TO PAY OR NOT TO PAY: PREPARING FOR BATTLE

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COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

LIVINGLIES STOREFRONT HAS BEEN OVERHAULED.

TAKE A LOOK AT IT. NAVIGATION HAS BEEN GREATLY IMPROVED.

So let’s take a look at the steps to making decisions about your mortgage.

FIRST THINGS FIRST: EVERYTHING HERE IS FOR GENERAL INFORMATION AND IS NOT ADVICE OR AN OPINION ON YOUR SPECIFIC CASE. YOU SHOULD CHECK WITH AN ATTORNEY LICENSED IN THE JURISDICTION IN WHICH YOUR PROPERTY IS LOCATED. REMEMBER FIRST AND FOREMOST THAT THERE IS NO MAGIC BULLET TO STOPPING A FORECLOSURE, STOPPING AN EVICTION OR GETTING A MODIFICATION. THE ONLY THING THAT WILL FORCE THE FORECLOSER TO STOP IS A COURT ORDER. THE ONLY THING THAT WILL FORCE THE MODIFICATION IS A COURT ORDER DECLARING THAT THE SERVICER OR BANK DID NOT CONSIDER OR DID NOT PROPERLY CONSIDER YOUR PROPOSAL.

As for whether to pay or not to pay, we are talking about either an inevitable time when the homeowner won’t be able to pay or a voluntary decision to stop paying. Proactive behavior is the order of the day. Get educated, get the information to challenge the claims of those who are claiming they know the principal due on the obligation and those who claim they know the identity of the party or parties to whom the obligation is owed.

Or, the decision is simply whether the homeowner has had enough, and is going to walk away from a bad investment.

There are legal, tax and other personal considerations in any of these decisions, so you should seek professional help before you decide what you are going to do and how you are going to do it.

Asking for modification is becoming an effective tool for buying time and determining whether something might be done for you — but here again it is only the aggressive and persistent fighter who is willing to challenge the servicer or bank on the basis that the the modification proposed was never actually considered and was instead simply denied because the servicer ro bank would make more money in foreclosure even though the investor would be worse off.

There are many people who are moving toward stopping payment and using whatever time they can buy from the system to live in the house without payment in order to recover some of their loss. No guarantee as to how long they have. It could be a few months, but I know of cases where it has been a few years.

ALL THAT SAID, what you want to do is discover any discrepancies between the representations contained in the following:

  1. TO THE BORROWER: The closing papers and title chain. This requires the forensic  TILA analysis and title report with commentary.
  2. TO THE INVESTOR: The closing papers and securitization chain. This requires the securitization analysis and report. Realize that this is the representation of the way the securitization was going to work when they took the money from the investor, normally before the closing and even before you made application for your loan.
  3. TO THE INVESTOR AND THE BORROWER: The way the money was actually handled — the money trail. This requires an accounting for all money in and out from the borrower and A LOAN LEVEL ACCOUNTING FOR all money in and out to the creditor. They are not the same thing. Often the servicer is paying the creditor at the same time that it is declaring a default against the borrower. Often they claim payments or principal due that has been paid by third parties. This splits the obligation into a secured and an unsecured portion, which in turn leads to the inevitable conclusion that the note and mortgage were intentionally split by the securitizers. The UCC has a provision for that and it at the very least raises the question of whether the mortgage agreement is still enforceable — but it does not eliminate the obligation.
  4. TO THE COURT: The paperwork filed in court where some party, unknown usually until the foreclosure becomes an issue, claims ownership of the loan although they provide no proof of any specific transaction in which money exchanged hands. Here is where “representations of counsel” are used in lieu of actual proof. This requires (not mandatory) an expert declaration).

The point is that if you compare the above four trails, you will find in the usual securitized situation discrepancies between the representations made to the borrower, and the representations made to the investor/creditor. Then you will find discrepancies and conflicts between the representations made to the investor (and the representations made to the borrower) and the actual handling of the money which ignores the parties, conditions and restrictions stated in the mortgage, note, closing papers, and securitization documents. And if you listen carefully and attentively you will hear misrepresentation from counsel that conflict with all three other categories.

Now for the tools to use.

