LENDER DEFINED BY “SUI JURIS 249”

ALSO REQUIRED READING

Remember, since your “lender” is just a servicer, they do not own the note. They
do not have the right to enforce the note. They can only act as a servicing agent.

Please refer to U.S. Code Title 12: Banks and Banking, Part 226 – Truth in
Lending (Regulation Z). This is enclosed in the Appendix for your convenience.
These are codified laws of banking. It defines who a Lender is, and the rights of
a Servicer. Specifically, it refers in 226 (a) 1 that a servicer is not treated as the
owner of the obligation.

(a) Scope. The disclosure requirements of this section apply to any
covered person except as otherwise provided in this section. For
purposes of this section:
(1) A “ covered person ” means any person, as defined in §226.2(a)(22),
that becomes the owner of an existing mortgage loan by acquiring legal
title to the debt obligation, whether through a purchase, assignment, or
other transfer, and who acquires more than one mortgage loan in any
twelve-month period. For purposes of this section, a servicer of a
mortgage loan shall not be treated as the owner of the obligation if the
servicer holds title to the loan or it is assigned to the servicer solely for
the administrative convenience of the servicer in servicing the obligation.

You will also note that the scope does not cover the servicer if the servicer was
assigned the note for administrative convenience in servicing the obligation.
This means, the servicer is not treated and does not have the rights of a lender
(or owner of the obligation).

22 Responses

  1. Ian,

    Yep. But — interception started before then. And, Fannie/Freddie knew about — complied with it.. Am hearing of loans that were supposed to be sold to Fannie/Freddie — but never got there. Wonder why??. But, Fannie/Freddie invested in private MBS deals — hmmm — how did that happen??

  2. I believe that PennyMac was started by ex-Countrywide “officials”. Probably at the behest of fannie/freddie to help soak up the “toxic assets”

  3. Let’s starting translating M.Soliman’s premise into English. And, this is not intended as a negative M. Soliman — believe you have some valid points that should be explored here. Well aware of PennyMac — but below are others. All are deregulated — and likely purchase loans at steep discounts.

    Distressed debt buyers do organize as REITs, also as hedge funds. Traditionally, REITs where largely for commercial property — but you are right — this has changed.

    Mortgage/Finance REITs are REITs that invest in mortgages, or provide mortgage or other types of financing.

    List of Mortgage/Finance REITs

    the REIT DirectoryRetail • Healthcare • Lodging • Industrial • Office • Mixed Industrial/OfficeMortgage/Finance • Residential • Specialty • DiversifiedMortgage/FinanceClick on a category name to see the list of all known REITs in that category. See All About REITs for category definitions.Note: many mortgage REITs are not currently profitable, have negative shareholder equity (liabilities exceed assets), and are not paying dividends. Caution is advised. Do your due diligence. Note: recent IPOs (this year) may not have yet qualified for REIT status.

    American Capital Agency (AGNC)Invests in single-family, adjustable-rate and fixed-rate mortgage-backed securities that are guaranteed by government agencies Fannie Mae and Freddie Mac. A May 2008 IPO controlled by American Capital Strategies

    (ACAS). Annaly Capital Management (NLY) Invests in single-family, adjustable-rate and fixed-rate mortgage-backed securities that are guaranteed by government agencies Fannie Mae and Freddie Mac.

    Anworth Mortgage Asset (ANH)Invests in single-family, adjustable-rate and fixed-rate mortgage-backed securities that are guaranteed by government agencies Fannie Mae and Freddie Mac.

    Apollo Commercial R. E. Finance (ARI)This September 2009 IPO, externally managed by Apollo Global Management, invests in performing, non-distressed, US commercial real estate loans, commercial mortgage-backed securities (CMBS), and other commercial real estate debt
    investments.

    Arbor Realty Trust (ABR)Provides specialty financing, such as mezzanine and bridge loans for multifamily and commercial real estate. Externally managed by Arbor Commercial Mortgage, LLC. When permitted, pays dividends in stock rather than cash.

    Ashford Hospitality (AHT)Invests in hospitality properties via direct equity investments, first mortgages, mezzanine loans and sale-leaseback transactions.

