I have been wondering. With so much focus on sub prime loans, I have found little explanation of how prime loans were handled. My loan is a prime, 30 year fixed, with a low interest rate. I know my loan was in the senior tranches. I suspected that my loan was paid in full.
Thank you Anonymous and Neil. You guys are awesomeness to the 10th power. I wish there were more I could do to thank you. May the Grand Creator bless you for all your efforts in helping us distressed homeowners.
So true ANONYMOUS. This is where you have to get down to the nitty gritty. I am seeing too many old-fashioned requests for document production. By old-fashioned, I mean that they are asking for paper documents.
In order to get to the heart of the real fraud, e-discovery is a must. The federal courts and some state courts like Texas have very strong e-discovery rules. What everyone is looking for is in the metadata. Remember, MERS is one huge computer database. The loans were transferred electronically. MERS has an e-note registry. The key information is in those native files. Any tampering or destruction of the metadata is grounds for a spoliation order.
Following is a sample of some definitions that I believe should be included in each and every document production request:
ESI” means electronically stored information including, but not limited to, information electronically, magnetically or optically stored as: (a) digital communications (e.g., e-mail, voice mail, instant messaging); (b) word processed documents (e.g., Word or WordPerfect documents and drafts); (c) spreadsheets and tables (e.g., Excel or Lotus 123 worksheets); (d) accounting application data (e.g., QuickBooks, Money, Peachtree data files); (d) image and facsimile files (e.g., PDF, TIFF, JPG, GIF images); (e) sound recordings (e.g., WAV and MP3 files); (d) video and animation (e.g., AVI and MOV files); (e) databases (e.g., Access, Oracle, SQL Server data, SAP); (f) electronic mail, contact and relationship management data (e.g., Outlook, Maximizer, ACT!), including emails resident on Plaintiff’s and/or Plaintiff’s agent(s)’ servers or computers; (g) calendar and diary application data (e.g., Outlook PST, Yahoo, blog tools); (h) online access data (e.g., temporary internet files, history, cookies); (i) presentations (e.g., PowerPoint, Corel Presentations); (j) network access and server activity logs; (k) project management application data; (l) computer aided design/drawing files; and (l) back up and archival files (e.g., ZIP, GHO)
“Metadata” means system and application metadata. System metadata is information describing the history and characteristics of other ESI. This information is typically associated with tracking or managing an electronic file and often includes data reflecting a file’s name, size, custodian, location, and dates of creation and last modification or access. Application metadata is information automatically included or embedded in electronic files but which may not be apparent to a user, including deleted content, draft language, commentary, collaboration and distribution data and dates of creation and printing. For electronic mail, metadata includes all header routing data and Base 64 encoded attachment data, in addition to the To, From, Subject, Received Date, Sent Date, Time Sent, CC, BCC and Body fields.
“Documents” means the original and each non-identical copy of any written, graphic, electronic, or magnetic matter, however produced, whether sent or received, or neither, including drafts and both sides thereof, in your possession, custody, or control and specifically includes ESI and metadata (as defined). The term shall include handwritten, typewritten, printed, photocopied, or recorded matter. It shall include communications in words, symbols, pictures, sound recordings, films, tapes, drawings, blueprints, charts, maps, graphs, photographs, still or moving picture films, parts or components of equipment, models, information stored in, or accessible through, computer or other information storage or retrieval systems, all other “documents and tangible things,” and any physical object in the possession of, subject to the control of, or within the knowledge of the party responding to these requests for production, including their counsel, experts or investigators. Any and all documents and data existing as electronic or magnetic data shall be produced on disc, either DVD (digital versatile disc) or CD (compact disc) or on external hard drive in the following format: (a) documents in WordPerfect 5.1 or higher shall be produced in the format in which they are maintained (*.wpd); (b) documents in Microsoft Word for Windows 2.x or higher shall be produced in the format in which they are maintained (*.doc); (c) documents in Microsoft Works 4.0 for Windows shall be produced in the format in which they are maintained (*.wps); (d) documents in Microsoft Excel for Windows 4.0 or higher shall be produced in the format in which they are maintained (*.xl*); (e) documents in Lotus 1-2-3 shall be produced in the format in which they are maintained (*.wk?); (f) web pages which cannot be produced as a hard copy shall be produced in *.htm or *.html format; (g) encoded text files shall be produced in the format in which they are maintained (*.txt); (h) Adobe Acrobat .pdf files shall be produced in *.pdf format; (i) electronic mail shall be produced in .pst, .msg or .nsf format; and (j) all other electronic documents and data shall be produced in native format, or in ASCII format, delimited appropriately, with a key, if necessary, identifying the data fields, if production in native format is not feasible. All hard copy (e.g., paper) documents shall be produced as Group IV, black and white, single-page .tiff or color .jpg images with a standard Summation (.dii) load file.
http://briankkorteesq.wordpress.com/2010/07/29/yellow-dots-of-mystery-on-your-original-promissory-note/
home owners please look at this and tell everyone asap please
Stupendous Man,
How do you obtain the monthly investor reports? I am very interested in obtaining this information on my “trust”.
I read the monthly investor reports for the alleged trust that allegedly has the alleged instruments associated with my alleged mortgage (4 times in one sentence – whoppeee!!!)
What shows clearly is that:
1) At the closing date in late 2005 there were 6 superior, or “A” rated, tranches, and 11 inferior, or “B” rated, tranches. There were also 4 privately offered security tranches. I don’t pay much attention to those private tranches.
2) Since the closing date 2 of the A rated tranches have been paid in full.
3) Since the closing date 2 of the A rated tranches have received payments of approximately 75% of the original principal.
