NJ Chief Justice Rabner: SHOW CAUSE OR SUSPEND FORECLOSURES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

WHAT IF ALL THE FORECLOSURES ARE WRONG?

The target lenders are

  • Bank of America/
  • Bank of America Home Loan Services,
  • Allied Financial, formerly GMC;
  • J.P. Morgan Chase/Chase Home Finance,
  • Wells Fargo/Wells Fargo Bank/
  • Wells Fargo Financial of New Jersey,
  • Onewest Bank FSD, and
  • Citibank.

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BY TOM HESTER SR. NEWJERSEYNEWSROOM.COM
In an effort to ensure that home foreclosure documents submitted to the New Jersey courts by 30 banks and lenders are accurate and put an end to so-called robo-signings, state Supreme Court Chief Justice Stuart Rabner Monday ordered the lenders to prove the paperwork is correct.
The action follows a report submitted last month to the Administrative Office of the Courts by Legal Services of New Jersey on so-called “robo-signing” irregularities by mortgage lenders and how other states are responding to the issue. Robo-signings occur when a lender’s employee signs off on foreclosure documents without knowing the full facts of the matter. The action has been found to be widespread in the United States.
General Equity Judge Mary C. Jacobson, who sits in Trenton, has been designated by Rabner to oversee foreclosure matters. She has signed an order directing six lenders and service providers who have been implicated in irregularities in connection with their foreclosure practices to show cause on Jan. 19 why the processing of uncontested residential mortgage foreclosure actions they have filed should not be suspended.
The six lenders are Bank of America/Bank of America Home Loan Services, Allied Financial, formerly GMC; J.P. Morgan Chase/Chase Home Finance, Wells Fargo/Wells Fargo Bank/Wells Fargo Financial of New Jersey, Onewest Bank FSD, and Citibank.

N.J. courts move to ensure integrity in home foreclosure process

Together, the six lenders have filed 29,000 foreclosure cases this year.
Under Jacobsen’s show cause order, the 24 other lenders who have all filed a total of 19,000 residential foreclosure actions in 2010 — or more than 200 each — must demonstrate within 45 that there are no irregularities in their handling of foreclosure proceedings, via submissions to retired Union County state Superior Court Judge Walter R. Barisonek, who has been recalled to temporary judicial service and assigned as a special master.
“Today’s actions are intended to provide greater confidence that the tens of thousands of residential foreclosure proceedings underway in New Jersey are based on reliable information,” Rabner said. “Nearly 95 percent of those cases are uncontested, despite evidence of flaws in the foreclosure process.
“For judges to sign an order foreclosing on a person’s home, they must first be able to rely on the accuracy of documents submitted by lenders,” the chief justice said. “That step is critical to the integrity of the judicial process.”
At the direction of Rabner, Judge Glenn A. Grant, acting administrative director of the courts, has issued an administrative order that details the scope of the problem and orders certain procedures to safeguard the mortgage foreclosure document preparation and filing process.
Grant has also notified the New Jersey Bar Association of the adoption of amendments to the Rules of Court that require the lenders’ attorneys in all residential foreclosure actions to file certifications confirming that they have communicated with a lender’s employees who have personally reviewed a foreclosure document and confirmed the accuracy of all court filings, and which remind the attorneys of their obligations under the court’s Rules of Professional Conduct.
The number of foreclosure cases handled by the courts this year total 45,759, with the greatest number of homes lost in Essex County, 4,428, and Middlesex County, 3,376. Salem County has had the least foreclosures with 390.

Grant said it take about a year from the time a homebuyer falls four months behind on a mortgage until a foreclosure action is settled in court.
In 2009, there were 66,717 foreclosure cases. In 2008, the number was 51,626, in 2007, it was 36,360, and in 2006, the number was 24,857.
Together, the figures show that 225,316 New Jerseyans, couples or families lost their homes in the past five years.
Rabner and Grant said that New Jerseyans who have already lost their homes and feel the lenders treated them unfairly should obtain legal counsel to press their specific cases.
Rabner said that 95 percent of foreclosure cases handled by the courts are uncontested by people who are losing their homes.
“It is our hope these three steps provide greater confidence that foreclosure filings are proper,” Rabner said. “It is important that the judiciary ensures that judges are not rubber stamping documents that may not be reliable.”

60 Responses

  1. I’ve been surfing online more than 2 hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all website owners and bloggers made good content as you did, the internet will be a lot more useful than ever before.

  2. This all sounded good on Dec 22, but today is March 15 and this so called “deadline” where the banks had to show cause not to suspend foreclosures in NJ is a complete joke! This deadline has been postponed so many times I lost track? The latest now being March 29th. As if that isn’t bad enough, it’s not even getting much coverage any more? I had to search this every way I could think of to find any mention of it at all? What’s the point of giving them a deadline if they don’t have to abide by it? I’m sorry but the legal enforcement of this is a joke, which is how they got away with this whole thing to begin with. There are no laws they have to follow? Not even a Judicial order from the high courts? Get ready to watch this get swept under the rug… and get out the vaseline! If I’m wrong, I’ll be the first to apologize. We all know what they did… what takes so long for them to figure it out?

  3. Fannie Mae does not have a penny to purchase ANYTHING.

    Fannie/Freddie are finished.

  4. J.,

    Hope is here, and hope is with the AGs, and hope is that the government will finally expose what has gone on. And, hope is with every single person here that stands up to expose the fraud. Whether we agree or disagree on process — we agree on fraud. And, the fraud is huge.

    I have hope. A New Year.

  5. Hi anonymous,
    Thanks for your insight. It is very hard for me to grasp the reality of this…or even understand these complicated schemes. Is there any hope for resolving such a situation? I do not know how people like us are supposed to continue to do business with “them”? All we want to do is either to be righted where we were wronged, or to be restored to our original state. Is that a possibility?

  6. Mr. Soliman:

    Thank you, and Merry Christmas and Happy Hannukah to all!

  7. Fannie Mae Purchasing Assets

    Fannie Mae to Purchase Delinquent Loans from Specified REMICs and Structured Transactions, and Provide Additional On-Going Loan-Level Data for Certain Fully-Guaranteed Whole Loan Structured Transactions

    Commencing immediately, Fannie Mae will exercise its option to purchase mortgage loans that are delinquent as to four or more consecutive monthly payments from the Fannie Mae whole loan REMIC trusts and other structured transactions

    (REMIC trusts and other structured transactions that either are backed directly by loans insured by the Federal Housing Administration or guaranteed by the Veterans Administration, or have a credit enhancement structure with senior and subordinate classes,)

    SENIOR SUB CLASSESS ARE WHERE YOU HAVE THE PROBLEMS

    Going forward,they will continue to conduct purchases of loans that are delinquent as to four or more consecutive monthly payments from the Affected Trusts.

    NOTE – PER THEIR OWN ADMISSION – execution of this initiative in the future could be affected by economic, market, operational, and regulatory factors.
    (GAAP AND FIN / FAS 140 – I’M TELLING YOU )

    Certain loans will also be exempt from this initiative including those loans that currently or in the future are in a forbearance or repayment plan.

    (There maybe more to gain here than we realize)

    The purchase of a loan from an Affected Trust (affected is a code word for toxicity) has the same effect on the timing of certificate principal distributions as a borrower prepayment in full.

    (why wold they call a purchased asset a prinicpal paydown and full satisfaction !!!)
    (or same effect as a borrower prepayment?)

    Therefore, the exercise of the Fannie option to purchase delinquent loans may accelerate the timing of principal distributions on the certificates.

    (That means paying back investors and closing the position ).

    Payments in respect of the delinquent loans initially purchased from the Affected Trusts will be distributed to the related certificateholders on the distribution date in December 2010.

    (Resuming the role of a subrogations claims party through Fannie)

    Payments in respect of subsequent purchases of delinquent loans will be distributed to certificateholders on the distribution date in the month following the month in which such purchases occur.

    Due to the volume of loans initially purchased by us under this initiative, we expect that the effect of this initiative on principal distributions for the certificates will be more pronounced for the December 2010 distribution date than for subsequent distribution dates.

    Look for the affected Trust for additional information regarding distributions of principal to certificateholders and servicing practices regarding troubled loans, including the optional purchases of delinquent loans from our REMIC trusts and other structured transactions.

    (problems such as business as usual andone foreclosure at a time)

    Fannie differentiates fully-guaranteed structured transactions (i.e.issued in 2003 and thereafter) that are backed directly by whole loans.

    (whole loan transations – that is the operative word)

    MSoliman – This is huge and I can send you the loan level detail to place the loan your contesting . .Huge for tracking delinquent, in a forbearance or repayment plan, and counter partiespayments) also if borrower is bankrupt, etc.).

    expert.witness@live.com

  8. As for nothing here is OFFERED as a solution ?
    – not true.

    I am more than willing to lay it all out and step by step. But for anyone in this position of testifying – it better be under engagement. ..and your opine is due the court not the client. For those venturing in , I got to tell you –

    They Deposition is getting cruel and abusive like nothing i have seen. They cannot beat me but do there very best to discredit ones entire backround. THEY DO READ EVERYTHING HERE ..OKAY EVERYTHING AND CERTAIN NEGATIVE THINGSD BROUGHT OUT HERE DO GET ENTERED IN TO DEPSOITION But they will rip your back round up and apart for anything lacking hands on practical trading experience at an executive level with verifiable contacts at the secondary level and dig deep into securities derivitives, captital markets , warehouse fiancing , Q/C delivery and solid accounting experience . Outside of Neil (strong testimony) I don’t know how much merit these audit carry and tmerit with no resume attached – they laugh at a QWR as immaterial!

    I have had more than a half dozen folks engage my services and then go on and become experts. Wierd.

    Hey it’s America and that’s not my focus – training nor practicing law….none of us can lay out a strategy and publish it . . . . (Without enduring a question of ethics for advising as a non-licensed purveyor of judicial interpretation).

    Even then you better know your stuff.

    I DO KNOW THIS – I RECOGNIZE SUBSTANCE AND CAN CATHCH THE DEPOSING PARTY IN A QUANDRY – SO THEY ARE CAREFUL WHAT THEY ASK….MORE KNOWLEDGE THAN THE OPPONANT .

