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EDITOR’S NOTE: The tide keeps turning in the direction of borrowers’ rights yet the scam continues. All three branches of government — executive, legislative and judicial are rapidly coming to the same conclusion. This foreclosure mess was not caused by borrowers. The mortgage deficiencies were not caused by borrowers. It isn’t borrowers who are seeking to steal homes for no payment, it is the financial industry seeking a windfall that keeps compounding. And the damage isn’t just to homeowners. It is causing troubles now and for decades to come with the corruption of our title registry systems, uncertainty in the marketplace, and the virtual enslavement of the vital middle class through procedures that side-stepped common sense, decency and due process of law.


” because her judicial duties seem to have made her an expert on mortgage servicing, Ms. Magner’s views could not be more timely and important. This is especially true, given that state attorneys general seem intent on striking a settlement with servicers before they have conducted a comprehensive and thorough examination of industry practices.”

For those who argue that servicing errors encountered by troubled borrowers are rare mistakes, Ms. Magner’s rulings should be required reading. “The deference afforded the lending community has resulted in an abuse of trust,” she wrote in the Wilson ruling.”

Homework Regulators Aren’t Doing


“ONE too many times, this court has been witness to the shoddy practices and sloppy accountings of the mortgage service industry. With each revelation, one hopes that the bottom of the barrel has been reached and that the industry will self correct. Sadly, this does not appear to be reality.”

This trenchant take comes courtesy of Elizabeth W. Magner, a bankruptcy court judge in the Eastern District of Louisiana. In an April 7 opinion involving a couple whose bank tried to foreclose on them even though they were current on their mortgage, you can sense Ms. Magner’s frustration with financial institutions that administer home loan payments and records.

Ms. Magner is just one of many judges overseeing cases involving troubled borrowers, of course. But because her judicial duties seem to have made her an expert on mortgage servicing, Ms. Magner’s views could not be more timely and important. This is especially true, given that state attorneys general seem intent on striking a settlement with servicers before they have conducted a comprehensive and thorough examination of industry practices.

By presiding over a variety of cases involving borrower abuse, Ms. Magner has probably done more investigating than some of the attorneys general who are so eager to cut a deal with the banks.

Her April 7 ruling involved two borrowers, Ron and LaRhonda Wilson, who tried to save their home by filing for bankruptcy in 2007. Having come up with a payment plan the court approved, they began submitting their monthly mortgage checks as agreed. Soon, however, a misstep at Lender Processing Services, an administrative company whose software system was used by the Wilsons’ lender, sucked them into the foreclosure machine.

The United States Trustee for the region got involved in the case and asked Ms. Magner to impose sanctions against Lender Processing. She did so in the recent ruling; the amount has not yet been determined.

You may recall Lender Processing Services — it’s the company whose Georgia-based document processing unit, DocX, was ground zero for the robo-signing scandal. DocX was acquired by Fidelity National Information Services in 2005, and was later spun off with Lender Processing. DocX was the rubber-stamp operation where employees signed hundreds of foreclosure documents a day attesting to facts and figures that they rarely bothered to check. Some of the signatures on DocX papers were so different they appeared to be forged.

Lender Processing shut down DocX in February 2010. But the parent company is still under scrutiny for its much larger business of providing payment processing software systems to a vast majority of mortgage servicers. Indeed, Lender Processing was among the 12 financial institutions that consented to change their mortgage processing and foreclosure practices last week after receiving cease and desist orders from federal banking regulators.

Lender Processing’s two biggest bank customers are Wells Fargo and JPMorgan Chase. Neither bank would comment.

Ms. Kersch, the spokeswoman for Lender Processing, said: “The consent order does not make any findings of fact or conclusions of wrongdoing, nor does L.P.S. admit any fault or liability.”

Returning to the Wilson case: Their mortgage servicing woes began in the fall of 2007, after they filed for bankruptcy protection. The court had approved their mortgage payment plan and they began submitting monthly checks as instructed.

The first problem arose when the Lender Processing software was not updated to reflect that the Wilsons were operating under a payment plan approved by a bankruptcy court. Then, the couple’s checks were not posted to their account by a lawyer for their lender, who inexplicably held onto the checks.