4) Since the closing date 1 of the A rated tranches has received payments of approximately 25% of the original principal.
5) Since the closing date 1 of the A rated tranches has received no payments whatsoever.
6) Since the closing date none of the 11 B rated, or mezzanine tranches has received any payments whatsoever.
7) Since the closing date 6 of the B rated tranches have experienced a realized loss of 100% and appear to have been extinguished completely.
8) The 7th B rated tranch has experienced realized losses of approximately 80% and I expect, at the current rate of loss (last month alone losing 17% of its original principal value) that it will be extinguished completely in another 2 months.
I have reviewed some of the SEC filings associated with this alleged trust. It holds itself out to be incorporated in the state of Delaware. I have also received from the Delaware SOS 2 separate statements that express the DE SOS office has no record whatsoever of the trust ever having registered as either a foreign or domestic corporation or trust.
I don’t how badly this all has to smell before judges and courts begin to hold their noses and tell these bogus plaintiffs to get out.
http://4closurefraud.org/2010/07/29/well-now-isnt-this-interesting-a-new-spin-on-bank-fraud-banks-defrauding-their-investors-auditors-and-regulators-re-foreclosures/
Dave Krieger and avirani0203
Everything is important – including whether or not the note was actually negotiable. Do not think anyone should limit themselves.
Here is my take when someone says you are just trying to get your home for free. No I am asking for a true accounting of my loan as would anyone in a business deal request. Further, if I am on the losing side of the case I will have a defiency which the plaintiff could excercise and a gov’t tax liability. Therefore, I demand to know the true accounting which I am to be liable for.
Dave,
You’ve nailed it. Most homeowners are spending way too much time working backwards trying to prove fraud in the securitization. While this important, what is more important and will get the attention of the servicer, judge, trustee, etc. is documented proof of fraud in the origination. Once you have that, then the rest is icing on the cake.
the saying goes “be careful what you ask for you may just get it.”
thank you Drew.
the illustration is… http://www.newyorkfed.org/research/staff_reports/sr458.pdf
on pge 3… well… pretty detailed , requires magnification of 600% to read the boxes with text [other wise this structure would encompass a book the size of the bible.. haha .. well not really.
Off topic – but thought some would be interested in the following case. Hate to take up so much space.
Note comment – “Moreover, home buyers chose to enter into a sub prime mortgage and to default on their loans.”
Believe City of Cleveland should appeal to Supreme Court of US. Fraud element should be more linked to direct proximate cause – Attorney opinions? How can you help out the CIty of Cleveland?
CITY OF CLEVELAND, Plaintiff-Appellant, v. AMERIQUEST MORTGAGE SECURITIES, INC.; BEAR STEARNS & CO., INC.; CITIGROUP GLOBAL MARKETS, INC.; COUNTRYWIDE SECURITIES CORPORATION; CREDIT SUISSE FIRST BOSTON LLC; CREDIT SUISSE (USA), INC.; GOLDMAN SACHS & CO.; DEUTSCHE BANK SECURITIES, INC.; GREENWICH CAPITAL MARKETS, INC.; GMAC-RFC; HSBC SECURITIES (USA), INC.; JP MORGAN ACQUISITION CORP.; MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED; MORGAN STANLEY & CO., INC.; NOVASTAR MORTGAGE, INC.; OPTION ONE MORTGAGE CORPORATION; WASHINGTON MUTUAL BANK; WELLS FARGO BANK, N.A.; WELLS FARGO ASSET SECURITIES CORPORATION; CITIBANK, N.A.; CHASE BANK USA, N.A.; BANK OF AMERICA, N.A., Defendants-Appellees.No. 09-3608UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT10a0222p.06; 2010 U.S. App. LEXIS 15305; 2010 FED App. 0222P (6th Cir.)April 27, 2010, Argued July 27, 2010, Decided July 27, 2010, FiledPRIOR HISTORY: [*1] Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 08-00139–Sara E. Lioi, District Judge.City of Cleveland v. Ameriquest Mortg. Sec., Inc., 621 F. Supp. 2d 513, 2009 U.S. Dist. LEXIS 41303 (N.D. Ohio, 2009)CORE TERMS: prime, proximate cause, directness, public nuisance, mortgage, removal, financing, misconduct, foreclosure, customers, oral argument, broker-dealers, lending, waived, buyer, neighborhood, foreclosed, implicated, unanimity, ascertain, housing, mortgage-backed, expenditures, unconnected, diversity, decreased, mortgagee, mortgagor, calculate, financedCOUNSEL: ARGUED: Joshua R. Cohen, COHEN ROSENTHAL & KRAMER LLP, Cleveland, Ohio, for Appellant.David F. Adler, JONES DAY, Cleveland, Ohio, for Appellees.ON BRIEF: Joshua R. Cohen, Jason R. Bristol, COHEN ROSENTHAL & KRAMER LLP, Cleveland, Ohio, Robert J. Triozzi, Gary S. Singletary, Michael F. Cosgrove, CITY OF CLEVELAND LAW DEPARTMENT, Cleveland, Ohio, for Appellant.David F. Adler, Andrew G. Fiorella, JONES DAY, Cleveland, Ohio, Louis A. Chaiten, Eric E. Murphy, JONES DAY, Columbus, Ohio, Robert D. Kehoe, Joseph J. Jerse, KEHOE & ASSOCIATES, Cleveland, Ohio, Joanne N. Davies, BUCHALTER NEMER, Irvine, California, Bernard LeSage, Shannon Keast, BUCHALTER NEMER, Los Angeles, California, Michael N. Ungar, Isaac Schulz, Richik Sarkar, ULMER & BERNE, Cleveland, Ohio, Brian D. Boyle, Christopher D. Catalano, O’MELVENY & MYERS LLP, Washington, D.C., William H. Falin, MOSCARINO & TREU, Cleveland, Ohio, Charles E. Davidow, PAUL WEISS RIFKIND WHARTON & GARRISON, Washington, D.C., Gabrielle E. Tenzer, PAUL WEISS RIFKIND WHARTON & GARRISON, New York, New York, William [*2] W. Jacobs, Kip Thomas Bollin, Robin M. Wilson, THOMPSON HINE, Cleveland, Ohio, Jeffrey Q. Smith, Scott E. Eckas, BINGHAM McCUTCHEN LLP, New York, New York, Richard H. Klapper, Michael T. Tomaino, Jr., SULLIVAN & CROMWELL LLP, New York, New York, W. Stuart Dornette, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, Stephen M. O’Bryan, TAFT STETTINIUS & HOLLISTER LLP, Cleveland, Ohio, Thomas Robert Lucchesi, BAKER & HOSTETLER LLP, Cleveland, Ohio, Benjamin Klubes, BUCKLEY SANDLER LLP, Washington, D.C., David H. Kistenbroker, Theresa L. Davis, KATTEN MUCHIN ROSENMAN LLP, Chicago, Illinois, Robert B. Casarona, ROETZEL & ANDRESS, LPA, Cleveland, Ohio, Robert