    I OUT DATE MOST THESE GUYS WHO ARE BRINGING A FOOLS FORECLOSURE ARGUMENT THATS NOT IN OLINE WITH YOUR EVIDNCE I SEE PEOPLE GRASPING HERE. THAT JUDGES ARE BUYING FOR LACK OF A STRONG SERIES OF COMPELLING COUNTER ARGUMENTS AND EVIDENTURY .

    FRAUD – LEAVE IT ALONE.
    Scienter and sufficinecy in pleading are mandatory – even if not for class certifcation purposes.

    One guy engages me and never pays the retainer which is fine. He goes out an advise people and to date has put together a plan sure to land this sorry consulatant in prison. HE DID MESS UP! It’s SAD! Another person di dthe same after 5 or 6 hours of investment of my time. He vanishes and goes to court and from what I hear he found himnself in teh spot lite with a opening. A HUGE HOMERUN THAT I HAVE YET TO SEE AND SALIVATE OVER – HE’S IN COURT AND THERES THE END ZONE WITHNO ONE IN FRONT OF HIM …..HE BLOWS IT . ABSOLUTLY BLOWS IT AND GETS SHUFFELED OUT . WOW . I AM STILL HURTING OVER THIS ONE.

    THERE IS SO MUCH TO KNOW AND IF YOU HAVE A DAY JOB …ITS YOU RIGHT TO DO WHAT EVER …BE CAREFUL

    CALL SENIOR COUNSEL FOR THE RECEIVER OR AGENCIES AND GO HEAD TO HEAD…TOE TO TOE . THAT’S WHAT I MEASURE AS A WINNING EDGE WHEN YOU TESTIFY (WITH COUNSEL BY OUR SIDE OF COURSE) .

    GARN ST GERMAIN , SELLING PAPER TO SEARS, WESTINGHOUSE FORD MOTOR CREDIT, RIDING UP ELEVATORS WITH MORTICIANS (I mean regualtors during FIERRA, etc etc ) the 98 crash . etc .

    But I was labeled a Charliton by someone who must be filled with the most deepest resentiment and vile distain for the truth . . . .thats all I publish.

    The point is people are starting to wing it Don’t wing it people. If my name or reoccurring (pest from the past ) nightmare makes you think twice about what you read something contrary to my ethics . . . So be it. It’s all I got at the end of the day .

    But keep reading and be mindful of more wrong information than I have ever seen here.

    Now, I want to share a few “gems” I’ll toss or ask you to take to heart.

    I tend to publish things long before the masses and its usually triggered by a recall from a past first hand similar event. I go back through a procedure or process and then discover another whacked out policy or enforcement they sell the court or another fraud taking place.

    THESE PEOPLE (DEBT CORRECTORS) ARE MAKING CRAP UP TO FORECLOSE AND WE NEED TO ZERO IN ON THAT WHERE THEY ARE WINING IT. . . . so don’t wait or hesitiate months from now. Do your homework and get on these arguments.

    Look down the road maybe to anticipate – preemeption is already here folks!

    Look for that point or two that will give you a head start for purposes of differentiating yourself form the mass “knee jerk” crowd (STILL ASKING TO SHOW ME THE NOTE) besieging the court.

    ISSUES AT LARGE
    (1) Robo signature is an Attorney General matter and not something that has much merit (isolated cases) in your pursuit. Write the AG and let his office handle it.
    (2) A person so designated as Robo Point Person is appointed the MERS signatory and that person gives a POA to the company. Anyone can sign their name and will evidence the POA in court . . . if pushed.! Nothing there !
    (3) There is little value in a boiler plate pooling and servicing contract with failed thrifts long gone, and dead “delisted” REIT also seized and or consolidated.
    ** Know who at this point in time your facing in court!
    (4) . . .And – Don’t listen to anything Roger say’s about wing nuts. LOL (Really he is a class person and someone I have come to rely on for honest assessments.).

    The few Gems I mentioned are coming here in a second!

    M.Soliman
    expert.witness@live.com

  9. Anonymous:

    Very good!!! Most people never had a clue.

  10. Joyce Louise

    Very kind of you to help J.

  11. J.,

    You are not alone. Many others out there like you.

    What everyone here has to remember is that many mortgages granted during this decade were labeled “subprime.” Primarily, these subprime mortgages were for refinances — but new purchases were also a target. I have seen attorneys question the definition of “subprime” — they want YOU to explain what subprime means.

    Simply, subprime means “below prime.” That is, mortgages were granted to borrowers with sub-par credit (FICO score) – and, therefore, the loan was assessed a rate ABOVE prime market interest rate cost. In the case of adjustable rate mortgages, the above prime market rate was substantial. In finance, this is a part of risk/reward analysis. Those with low FICO scores were considered higher risk — assessed higher rates — and, therefore, “should” provide higher return to “investors.” (Of course those that signed on dotted line for Adj. rate mortgage always thought they would be able to refinance out -or sell home — both of these options became impossible after crisis hit and government controlled bailout for banks only).

    The first major problem is that credit reporting – and derived FICO scores, are loaded with errors. Errors that even the most astute credit report reader may not find. Many were falsely placed into a sup-par category – when in fact their credit report was erroneous — and they qualified for a far better interest rate on their mortgage — likely, they may not have even been subprime to begin with.

    But, the past decade began with loose credit standards and solicitations by banks for credit — not mortgages — but credit. Once the bank got you as a credit customer — they had your number for a targeted mortgage “customer.” They knew everything about you — and, one payment late on a credit card, one acceptance of their solicitation for a credit card – at starting zero percent interest (and also later adjustments)– meant you were nailed!!!

    And, of course, as a good customer to the bank — you always wanted to pay your credit card/lines — a refinance did the trick!!! Or, you wanted to buy a new house — and was simply not aware of credit report errors. Either way – your FICO score had already labeled you — as — subprime.

    Subprime was VERY profitable to the banks— of course —how could the banks become profitable on prime customers when subprime customers would paid so much more???

    The Federal Trade Commission is responsible for credit reporting and FCRA – but, most do not even know there are errors — do not even know to report it to FTC — and if you do know of errors– just try to correct it — nearly impossible. And, you could wait ten years before FTC gets around to it. – because FTC does not act on individual requests for help..

    What caused all this?? Repeal of the Glass-Steagall Act of 1933 – by the Gramm-Leahy bill of 2000. This allowed banks to commercially lend money — (credit cards and mortgages) — and securitize the receivables to both. So – while your credit card debt was being securitized — mortgage potential dollars signs were being calculated.

    Then your mortgage loan was acquired — by likely false credit reporting and FICO scores — at a subprime rate. Then your mortgage loan was supposedly securitized. But, at this point, your mortgage loan is already deemed non-compliant – and cannot be traditionally securitized into MBS.
    So — what we were left with — is securitization of DEBT — not mortgages — but DEBT– which fell apart. Then we have so called securitization of non-performing debt – which is — IMPOSSIBLE.. .

    And, to keep you where they wanted you — your credit reports must remain POOR. You must remain below “prime” — never allowed to escape. This required false FICO scores, false documents, withheld documents, false indorsements, falsely labeled early payment defaults- falsely labeled ANY default, false mortgage title -etc. etc., – and, of course, culminating in fraudulent foreclosure.

    And, you never knew what hit you. But, it is called targeting.(and far worse). And, Sandra Hin – in video presented elsewhere here — does not bring up any of this when she speaks before Congress- — but she speaks from the heart – and, sometimes that is even more powerful.

    You need help — no one can do it alone.

  12. Joyce Louise…you are a kind heart. THANK YOU. We appreciate your help so much. If there is anything I can do for you…just let me know. My heart breaks for those who have lost or are losing their homes. I want to join forces with those who are standing up and fighting..and do whatever I can to help them…(us) because this great country does not deserve to come down like this.

  13. I know you can, but if you want me to look at the payment history after you order it on line, I will be happy to do so and give you the findings. There is no charge. Merry Christmas.

  14. Joyce Louise, Thank you for that. Its a relief to know that someone is listening and understanding. I will take your advice and try this action. I hope that we can work it out. I appreciate it your advice.

  15. Mr. Soliman: If I may ask on behalf of my ignorance, in terms of the commentary below, what is the definition and effect of ‘FANNIE kissing an asset?’ And to the conflicting concurrent funding between the Consumer Banking Association and the American Banking Association, can that ‘smoking gun’ be expounded, please? Thank you in advance.
    ________________

    I know the fraud and its based on an algorithm or two or four and a scrammbling of execution formats unavailable to private wrapped paper unless FANNIE comes along and “kisses” the asset.
    ________________

    But the CBA and concurrent funding of the comml lines disgusied ina FED ABA is where you find the smoking gun.
    ________________

  16. J

    Legal aid will help you with this, hopefully, as it is an administrative clean up job and may be able to force the correction to the account. You need to get the audit and present it yourself without thinking about going legal. Give them one last shot at correction after you send your support evidence.

    I weep for those that were foreclosed on when indeed there were erroneous postings to their accounts and the due dates were not advanced when payments out of suspense were being applied. Intentional, who knows. Another failure of our oversight agencies.

  17. J.

    I can speak to this issue. I have audited and interpreted a good number of the payment histories wherein the borrower and the servicer paid the taxes. You have been accurate in your accounting of what has happened. With some servicers I have found that they could not even interpret their own Account Activity Listing and found that I had to do it for them. Almost all of these people were current, but because of the erroneous posting, which I do believe to a degree, was intentional, they accrued late fees, held funds in suspense, and in some cases, posted the regular monthly payment to the escrow account or the principal balance after it had been sitting in the suspense account. They also reported them to the credit bureau for allegedly being in default. Some of these cases were reported to the OCC with copies to the Senators for lack of performance by the servicer to correct the errors which of course resulted in nothing happening from the standpoint of the Senators or the OCC. After I certified the errors on the account payment history and typed up the findings, my last client is on their way to file a law suit. In the meantime, she was being threatened with foreclosure as well, but they have now elected to not foreclose but they will not correct the records. They said she had 2 months to report that her payment was not posted correctly and that was such a joke because I don’t believe that there was a time frame, but the deal is she had been trying for almost two years to get them to straighten it out. Another case I worked on took me a year and a half and as I reported earlier, that person had suffered through a terrible illness the whole time I was trying to hold them off from foreclosing on her. I told her on a Wednesday that it was finally straightened out and that she was getting her release (the only debt was the $19,000 they fraudulently ran up in her escrow account), but she died a few days later. It was almost laughable if it had not been so sad because the servicer had charged her 2 winterizing jobs at $1600 each for a total of $3200 and the house had been boarded up and was under 5 ft of water. OUt and out fraud. They charged her $3000 for an insurance policy, but the house was not insurable. You are right, there has been a lot of this going on, and the Congress was never ready to call FAnnie’s hand on it who did hold some of these loans. You need to find someone that audits the activity payment account history and have them type up the findings as your proof of the status of your account. Then, present it. In most of my cases, I was able to in a reasonable time straighten the mess out with our support documents.