So Lender Processing’s automated system started the foreclosure process on behalf of the Wilsons’ lender, even though the couple had made all their necessary payments. A robo-signer from DocX arrived on the scene, legally attesting to the Wilsons’ purported delinquency, because Lender Processing’s system did not reflect that the Wilsons’ checks were sitting, uncashed, with their bank’s lawyer.

Luckily, a lawyer for the Wilsons battled back, documenting to the bankruptcy court that the couple were in fact current on their mortgage. Ms. Magner was the judge overseeing this messy chain of events.

Officials at Lender Processing say that the Wilson case is an anomaly and that the document execution process that occurred in the case “is no longer provided” by the company, a reference to the robo-signing practices at DocX. In a statement, Ms. Kersch, the Lender Processing spokeswoman, said that mortgage servicers and their lawyers were using Lender Processing’s systems in foreclosures and bankruptcies they were overseeing. “Neither L.P.S.’s staff nor its technology make decisions regarding the foreclosure process,” she added.

Ms. Kersch is right. The company’s systems let banks servicing home loans dictate when fees are automatically charged, for example, how payments are applied to borrowers’ accounts and when actions, like foreclosure appraisals, are prompted.

But how some banks have deployed the Lender Processing systems disturbs Ms. Magner, according to opinions she has written in other cases. In the Wilson ruling, she cites other problematic cases she has overseen where banks servicing borrowers’ loans used Lender Processing systems improperly.

In one case, Ms. Magner said, she discovered “a highly automated software package owned by L.P.S.” to administer loans that “was programmed to apply payments contrary to the terms of the notes and mortgages.” Such terms typically require that a loan administrator apply payments first to real estate taxes, principle and interest, then to other things like late fees or default charges. But in one case before Ms. Magner, the bank applied payments first to late fees and property inspection charges.

In another case, Ms. Magner concluded that Wells Fargo had made “errors in the methodology for fees and costs posted to a debtor’s account” using a Lender Processing system.

The L.P.S. spokeswoman said that because the company was not a named party in the other cases cited by the judge, it was unable to comment on Ms. Magner’s references to the other cases.

THE use of a robo-signer in the Wilson matter seemed to be the last straw for Ms. Magner. In sanctioning Lender Processing, she wrote: “The fraud perpetrated on the court, debtors and trustee would be shocking if this court had less experience concerning the conduct of mortgage services.”

She added: “Serious problems persist in mortgage loan administration. But for the dogged determination of the United States Trustee’s office and debtors’ counsel, these issues would not come to light and countless debtors would suffer.”

For those who argue that servicing errors encountered by troubled borrowers are rare mistakes, Ms. Magner’s rulings should be required reading. “The deference afforded the lending community has resulted in an abuse of trust,” she wrote in the Wilson ruling.

Truer words were never spoken.

21 Responses

  1. Please sign me up to receive your email blog postings.
    Thank you

  2. Date: Monday, April 18, 2011
    To: Counsel
    Re: Debt Collector
    Su: Federal Deposit Insurance Corporation (FDIC) Receivership Assistance Contractor

    Herein below is one of the service providers assisting the FDIC with past placement of legal services contractors. The company provides services for legal professionals that staff the Federal Deposit Insurance Corporation (FDIC) Receivership Assistance Contractors. They have been in business for more than 15 years.

    I submit you use caution in how you approach these matters engaging legal services contractors that pose as debt collectors. Their engagements with the FDIC will allow them to take a more aggressive view towards claims made by Plaintiff’s, especially those suing Lenders that no longer exist.

    At Expert.Witness we provides analysis and testimony that is not buying into Banksters and Bank misfeasance in foreclosure nor does it buy into foreclosure claims versus a Pro Tanto repossession of title to homes. Our continuing focus is on the debt collector’s as representing a charge or write down for a defunct lenders balance sheet and amount due that is now a burden on the tax payer. This is why some of the recent decision’s I have seen are not going to stay up very long if the D’Oensche Doctrine kicks in . It is also why I believe the future of MERS is here to stay as the only way and means of reviving a “cyber” loans to form and substance. MERS none the less serves the homeowner for claims that make MERS a victim of a material misrepresentation and support for your claim.