N. Rapp, CALFEE, HALTER & GRISWOLD LLP, Cleveland, Ohio, Jay B. Kasner, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, New York, New York, Joseph L. Barloon, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, Washington, D.C., John F. Marsh, HAHN LOESER & PARKS, Columbus, Ohio, Brian Brooks, O’MELVENY & MEYERS, Washington, D.C., Elizabeth McKeen, O’MELVENY & MEYERS, Newport Beach, California, Joseph T. Dattilo, BROUSE McDOWELL, Cleveland, Ohio, Patrick M. McLaughlin, McLAUGHLIN & McCAFFREY, LLP, Cleveland, Ohio, Robert D. Wick, Keith A. Noreika, COVINGTON [*3] & BURLING LLP, Washington, D.C., for Appellees.Linda I. Cook, OHIO POVERTY LAW CENTER, Columbus, Ohio, Eugene L. Hollins, Dale D. Cook, WILES, BOYLE, BURKHOLDER & BRINGARDNER CO., L.P.A., Columbus, Ohio, for Amici Curiae.JUDGES: Before: SUHRHEINRICH, McKEAGUE, and GRIFFIN, Circuit Judges.OPINION BY: SUHRHEINRICHOPINION [**2] SUHRHEINRICH, Circuit Judge. In this diversity case, the city of Cleveland, Ohio (“Cleveland”), brings a public nuisance suit against twenty-two financial entities (“Defendants”) that it claims are responsible for a large portion of the sub prime lending market in Cleveland and nationally. 1 Cleveland argues that the Defendants’ financing of sub prime mortgages, the alleged public nuisance, led to a foreclosure crisis in Cleveland that devastated its neighborhoods and economy. On appeal, Cleveland initially contends [**3] that the district court erred when it refused to remand this suit to Ohio state court. It also appeals, on the merits, the district court’s four independent reasons for dismissing this suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure: (1) preemption, (2) the economic loss rule, (3) unreasonable interference of a public right, and (4) proximate cause. The district court considered [*4] each reason to be dispositive in favor of all Defendants. For the reasons that follow, we AFFIRM.- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -1 In Ohio, a public nuisance is defined as “an unreasonable interference with a right common to the general public.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416, 2002 Ohio 2480, 768 N.E.2d 1136, 1142 (Ohio 2002) (quoting Restatement (Second) of Torts § 821B(1)).- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -I. BackgroundA. Factual BackgroundIn its complaint, Cleveland acknowledges that, for the most part, the Defendants did not originate the sub prime mortgages at issue in this appeal. Nevertheless, it alleges that the Defendants’ financing, purchasing, and pooling of vast amounts of these loans, to create mortgage-backed securities to sell to their customers, constituted a public nuisance. Cleveland puts forward the following factual pattern to support its claim:(1) Wall Street made cash available to sub prime lenders, which (2) used the funds to make sub prime loans to consumers, then (3) sold the related mortgages back to the same cadre of Wall Street, which (4) packaged them and sold the income they generated to investors in the form of mortgage-backed securities, and (5) used the proceeds to repeat the process.Cleveland maintains that, beginning in 2003, the Defendants [*5] became more brazen in their lending activities and began to direct lenders on the types of loans to issue to meet the Defendants’ securitization needs. These pressures “subverted the normal operation of the mortgage market and inevitably led to the abandonment of meaningful underwriting standards.” Because of growth in the real-estate market, the Defendants ignored these issues and turned a blind-eye even when loans made no economic sense. The complaint concludes that these “securitizers” were principally responsible for the financial crisis.Cleveland alleges that the factors that led to the housing bubble never materialized in Cleveland because of its high rate of poverty, sluggish job market, [**4] struggling Rust-Belt economy, declining manufacturing sector, sparse housing demand, and difficulty fostering new industries. Cleveland’s unique economic plight and its stagnant housing market made mass foreclosures the foreseeable and inevitable result of the sub prime financing provided by the Defendants. The Defendants knew about these unique issues but nevertheless continued to finance sub prime mortgages in Cleveland. These activities led to thousands of foreclosed homes in neighborhoods throughout Cleveland [*6] that became “eyesores, fire hazards, and easy prey for looters and drug dealers in search of a place to conduct their business.”Cleveland claims that each foreclosure creates tangible costs for the city, including increased expenditures for fire and police protection and maintenance and demolition costs. Tax revenues also plummeted because of the decline in housing values due to the foreclosed homes. Cleveland seeks to recover millions in municipal expenditures and diminished tax revenues as damages.B. Procedural BackgroundCleveland filed suit on January 10, 2008, in the Court of Common Pleas for Cuyahoga County, Ohio. It brought a single claim of public nuisance against twenty-one defendants–some of which are current Defendants. Asserting diversity of citizenship, Lehman Brothers Holdings, Inc. (“Lehman Brothers”), 2 removed the suit to the Northern District of Ohio on January 16, 2008. Cleveland moved the next day to remand the case to state court. It argued that Lehman Brothers’s removal was improper because Lehman Brothers was required to either obtain the unanimous consent of all of the defendants before removing the case or explain in its Notice of Removal why it did not pursue this course [*7] of action. All of the defendants joined a motion opposing the motion to remand shortly thereafter. After supplemental briefing and oral argument, the district court denied Cleveland’s motion to remand on August 8, 2008. City of Cleveland v. DeutscheBank Trust Co., 571 F. Supp. 2d 807 (N.D. Ohio 2008).- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -2 Lehman Brothers is no longer a Defendant.- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**5] Subsequently, Cleveland filed a new public nuisance claim in state court. It made allegations similar to those found in the original complaint but brought the suit against some new defendants and some affiliates of the original defendants. For example, Countrywide Financial Corp. was a defendant in the original suit, but Cleveland sued Countrywide Home Loans, Inc. and Countrywide Securities Corp. in its new state court suit. A Joint Motion for Entry of Agreed Order Regarding Plaintiff’s Motion for Leave to Amend (“Joint Motion”) was then agreed to, 3 which the district court approved. The Joint Motion was intended “to resolve the disagreement that has arisen between the parties and to avoid protracted litigation . . . .” City of Cleveland v. Deutsche Bank Trust Co., No. 1:08-CV-00139 (N.D. Ohio September 29, 2008) (order approving Joint Motion). Among other [*8] things, it limited which defendants Cleveland could sue. Afterwards, Cleveland filed its Second Amended complaint in federal court–the complaint at issue in this appeal–against the current Defendants.- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -3 Cleveland entered into a separate agreement with Wells Fargo Bank, N.A. and Wells Fargo Asset Securities Corporation, where it also agreed to pursue all claims “in federal court in the federal nuisance action.” GMAC-RFC was not a party to the Joint Motion.- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -Defendants filed eight separate motions to dismiss–some individually and some collectively. The district court dismissed the complaint pursuant to Rule 12(b)(6) on May 15, 2009, for four independent reasons. City of Cleveland v. Ameriquest Mortg.Sec., Inc ., 621 F. Supp. 2d 513 (N.D. Ohio 2009). First, the court held that Ohio Rev.Code § 1.63, an Ohio state law that forbids municipalities from engaging in mortgage regulation, preempted Cleveland’s public nuisance claim. Id. at 520. Second, the court held that Ohio’s economic loss rule barred Cleveland’s claim. Id. at 526. Third, the court held that sub prime lending cannot form the basis of a public nuisance claim because it is legal, and that, by extension, funding sub prime lending also cannot [*9] be a public nuisance. Id. at 531. Fourth, the court held that the assertions in Cleveland’s complaint were insufficient to satisfy the directness requirement of proximate cause because its allegations did not “demonstrate any direct relationship between its alleged injury and [the] Defendants’ conduct.” Id. at 533. The court declined to rule on the [**6] other four motions because it found its rulings on the four issues it considered to bed is positive for all of the Defendants. Id. at 516. Cleveland appeals.II. AnalysisA. Motion to RemandCleveland argues that the district court should have remanded this case to Ohio court because the Defendants’ removal was defective. However, Cleveland waived its right to pursue this issue on appeal because the Joint Motion contained a clause that stated: “Plaintiff shall prosecute the public nuisance claim against the Eliminated Defendants and the Amended Defendants, if at all, exclusively in this Court and as part of this case . . . .” 4 It is well-established that the waiver of a party’s right to removal must be clear and unequivocal. See, e.g., Cadle Co. v. Reiner, Reiner & Bendett, P.C.,307 F. App’x 884, 886 (6th Cir. 2009). Further, “[g]eneral principles of [*10] contract interpretation apply when determining whether a clause explicitly waives the right of removal.” Id. (citing In re Delta Am. Re Ins. Co., 900 F.2d 890, 892 (6th Cir. 1990)).- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -4 All of the current Defendants were parties in the Joint Motion and were listed as either Amended Defendants or Eliminated Defendants, except for GMAC-RFC. GMAC-RFC was not a party to the Joint Motion, and was neither an Amended Defendant nor an Eliminated Defendant.- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -Here, there is no plausible way to read this language as anything other than a clear and unequivocal waiver of Cleveland’s right to further pursue its motion to remand on appeal, and Cleveland neither contests the validity of the Joint Motion nor suggests an alternative reading of this clause. 5 Instead, Cleveland contends that, despite the express language in the Joint Motion, it did not waive its right to appeal this ruling because it made a tactical decision based on time and money to enter into the agreement. These reasons are inadequate to void the agreement under the general principles of contract law. Therefore, the Joint Motion precludes Cleveland from now arguing that [**7] the district court should have remanded this suit, and the district court properly [*11] permitted this case to proceed in federal court.- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -5 Cleveland could have contested the effect of the Joint Motion on its claim against GMAC-RFC. However, Cleveland has not made this argument in its briefs or at oral argument, so it is waived. See FarmLabor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is well established that an issue not raised in a party’s briefs on appeal may be deemed waived.”).- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -Furthermore, even if we ignore the Joint Motion, the district court still properly declined to remand this case. We review a district court’s refusal to remand de novo. Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 200 (6th Cir. 2004). Cleveland argues that the district court’s ruling did not conform with the rule of unanimity. The “rule of unanimity demands that all defendants must join in a petition to remove a state case to federal court.” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003). This circuit has identified at least three ways to satisfy this rule: all parties that have been served or otherwise properly joined may (1) join in the removal, (2) file a written consent to removal, or (3) oppose a motion to remand. Brierly v. Alusuisse FlexiblePackaging, Inc., 184 F.3d 527, 533 n.3 (6th Cir. 1999) [*12] (the first two options); Harper,392 F.3d at 202 (the third option). The Defendants met two of these conditions. First, after Lehman Brothers filed its notice of removal on January 16, 2008, each Defendant filed a consent to removal, the last of which was filed February 1, 2008, within the thirty day period. Second, after Cleveland filed its motion to remand on January 17, 2008, all of the Defendants opposed Cleveland’s motion to remand on February 1, 2008, also within the thirty day period.We note that Cleveland has waived its argument that the rule of unanimity was violated because Bear Stearns’s consent to removal was invalid. At oral argument, Cleveland conceded that it had purposefully waited to raise this argument until oral argument for its motion to remand, while believing that its general motion for remand would allow it to challenge Bear Stearns’s consent after thirty days. Cleveland employed this suspect approach despite indicating in its Reply Brief in Support of Motion for Remand, filed on February 8, 2008, that “[a]ll of the defendants did eventually give their consent to removal.” Because the argument raised by Cleveland at oral argument is inconsistent with the arguments it made [*13] during the thirty day period, it has waived its objection to Bear Stearns’s consent. See Mellon v. Int’l Shoe Co., 32 F.2d 390, 391 (D. Mass. 1929) (“This action was entirely inconsistent with the position [**8] taken in the motion to remand, and, having been done without any reservation of rights under the motion, had the effect of waiving the motion.”). In any case, Bear Stearns also joined the opposition to remand, as did all of the Defendants, and this action alone was sufficient to satisfy the rule of unanimity.Thus, we now turn to the district court’s dismissal of this suit pursuant to Rule 12(b)(6). For the sake of judicial efficiency, we begin, and end, our analysis with the district court’s proximate cause ruling.B. Standard of ReviewWe review de novo the district court’s dismissal pursuant to Rule 12(b)(6). Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). We construe the complaint in alight most favorable to the nonmoving party and accept all plausible well-pled factual allegations as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), andCommercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “To state a valid claim, a complaint must contain direct [*14] or inferential allegations respecting all the material elements under some viable legal theory.” Id. at 336-37(citing Mezibov, 411 F.3d at 716).C. Applicable LawBecause this suit is before us pursuant to our diversity jurisdiction, we apply the substantive law of Ohio and federal procedural law. Biegas v. Quickway Carriers, Inc.,573 F.3d 365, 374 (6th Cir. 2009). When applying the substantive law of Ohio, we must “follow the decisions of the state’s highest court when that court has addressed the relevant issue.” Savedoff v. Access Group, Inc., 524 F.3d 754, 762 (6th Cir. 2008)(quoting Talley v. State Farm Fire & Cas. Co., 223 F.3d 323, 326 (6th Cir. 2000)). “If the issue has not been directly addressed, we must ‘anticipate how the relevant state’s highest court would rule in the case and are bound by controlling decisions of that court.” Id. (quoting In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005)). [**9] D. Proximate CauseCleveland argues that its complaint alleged facts sufficient to satisfy the directness requirement. The directness requirement “requires some direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Sec. InvestorProt. Corp., 503 U.S. 258, 268, 112 S. Ct. 1311, 117 L. Ed. 2d 532 (1992). [*15] Although not the sole element, the requirement of a direct injury is a “central element” of proximate cause. Perry v. Am. Tobacco Co.,324 F.3d 845, 848 (6th Cir. 2003). Notably, this requirement is distinct from fore see ability and applies even if the Defendants intentionally caused the alleged course of events. Id. at 850. Accordingly, although Cleveland asserts that the Defendants knew about the consequences of sub prime lending, this allegation is not relevant to our directness requirement analysis.Holmes is the seminal United States Supreme Court decision that discusses the directness requirement, and the Ohio Supreme Court has adopted the Holmes Court’s proximate cause analysis. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416, 2002 Ohio 2480, 768 N.E.2d 1136, 1148-49(Ohio 2002). Holmes is therefore the focus of our directness requirement analysis. In Holmes, the plaintiff, Securities Investor Protection Corporation (“SIPC”), brought suit against several defendants under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Holmes, 503 U.S. at 262. SIPC alleged that these defendants conspired to fraudulently manipulate stocks, which led to the insolvency of two securities broker-dealers.Id. at 261. As a result, [*16] the broker-dealers failed to satisfy their financial obligations to their customers, and SIPC, a provider of insurance to bankrupt broker-dealers that could no longer pay their customers, was forced to cover the broker-dealers’ debts. Id. at 262-63. SIPC sued for reimbursement, but the Court declined to find liability because “the link [was] too remote between the stock manipulation alleged and the customers’ harm, being purely contingent on the harm suffered by the broker-dealers.”Id. at 271.In Beretta, the Ohio Supreme Court summarized the three reasons given in Holmes for a directness requirement: [**10] (1) indirectness adds to the difficulty in determining which of the plaintiff’s damages can be attributed to the defendant’s misconduct,(2) recognizing the claims of the indirectly injured would complicate the apportionment of damages among plaintiffs to avoid multiple recoveries, and (3) these complications are unwarranted given the availability of other parties who are directly injured and who can remedy the harm without these associated problems.Beretta, 768 N.E.2d at 1148 (citing Holmes, 503 U.S. at 269-70). The United States Supreme Court has since noted that these factors in Holmes are relevant [*17] to determine whether a plaintiff has sufficiently pleaded proximate cause, but all three factors do not need to be present for remoteness to bar recovery. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 459, 126 S. Ct. 1991, 164 L. Ed. 2d 720 (2006) (noting that the second factor was not implicated yet still holding that the plaintiff had failed to sufficiently allege proximate cause).As an initial matter, Cleveland contends that the district court’s proximate cause analysis at the motion to dismiss stage was premature. As support, it cites this court’s decision in Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004). In that case, former employees of a poultry plant sued under RICO, and alleged that the defendant, the poultry plant owner, schemed with employment agencies to depress wages by hiring illegal immigrants. Id. We refrained from engaging in a proximate cause analysis at the pleadings stage because we perceived that the analysis would be too speculative. Id. at619. However, contrary to Cleveland’s suggestions otherwise, there is no per se rule against dismissing a complaint for failure to adequately plead proximate cause. In fact, subsequent to Trollinger, the Supreme Court dismissed the complaint in Anza at the emotion [*18] to dismiss stage for failure to plead proximate cause. See Anza, 547 U.S. at 453. Cleveland still has an obligation to file a complaint that is “plausible on its face.” Bell,550 U.S. at 556. Accordingly, we, just as the Supreme Court in Anza, proceed to the question of whether the complaint sufficiently pleaded proximate cause and, specifically, whether the allegations in the complaint satisfy the directness requirement.For the purposes of answering this question, the Supreme Court’s application of Holmes in its subsequent decision Anza is instructive and consistent with how we believe [**11] the Ohio Supreme Court would consider this matter because the Ohio Supreme Court has previously adopted the directness requirement precedent of the United States Supreme Court. See Savedoff, 524 F.3d at 762 (when a state’s highest court has not addressed an issue, we anticipate how that court would rule). In Anza, the United States Supreme Court considered the private RICO claim of the plaintiff, Ideal, which alleged that the defendant, National, engaged in mail and wire fraud that led to lost sales at the plaintiff’s business. Anza, 547 U.S. at 453. Specifically, the plaintiff alleged that the defendant defrauded [*19] the New York tax authority and used the proceeds from this fraud to offer lower prices to its customers, which led to the plaintiff’s lower sales because Ideal and National were competitors. Id. at 457-58. The Court held that the complaint did not satisfy the directness requirement because the alleged violation did not lead directly to the plaintiff’s injuries. Id. at 461. It reasoned: “The cause of Ideal’s asserted harms . . . is a set of actions (offering lower prices) entirely distinct from the alleged RICO violation (defrauding the State).” Id. at 458.Similarly, here, the cause of the alleged harms is a set of actions (neglect of property, starting fires, looting, and dealing drugs) that is completely distinct from the asserted misconduct (financing sub prime loans). See id.; see also Canyon County v.Syngenta Seeds, Inc., 519 F.3d 969, 982 (9th Cir. 2008) (“Here, just as in Anza, the cause of the plaintiff’s asserted harms is a set of actions (increased demand by people within Canyon County for public health care and law enforcement services) entirely distinct from the alleged RICO violation (the defendants’ knowing hiring of undocumented workers).”). This lack of directness exposes “the difficulty [*20] that can arise when a court attempts to ascertain the damages caused by some remote action.” Id. (citing Holmes,503 U.S. at 269 (“[T]he less direct an injury is, the more difficult it becomes to as certain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors.”)).Just as in Anza, “[t]his conclusion is confirmed by considering the directness requirement’s underlying premises.” Id. Of the three Holmes factors, the first and third factors are squarely implicated by the facts alleged in the complaint. We begin with an [**12] analysis of the first factor, which states that indirectness adds to the difficulty of determining which damages can be attributed to the defendant’s misconduct. See Beretta, 768 N.E.2d at 1148 (summarizing the first Holmes factor). Again, Anza provides a useful comparison. In Anza, the Court noted that “[t]he injury Ideal alleges is its own loss of sales resulting from National’s decreased prices for cash-paying customers. National, however, could have lowered its prices for any number of reasons unconnected to the asserted pattern of fraud.” Anza, 547 U.S. at 458-59 (emphasis added).Likewise, in this case, the injuries that Cleveland [*21] alleges could have been caused by many other factors unconnected to the Defendants’ conduct. Companies that sold mortgages to home buyers decided which loans should be made and on what conditions. Although the complaint alleges that the Defendants sometimes dictated which types of loans to make, these companies ultimately made the decisions regarding where they would seek financing, which types of loans they would market and sell, and, once the mortgagee, whether to keep the mortgage or sell it to another buyer, such as one of the Defendants. Moreover, home buyers chose to enter into a sub prime mortgage and to default on their loans. And, once the mortgagor defaulted, the mortgagee or his assigns chose to begin the foreclosure process. These voluntary choices were made for a variety of reasons unrelated to the Defendants.The alleged damages that subsequently occurred–eyesores, fires, drug deals, and looting–were also not directly caused by the Defendants. Homeowners, whether the initial buyers or mortgagees that later took possession of a home, were responsible for maintaining their properties. Fires were likely started by negligent or malicious individuals or occurred because a home was poorly [*22] built. Drug dealers and looters made independent decisions to engage in that criminal conduct. Additionally, other companies not listed in the complaint financed sub prime loans and properties not subject to a sub prime loan nevertheless entered into foreclosure. Similar to Holmes and Anza, Cleveland has not stated a viable claim when these actions could have occurred for “any number of reasons unconnected to the asserted pattern of [misconduct].” Id. at 