    BRT Realty (BRT)Originates and holds senior and junior real estate mortgage loans secured by multi-family residential properties, office buildings, shopping centers, mixed use buildings, hotels/motels, and industrial buildings.

    CapLease (LSE)Finances commercial real estate that is net leased primarily to single tenants with investment grade or near investment grade credit ratings.

    Capital Trust (CT)Makes mezzanine and other types of specialty backed by commercial real estate assets. Also manages similar investments for institutional investors.

    Capstead Mortgage (CMO) Invests in single-family residential adjustable-rate mortgages that are guaranteed by government agencies Fannie Mae and Freddie Mac.

    Care Investment Trust (CRE) Invests healthcare-related real estate and commercial mortgage debt. A 2007 IPO externally managed and advised by a unit of CIT Group. Shareholders and board have approved liquidation of this trust.

    Chimera Investment Trust (CIM) An August 2007 IPO, Chimera invests in residential mortgage-backed securities including prime, jumbo, and Alt-A loans. Externally managed by Annaly Capital Management, Chimera invests in riskier loans than Annaly that it purchases at a discount.

    Colony Financial (CLNY)This September 2009 IPO, externally managed by Colony Capital, originates, purchases, and manages commercial mortgage loans and other commercial real estate related debts.

    Crexus Investment Corp. (CXS) September 2009 IPO acquires, manages and finances commercial mortgage loans, commercial real estate debt, commercial mortgage-backed securities, and other commercial real estate-related assets. Externally managed by Annaly Capital Management.

    Cypress Sharpridge Investments (CYS)A June 2009 IPO, Cypress invests in derivatives of single-family, adjustable-rate and fixed-rate mortgage-backed securities that are guaranteed by government agencies Fannie Mae and Freddie Mac.

    Deerfield Capital (DFR) Invests in corporate loans, commercial real estate loans and residential mortgage-backed securities.

    Dynex Capital (DX)Invests in loans secured by single-family residential and commercial property mortgages.

    Franklin Street Properties (FSP)Provides real estate and investment banking, and property management services. Also owns office buildings and other commercial properties.

    Gramercy Capital (GKK)Originates and acquires senior loans, mezzanine loans and distressed property loans secured by commercial and multi-family properties.

    Hatteras Financial (HTS)Invests in single-family, adjustable-rate and fixed-rate mortgage-backed securities that are guaranteed by government agencies Fannie Mae and Freddie Mac. Externally managed by Atlantic Capital Advisors.

    Invesco Mortgage Capital (IVR)A June 2009 IPO, Invesco invests in residential and commercial mortgage-backed securities. Externally managed by Invesco Ltd.

    iStar Financial (SFI)Provides custom- tailored investment capital mostly to high-end private and corporate owners of commercial real estate. Financing includes senior and mezzanine real estate debt, senior and mezzanine corporate capital, as well as corporate net lease financing and equity. iStar has also financed high-rise condominium construction projects.

    MFA Mortgage Investments (MFA) Invests in single-family, adjustable-rate and fixed-rate mortgage-backed securities that are guaranteed by government agencies Fannie Mae and Freddie Mac. Also invests in mortgage-backed securities rated in one of the two highest rating categories by at least one nationally recognized rating agency.

    National Health Investors (NHI)Finances mostly long-term health care properties via first mortgages and purchase and leaseback transactions.

    Newcastle Investment (NCT)Invests in mortgages on residential, manufactured housing, and commercial properties. Managed by a unit of Fortress Investment Group LLC.

    NorthStar Realty Finance (NRF)Primarily originates and invests in debt and other securities secured by commercial real estate properties. Also takes ownership positions in commercial properties.

    PennyMac Mortgage Investment Trust (PMT)A July 2009 IPO, PennyMac, externally managed by Private National Mortgage Acceptance Company, invests primarily in residential mortgage loans and related assets.

    PMC Commercial Trust (PCC) Originates loans to small businesses such as motels, franchises, shopping centers, apartments, office buildings, retail stores, and factories, primarily secured by related real estate.

