Hiding Behind Advice of Counsel No Better Than Ratings

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Editor’s Comment:

In an article entitled “Legal Beagles in Cross Hairs” WSJ reports that the SEC and many others in law enforcement have on-going investigations into the role of attorneys not misconduct of their clients. For the most part it is an attorney’s solemn duty to represent and advocate the position of his or her client to the utmost of their ability without violating the law. Everyone is entitled to a lawyer no matter how reprehensible their conduct might have been when they committed the act.

But the SEC seems to be leading the way, starting with indictments and convictions of attorneys that kicks aside the clients’ defense of “I did it on advice of counsel.” in wide ranging probes law enforcement agencies are after the attorneys who said it was OK — upon receiving lavish payments, that what the Banks did in setting the securitization structure for the cash trail and setting up the securitization procedure for the document trail and then setting up the contents of the documents that would provide coverage for intentional acts of theft, forgery, fabrication and a variety of other acts.

The attorneys who gave letters of opinion to the investment banks blessing securitization of home and commercial mortgages as they were presented and launched are in deep hot water. This is especially true since the law firms that engaged in these “blessings” had lawyers quitting their jobs leaving behind memorandums to the partners that the law firm itself was committing crimes. The similarity between the blessing of the law firm and the ratings of Moody’s, S&P, Fitch is surprising to some people.

And the attorneys who suggested severance settlements conditioned on employed lawyers or other witnesses on a sudden onset of amnesia are also in the cross-hairs, getting stiff long-term sentences. These are all potential witnesses in what could be come nationwide probes that were blocked by “advice of counsel” claims and brings to mind those many cases where the lawyer for Wells, US Bank, or BOA was fined and sanctioned for lying to the court about facts which they most certainly knew or should have known — like the name of their client.

As these probes continue it may be seen as scapegoating the attorneys or as chilling the confidentiality of the relationship between lawyer and client. But that rule of confidentiality and the defines of advice of counsel vanishes when the conduct of the attorney or indeed a whole law firm is that of a co-conspirator. It is especially unavailable when you have a foreclosure mill that is forging, fabricating and filing documents on behalf of extremely well paying clients.

It would therefore seem to be an appropriate time to file complaints with law enforcement including police and regulatory authorities that are well-written, honed down to a sharp point and which attach at least some evidence beyond the mere allegation of wrong-doing on the part of the attorney or law firm. If appropriate lay people can file the same complaints as grievances with the state Bar Association that is required to regulate and discipline the behavior of lawyers. And attorneys for homeowners and judges who hear these cases are under an obligation to report evidence of wrongdoing or else face disciplinary charges of their own resulting in suspension or disbarment.

Legal Eagles in Cross Hairs

By JEAN EAGLESHAM

The Securities and Exchange Commission is intensifying its scrutiny of lawyers who gave a green light to certain mortgage-bond deals before the financial crisis or have tried to thwart investigations by the agency, according to people familiar with the matter.

The move is at an early stage and might not result in any enforcement action by the SEC because of the difficulty proving lawyers went beyond their legal duty to clients, these people cautioned. In the past, SEC officials generally have gone after lawyers only when accusing them of active involvement in securities fraud or serious misconduct, such as faking documents in a probe.

In recent months, though, some SEC officials have grown frustrated by what they claim is direct obstruction of a few investigations and a larger number of probes where lawyers coach clients in the art of resisting and rebuffing. The tactics include witnesses “forgetting” what happened and companies conducting internal investigations that scapegoat junior employees and let senior managers off the hook, agency officials say. “The problem of less-than-candid testimony … is a serious one,” Robert Khuzami, the SEC’s director of enforcement, said at a conference last month. The stepped-up scrutiny is aimed at both internal and outside lawyers.

Claudius Modesti, enforcement chief at the Public Company Accounting Oversight Board, an accounting watchdog created by the Sarbanes-Oxley Act, said at the same event: “We’re encountering lawyers who frankly should know better.”

The SEC enforcement staff has recently reported more lawyers to the agency’s general counsel, who can take administrative action against lawyers for alleged professional misconduct.

The SEC hasn’t disclosed the number of referrals. Only one lawyer has ever been banned for life from representing clients before the agency because of professional misconduct.

Earlier this year, Kenneth Lench, head of the SEC’s structured-products enforcement unit, said the agency needed to “seriously consider” charges against lawyers in “appropriate cases.” Mr. Lench said he saw “some factual situations where I seriously question whether the advice that was given was done in good faith.”

In July, the Commodity Futures Trading Commission gained the new power to take civil action against anyone, including lawyers, who makes “any false or misleading statement of a material fact.”