  18. ….sorry, Joyce.

  19. I have VERY LITTLE legal knowledge. We have been paying our mortgage and have only been late once in 6 years. We had a misunderstanding with Mortgage Company about taxes..we paid AND they paid…we paid late…just a big mess, but it seemed to be a convenient way for them to start screwing with us relentlessly. Now, they NEVER apply our payments to our loan, trying to understand the statement is ridiculous…there are lots of ambiguous charges, un-applied funds, etc. We were told that we owed them some money for (them) paying our taxes. They are showing us behind and have for months. We just paid them all the money they asked for and the statement does not reflect any of it, in fact…everything has gone up! My husband has argued with them about the accounting for a year. It is only getting worse. We did, in October get a statement from them saying they could forclose at any time without further notice in the next 12 months. WE ARE NOT BEHIND. We have proof of every payment. All the taxes are paid for and we have proof of that. I am not seeing a lot of people talking about THIS. Lots of people are behind…and I know that is causing problems in courts..but what about those who are NOT behind. What should we do????? I would greatly appreciate any suggestions you guys have as a course of action we should take. There is a lot more to this story of course…but our main concern is that they refuse to account for the money we send them.

  20. Whether any of you fellas know it or not, there are a few of us ladies out there that are not outside of the circle. We are just a little more silent about what we know and can accomplish and we don’t have to have a vodka to get it. done. Merry Christmas to all.

    I still don’t see anyone coming up with anything that would even approach a resolution to this mess. Everyone is still talking.

  21. I should give context for my previous posting… M. Soliman states that wins will be overturned because a higher authority is taking our homes – not the banks!

  22. I dont know about robo the hobo or Assigny Dirty Hiney GayWRs… (the dots are where he says they are), but I do know this…
    M. Soliman is ALWAYS RIGHT!
    I paid him for his services and I believe I am closer than ever to getting my home back.
    This is an email I received today that I thought I would share with everybody.

    Either love him or hate him, take him or leave him. It’s your house and your choice.

    Maher’s right again! – overturned ruling

    My buddy Jeff brought this news to my attention. A year ago, a New York judge wiped out the mortgage debt of Diana Yano-Horoski because of the shoddy behavior of the foreclosure plaintiff, IndMac. Now the New York Supremes have overturned the ruling. See the related article and ruling below

    Storm Bradford of http://mortgagefraudanalysis.com has repeatedly advised foreclosure victims that they have NO HOPE of avoiding the foreclosure unless they can prove fraud in the transaction. This case provides a clear example of the false hope people get when a lower court judge tosses a mortgage debt. The Plaintiff will win on appeal because the US Constitution prohibits states from making laws (and court rulings often have the effect of making laws) that impair the obligations of contract.

    If you want to PROVE fraud so that you have some ghost of a chance of winning your case, contact Storm at the above web link, or Malcolm Doney at http://dolphindevelopments.com.

    You might also consider finding an expert witness who can explain to the court the kind of scam lenders play on borrowers.

    http://www.sourceoftitle.com/blog_node.aspx?uniq=537

    Judge Wipes Out Mortgage Debt, Denies Foreclosure Relief to Lender
    by Robert Franco http://www.sourceoftitle.com/img/envelope.gif | 2009/12/15 |

    According to an article on Law.com, a state judge canceled a lender’s mortgage for what he described as “unconscionable, vexatious and opprobrious” conduct in attempting to foreclose on a Long Island, New York home. There is no doubt that courts are becoming fed up with the backlog of foreclosures, but one really has to wonder… can they really do this? Well, Suffolk County Supreme Court Justice Jeffrey A. Spinner did.

    Source of Title Blog ::

    Diana Yano-Horoski, representing herself, was the defendant in the foreclosure by IndyMac Mortgage Services. Her mortgage on the property was in the amount of $295,000 – an adjustable rate loan with an initial interest rate of 10.375%, taken out in 2004. In the foreclosure IndyMac asserted that it was owed more than $525,000, but the property was only worth only about $275,000.

    The court ordered a settlement conference, which was continued five times as the court attempted to obtain “meaningful cooperation” from the bank. The representative sent by the bank “made it abundantly clear that no form of mediation, resolution or settlement would be acceptable” to IndyMac. IndyMac claimed that they offered a forbearance agreement to Yano-Horoski, but she quickly defaulted. However, after prodding, its representative admitted that the agreement hadn’t been sent to her until after its stated first payment due date. Therefore, it would have been impossible for Yano-Horoski to have consummated the agreement under any circumstances.

    IndyMac also rejected a short-sale offer by Yano-Horoski’s daughter to purchase the property with third-party financing for its fair market value, presumably more than would have been realized at a sheriff’s sale. It also refused modification that included assistance from the incomes of Yano-Horoski’s husband and daughter, even though the modification did not seek to forgive any of the principal.

    The judge found IndyMac’s positions deeply troubling and that it was apparent from its representatives “opprobrious demeanor and condescending attitude” that nothing short of consent to foreclosure and the ejectment of Yano-Horoski and her family would be acceptable to the bank.

    The amount of money IndyMac claimed was due also seemed to bother the judge. A letter from IndyMac stated the principal balance was $285,381.70 as of February 9, 2009 and another stated a balance of $283,992.48 as of August 10, 2009. The bank stated that there must have been payments made, but it eventually conceded that no payments had been posted to the account. Then… there are the additional fees and charges:

    That having been said, the Court is greatly disturbed by Plaintiff’s assertions of the amount claimed to be due from Defendant. The Referee’s Report dated June 30, 2008, which has its genesis in a sworn affidavit by a representative of Plaintiff (presumably one with knowledge of the account), reflects a total amount due and owing of $392,983.42. The principal balance is reported to be $290,687.85 with interest computed at the rates of 10.375% from November 1, 2005 through August 31, 2006 ($25,118.62), 12.50% from September 1, 2006 to February 28, 2007 ($18,018.66), 12.375% from March 1, 2007 to March 31, 2008 ($39,126.39) and 11.375% from April 1, 2008 to June 24, 2008 ($7,700.24) totaling $89,963.91. Plaintiff also claims$20.00 in non-sufficient funds charges, $295.00 in property inspection fees and $12,016.66 for tax and insurance advances. The Judgment of Foreclosure & Sale dated January 12, 2009 was granted in the amount of $392,983.42 with interest at the contract rate from June 24, 2008 through January 12, 2009 and at the statutory rate thereafter plus attorney’s fees of $2,300.00 and a bill of costs in the amount of $1,705.00. Even computing the accrual of pre-judgment interest of $18,299.18 (using Plaintiff’s per diem rate in the Referee’s Report) together with post-judgment interest at a statutory 9% through November 19, 2009 (an additional $31,740.90), the application of simple addition yields a total amount due of $447,028.50. This figure is $80,409.23 less than the $527,437.73 asserted by Plaintiff to be due and owing from Defendant. The Court is astounded that Plaintiff now claims to be owed an escrow advance amount of $46,627.88 when, under oath, its officer swore that as of June 24, 2008 that amount was actually $ 34,611.22 less. Moreover, it now appears that the elusive principal balance is either $290,687.85, $285,381.70 or $283,992.48.

    The court then noted that Yano-Horoski and her husband have serious medical issues, yet they managed to attend and “assiduously attempt to resolve this controversy in an amicable fashion, only to be callously and arbitrarily turned away” by IndyMac. But, this was only one case in what the court described as a “much greater social problem.”

    It is certainly no secret that Suffolk County is in the yawning abyss of a deep mortgage and housing crisis with foreclosure filings at a record high rate and a corresponding paucity of emergency housing. While foreclosure and its attendant eviction are clearly the inevitable (and in some cases, proper) result in a number of these situations, the Court is persuaded that this need not be the case here.

    In short, a loan modification would result in a proverbial “win-win” for all parties involved. To do otherwise would result in virtually certain undomiciled status for two physically unhealthy persons and their daughter, leading to an additional level of problems, both for them and for society.

    As repugnant as the court found IndyMac’s behavior in this foreclosure case to be, what could be done about it? The homeowner was clearly in default (by whatever amount it may be) and the mortgage certainly provides IndyMac with its remedy of foreclosure. The judge, however, wasn’t about to rule in favor of IndyMac.

    The Court cannot be assured that Plaintiff will not repeat this course of conduct if this action is merely dismissed and hence, dismissal standing alone is not a reasonable option. Likewise, the imposition of monetary sanctions… is not likely to have a salubrious or remedial effect on these proceedings and certainly would not inure to Defendant’s benefit. This Court is of the opinion that cancellation of the indebtedness and discharge of the mortgage, when taken together, constitute the appropriate equitable disposition under the unique facts and circumstances presented herein.

    Yes! The judge ordered that the note in favor IndyMac be “cancelled, voided, avoided, nullified, set aside and of no further force and effect.” It further ordered the mortgage to be “vacated, cancelled, released and discharged of record.” And, just in case that was not enough, IndyMac, “its successors and assigns are hereby barred, prohibited and foreclosed from attempting, in any manner, directly or indirectly, to enforce any provision of the aforesaid Adjustable Rate Note and Mortgage or any portion thereof.”

    What legal authority could the judge possibly have for such a ruling? Judge Spinner came up with something to hang his hat on. Citing a string of cases from the late 1800’s to the early 1900’s, he found that foreclosure was an equitable remedy and that canceling the mortgage in this case was equitable.