  1. We provide a COMBO TITLE and securitization Report (see above) because we are coaxing you into doing the whole job instead of the minimum. This report should be targeted at looking at both open and closed loans, determining whether the right parties executed the right instruments. It mostly happens, as you have been reading about robo-signing, surrogate signing, fabrication and forgery, that there are numerous breaks in the authority of the the people and the companies whom those people say they work for which in turn results in a break in the chain of title. It is in the comparison of the Title and Securitization search that you can see how anyone could even claim authority to execute a substitution of trustee, notice of default or notice of sale. The objective here is to determine whether the mortgage agreement is enforceable — not to declare that the whole thing was a fraud and therefore the home should go to the borrower without payment. 
  2. You should also get the Forensic TILA Analysis. This, especially in combination with the COMBO, could provide the basis for TILA rescission. Don’t discount that option. It is powerful tool and the failure of the lender to file a declaratory action with the statute of limitations period provided by the TILA statutes may operate as a waiver of any defenses or claim they have against the validity of the rescission. And remember that rescission is also a remedy for various types of common law and statutory fraud actions.
  3. The Loan level accounting is something you need only if it is available and the rest of the information turns out to be in the public records. This is what each case is REALLY about — the MONEY. By directing the Court’s attention to the entire money trail instead of just that portion between the borrower and the servicer, you will be able to raise issues of a fact that appear to be unresolvable.
  4. Remember that argument over the meaning of documents is one thing, but presenting the court with issues that show or seek to know where the money actually went, who got it and how it was allocated is a very different thing for most judges. Finding actual transactions between the securitization participants in which money exchanged hands trumps any argument about the meaning of some provision in the documents.
  5. Livinglies will provide an affidavit (after full payment) on the COMBO but that is only an affidavit that the work was done and the facts determined by the search are accurately reported — it is not an opinion nor a compelling expert story of how the obligation, mortgage and note were all created and how they were moved or attempted to be moved (transferred). 
  6. Then there is the Expert declaration, which frankly takes several hours to write, using the materials developed from the COMBO, the forensic Review, the Loan Level Accounting and the Pleadings, if any. Here is where you get the signature and notarization from Neil Garfield or one of the other analysts as the case requires, telling a story tot he court to enable the court to understand this transaction. 
  7. Lastly, there is the consultation with Neil which requires that all the above work be done, so he can direct the attorney on potential strategies and tactics that are currently working. The client is allowed to listen in and the conversation is part of attorney work product privilege. There are no such consultations without a licensed attorney representing the homeowner. NO exceptions. Specific objections and argument are covered along with the foundation for the introduction of the homeowner’s evidence.

Remember we are not offering rescue or relief. We are offering the data and other information and analysis to enable litigants to have the evidence necessary to present their side of a case.

18 Responses

  1. Deeds of trust require compliance with all federal, state, and local laws.
    DOT definitions: (p.2) “(J) “Applicable Law” means all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as
    all final, non-appealable judicial opinions.”
    And just for giggles, take a look at the language regarding mortgage insurance at no. 10, starting on p. 7. There’s a reason all that verbage is in there.
    Just a reminder that any first loan over 80% loan to value had mortgage insurance for the benefit of the lender, whether it were paid monthly by the borrower or included in a rate hike, called ‘self-insuring’.

    No. 12, p. 9 – take a gander at third party payments. A borrower would take this (“third party”) to mean a party he Knew. But read more broadly and maybe as intended by the bankster, a third party could include an insurer, in which case the bankster attempts to have the borrower contract away his rights and the law regarding debt reduction by third party payments on a note. The borrower notices ref’d in no. 15 of the dot
    call for the borrower to make such notice to the ‘lender’, not MERS. No. 16 reiterates that the dot is regulalted by federal and that of the jurisdiction in which the prop is located.

    Why do we suppose they thought it necessary to inform the borrower that not only might the note be sold, but that the new buyer wouldn’t be performing servicing on the loan “unless otherwise provided by the Note purchaser”? (No. 20) This was put in there to enhance the chances of success of the shell game they knew they were gonna play imo.

    Now this cracks me up (last page): the trustee’s deed is given “withOUT any warranty or covenant, expressed or implied”, yet the deed “shall be prima facie evidence of the truth of the statements made therein”! Hey, I want some of that! I don’t believe for a minute this bull is legitimately enforceable.

    So, under the expressed terms of the dot regarding the application of federal, state, local laws, etc. (first deal above), who thinks this includes NY trust law?

  2. Exactly how many more rocks do we need to turn over before realizing that “our” government not only has zero intentions of fixing any of the problems, but that they are the largest contributor to the global meltdown?

    As to the REMIC issue, this spring Yves Smith wrote:

    ”….there is a blindingly obvious reason why the IRS inquiry is a coverup. If the IRS were to find any of the questionable practices to be violations, they’d lead to widespread and large assessments against mortgage investors. That in turn would spawn the mother of all litigations by investors against the originators and trustees. That would blow up the mortgage industrial complex and put us back in a financial crisis. That is the last thing the officialdom wants to happen.