The agency, which oversees the futures and options market, hasn’t taken any action yet under the expanded power, according to a person familiar with the matter. A CFTC spokesman declined to comment.

“Frankly, I wish we had the power the CFTC has,” Mr. Khuzami said.

The SEC’s focus on advice provided by lawyers in mortgage-bond deals is part of the wider push by officials to punish alleged wrongdoing tied to the financial crisis. So far, the SEC has filed crisis-related civil suits against 102 firms and individuals, and more cases are coming, according to people familiar with matter.

Some former government officials say stepping up regulatory scrutiny of lawyers for their work on cases snared in investigations by the SEC could send a chilling message. “The government needs to be careful not to deter lawyers from being zealous advocates for their clients,” says John Wood, a former U.S. Attorney for the Western District of Missouri.

The only lawyer hit with a lifetime ban by the SEC for his work on behalf of a client is Steven Altman of New York. The client was a witness in an SEC investigation, and the agency alleged that Mr. Altman suggested in a recorded phone conversation that the client’s recollection of certain events might “fade” if she got a year of severance pay.

Last year, an appeals court rejected Mr. Altman’s bid to overturn the 2010 ban. Jeffrey Hoffman, a lawyer for Mr. Altman, couldn’t be reached for comment.

In December, a federal grand jury in Los Angeles indicted lawyer David Tamman on 10 criminal counts related to helping a former client cover up an alleged $20 million fraud. Prosecutors claim Mr. Tamman changed and backdating documents, removed incriminating documents from investor files and lied to SEC investigators in sworn testimony.

“The truth is that my client was set up and made a scapegoat,” says Stanley Stone, a lawyer for Mr. Tamman, adding that his client acted under the advice and guidance of senior lawyers at his former law firm, Nixon Peabody LLP. “We’re going to prove at trial that what was done was not criminal,” Mr. Stone says.

A Nixon Peabody spokeswoman says Mr. Tamman was fired in 2009 “as soon as we learned that he was under SEC investigation and he failed to explain his actions to us.” The law firm has asked a judge to throw out a wrongful-termination suit filed by Mr. Tamman.

A criminal trial last year shows how the SEC could face daunting hurdles in bringing enforcement actions against lawyers for providing bad advice.

“A lawyer should never fear prosecution because of advice that he or she has given to a client who consults him or her,” U.S. District Judge Roger Titus in Maryland ruled when dismissing all six charges against Lauren Stevens, a former lawyer at drug maker GlaxoSmithKline PLC. GSK +0.19%

Ms. Stevens was accused by prosecutors of lying to the FDA and concealing and falsifying documents related to an investigation by the U.S. agency. The federal judge refused to let a jury decide the case, saying that would risk a miscarriage of justice.

Reid Weingarten, a lawyer for Ms. Stevens, couldn’t be reached. A spokeswoman for the Justice Department declined to comment.

Despite the government’s defeat, “the mere fact she was charged sends a strong signal to other lawyers about the risks of being seen as less than forthcoming in their representation s to the government,” says Mr. Wood, the former federal prosecutor in Missouri. He now is a partner at law firm Hughes Hubbard & Reed LLP.


47 Responses

  1. I just watched Kingcast mortgage movies, about Fein,Such and Krane.Henry Fein, could be my ex’s double.

  2. […] IT Professionalssarbane oxleyThe SEC sued Deloitte Shanghai Almost shares in case of a new crisisHiding Behind Advice of Counsel No Better Than Ratings body {font-family:'lucida grande', Verdana, Sans-Serif;} h2, h3, h4, h5 ,h6 {color:#000000} h2 a, […]

  3. I have been slowly starting to do that. Have to be careful about using his name which is Michael R. Figat. Due to my son unfortunately being named fter the crook long ago. Son is Jr. Dad has had his own son falsely arrsted set up too many times to keep up with. Trying tomson in jail. So the a..h..e can walk off with the proceeds from a settlement son had from a Medical Malpractice lawsuit I had filed. Never knew it settled until I began doing reserch in the crooked clerks office.
    You are right. All are psycho nuts. The reason is that this began over 20 years ago, When the old went out the new were all psychos. All the good pretty much weeded out by now.

  4. @Nancy: one thing you can do as countermeasure is to publish his phony or real names, SS#s, loan numbers, addresses, and names of crooks you know are his accomplices.

  5. The notice to the bidders is: If you are considering bidding on this property lien, you should understand that there are risks involved in bidding at a trustee auction. You will be bidding on a lien, not on the property itself. Placing the highest bid at a Trustee auction does not automatically entitle you to free and clear ownership of the proprperty. You should also be aware that the lien being auctioned off may be a junior lien.”

