FAQ ABOUT SECURITIZATION SEARCHES

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1.    Your commentary states the trust that owns my note and provides documents of the trust; however the securitization report shows no matches of any of my loan characteristics.  Therefore, how was the trust identified as the owner of my note?  There had to be some rational explanation for determining this trust. This is a good question.

  • First, let me be clear about “ownership” of the note, mortgage, loan or obligation. Our search identifies a loan pool or group of loan pools that claim to have rights to the receivables from loans that are identified by self-serving documents contained within the securitization infrastructure. We are not stating an opinion that the pool actually possesses the rights that they claim. Quite the contrary, it appears as though no transfer has actually occurred in most instances.
  • The information presented to you identifies a claimant or a group of claimants but does not certify their claim.
  • There are many ways in which our team performs the search required to identify a pool that claims entitlement to receive payments from loans. Your loan was identified as one of the many loans claimed by the pool shown in the report. The methods used in the search include access to our own proprietary database as well as our subscription to a database that is normally available only to banks.
  • We also search based upon filings and court records where the originating lender, servicer, trustee or other party is the same as your loan and has other consistent data including the date of the transaction, the presence of nominees, and other factors. If you want the details of the specific method used in your particular report I’m sure that Alex will be able to provide that information.

2.    I purchased the securitization title report based on your advertisement of the product and my trust in that the money paid would identify the trust owning my note.  Nowhere was it stated that Luminaq would identify a trust owning my note; however the trust doesn’t actually own the note.  $695.00 is a lot of money for me and I paid it believing that the trust identified was valid.  You have advised that the identification of the trust is a valid defense in showing the actual owner of my note which are the investors of the trust.  I have seen commentaries from other livinglies members where the securitization trust has completed their arsenal of defenses in fighting their foreclosure.  None of them mentioned that their report only made a guess of the investor.  The bottom line is that the court is ruled by evidence and proof.  At this point, your commentary below is a general discussion of the defense used in a securitization; however it is useless if the trust cannot be identified.  This is also a good question. I have already discussed the issue of “ownership” and my answer to your first question.

  • Your question identifies the precise issue confronting homeowners, their attorneys, and the courts.
  • You are quite right that the court should comply with the rules of civil procedure in pleadings and motions and the rules and laws governing the admission of evidence. As you no doubt have heard, GMAC has now suspended all foreclosures in judicial states for precisely that reason. However, this is an uphill battle.
  • A majority of the courts still give “the benefit of the doubt” (a presumption in favor of the pretender lender) that leaves the homeowner attempting to prove a negative.
  • In theory the homeowner should only need to deny that the pretender lender is owed any money, that any default has occurred and that the party initiating the foreclosure proceedings has any right to do so.
  • The burden should be squarely on the party seeking affirmative relief, which is the parties seeking to have a residential homes sold to satisfy an obligation.
  • The investors purchased a mortgage bond which in many cases they did not actually receive.
  • The liability for payments under the mortgage bond supposedly is that of the “trust” or other special purpose vehicle created by an investment banker. But the liability is actually “non-recourse” solely deriving its value from the obligations of third parties which include but are not limited to borrowers who signed notes that were supposedly evidence of an obligation arising out of the fact that part of the investor’s money was used to lend money to the borrower.
  • Thus the note in virtually every case does not actually identify the lender and the mortgage bond does not actually identify the borrower and co-obligors.
  • It is not that the identification of the trust is a valid defense nor that the actual owner of the note where the actual source of funding for the obligation was the investor. Those are facts, they are not defenses. Those facts support a defense challenging legal standing, the issue of the real party in interest, and the absolute defense of payment. However these defenses are based on the premise that there was a single transaction between the borrower and the lender (the lander being the actual source of funds).
  • Therefore  the usual premise that the note is automatically considered evidence of the obligation is untrue in the case of a securitized loan. First, the note does not properly identify the lender. Second, the terms of the note are only part of a larger single transaction between the borrower (homeowner) and the lender (investor). The rest of the terms of the obligation are contained in the securitization infrastructure including but not limited to the mortgage bond and the supporting documents which you have received.
  • As stated in the commentary, it is not intended to be a substitute for consulting with a competent licensed attorney in the jurisdiction in which your property is located. The commentary is also not a substitute for a specific expert declaration in which an expert gives opinion testimony that he or she is willing to defend on cross examination or in deposition. The actual identification of the investor remains beyond our ability and beyond our reach in most instances. Even the distribution reports did not identify the actual investors. All the securitization documents are scrubbed clean to remove any reference to the identity of the actual investors. In certain cases, where the investors have actually sued to recover their investments we can deduce the identity of an investor and connect it to a pool in which the supporting documentation identifies specific loans.