    Every homeowner has rights and the civil right to due process. Some of the claims I see that are brought into a court are like the recent wave of mass joinder cases. Securitization and RESPA squander the victims’ rights on a frivolous claim

    This organized national effort is an interesting form a forfeiture with no right to eminent domain hearing as the compensation received on a loan at settlement may act as satisfaction required to transfer title as part of the liquidation of the failed lenders inventory.

    Therefore the lenders obligation may be construed as a purchase money event. Repossession of title is likely drawn out over time in an orderly liquidation and by foreclosure in abstention.

    It’s a procedural effort critical for perfecting a claim by the FDIC against your lender bank.

    You can talk yourself blue trying to make lawyers hear the message and rightfully so where it’s hard to release the idea of a conventional foreclosure. Repossession of failed banks assets, brought by the FDIC is permissible under the agencies repudiatory powers and power to stay a circuit courts decision for equitable claims. The claim is for transferring title away from the property to a receiver for bank management’s outstanding liability. The liability does not transfer to the successor bank.

    The effort is none the less a tax payer liability which is transferring your home as a remuneration for an outstanding amount is due under TARP. TARP in my view is the missing link for capitation to take place. And the concept discussed here is the only logical way to shore up the missing capital piece for with the creditor is a receiver and the debt collector is coming after the real property asset to capitate the gap in losses

    For more information as to personal views


    Federal Deposit Insurance Corporation (FDIC) Receivership Assistance Contractor

    MMC has been awarded task orders to provide receivership assistance services and/or staff management and transition services to sixteen (16) failed financial institutions, including Washington Mutual Bank, IndyMac Bank, Franklin Bank, Bank United and Silverton. In 2008 alone, MMC has provided these services to failed financial institutions (receiverships) with assets totaling more than $343 billion and deposits totaling more than $210 billion. The staffing of receiverships has varied from as few as ten (10) personnel to more than five Hundred (500). An intrinsic part of the responsibilities include matching of staff to the size of tasks and replacement of staff in critical areas. Since many of these institutions have numerous subsidiaries in a variety of industries, staffing includes supporting all subsidiaries, including hospitality, real estate, construction, leasing, automotive dealerships (including maintenance), utilities, brokerage, insurance, and financial services.

  3. We Are British Rebels…………

    God Bless America.

  4. The Force of Law…………

    Those that Fight Today………….

    Screw you banks and Wall Street.

    I want to share the following with you, please go to the link and watch the video on Human Rights…………..What Are Human Rights?

  5. What a great piece of writing over at NC:

    Apologists for Obama and Congress often speak soberly about taking scalpels to budgets as part of shared sacrifice and tough decisions. In this as so many other cases, that is arrogant and ignorant nonsense. These decisions affecting less than one one-thousandth of one percent of the federal budget are not ‘tough’ – at least on those who make them. Which means there’s nothing shared by the decision makers in the sacrifices that will now get worse. Finally, these are most certainly not scalpels. They are stilettos in the backs of everyday Americans and the people of good performing organizations who serve them — who see and treat them as customers instead of income-and-asset targets to be strip-mined. But, then, the ill-got profits from strip mining are more likely than the meager, shrinking resources of everyday consumers to find their way into the political war chests of a post-Citizens United oligarchy.

  6. sorry about the typing errors but enough of anything is enough – We need our chance to address the congress and anyone else who thinks they have the answer. Our response will probably be the same.

    Why are these people not being prosecuted for what has happened. They most surely knew what they were doing and in setting up such a plan that would so harm the American people, they did, I believe probably factored in the cost for the wrong doing in the event it went South. You can almost see it in the Goldman Sachs deal – $500 million not a drop in the bucket so now you know why America is upset. And who oversaw that issue, the SEC and the congressional hearings.


    When are the people going to make the rules? As you all have stated, this is noting more than a make over of the same old thing.

    The rules are there, where is the enforcement – why does she not address the enforecement of the law?