    Is this common—-isnt this basically buying somebody’s position in a lawsuit—-? no warrantees? really–is this unusual?

  6. I could not post the article I tried over and over to post. Thanks for the info. This is close to my neighborhood and some of my familly and friends. Thanks for the link to King.5 I was off looking up info for a friend in need of foreclosure informantion in California. I have found something really interesting, between my sons fight with RECONTRUST, and MERS and his and his wifes fight with the same parties, only they are also fighting Suntrust and my son was also battling with BOA & BAC. Both of them have had RECONTRUST witdraw and in Micheals case, his forecloser was recinded and his sale at auction was recinded and RECONTRUST, withdrew all together alike my sons. Like my sons, the MERS fraud assignments were all removed. Trustee Corps then went in for the kill on Micheals mortgage and are now threatening forcloser as a debt collector. The notice to the bidders is: If you are considering bidding on this property lien, you should understand that there are risks involved in bidding at a trustee auction. You will be bidding on a lien, not on the property itself. Placing the highest bid at a Trustee auction does not automatically entitle you to free and clear ownership of the proprperty. You should also be aware that the lien being auctioned off may be a junior lien. If you are the highest bidder at the auction, you are or may be responsible for paying off all liens senior to the lien being auctioned off, propriority, and size of outstanding liens that may exist on this property by contacing the cotney recorder’s office or a title insurance company, either of which may charge you a fee for this information. If you consult either of these resourses, you should be aware that the same Lender may hold more than one mortgage or Deed of trust on the property. Then there is the letter: If the Trustee is unable to convey title for any reason, the successful bidder’s sole and exclusive remedy shall be the return of monies paid to the Trustee and the successful bidder shall have no further recourse.
    Why may I ask would anyone want to bid on this? 1) are they trying to discourage other bidders? 2) This tells me they know they are attempting to collect a debt and not a mortgage they know they do not own. They also know there is question to the clear title.

  7. One thing I am sure of is. It is without a doubt my former husband who stole my deed and filed th0se phony mortgages in my name. The handwriting is unmistakable. Lead me to a Pandoras box of crime he has been involved in since the 1980s. I am being harassed so bad that it is now effecting my health. Have not felt reallly well since 2005.
    My name also used on fraudulent mortgages on our marital home which I never got the real dded to either. The boomarang effect for him is. That he can’t sell it due to my real identity being on the real deed. My identity switched in 1988 using a fake marriage license.

  8. they use segments of numbers so you cannot do a typical google engine alphanumric match up——–the 7 digits you have could be in the middle –or at either end of the string–if they give numbers online they will gove say a 4 digit string that has 2 or three of your digits plus some of the missing three–easiest thing to chck is put 100 in front of you number and see if thats the plug

  9. Fein, Such and Crane are the lawyers on my foreclosure documents. On a house that I never got a deed to, made payments to HSBC Premier Mortgage on a different loan #. Payments sent to a Post Office box in Buffalo Ny. The notethat I still hve never signed says payments to be sent to an address in DEPEW NY. WHO GOT MY PAYMENTS?
    When I checked my loan# on HSBC Mortgage website it comes up with nothing.My loan # has 7 numbers. HSBC says enter your 10 digit loan #.???

  10. Four big banks paying $9.1M over leveraged ETFs

    businessweek.com / ap / 2012-05/D9UG450O2 . htm

    Citigroup, Morgan Stanley, UBS and Wells Fargo are paying a total $9.1 million to settle allegations by industry regulators that they sold billions of dollars of volatile investments without properly assessing their risks and whether they were suitable for some retail customers.

    … so-called leveraged and inverse exchange-traded funds Leveraged ETFs seek to multiply returns of a market index or benchmark, often in volatile areas such as commodities or currencies that involve derivatives like futures contracts and swaps

  11. “Skadden”

    ——————————————————————————–

    3 Registrants (Public Companies / Funds, Significant Individuals / Owners, et al.)
    First Last Filing Name Symbol Regulator #
    (more-likely to less-likely)
    4/9/04 2/28/07 Skadden Arps Slate Meagher & Flom LLP U.S. SEC # 889752
    1/10/94 5/3/12 Skadden Arps Slate Meagher & Flom LLP/FA U.S. SEC # 950172
    10/11/05 5/3/12 Skadden/FA U.S. SEC # 1341004

    ——————————————————————————–

    1 Group Member (Non-Registrant Filers: Partners, Affiliates, et al.)
    Last Filing Name

    12/1/06 Edgar@Skadden/COM [ with MACRO Securities Depositor/LLC ]