    The IRS is totally aware of the REMIC deal. They choose to ignore it. It works for them.

    What happened to the robo-signer moratorium? Did the banksters just wait an “appropriate” amount of time until the issue evaporated from the fleeting minds of the populace and our elected representatives, so that the government could act dumb on the issue when it cranked up again?

    Obama and Holder are totally aware of the criminality here. They choose to ignore it.

    Years now into this foreclosure crisis, with ludicrous if not embarrassing steps rolled out one after another to create a semblance of “officialdom is on it” type programs….

    They know the programs don’t work….they designed them that way. It serves their purpose.

    14 world leaders, or nearly leaders installed who are alumni of Goldman Sachs, two planted as heads of countries as if appointed by a monarchy….WTF? And we “allow” this? Do we choose these actions? Do these steps do anything to fix the problems, or is the intent to cement them out of reach of any fix? Do we have the power to question all of these issues? You bet. And if we don’t, we deserve exactly what we get.

    We have to come to the painfully obvious conclusion that it’s not a lack of involvement by government entities, it’s their total involvement that is the problem. It’s their complicit involvement in the criminality which blocks any solution. They, and their corporate masters are the wrong doers here. These are crimes of the century, one after another, and we are sitting stupefied as if we simply can’t fathom what’s happening here. We need to wake up and realize that they will not upset their securitized global model that needs us in order to operate. It’s up to us.

    Until we all realize that it’s a waste of time to simply continue the status quo i.e. paying their debts, working at their low paid jobs, buying their corporate crap, paying taxes that support their broken model, buying their cars, serving in their militaries, watching their courts toss more to the curb everyday, cowering when they line up their police squads, ….it’s broken people, and they know it, but it serves them well. As long as we go along with it!

    We have to move to the next level. We’ve passed the discovery phase, and the government isn’t willing to cooperate. They aren’t going to work for the people any longer, they’ve made that decision abundantly clear. Chase and B of A rule, and the governments of the world do what they demand. Wharton speaks, and Harvard agrees.

    Steel yourselves for the next level. Starving TPTB is the inevitable next step. The same austerity that they’re so willing to push onto the masses will have to be turned back at them 1,000,000,000 fold. There is no other fix, no further deliberation, no parlay. The system of debt creation is unsustainable. Even more, it’s inherently unstable, the math doesn’t lie, and its unraveling will cause even more pain and destruction down the road when it explodes. It’s 100% inevitable. A sure thing.

    Austerity will need to shift popular definitions from one of populace belt tightening to not having anything to do with a system that is out to destroy us all. Only when we all en masse come to this realization will we start to enact change. Screw them. Screw Obama, and all of his graduating class.

    0….the amount of the 1% arrested for untold numbers of felony crimes.

    4700….the amount of the 99% arrested for assemblage and speech.

    We have to turn that around. It’s simply not a question of with or without them….it has to be without them. They were given the chance and they screwed it up royally. No peace.

  3. Shelly – thanks for all.

    “If the investors include the borrowers, the fraudulent assignment of mortgages will surface and the REMIC fraud will float to the top like a dead body in a botched murder case…. and somebody will be stuck with paying the IRS – even if the investors win the case and get their investments back.”

    Time to say enough is enough. States, AGs, Congress, Courts, SEC and IRS need to get on the same page with homeowners and investors and save what is left – restore what can be restored. Only a very few well placed bankers are left out of this equation that just amounts to loss and more loss. Declare the foreclosures properly invalid. Forgive the back taxes to investors who got a fraudulently crafted REMIC. Get to the bottom of why this was done. Get to the bottom of the real fraud. Collect the taxes and penalties from the financial fraud engineers and foreclosure fraud engineers, take them in receivership and put them in jail so they cannot destroy American property and lives again. Restructure the whole mess and if a few or a lot of homeowners get their homes back or save their homes from foreclosure what is the harm?

  4. This is the RCW statutes for the State of Washington RCW 40.16.030: Offering false instrument for filing or record. Every state will have their own. Every false fraud assignment even if you can not prove they are false fraud and robo signed that has been miraculously transfered after the ninety days after you signed your contract/mortgage is void and nullified. Due to the REMIC PSA laws. See above to find the laws.