    Such foolishness we cannot continue to tolerate – she may mean well, I cannot say, but she is not knowledgeable about the facts, nor has come up with a program that will handle these criminal acts in the manner in which they should be handled.

    “Don’t foreclose my home” – I am going to try to set up a scheduled talk show in the Houston area to let the politicians know what must be done and what the proper course of action has to be. Remember us. We don’t need anymore help from politicians who say they are working on our behalf – I think we can handle it.

    Maxine – thank you but you and your revised bill are not going to get the job done. Another ploy and delay to give all of you a chance to ride out the storm.- Call me and I will be more than happy to address it and if I can get a TV station with the right you know what, we will get it on TV. The deal is not to place blame,- but to let the politicians and law enforcement know how we expect the matter to be handled and let them tell us why it cannot be handled that way. Perhaps we have plans that need to be considered – what makes you think yours holds any water?

    Somebody owes the people – loss mitigation and counseling – that is all that we have heard since 2007 and I told you all then and I am telling you now, none of that had any kind of chance to work – in the interest of the homeowner, but it did work while the banks and Wall street played their games – Wow!!!!!!!

  8. “Rep. Maxine Waters (D-California) has revised a bill she’s brought to the table several times before that would compel lenders to engage in what she says are “reasonable loss mitigation activities” for all delinquent homeowners.”

    Maxine, Maxine, Maxine – grow some BALLS and get to the root of the problem – fraud, fraud, fraud all along the line from Banks, brokers, servicers. The rules are already there, they just need to be enforced, you silly goose.

    Maxine, I give to you an A for effort, but you are missing the boat. You either know and for various reasons will not start convicting some people for fraud on the courts. Or you do not know and you are once again a stupid politician hired by the people because you can talk a good show.

    Maxine Waters, I few convictions of people ( lawyers, bank or servicer employees) committing fraud on the court system or Civil Codes will set a fine example and maybe some real negotiations will occur between all parties. A few heads on the pike well known by the public will stop the fraud. A guy steals, gets away with it, keeps doing it. WHY, he hasn’t been caught so he keeps doing it.

    When I think about it, here we vote into office people. As it turns out they don’t know shit. They get nice pensions, pretty much set for life there on. And what do we get in return? More confusion, more regulations, more laws which all equals more opportunity for fraudsters since things are so confusing with the addition of the more laws, regulations, etc.

    You people we hire are useless.

  9. I just found this on the web and wanted to share!!!!!

    Mortgage servicing practices have taken center stage on Capitol Hill, with a flurry of bills being penned to make servicing reforms the law of the land.

    Rep. Maxine Waters (D-California) has revised a bill she’s brought to the table several times before that would compel lenders to engage in what she says are “reasonable loss mitigation activities” for all delinquent homeowners.

    Waters has long maintained that the servicing industry is “broken,” a view that has become the popular opinion in light of the robo-signing scandal last fall that brought illegal foreclosure filings to light and prompted widespread investigations into industry practices.

    Those investigations resulted in cease and desist orders issued last week to a handful of residential mortgage servicers. Monetary penalties and separate settlements with state attorneys general are forthcoming.

    “In light of the slap of the wrist our regulators are preparing to give 14 servicers who admitted to breaking the law, legislation to require loss mitigation prior to foreclosure is needed now more than ever before,” said Rep. Waters. “It’s the only way to protect homeowners and to prevent foreclosures.”

    Waters has reintroduced an updated version of the Foreclosure Prevention and Sound Mortgage Servicing Act (H.R. 1567). It’s legislation she says could be a step in the right direction for ending the foreclosure crisis and holding servicers accountable.

    Rep. Waters’ bill would require servicers to provide loss mitigation, including loan modifications, prior to initiating foreclosure actions.

    The bill places one entity in charge of modifying primary and secondary liens and requires principal reduction for underwater mortgages.

    A spokesperson from Waters’ office explained that this “one entity” refers to the servicers/mortgagee of the first lien. For example, if a borrower has two mortgages, with the second being a subordinate lien, under Waters’ legislation, the first lien holder would have primary responsibility for modifying both loans, with the second modified in proportion with the first.