    ——————————————————————————–

    40 Names (Directors, Officers, Attorneys, Accountants, Bankers, Agents, et al.)
    Last Filing Signatory
    (more-likely to less-likely)
    5/4/12 Skadden, Arps
    3/1/12 Skadden, Arps, Slate Meagher
    3/2/12 Skadden, Arps, Slate Meagher & Flom LLP
    5/3/12 Skadden, Arps, Slate, Meagher
    4/7/12 Skadden, Arps, Slate, Meagher & Flom
    5/3/12 Skadden, Arps, Slate, Meagher & Flom LLP
    11/15/11 Skadden, Aps, Slate, Meagher & Flom LLP
    6/28/11 Skadden, Arps, Slate
    2/15/11 Skadden, Arps, Slate & Meagher & Flom LLP
    12/12/11 Skadden, Arps, Slate, Meager & Flom LLP
    11/14/11 Skadden, Arps, Slate, Meagher & Flom, LLP
    12/29/11 Skadden, Arps, Slate, Meagher and Flom LLP
    9/13/10 Skadden, Arps, Slate, Meager
    2/17/09 Skadden, Arps, Slate, Meagher
    12/18/09 Skadden, Arps, Slate, Meagher & Flom (UK) LLP
    2/17/09 Skadden, Arps, Slate, Meagher & Flom LLP
    1/29/08 Skadden, Arps, Slate, Meagher and Flom
    3/8/07 Skadden, Arps, Meagher
    10/26/06 Skadden Arps Slate Meagher and Flom LLP
    5/9/06 Skadden, Arps, Slate, Meagher & Flom (Illinois)
    2/16/06 Skadden, Arps, Slate, Meagher & From LLP
    5/5/05 Skadden, Arps, Slate, Meagher, Flom LLP
    11/23/05 Skadden, Arps, Slate, Meaghers & Flom LLP
    12/21/04 Skadden Arps, Slate, Meagher & Flom LLP
    8/24/04 Skadden, Arps, Slate, Meahger & Flom LLP
    9/26/03 Skadden Arps Slate Meagher
    12/29/03 Skadden Arps Slate Meagher & Flom LLP
    9/8/03 Skadden Arps, Slate
    6/2/03 Skadden, Arps, Meagher & Flom LLP
    12/11/03 Skadden, Arps, Slate, Meagher & Flom LLP
    4/24/00 Skadden, Arps, Slate, Meagher & Flom (Illinois)
    5/5/99 Skadden, Arps, Slate
    4/14/98 Skadden, Arps, Slate Meagher & Flom (Illinois)
    1/16/97 Skadden, Arps, Slate, Meagher & Flom (Delaware)
    9/30/97 Skadden. Arps, Slate, Meagher & Flom LLP
    3/7/96 Skadden Arps Slate Meagher & Flom
    10/2/96 Skadden Arps, Slate, Meagher
    6/12/96 Skadden, Arps, Slate Meagher & Flom
    12/19/94 Skadden Arps Slate
    5/10/94 Skadden Arps, Slate, Meagher & Flom

  12. 2 states—state where origination occurred–where security sits—for predatory loan issues and satisfaction–issues involving the maker and presumably indorsement–leading to holder in due course issues——because for example if there is recorded on real estate counry recorders office a Release and satisfaction of note and mortgage–then that would seem to affect holder in due course notice issues—-

    then 2nd state is NY or DElaware —do not forget Delaware–where the trust is estsblished –the UCC there must be satisfied to deal with the issue of properly filed Financing statements and trust loan schedules–to perfect the trust interst in the loans–ws the trust even formed if no loan schedule—–

    and gee you really make a good point–there is a big straddlle when indorsement occurs—-conflict of laws???

  13. @joann – according to an article I just read here:

    http://ezinearticles.com/?Service-of-Process,-Part-2&id=1906850

    a national bank may be served at the address listed not with any
    secretay of state but the one listed with the FDIC.