    Since an action claiming foreclosure of a mortgage is one sounding in equity, the very commencement of the action by Plaintiff invokes the Court’s equity jurisdiction. While it must be noted that the formal distinctions between an action at law and a suit in equity have long since been abolished in New York, the Supreme Court nevertheless has equity jurisdiction and distinct rules regarding equity are still extant. Speaking generally and broadly, it is settled law that “Stability of contract obligations must not be undermined by judicial sympathy.”However, it is true with equal force and effect that equity must not and cannot slavishly and blindly follow the law. Moreover, as succinctly decreed by our Court of Appeals, “a party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression…”

    In attempting to arrive at a determination as to whether or not equity should properly intervene in this matter so as to permit foreclosure of the mortgage, the Court is required to look at the situation in toto, giving due and careful consideration as to whether the remedy sought by Plaintiff would be repugnant to the public interest when seen from the point of view of public morality. Equitable relief will not lie in favor of one who acts in a manner which is shocking to the conscience, neither will equity be available to one who acts in a manner that is oppressive or unjust or whose conduct is sufficiently egregious so as to prohibit the party from asserting its legal rights against a defaulting adversary. Thus, where a party acts in a manner that is offensive to good conscience and justice, he will be completely without recourse in a court of equity, regardless of what his legal rights may be.

    Still, this seems like an extreme concoction of jurisprudence. The interesting recitation of legal precedent is surely an accurate depiction of the laws of equity, but to me it only means that the court can rightfully dismiss this case – upon finding that IndyMac’s bad faith in the mediation leaves the equitable remedy of foreclosure unavailable. Permanently denying IndyMac of its rights under the mortgage would seem to go to far. Of course, as Judge Spinner pointed out, merely dismissing the action would leave IndyMac free to bring another foreclosure action. That alone, in my opinion, would not be sufficient basis to cancel the indebtedness.

    Let’s consider, for a moment, the Contracts Clause of the U.S. Constitution: “No state shall pass any law impairing the obligation of contracts.” The purpose of this clause, although it does not apply to judicial decisions, is instructive.

    The Framers of the Constitution added this clause due to fear that states would continue a practice that had been widespread under the Articles of Confederation—that of granting “private relief.”Legislatures would pass bills relieving particular persons (predictably, influential persons) of their obligation to pay their debts. It was this phenomenon that also prompted the framers to make bankruptcy law the province of the federal government.

    Does it make sense that a judge in a simple, albeit unusual, foreclosure case could grant relief that the legislature could not constitutionally provide? Not even a bankruptcy judge has the authority to set aside a residential mortgage – and debt relief is the primary purpose of bankruptcy.

    Take for example an Ohio House bill that purported to give state judges the authority to modify mortgages in foreclosure. Although it provided restrictions on this power, committee testimony revealed that it was most likely unconstitutional. The provision was later removed. Judge Spinner’s decision would seem to indicate that although such power cannot be given to the judges by the legislature, with a wink and a nod the same result can be obtained under the guise of the courts’ powers of equity.

    I would expect IndyMac to file a successful appeal. If this decision stands, judges across the country could decide to clear their dockets by discharging debts of mortgagors who are looking more and more sympathetic in the midst of the financial crisis. Clearly, there is a shift in sentiment towards the homeowner and not many people for sorry for the banks.

    Although I do believe that Judge Spinner exceeded his judicial authority in this case, I can’t help but smile when I read the opinion. Legally, I don’t believe that there is support for the holding. But, morally I applaud the judge for his bold step toward doing what many would term “the right thing.” If nothing else, he sent shivers down the spine of every banker who will now think twice before blowing off court ordered mediation.

    Robert A. Franco
    SOURCE OF TITLE

    http://www.nycourts.gov/reporter/3dseries/2010/2010_08532.htm

    IndyMac Bank, F.S.B. v Yano-Horoski

    2010 NY Slip Op 08532

    Decided on November 16, 2010

    Appellate Division, Second Department

    Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

    This opinion is uncorrected and subject to revision before publication in the Official Reports.

    Decided on November 16, 2010

    SUPREME COURT OF THE STATE OF NEW YORK

    APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
    MARK C. DILLON, J.P.
    ANITA R. FLORIO
    RUTH C. BALKIN
    SHERI S. ROMAN, JJ.

    2009-11392
    (Index No. 17926/05)

    [*1]IndyMac Bank, F.S.B., appellant,

    v

    Diana J. Yano-Horoski, et al., respondents.

    Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, N.Y.
    (Brad S. Karp, Allan J. Arffa, and Robyn F. Tarnofsky of counsel),
    and McGlinchey Stafford, PLLC, Albany, N.Y. (Marc J. Lifset of
    counsel), for appellant (one brief filed).

    DECISION & ORDER

    In an action to foreclose a mortgage, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Spinner, J.), dated December 1, 2009, which, inter alia, vacated a judgment of foreclosure and sale of the same court (McNulty, J.), dated January 12, 2009, cancelled the note and mortgage, and directed the Suffolk County Clerk to cancel the notice of pendency. By decision and order on motion of this Court dated January 14, 2010, enforcement of the judgment dated January 12, 2009, was stayed pending the hearing and determination of the appeal.

    ORDERED that the judgment dated January 12, 2009, is reversed, on the law, without costs or disbursements, the judgment of foreclosure and sale is reinstated, the note and mortgage are reinstated, and the Suffolk County Clerk is directed to reinstate the notice of pendency.

    In July 2005, after the defendant Diana J. Yano-Horoski defaulted on her mortgage, the plaintiff, IndyMac Bank, F.S.B., commenced the instant foreclosure action. On January 12, 2009, the Supreme Court (McNulty, J.) issued a judgment of foreclosure and sale. Notwithstanding the entry of a judgment of foreclosure and sale, the Supreme Court scheduled various postjudgment settlement conferences between March and August of 2009, which the plaintiff agreed to attend and participate in. Based upon the plaintiff’s conduct during these conferences, the Supreme Court (Spinner, J.), sua sponte, directed a hearing to determine whether sanctions should be imposed against the plaintiff. Following the hearing, based on a determination that the plaintiff had conducted the settlement negotiations in bad faith, the Supreme Court issued a judgment which, inter alia, vacated the judgment of foreclosure and sale, cancelled the note and mortgage in its entirety, and directed the Suffolk County Clerk to cancel the notice of pendency.

    Here, the severe sanction imposed by the Supreme Court of cancelling the mortgage and note was not authorized by any statute or rule (see Tewari v Tsoutsouras, 75 NY2d 1, 5-7), nor was the plaintiff given fair warning that such a sanction was even under consideration (see Matter of Harner v County of Tioga, 5 NY3d 136, 140; Barasch v Barasch, 166 AD2d 399, 400). The reasoning of the Supreme Court that its equitable powers included the authority to cancel the mortgage and note was erroroneous, since there was no acceptable basis for relieving the homeowner [*2]of her contractual obligations to the bank (see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630, 637; Levine v Infidelity, Inc., 285 AD2d 629, 630), particularly after a judgment had already been rendered in the plaintiff’s favor.

    In light of our determination, we need not address the plaintiff’s remaining contentions.
    DILLON, J.P., FLORIO, BALKIN and ROMAN, JJ., concur.

    ENTER:

    Matthew G. Kiernan

    Clerk of the Court

  23. Thanks, John. I’m on it.

  24. Sorry about flipping between handles; I’m posting from work and home and not watching.

    Thanks for that, Maher. Your understanding and knowledge has always impressed me (but you should have taken that second year of typing). And I do believe you’re trying to provide guidance on a level that cuts to the true accounting and law-based defenses to a complicated, convoluted, complex contrivance coupled with a catastrophic Constitutional conundrum.

    This is bigger than any of US useful idiots could have ever imagined.
    Soliman’s right when he says your fighting Harvard MBA’s and the Federal government (FDIC and Treasury) at the same time. You have to remember where and when all this was conceived. These guys put a lot of thought into this scam. And they almost got away with it. They’re not going to give up any ground until they’ve spilled all of our collective financial blood all over the battleground.

    And I’m going to go out on a limb here to say that any attorney, ANY attorney, who is posting on this blog, should be using his full name, as do all the legit attorneys . A handle is fine for someone seeking anonymity out of fear of the unknown, but if you’re a lawyer and you feel compelled to put your two cents in, put your name where your MOUTH IS. If you can’t post your real name, you must not be that good a lawyer. C’mon guys.

    If we could lock up Neil, ANONYMOUS, Maher, Bob G-Spot, the Flying Dutchman, and a court reporter in a hotel room for three days, you guys would come out with one killer OMNIBUS motion to dismiss. Just tell us how much vodka you’ll need to stay focused.

    And Maher, that was Robert Rubin who was doin’ the nasty with Billy-Bob-on-my-knob Clinton. Paul Rubin was the guy that smashed up his dad’s 67 Toronado with the 455 doing hole shots in reverse, remember?

  25. Hey Roger, His name is Darrell McDonald, you can find him under this site’s attorney list. He wrote a book about his experience in federal court and how he was able to get the FDIC to negotiate his mortgage.He’s a paralegal.I have a pacer account and followed the pleadings. It took him 4 tries to get a TRO to stop the sale.

  26. UNDER ACCOUNTING FOR SPECIAL PURPOSE ENTITIES
    Revised: FASB Interpretation 46(R)

    1.Special purpose entities (SPE), also referred to as off–balance-sheet arrangements WERE INTENDED transactions THAT served a legitimate business purpose

    2.Forming an QSPE is necessary to isolate financial risk and provide less-expensive financing. SPEs do not engage in business transactions other than the activities backed by their sponsors. Also known as qualifying special purpose entities (QSPE) the entity and structure must satisfy GAAP accounting requirements set forth in SFAS 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities.

    3.The SPE is conditioned as an off–balance-sheet entities that are marked by similar characteristics where put into use such as limited capitalized, free of any independent management or employees and having administrative functions are often performed by a trustee. Herein the role of the trustee is to receive and distribute cash or oversee a master servicing agent and in either case, act in accordance with the terms of contracts and while it serves as an intermediary between the SPE and the parties that created it.

    4.If the SPE holds assets, one of these parties usually services them under a servicing agreement. An SPE for a mortgage pass through investment will accomplish certain important objectives such as financing certain assets as in mortgages or administrative collections services while keeping the associated debt off the balance sheet of the sponsors. The importance of these objectives become complicated when each move made by the sponsoring parties can trigger a violations of the accounting rules as for example “recognition” of a banks sponsors liabilities and indebtedness for violations of maintaining any controlling interests in the assets sold.