I apologize for not being able to take your call. I get hundreds per day and was on the phone when you called. I’m sorry you are dissatisfied. Let’s see if we can work this out. Let’s start with your email:

  1. “I could not use your report in a court of law in Georgia”. Our report CAN be used in ANY court of law — but not without a live competent witness who can be cross examined about it. It is not an affidavit or an expert declaration and as stated all over the blog and the store it is no substitute for an attorney. The report has been repeatedly used in many courts of law — with a witness who is testifying about their opinions or other facts in reliance upon the title or securitization information contained in our reports. Nothing in our work is a SUBSTITUTE for a hearing or a Substitute for a live witness. Not in any state or federal court that I know of, except to argue that there are factual issues that should be heard on the merits. The contents of the reports and analyses are  not entitled to a presumption any more than than the reports or affidavits of the the pretender lender are entitled to any presumption of truth. The fact that many judges apply the presumption in favor of the pretender lender is not something I can control. It is wrong, in my opinion and could be and no doubt will be reversed on appeal in one of the hundreds of cases up on appeal in multiple states. If you were unable to get the Court to accept it as evidence, then it was either because the Judge simply wasn’t going to do anything for you, regardless of the requirements of due process or because it wasn’t properly presented through testimony.
  2. “Opinions/commentary in the courts of Georgia are considered hear say”. EVERYTHING stated out of court on paper or out loud by anyone is considered hearsay and inadmissible as evidence unless it falls within one of the many hearsay exceptions. If a document is presented as evidence to prove the truth of the matters asserted in the document it is in fact hearsay and inadmissible. If the document is submitted to prove that the document exists, then it can be admitted as showing that the party proffering the document is proving that the document was produced and nothing more. That can only be the basis for admission if the issue is whether the party had any reason to believe one thing or another and the fact that they received such a report would go to show that they received the report, believed its contents, and then the contents of the report are admissible as well, subject to whatever weight the trier of fact (Judge, in most cases) wishes to give it.
  3. “the money I have spent already has been wasted”. No it has not, if the information is used correctly and properly presented. See above. It sounds like you went into court and tried this without a lawyer who was familiar with court process, evidence, motions, pleadings and the “lay of the land.”
  4. So I WILL SPEAK to you but I would rather speak to you with a lawyer of your choice on the phone because it sounds like you were expecting me to somehow have the impact of both a lawyer and expert witness in the courtroom when I was neither. I don’t want to get into a philosophical argument with you over whether the rules of civil procedure and the rules of evidence are fair. I think they are fair but that they are being unfairly applied. The fact that you collected up the right information and the right analysis is only one step toward attacking your pretender lender. You seem to have tried to skip the steps. As a marine, you know if I was under your command and I tried to wildcat some maneuver without orders I would end up in one of two conditions: dead or disciplined. The fact that I had my weapon cocked and loaded doesn’t matter very much in that scenario, does it?

Your move

Regards
Neil

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11 Responses

  1. Basic elements of a real estate document

    http://www.youtube.com/watch?v=A86jNdU0atw&feature=player_embedded

    8 important elements of a legal document to be recorded in the land records.

    Dave Pelligrinelli

    AFX Corp., Inc.

  2. mike maunu

    Thanks, stayed with it because I care.

    Think you are right with QT.

  3. @anonymous

    “Yes. But, monthly distribution report is simply a report by the servicer – there can be no verification as to whether loan is still in Trust – without verification by the Trustee that all payments and advances have been forwarded to them. As far as I know, this cannot be done without Trustee verification – and not seeing any Trustees doing this. Thus, monthly distribution report is highly questionable.”