    If you file a lawsuit against a bankster in state court, their first move is to remove it to federal jurisdiction based likely on ‘diversity’ of state citizenship of the players. I’m not sure why they do this. I’d like to know, though. Another reason they cite is any amt in question over 75k. The only motion I have ever seen which was successful in getting a case remanded BACK to state court is the first one below. There may be clues in it about why the homeowner wanted it back in state court. The only thing I hear is that banksters think they’re better off in fed jurisdiction. Maybe an attorney will clue us in. Attorneys must know. It’s likely Venue 101 and has a lot to do with the law , including case law, (and procedure) applied in adjudication: state vrs federal.

    http://www.scribd.com/doc/49831184/REMAND-BACK-TO-STATE-COURT-FROM-DISTRICT-COURT

    Here are more clues:
    http://www.findtherightfentanylpatchlawyer.com/2009/08/plaintiffs-motion-to-remand-in-watson-fentanyl-patch-lawsuit.html

  14. Neil, have you ever considered that if you are right that the investors thru their intermediaries funded the loans which were pre-securitized mol that there was a failure by SOMEone(s) to register in each state as broker-dealers? Could that be the real reason for the ‘four’ in the chain, which is being sold as regarding bankruptcy remoteness? Even if not, shouldn’t someone have held a broker-dealer license if as you say WS ‘pre-securitized’ those loans?

    I can’t forget, either, that there’s a reason the city and state of execution
    is always on a note. It’s because that’s the state whose UCC contols the
    instrument (which may be one big reason litigation takes place there). Now, that was pre-securitization. Today we’ve got, (don’t we?) a
    second state’s laws to consider, namely NY trust law. It has heretofore been
    unheard of that one note would be subject to more than one state’s laws.
    How is this reconciled? Need it be reconciled? Or am I high?

  15. Here are some links to answers to f/c complaints with affirmative defenses. I dunno if anyone prevailed or not. I would hope people would look at them to get an understanding of what’s available as a legit defense to the banksters’ f/c actions and go from there. The first one is from this website in 2008 (!)

    http://livinglies.wordpress.com/2008/06/10/foreclosure-offense-and-defense-basic-rules-discovery-affirmative-defenses-and-audits/

    http://www.nazarethlegal.com/userfiles/file/Sample%20Answer.pdf

    http://www.scribd.com/doc/36645226/Foreclosure-Answer-With-27-Affirmative-Defenses

    http://mariokenny.wordpress.com/category/affirmative-defenses-and-audits/

    Also, for a judge or anyone to say an attorney shouldn’t be at risk of prosecution for bad advice to a client strikes me as nuts. There are a lot of dyed-in-the-wool liars-for-hire out there and to suggest they shouldn’t be nailed for ‘bad advice’, read lying, cheating, stealing, fabricating, etc., is absurd.

  16. I know this is lengthy, but I think it’s unavoidable. From the language at c(iii) below, B of A does not appear to be a hidc regarding CW’s notes, even if they were a successor in interest. Any attorney want to weigh in on this?

    U.C.C. – ARTICLE 3 – NEGOTIABLE INSTRUMENTS
    ..PART 3. ENFORCEMENT OF INSTRUMENTS

    ——————————————————————————–

    § 3-302. HOLDER IN DUE COURSE.
    •(a) Subject to subsection (c) and Section 3-106(d), “holder in due course” means the holder of an instrument if:
    ◦(1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
    ◦(2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in Section 3-306, and (vi) without notice that any party has a defense or claim in recoupment described in Section 3-305(a).
    •(b) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under subsection (a), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the instrument.
    •(c) Except to the extent a transferor or predecessor in interest has rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken (i) by legal process or by purchase in an execution, bankruptcy, or creditor’s sale or similar proceeding, (ii) by purchase as part of a bulk transaction not in ordinary course of business of the transferor, or (iii) as the successor in interest to an estate or other organization.
    •(d) If, under Section 3-303(a)(1), the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.
    •(e) If (i) the person entitled to enforce an instrument has only a security interest in the instrument and (ii) the person obliged to pay the instrument has a defense, claim in recoupment, or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument, does not exceed the amount of the unpaid obligation secured.
    •(f) To be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.
    •(g) This section is subject to any law limiting status as a holder in due course in particular classes of transactions.

    “Notice of dishonor” means the note is in default. (d) seems very significant. These yeahoos haven’t paid jack for their alleged
    interests. It’s kind of unintelligible at a glance, but the bottom line, I think, is if Bankster 9204 has only paid 100.00, its only a hidc as to that 100.00, and not the rest of the note, so mostly the note is subject to our affirmative defenses.

  17. @hamn – that appears to be some good info. We need a lot more like it. Here is a tidbit:

    Shared Risk Servicing Option and FNMA Guaranty
    Some servicers participate in what is calledl ‘Shared Risk Special Servicing Option”.
    Here is a quote from a FNMA prospectus:

    ” FNMA Guaranty”

    We guarantee to the MBS Trust that we will supplement amounts received by the MBS Trusts required to permit timely payments of principal and interest on the certifcates.”

    “Interesting” articulation…..