    RAIT Investment Trust (RAS)Invests in commercial mortgages, mezzanine loans and other loans, trust preferred securities, subordinated debentures and other real estate-related debt securities and investments.

    Redwood Trust (RWT)Invests in residential and commercial real estate loans, and in asset-backed securities backed by real estate loans. It credit-enhances loans by acquiring and managing the first-loss and credit-sensitive securities that bear the credit risk of securitized loans.

    Resource Capital (RSO)Invests in commercial real estate-related assets such as whole loans, A-notes, B-notes, mezzanine loans and mortgage-related securities and commercial finance assets such as other asset-backed securities, senior secured corporate loans, equipment leases and notes, trust preferred securities, debt tranches of collateralized debt obligations and private equity investments principally issued by financial institutions.

    Starwood Property Trust (STWD)An August 2009 IPO, Starwood invests in commercial mortgage loans and related assets. Two Harbors Investment (TWO)Invests in residential mortgage-backed securities. Externally managed by a unit of Pine River Capital Management. Started operations on 10/28/09 after merger with Capital Acquisition Corporation.

    W. P. Carey (WPC) Provides long-term sale-leaseback and build-to-suit financing for companies worldwide. Also manages real estate properties for clients.

    Vestin Realty Mortgage I (VRTA) Makes commercial real estate loans, primarily to real estate developers, in nine states. Vestin Realty Mortgage II (VRTB) Makes com

  4. MSoliman,

    Agree with some of what you are saying — not all. “Depositor” is investor. Depositors do not have their own balance sheet — must be accounted for — so you mean the Depositors parent corporation???

    REITs — find this interesting. Safe Harbor — FDIC — still find no connection.

    If you are going to win with your arguments — you need better publication. Few buy your uncoordinated angles — not to say there is not some merit.. Appears you want to keep for yourself — but if you are having success – it will eventually get published – otherwise there is no success. We will wait.

  5. Soliman Convince the Attorneys
    Soliman Convince the Judges
    Soliman Convince convince convince

    We are already convinced and we dont really matter anymore

  6. Soliman it is the judges you need to convince. We are already convinced.

  7. LL Reader – You fail to acknowledge pay off MBS security investments — and transfer of collection rights (swapped by contracts) out of the original trust.

    The loans are sold under gain on sale ACCRUED accounting rules – GONE

    REIT raises $100 Million …SPE QSPE Who does what with the money? There is the path to victory. No one decided case including my own pick this up. NO COURT IN THE LAND WILL LET A FIDUCIARY ARGUMENT STAND FOR FRAUD CLAIMS BROUGHT BY PRIVATE PARTIES WHO EXECUTED A STATE INCOME APPLICATION.

    You can win people but delving into Bill and teds bogus adventure is not for anyone other than Ponce De Leon and his troop.

    You wont win picking apart a PAS agreement the Lehman bros auditor dropped $22 million compiling. Thats were the gold country is my fellow Micro managers.

    I have consulted for the other side and they were forced in some instances to walk away. The other side are briliant securiities attorneys

    Dont beat me – Beat a REIT

    MSoliman
    expert,witness@live.com

  8. LL Reader – Again, FDIC Safe Harbor — is for investor rights — not borrower challenges to fraud in foreclosure. ANd, very importantly

    Oh Gees. Repudiatory right of rescission = NO SALE / The sale to trust never happened. LENDER OWNS THE LOAN

    What are you trying to tell me – What ?

    STOP BROTHER – PUT A DISCLAMER UP WILL YOU – YOUR WINGING IT

  9. Certificates are sold for pruposes of accounting, a gain on sale and pre IPO issuance – before the subscrption is filled. Your winning it brother Stop

    A MAN , Anonomous The Masked Man from places unknown,

    Why are you all hiding and from what do you hide from ? This is not to lecture you but to tell you your grasping at straws and people are listening to you …..Peace

    MSoliman
    expert,witness@live.com

    Who is the lender – See the Note
    Who is successor – See Deed or public recording
    Who is Servicer – None
    Who is the Master Servicer – Regisrtrations cashier
    Who is the Benficary – REIT
    Who manages the investment – The TRS
    Who Owns the registration? None
    Who are the investors – Depositors
    What is the Depositors recourse – Ha – LOL …Wirte us . . . .you won’t beleive how easy this is Judge really!