  5. Neil Garfield has stated just this issue in the past and I have it in my complaint and here is back up. I believe this is over the heads of the judges and hopefully this article and the law will open their eyes. The REMICS have failed is alike the British Are Coming, it needs to be shouted out in court and the judges need to understand the notes, contracts mortgages are void.Deadly Clear
    Derivatives are financial weapons of mass destruction… potentially lethal. -Warren Buffet

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    “The REMICs have failed! “The REMICs have failed!”
    Posted on November 4, 2011
    If Paul Revere were alive today he would be riding through the town warning “The REMICs have failed!” However, the government these days would go, “Shhhhhh!”

    Most average homeowners have no idea what a REMIC is – actually most attorneys have no clue …. so, you know many of the Judges are completely in the dark. REMICs are a form of IRS tax shelter sold to investors as part of the mortgage-backed securities package (Real Estate Mortgage Investment Conduit (“REMIC”) pursuant to I.R.C. §§860A-G).

    The documents that killed the REMICs may actually help save your home.

    A new report by Oppenheim Law reveals “the Black Magic of Securitized Trusts”. The largest key to REMICs is that they are required to be passive vehicles, meaning thatmortgages cannot be transferred in and out of the trust once the closing date has occurred, unless the trust can meet very limited exceptions under the Internal Revenue Code. I.R.C. §860G. The 90 day requirement is imposed by the I.R.C. to ensure that the trust remains a static entity. However, since the mortgage-backed securities trust controlling documents, the Pooling & Servicing Agreement (PSA), requires that the trustee and servicer not do anything to jeopardize the tax-exempt status; PSAs generally state that any transfer after the closing date of the trust is invalid.

    What does that mean to the average homeowner in foreclosure? Check the recordation office and look for the “Assignment of Mortgage” on your property – generally found just before the Notice of Foreclosure is filed with the State if your loan was securitized. Looking through hundreds of these beauties there have been few, if any, that were timely assigned to the trusts. How can you quickly tell if the Assignment of Mortgage has failed to make it timely to the trust?

    The Assignment of Mortgage [below] shows a 2006 Trust – and a fraudulent assignment in 2009 – 3 years AFTER the Trust had CLOSED! Not only was it too late – but the Trust could not accept it pursuant to the REMIC of RFMSI 2006SA4 PSA and as further defined in the Oppenheim Law report. Assignments of Mortgage are public documents.

    What was not known until very recently, in fact Delaware Attorney General Beau Biden brought it out in his case Delaware v. MERS, lenders generally failed to follow the PSA and properly assign the mortgage loans to the Trusts. In the transcripts that AG Biden cited from In re Kemp, 440 B.R. 624, 626 (Bankr. D.N.J. 2010) (No. 08-18700) (Aug. 11, 2009), an employee for Bank of America responsible for servicing the securitized Countrywide mortgage loans testified under oath that Countrywide did not have a practice of delivering original documents such as the note to the Trust and was not in the habit of endorsing notes at the bottom, but favored allonges that they made as they went along. She further testified that allonges are typically prepared in anticipation of foreclosure litigation, rather than at the time the mortgage loans are purportedly securitized. Both of these facts are contrary to the requirements of the PSA that the note be endorsed in blank and delivered to the trustee at the time of securitization. Thanks to foreclosure defense attorney, Bruce H. Levitt, of South Orange, NJ – Bankruptcy Chief Judge JUDITH H. WIZMUR totally got it! See her Opinion here.

    The trust investors have been suing Countrywide and other Wall Street banks for inflated appraisals, systematically abandoning underwriting guidelines and over-rated bonds. The investors did not yet know that many of the mortgage loans failed to make it timely into the trusts and that the REMICs had been damaged. In fact, recently the IRS has taken notice and already initiated an investigation into the “active” activities of these trusts and the tax implications from them. Scot J. Paltrow, Exclusive: IRS Weighs tax penalties on mortgage securities, REUTERS, April 27, 2011.

    Here’s a fine example of a (too) late Countrywide Assignment of Mortgage made in 2010 to a CWABS 2005-3 Trust. Did they just figure the courts were going to be oblivious forever?

    This is FIVE (5) years too late! Oh yeah, the REMIC has or should have failed. And it appears there are thousands, if not millions of these gems filed all across America in every state property recordation office – you just have to look.

    Law Professor Adam Levitin, Georgetown University, describes the conflict the following way in the Oppenheim Law report:

    “The trustee will then typically convey the mortgage notes and security instruments to a “master document custodian” who manages the loan documentation, while the servicer handles the collection of loans. Increasingly, there are concerns that in many cases the loan documents have not been properly transferred to the trust, which raises issues about whether the trust has title to the loans and hence standing to bring foreclosure actions on defaulted loans. Because, among other reasons, of the real estate mortgage investment conduit (“REMIC”) tax trust of many private-label securitizations (“PLS”) . . . it would not be possible to transfer the mortgage loans (the note and the security instrument) to the trust after the REMIC’s closing date without losing REMIC status.”