    It seems to me, then, that FNMA may have the option to buy the note back. I haven’t found this – yet – but it seems logical. ( But even that reduces an investor’s expected return) FNMA cannot have the ‘option’ to foreclose without buying the defaulted note – a foreclosure would result in a loss to the investor, such as would vitiate the guaranty. If FNMA has the option to foreclose without buying the note by taking the hit on the loss, it seems to me that this act would also vitiate the guaranty and result in a fractional-owner check for $1.24 in place of the anticipated return; it looks like its the return which is guaranteed, which is a distinction from ‘just’ the investment.
    Anyone?

    If FNMA does have the option of purchasing a defaulted note it has guaranteed, it is certainly not a holder in due course, having taken the note with notice of its dishonor (which is a death knell to hidc status), and is subject to any number of affirmative defenses.

    We seriously need a good and lengthy discussion of affirmative defenses. Most of us don’t know what they are to use them to our benefit. From what I can recall these days, an affirmative defense
    will shut down a mtn for dismissal or summary judgment because
    ‘justiciable issues’ remain. Right after we understand affirmative defenses, we need to learn to demonstrate that a court simply cannot make a legit decision without knowing if the bankster is a holder or a holder in due course – many defenses are available against a holder which are not available against a hidc. We have a right, an inalienable right, to assert appropriate defenses. It’s called ‘due process’, and we’re not getting any. If properly argued, this imo should lead to discovery of the facts in support of the bankster’s claim as to its status, and that’s what we want.
    There are reasons, easily identificable, which preclude a bankster from being a hidc. Similarly, the affirmative defenses are easily
    identifiable.
    I think we are looking for love in all the wrong places, not counting
    NG’s valuable contributions. Someone(s) here might be advancing an
    affirmative defense without knowing it. We’ll get more respect if we can properly frame our arguments.

  18. Tried to post this but would not do it so I am trying again.

    @ Shelley Erickson I am not sure if this is what you are referring to but King 5 on May 3rd, Linda Byron had a story about a family twice being serviced with eviction notices by the same man with a gun. This is the link that I found: http://www.king 5.com/investigators/Bank-errors-leave-Buckley-family-living-in-limbo-fearing-eviction-l49928695.htlm. This story shows how BofA$$holes has no control nor any knowledge about what is going on. BofA$$holes contaced the family/attorney involved to see if the foreclosure sale was recinded. The bank had no clue. What a wonderful day in the neighborhood.

  19. This is a claim I made due to this http. that I was just reminded of and will repost for newbees.http://livinglies.wordpress.com/2008/09/23/foreclosure-offense-and-defense-identity-theft-catching-on/

  20. TMT, I believe our entire government ran by attorneys most of them, would be out of a job. No offense meant to good honest attorney’s. My offense is intended to the offensive, unscrupulous attorneys only! They are as real as the good ones are real. Evil and good exhist in all things.

  21. Now my hairstylist says it may have been King 5. We are still researching it. Here is important information for homeowners with these parties involved. From a man that worked with Fieldtone.

    Subject: MERS repudiation by Fieldstone

    Josh,

    So my primary was refinanced through Fieldstone in 2007, while I was working there.

    Subject: Fieldstond Mortgage mentioned

    Steve,

    Did you know that Fieldstone repudiated its contract with MERS during its bankruptcy?

    http://abigailcfield.com/?page_id=108

  22. @Toile,

    Some unknown whom, whom told me “Shelley might get it but Toile, whom has been a tad obtuse lately and whom is hellbent on building bankers-killing devices, might not…”

    Whom was right, i guess. Knows you better than I…

  23. Regardless of whether or not you start the sentence with who or whom, “Who/ whom did you pay your mortgage TO?”, it’s errant for its dangling participle (as I recall mol ending a sentence with an adverb): it ends with the word ‘to’. Instead, “To whom did you pay your mtg?” is proper. I read shelley and anyone else here regardless of grammar, but when I read an attorney’s poor grammar, I don’t put much stock in anything he or she has to say. The number of times sentences don’t read in pleadings (blog, articles, etc.) is dismaying.
    (Alas, my own grammar is slipping, along with my memory). Guess it happens years out of school to some of us. I wonder what judges think when they see such poor grammar and structure. What’s more frustrating here at LL is when someone’s sentence structure, never mind poor grammar, is so bad one can’t tell what is being said.

  24. @ Enraged….OK….who did you see in the parking lot, and what was he/she carrying? And why did you pay this person your mortgage? I’m really confused.

  25. Shelly

    Thanks!