458. [**13] The involvement of so many independent actors also reveals why Cleveland’s reliance on Beretta is misplaced. In that case, the Ohio Supreme Court allowed a lawsuit against handgun manufacturers, brought under numerous theories of liability including public nuisance, to proceed past the motion to dismiss stage. Beretta, 768 N.E.2d at 1140. But, in Beretta, the plaintiffs accused the defendants of creating and supplying an illegal firearms market in Cincinnati through their marketing, distribution, and selling of firearms. Id. at 1143. By contrast, the complaint concedes that, for the most part, the Defendants did not directly make sub prime loans to the homeowners of Cleveland. The Defendants are instead accused of financing a legal market for [*23] these loans. Thus, for Beretta to be analogous to the instant case, the Ohio Supreme Court would have had to allow a suit against the banks that provided financing to the gun manufacturers that allegedly created the illegal secondary market. Because there is another set of independent actors between the alleged misconduct and the alleged injury, the proximate cause holding in that case does not logically extend to this one. 6 – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -6 Although not relevant to the directness requirement, there is at least one other critical difference between this case and Beretta. The complaint in Beretta accused the defendants of financing an illegal market for guns, whereas, here, the Defendants allegedly financed a legal sub prime mortgage market.- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -Another similar reason that the complaint does not satisfy the directness requirement, which also touches on the concerns implicated by the first Holmes factor, is that the remote connection between the alleged misconduct and the alleged injury makes it impossible “to ascertain the amount of [Cleveland’s] damages attributable to the violation.” See Holmes, 503 U.S. at 269. The Court’s reasoning in Anza is once more instructive:There is, in addition, a second discontinuity between [*24] the RICO violation and the asserted injury. Ideal’s lost sales could have resulted from factors other than petitioners’ alleged acts of fraud. Businesses lose and gain customers for many reasons, and it would require a complex assessment to establish what portion of Ideal’s lost sales were the product of National’s decreased prices. . . . The attenuated connection between Ideal’s injury and the Anzas’ injurious conduct thus implicates fundamental concerns expressed in Holmes. [**14] Anza, 547 U.S. at 459 (internal citations omitted).Just as in Anza, this case “implicates fundamental concerns expressed in Holmes.” Id. A “complex assessment” would be needed to determine which municipal expenditures increased and tax revenues decreased because of the ills caused by fore closed homes rather than, inter alia, job losses due to the decline in manufacturing, fickle consumer tastes, deteriorating schools, a national recession, or increases in crime not related to foreclosures. Id. Cleveland points to many of these factors in its brief to demonstrate why the Defendants should have known to avoid financing sub prime loans in Cleveland, but these same reasons make it impossible for Cleveland to plead proximate cause [*25] under Ohio law. See id. (“Further illustrating this point is the speculative nature of the proceedings that would follow if Ideal were permitted to maintain its claim.”); see also Canyon County, 519 F.3d at 983 (“The causal chain would also be difficult to ascertain because there are numerous alternative causes that might be the actual source or sources of the County’s alleged harm.”).Finally, Cleveland’s claim fails because, in accordance with Holmes’s third factor, more immediate victims can sue to the extent that the Defendants violated any laws. See Anza, 547 U.S. at 460 (“The requirement of a direct causal connection is especially warranted where the immediate victims . . . can be expected to vindicate the laws by pursuing their own claims.”). The Supreme Court explained in Anza that when the adjudication of another party’s claim would be “relatively straightforward” and “considerably easier,” “[t]here is no need to broaden the universe of actionable harms to permit . . . suits by parties who have been injured only indirectly.” Id. Here, a suit brought by a mortgagor whose home has been foreclosed on would be “relatively straight forward” and damages would be “considerably easier” to calculate [*26] because the mortgagor could limit his suit to the the specific Defendants that financed his sub prime loan or loans. Additionally, other home owners who were injured because their neighborhood declined due to foreclosed homes, while not necessarily immediate victims, are closer in the alleged chain of causation than Cleveland. It would be easier to calculate the damages suffered by property owners in a specific neighborhood, where [**15] the court could more readily ascertain how many foreclosures occurred and what causedthem, than to calculate the damages to the whole city of Cleveland. And, to the extent that misconduct occurred when the Defendants sold mortgages to create mortgage-backed securities, the buyers of these securities can bring their own causes of action. These other potential claims obviate the need for this court to allow Cleveland’s claim to proceed.In sum, even when viewing the assertions in the complaint in a light most favorable to Cleveland, the connection between the alleged harm and the alleged misconduct is too indirect to warrant recovery. Although the facts are different than those before the Supreme Court in Holmes and Anza, the same directness concerns are implicated.III. [*27] ConclusionOur proximate cause holding clearly resolves this case, and we therefore do notneed to address the district court’s remaining reasons for dismissing the complaint. Accordingly, we AFFIRM.
DEAR DAVE KRIEGER, YOU ARE 100% CORRECT.
1MILLION FORECLOSURES THIS YEAR IS ALL THE PROOF THAT A REASONABLE PERSON NEEDS TO KNOW SOMETHING IS GENOCIDAL CRIME AGAINST HUMANITY WRONG..
THESE FASCIST NAZIS WILL PAY, BECAUSE HISTORY IS NOT ON THEIR SIDE.