    Levitin further points out:

    “As trust documents are explicit in setting forth a method and date for the transfer of the mortgage loans to the trust and in insisting that no party involved in the trust take steps that would endanger the trust’s REMIC status, if the original transfers did not comply with the method and timing for transfer required by the trust documents, then such belated transfers to the trust would be void. In these cases, there is a set of far-reaching systemic implications from clouded title to the property and from litigation against trustees and securitization sponsors for either violating trust duties or violating representations and warranties about the sale and transfer of the mortgage loans to the trust.”

    Without valid assignments, attorneys say that standing and jurisdiction issues rise to the top and may be asserted at any time – even first time on appeal. If the pretender lender did not have a standing to non-judicially foreclose because the assignment of mortgage is void, logically everything thereafter would be a nullity – that could open up a can of worms beyond the pretender lenders’/servicers’ repair.

    These documents appear to have been fraudulent and as lawsuits assert – wereintentionally prepared and executed to unlawfully confiscate the property from the homeowners. It appears it was easier to create the fraud and get paid by default insurance or credit default swaps than it was to modify they loans with the homeowners. Not only was there fraud on the homeowners, but also on the investors.

    But could REMICs be why the investors don’t partner up with the borrowers? They were both duped. The borrowers unwittingly relied on the [inflated] appraisals and had no idea that the underwriting guidelines had been “systematically abandoned” – just like the investor claims. But there is one big difference…

    If the investors include the borrowers, the fraudulent assignment of mortgages will surface and the REMIC fraud will float to the top like a dead body in a botched murder case…. and somebody will be stuck with paying the IRS – even if the investors win the case and get their investments back.

    Could these fraudulent assignments save your home or undo the foreclosure? That’s a question to ask a competent foreclosure defense attorney and have him review your file.

    Next, we need to follow the money… who actually got paid, how much and when??

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    This entry was posted in Uncategorized and tagged “Adam Levitin”, assignment of mortgage, Beau Biden, Bruce H. Levitt, Countrywide, Credit Default Swaps, CWABS, Delaware v. MERS, Foreclosure, Fraud, GMAC, I.R.C. §§860A-G, JUDITH H. WIZMUR, MERS, Mortgage Electronic Registration Systems, Oppenheim Law, PSA, REMIC, RFMSI, Securitized Trusts, Trust by Deadly Clear. Bookmark the permalink.
    8 THOUGHTS ON ““THE REMICS HAVE FAILED! “THE REMICS HAVE FAILED!””
    Ron Margolis (@RealtorRon) on November 9, 2011 at 6:17 am said:
    NIcely done

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    Joseph M. Adams, Esq. on December 2, 2011 at 2:16 pm said:
    The only problem with this defense is that, rightfully or wrongfully, some judges are taking the position that the defendant in a foreclosure proceeding does not have standing to raise the issue of a late assignment which is violative of the terms of the PSA. Their reasoning is that so long assignor and assignee (i.e., the trust) don’t object to an assignment of the mortgage after the cut off date, then the foreclosure defendant has no right to complain. This results in the defendant being unable to use this defense. I don’t agree, but this has nevertheless been the ruling in at least a few cases.

    Reply ↓

    Deadly Clear
    on December 2, 2011 at 3:03 pm said:
    Nobody said all Judges were pillars of integrity, astute or had clerks that could handicap a horse race. The issue is clearly standing and leads to jurisdiction that many attorneys have missed even pleading in trust cases. In order to foreclose, judicially or non-judicially, the Plaintiff must have standing to bring the claim. If the Assignment of Mortgage is faulty or in fraud there likely is no standing. An Assignment of Mortgage to a NY Trust is governed under NY Trust laws. Under New York Trust Law “every sale, conveyance or other act of the trustee in contravention of the trust…is void.” New York Estates, Powers and Trusts § 7-2.4. Further, given that New York Estates Powers and Trusts Law section 7-2.1(c) authorizes a trustee to acquire property “in the name of the trust as such name is designated in the instrument creating said trust property,” there should be little doubt that for transfer to an trustee to be effective, the property must be endorsed in the name of the trustee for the particular trust.