    5.Controlling interests in assets sold is something that has come under constant scrutiny of FASB and rules SFAS 140 .3.

    6.The SPE succeeds otherwise where it transforms certain financial assets, such as credit card receivables, unsecured loans, or mortgages, into liquid securities. If successfully done this thereafter allows for the sponsors to succeed with engaging in tax-free exchanges.

    7.Sponsors in a registration will benefit from these off–balance-sheet entities in one or more obvious ways. First, these entities enable the sponsor to remove debt from its balance sheet so it meets certain ratios or loan covenants.

    8.Second, such arrangements protect the sponsor from possible financial failure by its SPEs. That is, if the registration and undertaking for which an SPE was created fails and the SPE cannot service its debt, the sponsor is at risk only for what it has put into the SPE. By this we mean the assets it has alleged to have sold are lost to the sale with no ability to complete the inferred intent for setting up the original arrangement.

    9.A Federal Saving Bank participating in a registration as a sponsor will also have to remove from its balance sheet the assets related to the debt that has been moved to the SPE. Again, the assets are lost forever to a bona-fide sale.

    10.For example, if a sponsor uses an SPE to finance a capital project, neither the liability nor the assets of that project will be included in the sponsor’s balance sheet.

    To accomplish their objectives, SPEs may take different forms. For example, an airline that needs a fleet of airplanes or a gas company that needs a pipeline can employ SPEs to finance such projects. The off–balance-sheet entity will own these assets for the specific use of the sponsors, and use them as collateral to raise cash to finance them. As long as these arrangements meet existing accounting guidelines, the sponsoring companies need not consolidate these assets and the associated debt. These off–balance-sheet arrangements can take the form of synthetic leases, take-or-pay or throughput contracts, or securitizations. Other forms of business transactions that have been accomplished via off–balance-sheet entities include investments accounted for under the equity method, joint venture research and development arrangements, and investments in low-income-housing projects. This article, however, focuses on only a few of these arrangements.
    Synthetic leases. In a popular SPE known as a synthetic lease, the sponsor establishes an SPE—a shell company—for the purpose of buying and financing an asset for a specific use by the sponsor. SPEs can be set up for sale-leasebacks or build-to-order or buy-lease transactions.

    The SPE takes the title to the property, collects the rent from the lessee/sponsor, and pays off the loan. These arrangements became popular after the 1980s real estate crunch, when it became less attractive for companies to directly buy and finance the assets they needed.

    Synthetic leases can serve two important purposes:

    First, for financial accounting purposes, they enable lessees/sponsors to treat leases as operating leases, whereby payments are recorded as rent expense and the underlying assets and the associated liabilities are kept off the lessee’s balance sheet. This treatment of the lease enables the company to show a stronger balance sheet than if the lease was treated as a capital lease.

    Second, for federal income tax purposes, these contracts are structured so that the lessee/sponsor may treat the transaction as if it is, in substance, the owner of the leased property.

    As such, the lessee/sponsor then treats the payments as debt service, enabling it to deduct interest expense and depreciate the asset. A company can be a tenant for financial accounting purposes and an owner for tax purposes.

    Take-or-pay contract. A buyer agrees to pay certain periodic amounts for certain products or services. The buyer must make the specified periodic payments, even though it does not take delivery of the products or services.

    For example, two gas companies might form an SPE to build a refinery and agree to pay specific annual amounts for refined oil. These payments are made regardless of the actual delivery of the product.

    Throughput contracts.

    One party agrees to pay certain periodic amounts to another party for the transportation or processing of a product. For example, two gas companies might form an SPE to build a network of pipelines and agree to pay specific annual amounts for transporting oil through these pipelines. These payments are made regardless of the actual use of these pipelines.
    Securitization.

    Another widespread use of SPEs is in securitization transactions, where a pool of financial assets, such as mortgage loans, automobile loans, trade receivables, credit card receivables, and other revolving charge accounts, is transformed into securities. (Nonfinancial assets, such as patents, copyrights, royalties, and even taxi medallions, can be securitized as well.) In a typical securitization, an originator (the transferor) establishes an SPE, or, as it is also called, a special purpose vehicle (SPV).

    The SPV usually exists in the form of a trust for the purpose of converting a bundle of financial assets into cash on behalf of the sponsor. The sponsor sells the pool of assets to the SPV, which will hold them and issue debt securities for cash, which the SPV uses to pay the sponsor for the transfer of the financial assets. The sponsor then services the debt from the cash flows generated from the securitized assets.

    Thus, the originator of the SPV “securitizes” the assets—turns them from loans into debt instruments.
    For securitization to work, the company disposing of financial assets must structure the transaction so that it retains no effective control over the assets removed from its balance sheet. If it does not release effective control over the transferred assets, then the transaction is treated as a secured borrowing.
    The challenge for investors is the difficulty in spotting these transactions.

    Unfortunately, the magnitude of the dollar amounts involved in these transactions notwithstanding, any available disclosures about them are buried in footnotes. There is no easy way of estimating the amount of assets or liabilities that are subject to these arrangements. Exhibit 1 demonstrates the results of a random review of 66 public companies, primarily in the energy, financial, and industrial sectors. SPE transactions for this sample accounted for close to $230 billion as of 2001.

    Of these transactions, 92% were securitizations of receivables, with leases accounting for the remaining 8%. It should be noted that these off–balance-sheet arrangements were disclosed in the footnotes; the real problem is with SPEs hidden from financial statement users. The amount of money involved in these transactions can only be guessed, and one can only expect that the amount involved is significant.
    Accounting for SPEs

    Until recently, accounting standards have not responded to the development of such sophisticated transactions and arrangements. The accounting standards dealing with off–balance-sheet entities have produced inconsistent results, because the standards are incomplete and fragmented. An original pronouncement that indirectly established the foundation for SPE accounting is Accounting Research Bulletin (ARB) 51, Consolidated Financial Statements, issued in 1959. The principles built into ARB 51 were that “the usual condition for a controlling financial interest is ownership of a majority voting interest.”

    The creators of these sophisticated SPEs, however, have been able to design entities where sponsors maintain control without owning majority voting power. The intended transactions for these entities were packaged into legal forms that have no voting interest. The interest of the sponsor, or the sponsor’s control, is secured through legal restrictions on the ways the SPE uses its assets, particularly in regard to what parties the entity may permit access. Consequently, companies have been able to avoid consolidating these entities where in substance they had control, but such control did not meet the definition of ARB No. 51.

    The 3% rule. The nonconsolidation feature of SPEs became possible due to an accounting rule established by the now-defunct EITF Issue 90-15, according to which the sponsor of a SPE did not have to consolidate the assets and liabilities of the SPE as long as the equity interest of a third-party owner was at least 3% of the SPE’s total capitalization; at the same time, the majority of equity voting rights cannot reside with the beneficiary.

    Exhibit 2 lists accounting standards that directly or indirectly deal with off–balance-sheet entities. These standards may be referred to as “pre-Enron” standards that did not go far enough to provide an accurate picture of the relationships between the sponsoring companies and their SPEs. FASB was not totally inactive in this area: Recognizing the loopholes in the accounting for securitizations, FASB attempted to reform the existing GAAP for those transactions through SFAS 125, Accounting for Transfer and Servicing of Financial Assets and Extinguishment of Liabilities, in 1996.

    Soon after issuing SFAS 125, FASB became aware of flaws that necessitated its revision. SFAS 140, Accounting for Transfer and Servicing of Financial Assets and Extinguishments of Liabilities, is the end result. This statement establishes the conditions where the transfer of financial assets should be accounted for as a sale by the transferor, and the conditions under which a liability should be deemed to have been extinguished. It further defines qualifying SPEs, which should not be consolidated in the financial statements of the transferor or its affiliates.
    SFAS 140 significantly improved disclosure. With the concern about the quality of assets on the balance sheet, the disclosure requirements of SFAS 140 are more useful for investors and analysts trying to decipher the riskiness of the assets retained in securitizations. Securitizations can significantly affect a company’s bottom line and be quite subjective in their calculation. The disclosures are useful to investors assessing earnings quality.

    Post-Enron GAAP

    As the Enron crisis brought attention to the use of SPEs, FASB responded by issuing a proposed interpretation of existing accounting principles aimed at putting many off–balance-sheet entities back onto the balance sheet of the companies that created them. In June 2002, FASB issued an exposure draft to revise the accounting for SPEs. This exposure draft was an Interpretation of ARB 51. The final Interpretation 46, Consolidation of Variable Interest Entities, an Interpretation of ARB 51, was issued in January 2003. Upon learning that certain provisions were not being interpreted as the board intended, FASB issued Interpretation 46(R), which also incorporates guidance from FSP FIN 46-3, FSP FIN 46-4, FSP FIN 46-6, and FSP FIN 46-7.

    The current accounting standards require an enterprise to include in its consolidated financial statements subsidiaries in which it has a controlling financial interest. The existing common definition of “control” is met when a parent company has more than 50% of the voting stock in a subsidiary. Over the years, however, companies have found ways to obtain economic control of other entities without owning 50% of the voting stock, thereby avoiding consolidation of these entities.

    Unfortunately, until recently, the accounting-for-consolidations policy did little to answer the question many have been asking: Who else has engaged in Enron-style SPE transactions? New developments are expected to capture egregious SPEs, and provide users of financial statement with clearer information.
    FASB Interpretation 46(R)

    The objectives of Interpretation 46(R) are to explain how to identify variable interest entities (VIE) and how to determine when a business enterprise should include the assets, liabilities, noncontrolling interests, and results of activities of a VIE in its consolidated financial statements. Some entities commonly referred to as SPEs are not subject to this interpretation, and other entities that are not SPEs are subject to this interpretation; thus the need for the designation VIE. Interpretation 46(R) defines a VIE as an entity that meets one of the following criteria:
    The total equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support provided by any parties, including equity holders.

    The equity investors lack one or more of the following essential characteristics of a controlling financial interest:

    The direct or indirect ability through voting rights or similar rights to make decisions about the entity’s activities that have a significant effect on the success of the entity.
    * The obligation to absorb the expected losses of the entity.
    * The right to receive the expected residual returns of the entity.

    According to this interpretation, such VIEs should be consolidated in the financial statements of their primary beneficiaries. Basically, this interpretation is designed to expand the definition of control for consolidation of financial statements to include consolidation based on “variable interest,” as well as consolidation based on voting power.