TAKE THE INCOME STREAM, TAKE HOUSES, DEUTSHCE BANK DID IT 60 YEARS AGO TO THE JEWS IN GERMANY AND THE PEOPLE OF EASTERN EUROPE THIS TIME THEY ARE DOING IT HERE IN AMERICA.
NEVER AGAIN
To Dave Krieger WITHOUT RECOURSE ON NOTE
the hard part on my NOTE-Stamped and signed in blank “WITHOUT RECOUSE.” is that the BigBankUSA claims the loan has not been sold and they have Held the loan since existence.
Conflicting statements though from BigBankUSA- they have told me on the phone the loan has an investor, in writing the loan has an investor. Now in court they say that the customer service peopel are just “screen readers” and don’t understand.
OP … and others who really care about my take on this …
WITHOUT RECOURSE on a note allonge means that the lender that is receiving your note has no recourse against the party assigning it to them … the note is still enforceable. The debate here is whether the note is unsecured or not and whether or not nexus can be proven through the law of agency. I picked that up right away through the Federman decision in the Western District of Missouri. When the current lender cannot prove nexus, he can’t move forward because he’s NOT the proper party.
Part of the problem with the allonge, as I have seen in many cases, is that (1) it is deficient of the items necessary to firmly indorse the assignment; (2) when you get it, it’s not properly affixed to the note and rider in order to be able to conform to proper legal definition of an allonge; and (3) the parties executing the allonge haven’t proven Agency.
SECOND … the original Deed of Trust is a fraud. I know why now, after researching Trust Law. It’s pretty basic and it’s rooted in common law. This website is obviously NOT the place to explain it. Court is. 60,000,000 Deeds of Trust could be virtually affected by this decision and the argument is too critical to explain at this point. Everything I’ve seen up to this date, by Anonymous or anyone else, is still theory until a judge or jury “gets it” and “accepts it”. When you don’t have discovery to back it up … all of this is theory. Even the investor suits haven’t gotten there yet and they may not because the settlements usually come with protective orders because the banks don’t want this information becoming public.
Further, MERS has succeeded in lobbying the Kansas legislature into passing a law that after July 1, 2010, MERS can be included on a list as an assignee. This came out through the mouth of a judge in Kansas 3 days ago.
Even so, it doesn’t preclude who dealt the cards on the original note. MERS is still an ass-puppet … as it the original Trustee. The beneficiary calls all the shots.
THIRD … why isn’t there discovery? Because we spend too much time validating the bank’s argument that we want a free and clear house because we spend all our time pontificating what Wall Street did, how we got our loans paid in full through bailouts when we have no concrete proof of that and we don’t spend enough time dissecting the documents at hand. The bank is exercising its rights off of the original DOT and note. If they have nothing to foreclose on, because you’ve proven the DOT was a fraud ab initio … then the impetus to foreclose is greatly diminished. Quiet title actions virtually do the same thing … but without attacking the fraud inside of the original DOT … you have no prima facie evidence created as to why your title is clouded in the first place. That’s what you attack. I’m not going to disclose it on this site … ya’ll can figure it out for yourselves.
ANONYMOUS
you have revealed highly relevant point of “structured finance” to this blog.
therefore it is imperative we [i will] create [with your help ANONYMOUS please] a hierarchy of the levels that pushes or drives the level of understanding of this complex shell game , because we as “ho mown ers” are a REAL PARTY OF INTEREST. There is no other way to explain this complexity without a full detailed road map of the payment stream [ both example amounts & to whom they would or should have be paid ] of all various the various traunches .
also in this same detailed illustration needs to explain the failure or requirements of success for THE TRUSTS that have been used to obfuscate the true parties interest . As Matt Weidner points out “capacity to sue or be sued” must apply even if the foreclosure is non-judicial . The phony parties [servicers] are busy raping everyone along the way. The servicers are the enablers that go without being prosecuted . The servicers were and are instrumental to launder this $ & keep the deep pockets for direct liability for the fraud ,bad faith ,total deception of who is on the hook for these CRIMES!!!!
please email me freak4uatcomcastdotnet
tia
The problem is figuring out my note and where it is–Citi as Trustee for MLMI2006-he-5 has yet to answer the lawsuit. BAC/BOA claims it is in that trust but they hae provided nothing to prove that and are stalling. My loan was for less than half the value of my house when made so it may have been a sennior tranche–how can I find out if it was paid off een if in a lower tranche–that is the rub
GREAT WORK ANONYMOUS AND NEIL GARFIELD
DISHONEST JUDGE: DID YOU SIGN ON THE NOTE?
Dishonest Judge Did you receive the money?
DISHONEST JUDGE TAKE THOSE DEADBEATS HOUSE……… GET THEM OUT OF MY FACE THEY ARE MAKING ME SICK. PLUS THE BANKS ARE PAYING INFLATED PROPERTY TAX ETC…….
SAD BUT TRUE
NEVER AGAIN
answer this anyone- NOTE stamped “WITHOUT RECOURSE” does BigBankUSA have any recourse against me?
A)BigBankUSA claims they own the loanand never sold the loan in Admission repsonses
B)However the Promissary NOTE presented via discovery is stamped on the front page of the NOTE. “WITHOUT RECOURSE” endorsed in blank and signed by BigBankUSA VP.
The BigBankUSA is claiming they did not sell the NOTE.
1) I am claiming they did sell the note in blank.
2) Or they attempted to sell the Note
3) I am claiming if they did not sell the NOTE the BigBankUSA has no recourse against mesince stamped and the UCC supports that.
Am i am wrong or missing anything. This is a new one on me.