    “New York trust law requires strict compliance with the trust documents; any transaction by the trust that is in contravention of the trust documents is void, meaning that the transfer cannot actually take place as a matter of law. Therefore, if the transfer for the notes and mortgages did not comply with the PSA, the transfer would be void, and the assets would not have been transferred to the trust. Moreover, in many cases the assets could not now be transferred to the trust.” Source: Congressional Oversight Panel, Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation, November 16, 2010 page 19. If Congress recognizes that these Assignments are void, which means the Plaintiff Trust has no standing – then any judge ridiculous enough to side with his banker buddies should be appealed… and hopefully, run into a Judge Rakoff-type appellate panel.

    The problem is there have been too many bad foreclosure defense attorneys that have mucked up the water for the good guys causing many of these decent cases to have to be appealed. The point is – shove the lack of standing and jurisdiction at the courts, even on appeal. The borrower may not have the damages from the failure to properly and timely assign the mortgage loan docs to the trusts,* but he certainly can raise the issue that the Trust does not have standing to pursue a claim without a valid assignment. There are differences between mortgage lien and DOT states. In a mortgage lien state the title remains with the borrower – where in DOT the title is invested in a beneficiary or trustee and the chain of title may appear to be less of a problem, but isn’t MERS many times the DOT “trustee/beneficiary” who made the untimely fraudulent assignment?

    Let’s look at this one other way – if the states can go after the banks for their fraudulent assignments filed in the state recordation offices and they are not parties to the PSA, it would seem plausible that a borrower, whose collateral was used to bait investors to buy into a trust, could make a successful defense when an assignment is void. As bank friendly and conservative as our Hawaii court system is – Dubin Law Offices in Honolulu have had 36 victories this year, the majority of which were NJF at the Writ of Ejectment (eviction) stage.

    *At least not like the investors.

    The quote for the week: When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two. State Comp. Ins. Fund v. WallDesign Inc., 132 Cal.Rptr.3d 352 (Cal. Ct. App. Oct. 20, 2011)

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  6. http://www.huffingtonpost.com/2011/12/02/mortgage-modification-scams_n_1126371.html?ref=business

    “Just one day after government authorities announced they would be bringing the hammer down on loan-modification scammers, three people have been arrested in California for allegedly defrauding homeowners looking to revise the terms of their mortgages.

    Magdalena Salas, Angelina Mireles and Julissa Garcia, all of Stockton, California, were arrested Thursday and are being held at the San Joaquin County Jail, according to a release from the Office of the Special Inspector General for the Troubled Asset Relief Program, or SIGTARP.

    Salas, Mireles and Garcia are accused of multiple counts of conspiracy, false advertising, and grand theft of personal property. The SIGTARP release claims that the three collected thousands of dollars in fees from California homeowners who were hoping to modify their mortgages, but that the homeowners never got the help they were looking for, and that some of them ended up losing their homes.

    Unsavory mortgage practices have become widespread since the onset of the housing crash, which has left countless homeowners trying to stay one step ahead of foreclosure — presenting a prime opportunity for scammers who claim they can lower homeowners’ payments.

    And such practices are exactly what a new government task force, announced earlier this week, is aiming to stamp out.

    The task force, a collaboration between SIGTARP, the Consumer Financial Protection Bureau and the Treasury Department, will investigate people and companies suspected of trying to take advantage of homeowners seeking mortgage modifications…”

    WHERE’S THE “TASK FORCE” TO STOP THE DEBT COLLECTORS FROM STEALING THE HOUSES IN FORECLOSURE IN THE FIRST PLACE???

  7. America’s next Tarp Money Model Jon Stewart show

    http://www.thedailyshow.com/watch/thu-december-1-2011/america-s-next-tarp-model

    NEVER AGAIN

  8. re #3

    “The UCC has a provision for that and it at the very least raises the question of whether the mortgage agreement is still enforceable — but it does not eliminate the obligation.”

    Keep wondering about the unsecured obligation….Obligation was to pay the “lender” on the deed of trust and the note or whoever purchases (“can be sold”) the rightful security interest according to the rule of law. Deed of Trust specifically says it can’t be split “(together with this Security instrument)” ie deed of trust ie encumbrance of real property.

    Deed of Trust says:

    “20. Sale of note; Change of Loan Servicer; Notice of Grievance. The note or a partial interest in the note (together with this Security Instrument) can be sold one or more times …. [parenthesis in original]

    (A) “Security Instrument” means this document, which is dated xxxxxx together with all Riders to this document.….

    Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security….”