    The first condition noted above requires good judgment on the part of companies and their auditors. The sufficiency of the equity investment must be evaluated at each reporting period. To help determine “sufficiency,” the interpretation increases the 3% threshold to 10%: “an equity investment shall be presumed insufficient to allow the entity to finance its activities without relying on financial support from variable interest holders unless the investment is equal to at least 10 percent of the entity’s total assets” (emphasis added).

    While this may seem like a simple bright-line criterion, determining the sufficiency of equity investment in a VIE is subject to considerable judgment. Specifically, the interpretation also allows an equity investment of less than 10% to be considered sufficient to permit the VIE to finance its activities if at least one of the following three conditions is met:
    The entity has demonstrated that it can finance its activities without additional subordinated financial support.

    The entity has at least as much equity invested as other entities that hold only similar assets of similar quality in similar amounts and operate with no additional subordinated financial support.

    The amount of equity invested in the entity exceeds the estimate of the entity’s expected losses, based on reasonable quantitative evidence.

    Conversely, the 10% threshold does not automatically mean that the equity level is sufficient to permit the entity to finance its activities without additional subordinated financial support. In other words, the interpretation leaves room for flexibility in determining what the equity investment in an entity should be in order to avoid consolidation of such an entity by its variable interest holder.

    Consolidation Based on Variable Interests
    An entity must first be evaluated for consolidation based on straightforward voting-interests criteria. If such criteria are not met, a VIE may still be subject to consolidation by its primary beneficiary based on variable interests. The interpretation defines variable interests in a VIE as “contractual, ownership, or other pecuniary interests in an entity that change with changes in the entity’s net asset value.” Basically, variable interests are the means through which financial support is provided to a VIE and through which the providers gain or lose from the activities and events that change the values of the VIE’s assets and liabilities. Exhibit 3 lists various transactions that may results in variable interests.

    This interpretation considers a primary beneficiary to be an enterprise that meets at least one of the following conditions:

    Its variable interest in the VIE absorbs a majority of the entity’s expected losses.

    Its variable interest in the VIE absorbs a majority of the entity’s expected returns.

    It has the ability to make economic decisions about the VIE’s activities.

    An enterprise’s ability to make economic decisions that significantly affect the results of the activities of a VIE is not, however, by itself a variable interest. It is, however, a strong indication that the decision maker should carefully consider whether it holds sufficient variable interests to be the primary beneficiary.
    Determining whether an enterprise is the primary beneficiary of an entity should take place at the time the enterprise becomes involved with the off–balance-sheet entity. At each reporting date, however, an enterprise with an interest in a VIE should reconsider whether it is the primary beneficiary, if the entity’s governing documents or the contractual arrangements among the parties change.

    Subsequent to the initial involvement in a VIE, a primary beneficiary should also reconsider its initial decision to consolidate the entity if it sells or otherwise disposes of any of its variable interests. Similarly, an enterprise that was not originally a primary beneficiary in a VIE should reconsider if it acquires an additional interest in the entity.
    Expected Losses and Expected Residual Returns
    Determining whether an interest holder in a VIE is a primary beneficiary depends on the entity’s expected losses and expected residual returns.

    These calculations are forward-looking and subject to estimation. In addition, an entity’s expected losses are key factors in determining whether such an entity is a VIE. A VIE’s expected losses and expected residual returns include the following items:
    The expected negative variability in the fair value of the entity’s net assets, exclusive of variable interests.
    The expected positive variability in the fair value of the entity’s net assets, exclusive of variable interests.
    Furthermore, FASB Staff Position 46(R)-2 makes clear that even an entity that has no history of net losses and expects to continue to be profitable in the foreseeable future can be a VIE that should be consolidated in its primary beneficiary’s financial statements.

    This position clarifies the definition of expected losses as based on the variability in the fair value of the entity’s net assets exclusive of variable interests, not on the anticipated amount or variability of the net income or loss.
    According to Interpretation 46(R), expected losses and expected residual returns refer to amounts derived from expected cash flows as described in FASB Concept Statement 7, Using Cash Flow Information and Present Value in Accounting Measurements. The following example illustrates how to compute expected losses and expected residual returns. This illustration assumes that an off–balance-sheet entity’s estimated annual cash flows and changes in the entity’s assets continue for two years; also that the present value of the probability-weighted expected outcomes for each of the next two years is the same as their fair value. In most cases, however, this assumption may not hold, and thus the present values should be adjusted for appropriate market factors.

    The fair value amount of the estimated outcomes becomes the benchmark for determining the entity’s expected losses and expected residual returns. Exhibit 4 shows the range and probability of estimated annual outcomes expected to occur and their present values (based on a 5% discount rate).
    Exhibit 5 shows how expected losses are computed once the fair value of the expected outcomes is determined. In this illustration, because the estimated outcomes are different from Year 1 to Year 2, the expected losses for each year should be calculated separately.

    For each year, estimated outcomes that are less than the total expected outcome for that year contribute to expected losses, which in this illustration is $989,000 in Year 1 and $987,000 in Year 2, for a total expected loss of $1,976,000. The total expected losses are used as a base for determining whether an entity is a VIE, and the primary beneficiary of such an entity. Exhibit 6 shows how to compute expected residual returns for the same pool of assets. Similarly, for each year, estimated outcomes that are more than the total expected outcome for that year contribute to expected residual returns, which in this illustration is $990,000 in Year 1 and $986,000 in Year 2, for a total expected residual return of $1,976,000.

    If a VIE has different parties with different rights and obligations, each party determines its own expected losses and expected residual returns and compares that amount with the total to determine whether it is the primary beneficiary. As shown above, the party whose variable interests in a VIE absorb the majority of the expected losses or expected residual returns is considered the primary beneficiary and must consolidate the entity. If one party receives a majority of the entity’s expected losses and another party receives a majority of the entity’s expected residual return, however, the party absorbing a majority of the expected losses is required to consolidate the VIE. FASB considered exposure to losses to be the more important of the two conditions in determining the primary beneficiary.

    Scope of Interpretation 46(R)

    This interpretation applies to transactions that are currently invisible due to ambiguous ownership, where the voting equity ownership does not give the owners a controlling financial interest. The following entities, however, are specifically excluded from the scope of this interpretation:

    A qualifying SPE (QSPE) used in a transfer of financial assets, as dictated in SFAS 140.
    An employee benefit plan subject to the provisions of SFAS 87, Employers’ Accounting for Pensions; SFAS 106, Employers’ Accounting for Postretirement Benefits Other Than Pensions; or SFAS 112, Employers’ Accounting for Postemployment Benefits, by the Employer.

    An enterprise subject to SEC Regulation S-X Rule 6-03(c)(1) is not required to consolidate any entity that is not also subject to that same rule.

    According to FASB Staff Position FIN 46-1, all not-for-profit organizations as defined in SFAS 117, Financial Statements of Not-for Profit Organizations, are exempt from the provisions of this interpretation. A not-for-profit organization, however, may be a related party for the purpose of determining the primary beneficiary of a VIE.

    In addition, a not-for-profit entity used by a business enterprise in a manner similar to a VIE in an effort to circumvent the provisions of Interpretation 46 is subject to the interpretation.

    Separate accounts of life insurance entities as described in the AICPA Audit and Accounting Guide, “Life and Health Insurance Entities.”
    An enterprise with an interest in a VIE or potential VIE created before December 31, 2003, is not required to apply this interpretation to that entity if the enterprise cannot obtain the necessary information to consolidate the VIE.
    An entity that is deemed to be a business as described in this interpretation does not have to be evaluated by a reporting enterprise to determine if such an entity is a VIE.
    Governmental organizations and financing entities established by governmental organizations are not required to apply this interpretation, unless they are used by a reporting enterprise to circumvent the provisions of this interpretation.
    Exhibit 7 provides an overview of the scope of this proposed interpretation, the requirements of which will nullify the provisions of EITF Issues 84-40 and 90-15 and Topic D-14. Furthermore, it will modify or partially nullify EITF Issues No. 95-6, No. 96-21, No. 97-1, and No. 97-2, as well as finalize the requirements of EITF Issue No. 84-30.
    Implementation
    The original Interpretation 46 arrived with a very short implementation grace period. The requirements applied immediately to VIEs created after January 31, 2003, and to VIEs in which an enterprise obtains an interest after that date. The revised Interpretation 46(R) is required in financial statements of public entities for periods ending after December 15, 2003. Special provisions apply to enterprises that fully or partially applied Interpretation 46 prior to issuance of the revised Interpretation.
    The SPEs that this interpretation covers are currently invisible, by design. There is no simple or reliable way for analysts or investors to judge which companies are most likely to be affected. Clues might be found in the management’s discussion and analysis, but not enough to enable financial statement users to reliably estimate how the interpretation will affect companies’ financial statements. This new interpretation might cause very few changes in corporate balance sheets, because companies that would have to consolidate their SPEs under the requirements of this interpretation might already be taking steps to shut down or sell their interests prior to the effective date.

    This scenario would avoid the embarrassment for the sponsors of presenting what they never professed to own. The other alternative is that Interpretation 46(R) might cause significant adverse adjustments to companies’ balance sheets and create technical defaults in loan covenants.

    M.Soliman.
    expert.witness@live.com

  27. D’Oench, Duhme

    1. Jurisdiction of the District Court of an action by the Federal Deposit Insurance Corporation to collect a note, part of the assets acquired by the Corporation as collateral securing a loan made by it to a state bank, is based upon the fact that the plaintiff is a federal corporation suing under an Act of Congress authorizing it to sue and be sued “in any court of law or equity, State or Federal,” and providing that “All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States.” Federal Reserve Act, § 12B. P. 315 U. S. 455.

    2. Whether the doctrine of Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, requiring a federal District Court to follow the conflict of law rules of the State in which it sits, is applicable where federal jurisdiction is not based on diversity of citizenship need not be decided where the issue is a federal question.