  26. http://www.huffingtonpost.com/2012/05/03/national-mortgage-settlement-expires-kamala-harris_n_1475793.html?ref=business

    National Mortgage Settlement Expires In 2015, Banks Battling To Keep Reforms From Becoming Permanent

    Okay…what would Kamala Harris do if she were shown the truth:

    1. In the subprime, only “collection rights” were assigned…no “funded loans”.

    2. You can’t put “collection rights” into a securitized trust. MBS were/are empty.

  27. http://www.ct.gov/ag/lib/ag/currentissues/mfs_servicing_standards_outline.pdf

    LINK TO FEDERAL-STATE MORTGAGE SERVICING SETTLEMENT – OUTLINE OF NEW SERVICE STANDARDS

  28. @TMT,

    Can’t do that.

    Ban the Lying, cheating and stealing and many cases can no longer be filed. Forbid bullying and intimidation and a whole profession will disappear. People will negotiate among themselves and there will no longer be a need for that adversarial system

    Look: in my county the big, big business is debt collection. Thousands are filed every single week. Not one of those cases ever contains the proper document. They all win by default (people are too scared of fighting in court). Can you see what would happen if you banned lying, stealing and cheating? We’re talking hundreds of thousands of people no one will need anymore!!!

    Not good for the country’s employment picture…

  29. Privity Rules against non-client lawyers need to be improved especially the ones that lying cheating and stealing. Stop the legal abuse syndrome.

  30. @Shelley,

    Thanks. And I made a typo: I meant to write “The man WHOM I saw in the parking lot…”

  31. Enraged I will try to break that bad habit. I usually try to put the parties name in and not use whom or who. Did not realize I was using who or whom so much.

  32. My sons case is MERS,& RECONTRUST, and they have undone his foreclosure, and filed a discontinuance of sale, RECONTRUST has withdrawn and left the State of Washington and the attorneys for RECONTRUST &MERS sent a letter to my son asking him to sign approval to represent Countrywide on the face of the case. He is in the Appeals court for fraud upon the court and lack of standing, So he refused and sent the letter in to prove admission of not representing the correct party.

  33. Joann, look up laws in your state that are the same or related to the laws on the WA V RECONTRUST case. AG McKenna states RECONTRUST IS NON IN COMPLIANCE TO STATE LAW, NOT REGISTERED TO BE DOING BUSINESS & Non compliance to WA CPA law, WA Deed of Trust law.

  34. Joanne, look up Washington State V RECONTRUST! I have this issue in my case from the very start, with Deutsche Bank, & MERS, none of them are registeredat to be doing business in any state. See OCC letter January 14, 2005, national banks are not preempted from state law. Also see Carpenter V Longan, 1872 US Supreme court. MERS separates the note from the deed of trust. See MERS bilaws listed and CEO depositions on stopforeclosurefraud.com and go to depositions. The CEO’s of MERS and the MERS bi laws state MERS can not be a beneficiary, or hold the note. I dont believe they are even a servicer. See http://www.bloomberg.com/news/2012-05-04/bank-loan-bundling-investigated-by-biden-schneiderman-mortgages.html, proving the securities pools are all empty therefore the debts are uncollectabel. I sent an FDCPA letter and a CEASE & DESIST letter of objection to their authority to collect this alleged debt that I did not owe them , that they and I know is uncollectable.

  35. Hman

    Thanks! Interesting.

    There has been an assignment and more now.

    I have searched the secretary of state site and that is why I was asking the question. Did search the business entites and proof of service addresses. That is why I was wondering a few things.

    My question (previous post) about NA (national association) relates to comments I have read here in the past that went over my head at the time that had something to do with jurisdiction (not only just the type of case and where to file) but where or if an entity was even registered to do business in the state – and NA maybe not – not at all sure what it was about right now and that;s why I threw it out there. Wonder what that was all about.

    When it comes to my searches on business entites and proof of service addresses on the secretary of state site…..One shows terminated, ect. (not looking at it right this minute) and that is the bankrupt one who now has a successor servicer/pretender. Another shows only the electronic proof of service company link – not actually a (not even in the entities name and wondering – legal place of doing business….?) – good enough to serve them there though and that is the successor servicer/pretender. Another cannot be found by any way shape or form of search and I don’t think they do business in this state even though they are the trustee for the trusts ( and a very big bank NA) of many mortgages here. Some time ago I phoned the Sec of State office and they are hard to reach (budget cuts) but the clerk seemed a bit familiar with the problem and said we don’t know either or similar remark.

    I am really not afraid to do anything at this point. Maybe I should just call up the bank (corporate trust administration) and ask for the proof of service address….
    .

  36. But that rule of confidentiality and the defines of advice of counsel vanishes when the conduct of the attorney or indeed a whole law firm is that of a co-conspirator. It is especially unavailable when you have a foreclosure mill that is forging, fabricating and filing documents on behalf of extremely well paying clients.