    So where does it say anywhere – where did borrower ever sign on anywhere to borrow money from anyone other than the “encumbrancer”? Unsecured is not possible by definition of the contract signed. Maybe some other debt arrangement could be unsecured but that was not in the contract signed. If the sale got bungled by the parties to it purposely or otherwise they can fight it out but unsecured debt was not owed to anyone by the borrower who signed the docs and no one else signed the docs (how is this negotiable at all in the first place – by the way – unless signed and recorded when sold?). Also the contract was to pay the “lender” and no one else or the rightful purchaser of the security interest (with “power to sell”). No one else has a right to the payments…..

  9. No offense, but receiving this article today made me laugh. I have posted, reposted and even did several hours of online research to
    find Neil’s phone number and left multiple messages there so that
    we could order these products and NEVER EVER heard back from anyone. I am a former mortgage broker that could have clients lined up out the door for him, but if it is this hard to get ahold of anyone to even purchase the product, imagine how difficult it will be to get a response on the reports where no compensation is proffered?

  10. @Joann:
    of course it is possible in non-judicial states. Here is the most recent example, if you haven’t seen it:
    http://www.scribd.com/doc/74420941/Virginia-Circuit-Court-Order-nullifying-a-first-mortgage-Deed-of-Trust

  11. Can You Find the Fraud? The Judge Did.

    Posted on December 2, 2011 by Mark Stopa

    Here is a copy of the indorsements which were affixed to the Note that was attached to the Complaint in a mortgage foreclosure case I’m defending. http://www.stayinmyhome.com/blog/wp-content/uploads/2011/12/Indorsements-on-Note-attached-to-Complaint.pdf

    Here is a copy of the indorsements which were affixed to the original Note, which the Plaintiff, Citimortgage, Inc., filed after filing suit.
    http://www.stayinmyhome.com/blog/wp-content/uploads/2011/12/Indorsements-on-Original-Note.pdf

    The notes themselves were identical, but notice any differences in the indorsements?

    Upon close inspection, it’s clear that the Note attached to the Complaint contains an indorsement in blank, whereas on the “original” Note, the blank indorsement is filled in with the stamp of “Citimortgage, Inc.”

    At my motion to dismiss hearing today, Citimortgage’s lawyer argued this was irrelevant – whether the Note was specifically indorsed or indorsed in blank, Citimortgage would have standing either way.

    The judge’s view, however, was much different.

    I cited the Second District’s recent decision in Feltus v. U.S. Bank, N.A.
    http://www.scribd.com/doc/69517251/4DCA-FELTUSvUSBANK-Lost-Note-Fraud-Affidavit-Rule-1-190-a
    which explains how banks cannot rely on an “original” note that is different from the Note attached to the Complaint.

    But it’s more than that. The obvious question, and the one that the judge posed, was why the original Note was specifically indorsed to Citimortgage when the Note attached to the Complaint was indorsed in blank.

    The bank’s lawyer argued “maybe the Note that was stored electronically was different than the hard copy.” But the judge wasn’t buying that argument, especially since it was prefaced with “maybe.” The judge granted the motion to dismiss and directed that Citimortgage, Inc. explain, in its Amended Complaint, how Citimortgage’s stamp appeared on the original Note when it wasn’t on the Note attached to the Complaint.

    The lawyer’s explanation, in my view, is hogwash. I suppose I could see this argument if there was no indorsement at all on the Note attached to the Complaint. In that event, it might be possible that the specific indorsement was done later. However, I see no innocent explanation for how there was a blank indorsement on the Note attached to the Complaint, and that very indorsement had the name “Citimortgage, Inc.” on the blank when the original Note was filed. In my view, there’s only one explanation here – Citimortgage had a Note, indorsed in blank, and said “We don’t want this indorsed in blank, let’s put our stamp on it.” Maybe I’m wrong, but let’s put it this way – I can’t wait to hear their explanation.

    By the way, there was a court reporter for this hearing, and the transcript will be a great read – I will post it upon receipt.
    Mark Stopa

    http://www.stayinmyhome.com

  12. Attorney General (Not Florida) “I Wish We Put More People In Handcuffs”
    December 1st, 2011 | Author: Matthew D. Weidner, Esq.
    http://mattweidnerlaw.com/blog/

    Trillions of dollars in our money sent flushing all around the world.

    Real money. My money. Your money.

    Trillions and trillions of real dollars that are owed by every man, woman and child in this nation.

    Because of what they’ve done you are a slave to debt for the rest of your life.

    Your children are slaves to debt for the rest of their lives.

    Your children’s children are slaves to debt for the rest of their lives.

    WE ARE PAST THE POINT OF ASKING WHY NO ONE IS JAIL….THE ANSWER IS AN UTTERLY UNGLUED AND CORRUPT SYSTEM.