    3. In view of the federal policy evinced by the Federal Reserve Act, § 12B(s) and former subdivision (y), to protect the Federal Deposit Insurance Corporation and the public funds which it administers against misrepresentations of the assets of banks which it insures or to which it makes loans, the maker of a note which was part of the assets of a state bank when the Corporation insured it and was acquired later by the Corporation as part of the collateral furnished by the bank for a subsequent loan is estopped to defend against the Corporation upon the ground that the note was accommodation paper, given without consideration and upon an understanding that it would not be collected, in order to enable the bank to carry it as a real asset in lieu of defaulted paper and thereby deceive the public examiners. Pp. 315 U. S. 459, 315 U. S. 461.

    4. Although the maker of the note here involved did not know that it was to be used to deceive the Federal Deposit Insurance Corporation, which had not then been created, yet the permission which the maker gave the bank to carry the note as a real asset was a continuing one, and had not been revoked when the Corporation acquired the paper, and that permission must be presumed to have included authority from the maker to treat the note as genuine for the purposes of examination by public authorities, as well as for general banking activities. [P. 315 U. S. 459].

    5. Inasmuch as the Federal Deposit Insurance Corporation was authorized to insure a state bank only on a certificate from state authority that the bank was solvent, it is presumed that, in this case, such certificate was given. [P. 315 U. S. 460].

    6. The inability of the accommodation maker to plead the defense of no consideration does not depend upon the commission of a penal offense in violation of § 12B(s) of the Federal Reserve Act, but upon whether the note was designed to deceive the creditors or the public examining authority, or would tend to have that effect. [P. 315 U. S. 460].

    7. The fact that the note was charged off by the bank after the bank had been insured by the Federal Deposit Insurance Corporation and before the latter had acquired the note under the loan is immaterial, since a note may be nonetheless an asset though it is charged off, and the suit here is to protect the rights of the Corporation as insurer. The right to recover on the note is not dependent upon proof of loss or damage caused by the fraudulent practice. P. 315 U. S. 460. 117 F.2d 491, affirmed.

    Certiorari, 314 U.S. 592, to review the affirmance of a judgment holding the present petitioner liable to the respondent on a promissory note. /[Page 315 U. S. 453].

    expert.witness@live.com

  28. John – Vicky Mas

    Your day in court is will soon be here.

    In fact this is the person who I with an attorney got the Vice Chairman of Bof A and his attorney to call and ask to resove the matter.My attorny will attest as he was on that call!

    This is while “John” files a class action suit against me with an attorny repesenting a client (lender) WHOM I WON THE HOUSE FOR UPON A QUEIT TITLE ACTION.

    I paid the price (2009) and should know better,

    Quiet Title – Free and Clear. Quiet Title – Free and Clear. Quiet Title – Free and Clear. Quiet Title – Free and Clear.

    Give this a rest – will you . You lost your case Counsel

    MSoliman

  29. jOHN – YOUR ARE THE MEANING OF
    “They Don’t Understand? They do!

    Want to win in court? – Again, hire a lawyer like you were told as i don’t like to woork with Pro Se who wing it!

    Call the bar first and then consider
    GAAP ,
    FASB codified pronouncements,
    Unlawful string of executions ,
    Delivery lacking good funds,
    Concurrent securities execution ,
    Lack of valid collateral as represented,
    Dual collateral in instances of evidencing collateral assignments,
    Malfeasance under custodial roles,
    Reallocation of assignees MBS assets into consolidated pools,
    Exit strategies excited by recourse,
    Depositor unassigned assets,
    Executions under GAAP
    FAS 140 -3 by unlawful credit bid, ….
    SRP for CBA,
    Concurrent funding’s outside of RESPA….

    on and on and on…..cross collateralizing unassigned assets .fraud –

    John

    Here we go again. (John how convienient a name . . .) What you have done is set back anything of value I have to offer by months. Your name will show up in a deposition when you publish this stuff about a firm I was engaged by that did offer you the best services.
    But really firend – – –
    I do not do audits
    I am repulsed by the word forensic
    I do not do modifications
    I have won over 20 cases
    CA Appellate Ct over turns and remand decsion to lower court after three days of attacking me on assine Rip Off comments like yours. But that what the Appellate Ct did not want to hear.

    They Remand deceision and sent it back to lower court. (Graupner Vs Select / Wells 2010) Oh I guess the Judges did understand 100 pages of FAS 140. The opposition brought i a Wall Street gun and he…well….ahhhh…

    Their own WALL STREET EXPERT – Corroborated everything I testified too!

    If you cannot understand
    Fas 140
    the Enron law,
    nor value of the receivership that addresses the debtors rights,
    where the fed is the debtor,
    if you are un familiar with O’Densche Duhme and
    will not accept that a credit bid is unlawful ,
    and cannot accept a controlled sale CAN overcome the FDIC Award by Tanto
    if your ignorant of Repudiatory powers and
    failed to cite the Nigerian barge case,
    the Philly newspaper BK
    the Tyco debacle and
    testimony of Brendan Fastow,
    the Craig electronics criminal convictions or
    Bernie Madoff style securitization process and procedures ,
    the testimony before the house by Bof A and
    Paul Rubin ex sec of treasury under Clinton,
    the $10. Billion ponzi mistake by B of A,
    the fact Citi won’t be around in a few days,
    that One West is a successor of assets and foreclosing,
    The IMB , WAMU and Wachovia are “Shills
    That this matter is about un assigned assets and most important —-This is about depositor funds and foreclosure brought by a CD and no note ….its lost . Okay . Lost to a CD Moron

    There is NO condition precedent…..Repudiatory power strikes your assignement argument where the Note is lost genius. Lost to capitlaization …(I told you – Make him stop …someome…please!)

    Then tell the world your story. That I am a rip off and making this all up and promising people Audits and modifications. To date three people paid for audits I was named to do – What is that all about?

    What I offer is the last chance to take out a lender with that what a Judge used to hear and court convict Enron, Tyco, Madoff, Adelphia , Craig execs World com , Minkow, etc.

    Yeah, that’s right. I promised you a modification ….tell the world that pal.

    (The great mentor’s that I have known – you are entitled to this – I am sorry – I too am embarressed by the rejection of the facts and unwillingness of this community to accept that which caused our efforts to comply with every letter of the LAW)

    M.Soliman

  30. thanks, John. We need info like that. Got a case number? I am not a lawyer, and I know nothing. Really. The prevailing wisdom is to keep these cases in state court and pursue the “standing” issue. Most foreclosure cases get “12(b)6” removal from Federal court. I don’t understand it either.

    A 12(b)(6) motion cannot include additional evidence such as affidavits.
    To dispose of claims with insufficient factual basis (where the movant must submit additional facts to demonstrate the factual weakness in the plaintiff’s case), a Rule 56 motion for summary judgment is used.
    That goes to the borrower’s inability to state a Federal claim upon which relief can be granted (from what I understand, which might not be that much anymore).

  31. @MARIO KENNY, YES YOU ARE SO SO RIGHT. DEUTSCHE BANK ARE THE BIGGEST FRAUDSTERS AROUND AND I’M FIGHTING THEM NOW ALONG WITH A WELL KNOWN FRAUDCLOSURE MILL LAWYERS. THE FRAUD WASN’T DISCOVERED UNTIL AFTER ONE OF THE HOMEOWNERS FILED BANKRUPTCY. BUT IN THE STATE OF NEW YORK YOU HAVE SIX YEARS FROM DATE OF DISCOVERY OF FRAUD TO FILE A COMPLAINT OR 2 YEARS FROM THE DATE OF DISCOVERY. EVERYONE FACING A FRAUDCLOSURE AND YOUR RESPONSE TO A FORECLOSURE COMPLAINT HAS EXPIRED, YOU NEED TO CHECK YOUR CIVIL STATUE OF LIMITATION LAWS IN YOUR STATE AND FIGHT THESE PONZI SCHEMED FRAUDSTERS.

  32. I only understand this in Florida Judicial rules, and it goes like this, if a Civil court Judge issues a Final summary judgement, in BK you are not going to be able to overturn the judgement, and will not enjoy keeping the lift stay, pending anything. The “lender” will sell the house while you litigate your suit, in the BK court, but if you go to BK before the final judgement the BK judge and trustee may be willing to help and can, I say this while I wave my non lawyers hat, Okay?

  33. Hey used car guy…that isn’t true, I know a guy that got a mod through federal court from FDIC (INDYMAC) by requesting standing. Really

  34. Hey Mario, That would only apply if you plead the same stuff, correct?

  35. Solomon appears to know why wouldn’t he with his background but deb wynn stuggles to understand and if only mr Solomon could do workshops such ad Neil has and max Gardner to pass on his info that would be awesome. All due respect Solomon

  36. Mario…Good info

  37. Obama rejects foreclosure freezeAccording to “Obama Advisor Rejects Temporary Nationwide Freeze on All Home Foreclosures,” Bloomberg, October 10, 2010, David Axelrod, a senior advisor to President Barack Obama, announced the Obama Administration would not support a nationwide temporary freeze on home foreclosures.
    Attorneys general in approximately 40 states commenced a joint investigation into possible faulty foreclosures at banks and mortgage firms. Investigation may center on claims that employees at home lenders and loan servicers signed court documents without ensuring the information was accurate. People should always make sure court proceedings follow the rules even when they are debtors or underdogs.
    In October 2010, Bank of America, JPMorgan Chase & Co., and Ally Financial Inc. froze foreclosures in 23 states where courts supervise home foreclosures because of complaints that employees used unverified or false information to speed foreclosures. In the press in November 2010, Bank of America announced lifting the freeze in some states.
    According to Axelrod, though faulty documentation prompted banks to put foreclosures on hold, the Obama administration would not support a nationwide moratorium. Axelrod said events have “thrown a lot of uncertainty into the housing market that is already fragile…”
    People who are not careful about the lenders they choose may run into trouble when they are not able to pay back the credit they take or unable to modify payments when they fall into financial difficulties. Bankruptcy may be the answer to allow individual debtors who have regular income to seek an adjustment of debts under Chapter 13 of the Bankruptcy Code. People who do not carefully check out their lenders prior to obtaining credit would have problems seeking debt adjustments to save their assets or homes from foreclosure or repossession when they are not able to catch up past due payments through a payment plan.

  38. The BK court will tell you they have no jurisdiction over a civil court rule of default, plus you will never get past the rooker feldman doctrine, in the BK court, if you do BK after summary judgement the best you can hope for is a MOD. So do not wait to do BK after the default judgement, do BK before.