    The genius behind this structure will defy a novice. You cannot reengineer a failure here. – The Bank et al (designated ownership under the TRS – they never lost their loans – The common shares look again ….get it. No? GAAP, IASB, Tolerances Recognition , UCC , DEbtors vs Obligee rights and 20% OC (thats huge and NOT ONE ATTORNY HAS PICKED UP ANY OF THESE ARGUMENTS

    MSOLIMAN
    expert.witness@live.com

  10. judges are compelled by my testimony. see CA Appellate Courts C Graupner Vs Select Portfolio Services. Remand 2010

    In one case the Judge ordered Duetsche Bank out of the court…he siad “find your note and the file while you are at it. The lawyers for the borrower. that is my obsitcal because tTHEY ARE THE ONES WHO DO NOT GET IT.

    BRING DAVIS ON AND LET ME SEE WHAT HE REALLY KNOWS …DO IT … PUBLIC FORUM, ON LINE WHATEVER….DO IT,

    PEOPLE ARE LOSING THEIR HOMES AND NEED TO WIN. PLEASE DO IT

    MSOLIMAN
    expert.witness@live.com

  11. it refers in 226 (a) 1 that a servicer is not treated as the owner of the obligation

    WRONG CONTEXT – ANALYZE THE EXECUTION MEANING SERVICING RELEASED OR SERVICING RETAINED. IN EITHER INSTANCE THE SERVICER HAS RECOURSE MEANING THE SERVICER IF THE OWNER OF THE SUBJECT LOAN. THAT IS THE CONSIDERATION FOR OWNERSHIP

    THESE LOANS ARE IN A BKINSULATE ENTITY AND CANNOT BE CONTROLLED BY A SERVICER.

    THE FDIC EXPLAINED THE SERVICER IS FORECLOSING AND I REMINDED THEM OF WHAT IS STATED HERE IN THE ABOVE MENTIONED ANLALYSIS.

    THERE ARE NO RIGHTS OF A SERVICER TO FORECLOSE

    TO THIS WE WILL EVIDENCE AND TESTIFY

    MSOLIMAN
    expert.witness@live.com

  12. addressed to M. Soliman

    IT IS ALL ABOUT WHAT THE JUDGES SAY ABOUT what you are saying or writing.
    Not what Anonymous or Deb Wynn or anybody else.
    B. Davies is getting the Judges attention and posts it on Scribd.
    Any luck in the Courts here in California?
    NEVER AGAIN

  13. IT IS ALL ABOUT WHAT THE JUDGES SAY ABOUT what you are saying or writing.

    Not what Anonymous or Deb Wynn or anybody else.

    B. Davies is getting the Judges attention and posts it on Scribd.

    Any luck in the Courts here in California?

    NEVER AGAIN

  14. MSoliman,

    You skip the step that certificates to trust are sold to security underwriters — see Prospectus ” :Method of Distribution.” Yes, loans are sold from originator to depositor – to trust — to trustee – according to PSA. And, unfortunately for filers — this was most likely filed with the SEC — and subject — to an extent — (excluding Deregulation and 15-D for continued filings) — to Reg. AB.

    Everyone misses that certificates to trust are sold to security underwriters. What the PSA/S-3/Prospectus — usually fail to state — is that loans were sold to a financial institution — BEFORE they were sold to a Depositor (subsidiary of financial institution).

    Some trusts did state this process — but MANY did not — and letters by SEC to filers are documented — questioning the S-3 registration. Many ceased after such communication. Many continued — then ceased later.

    For registrations filed with the SEC — you must go through every document — piece by piece — document by document — (And many missing documents). This is why investors are finding success — but we remain in quick sand — unable to articulate — what really went on – because of 15-D — and continued current status filings..