    According to Waters’ office, the current protocol is that when first liens are modified, generally nothing happens to seconds; or first-lien holders will refuse to modify unless subordinate lien holders modify as well, and seconds hardly ever modify.

    Waters’ bill seeks to address this conflict of interest by ensuring both first and second mortgages are modified to create a more feasible debt situation for distressed homeowners.

    The congresswoman says her bill would also address deep-seated problems in the mortgage servicing industry by prohibiting dual tracking, requiring a single point-of-contact, mandating referrals to housing counseling agencies, regulating fees, and prohibiting demand payments on short sales.

    In introducing the bill, Congresswoman Waters acknowledged that the bill will be one of several in her push to tackle problems in the servicing industry.

    “This bill is the first in a series of legislative proposals that I plan to introduce to further regulate the servicing industry and to protect homeowners,” she said.
    [Editor’s note: A copy of Waters’ revised bill has not yet been logged in the congressional tracking system. Although her latest version has since been updated, a copy of the previously introduced legislation can be viewed here. ]

  10. I recently filed BK7 and faxed the paperwork to NDeXWest, LLC in TX, trustee for Wells Fargo/Wachovia. I also showed up at the March 7th 2011 sale location to make sure they honored the automatic stay. They did not show up at the 9:30 am Sales Date time, but later at 11:30, (I stayed there from 9:00am to 11:45am) said the property was sold irregardless. I have looked in the county records, but there is nothing recorded. Nor can the title company find anything recorded and Wachovia is still soliciting me for short sale and modification via FedEx mail – even tho their “Foreclosure Dept.” is saying my home is REO w/Wells Fargo! They refuse to tell me recording number and I haven’t received anything saying they took back my home. They are now refusing to talk to me and insist they have my home! Has anybody else had this experience? There is so much more that went on, but this is wrong. Who is willing to take on this legal battle for me – I want to sue Wells Fargo.

  11. They can posture all they want People are broke Gas prices going up Food prices going up.

    I dont foresee a bright future

  12. from mortgage origination news

  13. A Win for Embattled MERS and the Banks That Use It
    Share |
    Monday, April 18, 2011
    By Kate Berry
    To many in the industry, federal regulators just gave Mortgage Electronic Registration Systems a big stamp of approval.

    In an April 13 consent order, regulators never questioned the underlying business model of Merscorp Inc., whose private loan registry has become a lightning rod for foreclosure litigation.

    The Office of the Comptroller of the Currency did not even attempt to address the controversy being litigated in hundreds of courts across the country: Does MERS have the legal right to foreclose on a borrower?

    That omission is now being construed as a “win” for the largest banks.

    “For MERS there is a potential silver lining in this cloud,” said David Dunn, a partner at the law firm Hogan Lovells in New York who represents banks. “The [consent] order has, in effect, validated their procedures and processes. Given the attacks MERS has come under in all sorts of state courts, that’s good news. It could have been a lot worse.”

    Several mortgage servicers, particularly Bank of America Corp., had alerted shareholders last month of the possibility of fines, penalties and even hits to earnings if MERS’ business model had been upended. For now, that model remains intact, lawyers say.

    Regulators also did not question the validity of allowing hundreds of bank employees to be designated as “certifying officers” of MERS — an issue plaintiff’s lawyers maintained amounts to its own robo-signing scandal. Such certifying officers will have to be identified and tracked, but they can still sign legal documents such as mortgage assignments and lien releases in MERS’ name, regulators said.

    “The premise of MERS remains as valuable today as the day it was conceived,” said Allen Jones, a managing director at RiskSpan Inc., a Stamford, Conn., analytics and advisory firm, and a former executive of default management at B of A.

    MERS did not come out of the regulators’ examination completely unscathed. Given that 31 million residential mortgage loans are recorded on the MERS system, ensuring the accuracy and reliability of data reported by the servicers will be a significant challenge. Banks are particularly spooked by regulators’ requirements that MERS “maintain adequate reserves for contingency risks and liabilities.”