    Thank you for pointing that out. Also let me state before I comment that I get the point that 90+ % of the notes were never transfered to trust from originator nor were they endorsed and file with the county recorder, etc. to perfect the transfer. So your statement is very valid in that more than likely it never was in the trust.

    That being said would there not be an issue in a simple QT action for the pretender owner who has no assignment and has never recorded anything at the county recorder?

    Wouldn’t they now have to show how they were transfered the note/dot from wamu 2-years before the same note shows up on the master servicer report as just entering BK?

    Would I not in the QT filing add the trust and see if they want to step forward? Not that they would but if they did it puts Chase in a bad situation.

    Thanks for staying with the boards. have learned a lot from you posts.

    Mike

  4. angry&not taking it,

    Yes. But, I have more concerns know. And, that is the servicers’ connections to Fannie/Freddie. And, it follows, connections to HAMP and government mandates. Tell me, how can a program to modify loans and prevent foreclosures – go so wrong??? And, in the process of going wrong – be so IGNORED??? .

    Hope I am wrong.

    mike maunu,

    Yes. But, monthly distribution report is simply a report by the servicer – there can be no verification as to whether loan is still in Trust – without verification by the Trustee that all payments and advances have been forwarded to them. As far as I know, this cannot be done without Trustee verification – and not seeing any Trustees doing this. Thus, monthly distribution report is highly questionable.

  5. @ Gwen

    It our case the title and securitization report was very helpful. It shows our note was sold to a trust. Now whether it was ever perfected I don’t know but it appears as it wasn’t.

    However, in our case we have CHASE claiming they were transfered the note in the WAMU takeover two years ago which we know hasn’t been finalized. They never filed an assignment in two years.

    Our securitization report shows our note still “in the trust” two years after the alledged transfer when it appears in a monthly distribution report to the trust having just entered BK.

    As stated above, the title report and securitization report is a starting point to see where you’re at. At that point you can make informed intelligent decisions with all the facts.

    Based on this we are filing for Quiet Title and will file a lawsuit separately against the law firm representing CHASE and the attorney who gave direct testimony that the judge accepted when ruling against us in court. Especially in light of the Supreme Court Ruling just published about law firms and FDCPA liabilities.

  6. The residual tranche “IS” a part of the original SPV, but “IS” not a part of pass-through.. this MUST be in violation of REMIC tax rule as far a ” tax exempt ”
    so there would be 2 serious reasons for the servicers to hide the real creditor.

    1- servicers profit – to continue to KEEP the payments ,fees , received from homeowners & continue to generate INSURANCE PREMIUM CLAIMS .

    2-servicers need to hide the the tax consequences of [non exempt ] & possible cds payments that would substantiate removal from the [trust] or spv .
    I have seen the true nature of the servicers for years.. these insects carry & spread disease.

  7. gwen caranchini,

    Only meant to be starting point – and to demonstrate the trustee is not the creditor.

    Unfortunately, any other party – AIG/Government/TARP paying off investors – does not mean you do not still owe the money.

    Have to show party in court is not real party/has no standing – is not the creditor – and fraud from A (starting point) to Z (end point). Many issues involved – including the note itself.

  8. So what is the point of getting this report? I’m a former tral lawyer of some 30 years. I am trying to prove that my loan is worth nothing that it is paid off by AIG, TARP etc. What you are saying is that can NEVER be done–that is is impossible. All your report does is further cloud the issue. Can’t be used in any court to provide dittyly squat–so why would anyone buy it? I’m readig this stuff but this does not get to the real issue–who owns the note, is it worth anything currently, when did it cease to be worth anything–that’s what a court of law wants toknow

  9. Hello, Here is a dumb question? What are the title company’s doing with this mess? They seem to selling title insurance when purchased or refinanced homes, What is their roll in protecting real assets? Todd

  10. I PASSED ON THE INFORMATION TO MY ATTORNEY OVER A MONTH AGO AND HE HAS NOT DONE ANYTHING TO MY KNOWLEGE WITH IT. SO IT IS GOOD READING MATERIAL BUT PRETTY EXPENSIVE.