    Again, FDIC Safe Harbor — is for investor rights — not borrower challenges to fraud in foreclosure. ANd, very importantly, Chancery division for judicial foreclosures DO NOT allow litigation of claims regarding origination of the loan. THIS IS WHAT WE NEED. The fraud in conveyance of mortgage loan notes in securitizations is one challenge to foreclosure — but we also need to be able to litigate challenges to fraud in the ORIGINATION of the loan. Red flags should allow — but being blocked by lower levels of court administration.

    M. Soliman — you are focusing on performing loans and derived securities. This is the error. You fail to acknowledge pay off MBS security investments — and transfer of collection rights (swapped by contracts) out of the original trust. Unless your loan is currently performing — and acknowledged as such — no relevance.

  15. ANONYMOUS — Do you have a link to the ” Federal Reserve Opinion (now codified as “Rule”). ” that you cited below ??

    Thanks in advance … TNL

    ( sorry – typing too fast …)

  16. ANONYMOUS — Do you have a link to the ” Federal Reserve Opinion (now codified as “Rule”). ” that you citrd below ??

    Thanks in advance … TNL

  17. Diane Barker,

    The Interim Opinion has already been codified — (ie. now RULE) — This is just an explanation by the FED RES — as who is NOT covered — and servicers and beneficial pass-through security investors are not covered (meaning they do not have to notify — because they are NOT the creditor within the expanded definition of creditor by the TILA amendment). So — just need to flush out the current creditor —- There is more in section by section analysis that emphasizes “ON WHOSE BALANCE SHEET the loan is reported.”

    Only one court addressed — allowed complaint to proceed — no decision. No where else has attorneys utilized. But — coming.

  18. This means, the servicer is not treated and does not have the rights of a lender
    (or owner of the obligation).

    M.SOLIMAN- THE TRUSTEE IS THE PARTY REPESENTING THE BENEFICAL INTEREST FOR THE DEPSOITORS. THE MASTER SERVICER DISTRIBUTES THE PAYMENTS TO THE DEPSITORS.

    THE POOLING AND SERVICING DOCUMENTS SPELLS THIS OUT.

    WHY THEN ARE YOU EMBRACING THE POOLING AND SERVICNG DOCUMENT.

    MSOLIMAN
    expert.witness@live.com

  19. I am concerned about these words in the code, “For
    purposes of this section”

    I wish someone with legal background would comment on this. It seems the definition of lender for purposes of the narrow section of code cannot be expanded to a broader definition. I hope it can, I just would like further comment.

  20. Do these clear and concise laws not settle the issue of standing when a servicer tries to foreclose?

    I’ve read that judges are having to be educated about what is going on, but even a judge on the fast track of pumping out foreclosures could grasp the simplicity of this!

  21. Also see below — From Federal Reserve Opinion (now codified as “Rule”). “Credit risk” – assume refers to derivative contracts. “Getting docs in order” – as Banks claims they will do (but likely cannot do) — will require disclosure according to the TILA Amendment.

    IV. Section-by-Section Analysis
    Section 226.39—Mortgage Transfer
    Disclosures
    39(a) Scope

    “To become a ‘‘covered person’’ subject
    to § 226.39, a person must become the
    owner of an existing mortgage loan by
    acquiring legal title to the debt
    obligation. Consequently, § 226.39 does
    not apply to persons who acquire only
    a beneficial interest in the loan or a
    security interest in the loan, such as
    when the owner of the debt obligation
    uses the loan as security to obtain
    financing and the party providing the
    financing obtains only a security
    interest in the loan. Section 226.39 also
    does not apply to a party that assumes
    the credit risk without acquiring legal
    title to the loans. Accordingly, an
    investor who purchases an interest in a
    pool of loans (such as mortgage-backed
    securities, pass-through certificates,
    participation interests, or real estate
    mortgage investment conduits) but does
    not directly acquire legal title in the
    underlying mortgage loan, is not
    covered by § 226.39.”

  22. Just curious – does any of this work in court? I’m begginning to find out a “felony” isn’t really a “felony” sometimes – it’s considered a “technicality” or an innocent mistake – later correctable.

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