    “For a little and thinly staffed enterprise like MERS, it will be a harder process,” said Ellen Marshall, a partner at Manatt, Phelps & Phillips LLP.

    Marshall said the 14 largest bank servicers face “substantial costs” complying with their own consent orders and getting MERS in compliance.

    The Reston, Va., company must hire significantly more staff, get its finances in order and comply with third-party audits and added scrutiny (where none existed before) from its 25 shareholders, including B of A, Wells Fargo & Co., JPMorgan Chase & Co., Fannie Mae and Freddie Mac.

    “The staffing, reviews and audits will be costly,” Marshall said. MERS “will pay for it presumably by assessing its members.” (MERS’’ revenue comes solely from its 2,184 active members, which pay annual fees determined by their size and transaction fees for loan registration.)

    Moreover, MERS still faces hundreds of lawsuits from borrowers claiming it lacks standing to initiate a foreclosure or to assign a mortgage to the actual noteholder. To reduce its litigation costs, MERS told its members in February to stop foreclosing in its name. MERS now will assign the mortgage back to the noteholder, essentially resolving many of the legal questions surrounding which entity has the right to foreclos

  14. Sanctions are good but better yet they should be closing down Fidelity National Title, Fidelity Information Services & All the offices of LPS Docx and the CEO of Fidelity National Title William P Foley and all the present and past directors of these companies should be indicted for all the fraud they perpertrated against so many.
    Forfeiture laws are in place for people like this .

    Lets use them.


  16. I am so happy to see more Judges seeing the light. Now, we have Schack, Spinner, Magner, Mann, Boyko and many others. I still think it is alarming that many of the judges are in the bankruptcy courts. The state courts, especially, California, are still behind the eight ball. They don’t seem to be able to see the forest for the trees. I hope I don’t have to eat my words: it is finally getting better for the homeowner. Very sad that so many people believe that some little middle class homeowner woke up one day and said, “I am going to swindle a mega bank and get a free house.” It is amazing that so many people believe what they hear on the radio, read in the papers and watch on TV. A single middle-class homeowner cannot cause a financial crisis that, literally, crashed the world economy–not even 3 or 4 of them. Just silly.

  17. The banks were in trouble long before the borrowers defaulted. RTC vs. Key Financial (2002) was the snowball case from hell. With the RTC decision Wall Street knew that they’d have a run on the banks by investors because all of the MBS were inflated and now they were faced with buying back the loans at face value that they used for bait… So, how did they attempt to conquer the problem? They seduced the borrowers (TV, radio, newsprint, Internet, direct mail, phone solicitation, etc.) with defective ARMs and rewrote more mortgage loans than they could handle – USING THE SAME FRAUDULENT SCHEME – just changed the names and promises to the investors with more insurance… Maybe RTC, which laid a little dormant through the 1990s, gave Wall Street the time to de-regulate in 1994 and 1999… which gave therm the ability to insure both sides against the middle without the regulation of derivatives. The bottom-line is Wall Street knew what was coming down and they conned America – especially the American politicians. Prison is too good for these guys – strip them of the mortgage loans and their citizenship.

  18. Gretchen is right – borrowers are not to blame – but unfortunately Gretchen, the general public and the homeowners who managed to survive did nothing between 2006 through 2009 BUT BLAME THE BORROWER – THEREBY GIVING THE BANKS AND THEIR FRAUDSTER COUNTERPARTS THE TIME THEY NEEDED TO PUT THE FINISHING TOUCHES ON THEIR VICTIMIZATION OF THE HOMEOWNERS – IN OTHERWORDS, WE WERE A LITTLE LATE IN THE GAME –

  19. I am impressed with the Judge’s work. As a mortgage loan person in the business for 45 years her work is commendable. However, there has never been any question but that the cause of this crisis, in my opinon was: 1/3 origination of fraudulent loan packages, 1/3 intentional loan servicing technique and 1/3 due to the newly constructed home loans made to homeowners, whereby the escrow analysis for the loans did not perform in such a way that the homeowner would have been protected from the loss of his home due to payment increases needlessly made to recover escrow deficits that were intentionally set by the funding division of the lender.

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