    DYLAN RATIGAN

    http://4closurefraud.org/2011/12/01/dylan-ratigan-eliot-spitzer-in-retrospect-i-wish-we-had-put-more-people-in-handcuffs/

  13. Banks Can’t Process Loan Modifications or Short Sales, But Can Do Trillion Dollar Swaps Instantly…
    December 2nd, 2011 | Author: Matthew D. Weidner, Esq.
    If a client attempt a loan mod or short sale, I make sure they know they’ll be sending the paperwork again and again, it will take the bank months, they will lose documents over and over and they will probably get denied.

    The banks cannot figure out how to modify a few hundred million dollars in loans over years, but the Fed and the banks can figure out how to engineer trillions in dollars in complex transactions….overnight…..

    Read this article and understand that worldwide banking today is nothing but crazy gambling….with our money….when will calls for arrest of Geithner and Paulson start resonating?

    From the article:

    Breaking that down: JPM Chase holds 11% of the world’s derivative exposure, Citibank, Bank of America, and Goldman comprise about 7% each. But, Goldman has something the others don’t – a lot fewer assets beneath its derivatives stockpile. It has 537 times as many (from 440 times last year) derivatives as assets.http://www.occ.gov/topics/capital-markets/financial-markets/trading/derivatives/dq211.pdf
    Think of a 537 story skyscraper on a one story see-saw. Goldman has $88 billon in assets, and $48 trillion in notional derivatives exposure. This is by FAR the highest ratio of derivatives to assets of any so-called bank backed by a government. The next highest ratio belongs to Citibank with $1.2 trillion in assets and $56 trillion in derivative exposure, or 46 to 1. JPM Chase’s ratio is 44 to 1. Bank of America’s ratio is 36 to 1.

    Separately Goldman happened to have lost a lot of money in Foreign Exchange derivative positions last quarter. (See Table 7.) Goldman’s loss was about equal to the total gains of the other banks, indicative of some very contrarian trade going on. In addition, Goldman has the most credit risk with respect to the capital it holds, by a factor of 3 or 4 to 1 relative to the other big banks. So did the Fed’s timing have something to do with its star bank? We don’t really know for sure.

    Federal Reserve
    http://www.nationofchange.org/fed-s-european-rescue-another-back-door-us-bank-goldman-bailout-1322759036

  14. Could someone weigh in on this – really interested in Niel’s previous post:

    “WINNING FORECLOSURE TRIALS: BOA Loses Another One in Brevard County Florida” re: Florida firm’s success with offensive summary judgements by homeowners.

    Florida is a judicial state. Can this be done in a non judicial state? Make my day – post sample docs….xmas wish list….or steps ABC to do this. Time is running out. Like this approach. Calls the bluff. Forces the cards on the table.

    Forced pro se, don’t want to be pro se but honestly broke. Have attorney willing to look over things just barely. He will not represent and will not write anything but gave me his case (court has now thrown it out and it was really decent quiet title case) to work from and will look over what I am filing and help with forms ect.

    Was already working on declaratory relief to quite title but this approach is not going well in my state currently as above. My case is perhaps stronger thanks to tips on this site, other sites and many months of research) than others that get ignored by courts, and it might have a chance but now NOD already recorded will predujice court against compelling discovery. Have all of the above research down to the cusip already except loan level accounting. Even have investor reports. No way to contact “store” if you can purchase just the loan level accounting.

  15. Enraged. I report both good and bad so that the people are aware. Do not forget your defense side when you are in the war to fight so many battles.

  16. @TMT

    Did you read it? It talks about intentionally making false statement to obtain money or property. I haven’t read it completely but what I’ve read so far targets the borrower. It can be used against every homeowner whose lender inflated his income or wrote false information.

  17. Here is some development in Texas.

    mortgage fraud:

    HB 716 (80th Legislature) directs the Attorney General to establish a Residential Mortgage Fraud Task Force to investigate and prosecute residential mortgage fraud and the perpetrators of mortgage fraud statewide.

    http://www.capitol.state.tx.us/tlodocs/80R/billtext/html/HB00716F.htm

  18. Regarding rescission, Neil says:

    “…It is a powerful tool and the failure of the lender to file a declaratory action within the statute of limitations period provided by the TILA statutes may operate as a waiver of any defenses or claim they have against the validity of the rescission. And remember that rescission is also a remedy for various types of common law and statutory fraud actions.”

    Does anyone know what would be the next step if the servicer doesn’t respond within the 20 days and you have a foreclosure sale date scheduled approximately 20 days after they received the certified notice of rescission?

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