  39. To A. Garcia, Yes BK court understands the standing issue however you probably have to appeal a slam dunk lower court decision.

  40. Nationwide Loan Services – Maher Soliman – NLS – borrowerhotline.com – foreclosureinfosearch.com Promised Me They Help With House Already Foreclosed, Do Forensic Loan Audits of My Other 3 Houses in Foreclosure, Plus Get Huge Reduction to Principle- They did nothing and admitted erasing all data I emailed to them to “Audit” Los Angeles California
    … ALWAYS BE CAREFUL

  41. Hey everyone, Soliman is a long time charlatan. Ignore him. We must continue the standing issue. A debtor has the right to face and negotiate with their creditor.

  42. Absolutely right A. Garcia. The first words out of the judges mouth…”Did you take out a loan? Did you stop making payments? Then pay the man or lose the house. Next!”

  43. usedkarguy said….
    These judges don’t understand FASB 140-3, and YOU are not going to be the one to teach them. Judges like it simple. “Did you pay?” “No, judge, I couldn’t because…” Okay, then “YOU’RE OUT!”

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    So my questions is this…Would a bankruptcy judge better understand this ?

  44. And I gotta tell you, SOLIMAN IS NOT A WING NUT. He knows what he’s talking about. We (and our counsel) are at a severe disadvantage in this arena. I don’t think he’s saying “you can’t win”, he’s saying you can’t win on conventional arguments in state court. These judges don’t understand FASB 140-3, and YOU are not going to be the one to teach them. Judges like it simple. “Did you pay?” “No, judge, I couldn’t because…” Okay, then “YOU’RE OUT!”

    The fun is begun where? FEDERAL COURT. Right, Maher?

  45. You know at the end of the day we were lambs to the slaughter on that day if signing. I still believe in sharing info as best we know how because it sparks discussion used car guy that’s useful thanks

  46. The moral of the story is that, if the FDIC holds the loan pool, you are not going to keep your house. They are all-powerful. Like we didn’t know that already.

  47. (Nurse in muffled loudspeaker….)

    M. Soliman….please report to your room. It’s medication time.

    Two flew over.

  48. SEEK AND YE SHALL FIND

    FROM “BANK LAWYERS BLOG”
    March 07, 2010
    FDIC’s “Repudiation” Powers: Deja Vu All Over Again

    Repudiate-the-debt As the FDIC continues to sing its favorite tune, “Another One Bites the Dust,” listeners who do business with FDIC-insured banks and thrifts should become familiar with the repudiation powers of the FDIC in its capacity as the receiver of a failed financial institution. Dallas-based Haynes and Boone recently put out a client alert on the topic that is worth reading. As a landlord or service provider to a bank, you just hate to wake up on a Saturday morning and find that the lease or contract you thought was solid gold when you left work on Friday might be no more than dust blowing in the wind by the time the receiver gets through with it.

    While you’re at it, you might also find a K&L Gates memo on the same subject from a couple of years ago to be valuable. That memo also discusses 12 USC 1821(e) and the “D’Oench, Duhme Doctrine” that is codified in that provision of federal law. I recall that after the last time we through massive bank failures, many legal counsel for borrowers became incensed when they learned that all those side-letter and hand-shake deals made by the failed bank’s former management that they thought they could assert against the FDIC as receiver ended up as no more than spitballs being tossed at an M1 Abrams tank.

    When folks think of risks in the banking business, they likely think first of risks that the bank takes in dealing with third parties, like counterparties in a SWAP transaction or borrowers in a loan transaction. If the FDIC keeps mowing down community banks like wheat before the thresher, being a third party on the other side of any contractual relationship with a bank will be like being a rookie in a No Limit Texas Hold’em Poker tournament sitting across the table from Phil Ivey. Sooner or later, no matter how observant or skilled you might be, you’re going down. It’s best to be prepared.

  49. Solomon my bloodpressure just went up this is not a competition of who’s the smartest I’m tryig my goddam best to understand I stay up at night I kill myself trying to understand and you get up here and talk the talk in a completely different language to be smart you need to put it out there in simple terms and that my freind is why it’s them n us we little people were never blessed with a great education we did not get the silver spoon but we sure as hell try our best so tell me in English what went on no I clearly don’t get it does anyone really so how come a servicer who lost nothing sells my home back to the trustee hsbc via a credit bid. Please I want to understand

  50. I wished I had all the right answers I would post them here in an instant, you see if we can start beating them it could snowball but those of us who know need to tell those of us who do not know, its simple really.

  51. Mario Kenny. Onewest were sub servicer they bought servicing rights via FDIC for a deutsche bank trust in my case the players

    WHAT IS THIS PERSON TALKING ABOUT -HAND THE HOME BACK – NOW! THESE LOANS WERE SOLD WHOLE GET IT GET TI GET IT….SERVICING RIGHTS LIGHTS TIGHTS STOP

  52. Wow. Expert after expert is showing up and each has a ton of fun to offer.Now AG’s getting into the mix. STOP.

    FDIC has avoidance powers of a BK Trustee and Juridicition over each state ….ummmm, oh…and , ahhh ALSO the Federal District Courts and the WORLD , – Please stop. (IN THE NAME OF LOVE- BEFOR YOU BREAK MY ….)

    These organized lender efforts are backed by a war chest and Wall Street Harvard MBA’s – Do you think they would do ROBO BoBos or procure a Gender Bender pretender of a lender – the street doesnt even talk this way and have no idea what your saying.

    Months on th eline working through the FDIC and others for a remedy and ROBO worms are the best we can do . What is IQ America.

    You knonw why they do ROBO sigos. Because they can and always have and always will. Its called a POA …WTF up Your losing your homes and missing the arguments.

    There is a reason for the world and a reason or two for everything a lender does.

    I will go toe to toe with any lenders secondary and capital markets specialist . Trust me…I know the fraud and its based on an algorithm or two or four and a scrammbling of execution formats unavailable to private wrapped paper unless FANNIE comes along and “kisses” the asset. But the CBA and concurrent funding of the comml lines disgusied ina FED ABA is where you find the smoking gun.

    Dont understand? THEY DO !

    AND THEY ARE RUNNING SCARED AND EMBRACING (LOVING) YOUR ROBO COMPLAINTS.
    Show where the consumer is not leaving their home anytime soon.on a POA as areeed in teh P&S …what you call a ROBO BOBO…I cannot take this much more. Wnat to win in court ? – CAl the BAr first and then consider GAAP, FASB codified pronouncements, unlawful string of executions , delivery lacking good funds, concurrent securities execution , lack of collateral as repesented, dual collateral in instances of evidencing collateral assignments, malfeaseance under custodial roles, reallocation of assignes MBS assets into consolidated pools, exit strategies excited by recourse, depositor unassigned assets, executions under GAAP FAS 140 -3 by unlawful credit bid, ….SRP for CBA, concurrent fundings outside of RESPA….on and on and on…..cross collateralizing unassgined assets .fraud –

    And all we can talk about is Robo the Hobo and Silly Willie signing a Assigny Hiney , and QueerWR and ….PLEASE STOP . . . HAS ANYONE EVEN TRIED TO RECREATE A COMBINATION GL WELL …

    If you have 20 plus years PLUS Counselor in this convoluted Wall Street corruption pit then join me please. OTHER WISE SEE AGENCIES REPUDICTION OF CONTRACTS UNDER O’DENSCH DUHEME

    Other wise…LAY OFF THE JUDGES – I BELEIVE THEY KNONW THE SCOOP!

    What are WE doing and what are you telling people when you lose in court. “Is that you John Wayne?
    Your outgunned by MY peers and stand no chance here aginst indutry guns when the fun is begun in a court near by.

    What do you offer in terms of helping the distraught homeowners. (there is so much angst and Ignorance on this side of the desk I wish I could go back…LOL)

    (….make him stop…look at the spelling , O PLEASE NG – take it down – Oh God, someone please..)

    Hey I like Robo the Hobo

    Look, once again. Here’s the latetest for all the experts to verify and publish for themseves later.

    O Densch-Duheme
    Repudiatory Powers
    Master P&S executed
    Loss Risk Share

    Will you please forget the Pooling and Servicng rubbish . . .Please do not do anymore QWR – we look like azzes – really .

    m soliman
    expert.witness@live.com

  53. Order found at link below. Old saying in law – again — how goes California goes NY and NJ — then the rest of the country. This is a BIG step in NJ. Still waiting for California.

    The state went those that are filing the most foreclosures in the state — will affect the others.

    http://www.judiciary.state.nj.us/notices/2010/n101220c.pdf

  54. Mario Kenny. Onewest were sub servicer they bought servicing rights via FDIC for a deutsche bank trust in my case the players are/ were/ though possibly pretended they were placing loans n the trust so Implicated is wells Fargo purportedly master servicer and trustee then deutsche was depositor then hsbc as trustee for the investors. So all these players know something we don’t. They know they did some things very wrong. Otherwise why all the nonsense.

  55. does anyone have a copy of the ORDER

  56. But Deutsche Bank and Credit Sussie are not on the list and they are the biggest fraudsters and are foreign banks, so are US Bank National and US national Bank, these are all foreign banks plundering us here with out tax money, we actually paid them to steal our homes.

  57. First, I am also concerned about the assignment that is prepared and executed at some point in time in an attempt to transfer the note and mortgage to the trustee. The intervening assignments which allegedly were executed and prepared within 24 hours of closing and funding, appear to be signed by Individuals have only the word “Agent” typed in beside their name. Agent for whom?. Do these individuals work for the companies that they are executing these assignments for. How is it possible that one individual signing can represent two different companies or work for two different companies, for example: Argent to Ameriquest has the same signor as Ameriquest to Wells Fargo Bank, as trustee, for the very same loan?

    I realize that execution of the Assignments does not mention “personal knowledge”; however, it does stipulate they executed the same in his/her/their authorized capacity ……….and that by his/her/their signatures on the instrument, the person or the entity upon behalf of which the person acted, executed the Assignment.

    This is probably a case of “robo signing” but done at the front end when the loan is originated and perhaps again when that same loan is foreclosed if that should happen

    As an officer in various companies, right to sign company documents (assignments) must be documented either by Board Resolutions, or some other type of authority . Unless the employee was authorized to sign, that instrument was invalid in my day. Wonder what it is now?

  58. Bravo NJ!

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