  11. Neil

    You give an excellent explanation about what a securization search can and cannot do. And, you explain that a securization search is only a starting point. No one should believe that there are easy answers and solutions – or we would have won this battle a long time ago. What I discuss below assumes loans were validly conveyed to SPV trusts (unlikely) and, also, there was not a repurchase – or should have been a repurchase – that may not have been executed because of collapse of originator.

    Just want to add (and I may be rehashing but, I believe, it is important) – if the receivables to a particular loans were securitized, that is pooled receivables passed-through to investors, the only investors – to start – are the security underwriters because the security underwriters purchase all the certificates to the trust. The security underwriters kept some tranche certificates and sold other certificates to financial institutions – most likely for incorporation into CDOs. It has been confirmed to me that, the tranche certificate owners – are the creditor – which, of course, could be multiple – but limited in number to the actual number of tranches – that are outstanding at the moment. But, the tranche owner would only be the creditor IF the current receivables are being passed through (by tranche holders) to derived security investors (derivative securities – derived from the original tranche certificates). Clearly, this is not the case when the receivables for loans are in default.

    Further, many of the tranches have been paid off in full – thus destroying the original structure and intent of the pass- through receivable SPV trust.

    My concern, as I have discussed here before, is the residual tranches of the original SPV. The residual tranches are not securitized, and no receivables are passed-through via residual tranche. Of particular concern is the residual tranche owned by servicers. This residual tranche, I believe, is the source of much potential for abuse in court foreclosure actions. I recall the Bill Clinton scandal – when Pres. Clinton said (paraphrase) that the word “is” could have several connotations depending on how “is” was used. The pretend lenders are taking advantage of an original source to manipulate current collection rights whereabouts – “is” is not really “is.”

    Once the loan (receivable) is in default, it cannot be pass-through to anyone. Thus, the default “receivable” can only be subordinated to residual tranche – servicer owned. Again, this tranche is not a certificate pass-through – and the only creditor (holder of tranche) is the servicer. The servicer will advance all payments to protect it’s lien position. But, the servicer is not servicing any longer for the Trust, whether or not it survives, it is servicing for an unidentified entity who now owns collection rights to the loan/property. This is because no proceeds are any longer passed through to the trust certificate holders. Once the property is sold, the servicer is reimbursed for advances via the sale by the actual current creditor.

    My concern, and what I see happening with foreclosures, is that the residual tranche is technically a part of the SPV trust – even though not a pass-through. (“is” is not really “is”).
    Trying to find out who the servicer is actually servicing for – is a great task (it could be the servicer itself – or parent corporation of both the servicer and security underwriter – or third party affiliate/non-affiliate – distressed debt buyer/hedge fund). But, it is not the trustee to the original SPV. I have seen instances in which only the trust, not the trustee on behalf of certificate holders, is claiming to be the creditor – this is a new trick. The reason for this is that in order for the trustee – on behalf on the trust – to have any rights to collection – all cash (current) payments must be passed through to THE TRUSTEE – by the servicer. This is includes all servicer advances to the Trustee. The trustee will likely not be able to account for receipt of any current cash payments (advances) or proceeds. Thus, the foreclosure action cannot be under the name of the Trustee on behalf of certificate holders. So, naming the trust – without trustee – may be a way around trustee “accounting” by the pretend lenders. But, then the question is – Who will account for receipt of proceeds by foreclosure? A trust accounts for nothing – the trustee accounts for all proceeds and collections while the SPV is alive (actually trustee accounts for the off-balance sheet Depositor “owner” of the Trust.” Trust ownership and rights to receivables are also two different things. .

    The question is not just one of real party interest/standing in court – the bottom line question is – Who is the current creditor? Who will account for proceeds of any foreclosed property.

    The residual tranche, in effect, serves to remove receivables from Trust – not to remit receivables or proceeds to trust (although servicer may remit currently past-due payments for a short period).

    Point is – the residual tranche is the source of contention. The residual tranche “IS” a part of the original SPV, but “IS” not a part of pass-through of proceeds to the Trust itself – or to securitized tranche holders. “IS” is not really “IS.”

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