    Could somebody put some citations to this —some cases which state when the atty steps over the line? This is very important to all of us. Those of you who are defense attorneys—will you accuse your corrupt brothers and sisters?

  37. Joann,

    I’m not sure as to the first part of your question. I think the jurisdiction has to do with the type of claims you have.

    Anyway as far as suing the defunct “lender” you have to “serve” someone before you take them to court. It took me a lot of time to find the ex principal of the company. I had to dig a lot.

    I’m not sure what state you are in but I would start by looking at the secretary of state or any other agency that maintains business info in your state. I was able to find the ex principal’s name listed. Sometimes they even have the registered agent listed. I was able to get info from the registered agent and track the expresident down.

    In AZ there is a statue that allows you to send someone having an adverse claim on your property the option so send a quit claim instead of taking them to court.

    B. If a party, twenty days prior to bringing the action to quiet title to real property, requests the person, other than the state, holding an apparent adverse interest or right therein to execute a quit claim deed thereto, and also tenders to him five dollars for execution and delivery of the deed, and if such person refuses or neglects to comply, the filing of a disclaimer of interest or right shall not avoid the costs and the court may allow plaintiff, in addition to the ordinary costs, an attorney’s fee to be fixed by the court.

    If you are fortunate enough to get the quit claim signed, great. I would record it. If this can be done before an assignment is done I think you are in a good position. In AZ they only have 20 days to respond. After that I would file a lis pendens and take them to court. You ask to find them in default. If they don’t show you will win and record the default on the county recorder.

    When MERs goes to assign the DOT they will be in a pickle. Either they have to back date the assignment to before the closing on behalf of the defunct lender or they will assign it from the defaulted lender who has no interest in the loan.

    One other thing if you can’t track anyone down from the old lender you maybe able to file a notice on the secretary of state or whatever entity they were registered with to give notice. I’m not sure if this is valid but I’ve seen it done.

    This is not legal advice. Please consult an attorney before taking this advice. I’ve done this but I’m not sure yet how it will work as I haven’t yet went to court with the alleged servicer.

  38. OMG…. KingCast & Mortgage Movies present: Robo-signing: Fein Such Kahn name partner Henry Fein lied about his identity while hiding from camera.

    How can anyone trust Henry Fein’s ethics when you have a name partner at a major foreclosure mill using fake documents by Bethany Hood and Lender Processing Services and lying about his identity? Truly unbelievable. Here is your back story.

    http://mortgagemovies.blogspot.com/2012/05/kingcast-mortgage-movies-present-robo.html

  39. Could someone explain jurisdiction (which court can even hear it) for the NA banks (servicers and trustees for trusts) and addresses for proof of service (when not even listed as business entity on the secretary of state site – others with electronic service link only) and which level of courts you can even attempt to sue them? Also how do you name and serve the defunt bankrupt entity who is on all the critical docs as “beneficiary” when their entity
    shows “dissovled” “terminated” ect in a complaint?

  40. If the “why” word is used – at the root of robo signing and fraud docs was the empty trust . At the root of the empty trust was fraud on homeonwers and investors (in the trillions as in they paid many times over for nothing), tax evasion, securities fraud, money laundering and a ponzi scheme to pump it up and then dump it and profit many times over on every single default.

    Maybe just maybe mainstream will start to get a hint – might at least finally be making the connection from robo to empty – so will they get around to the next step – the why word needs to be asked over and over and the answer should not be blindly accepted for what is on the face of the bankster who answers it in court or otherwise….see Bloomberg article:

    http://www.bloomberg.com/news/2012-05-04/bank-loan-bundling-investigated-by-biden-schneiderman-mortgages.html

    A few choice excerpts:

    “The states are pursuing allegations that some home loans weren’t correctly transferred into securitizations, undermining investors’ stakes in the mortgages, according to two people with knowledge of the probes. They’re also concerned about improper foreclosures on homeowners as result, said the people, who declined to be identified because they weren’t authorized to speak publicly.

    “The attorneys general could create a lot of problems for the banks and for the trustees and for bondholders,” Gradman said. “I can’t imagine a better securities law claim than to say that you represented that these were mortgage-backed securities when in fact they were backed by nothing.”

    “The requirements for transferring documents were “frequently not complied with” and likely led to the failure to properly transfer loans “on a large scale,” Biden said in the complaint.

    “Most of this was done under the cover of darkness and anything that shines a light on these practices is going to be good for investors,” Talcott Franklin, an attorney whose firm represents mortgage-bond investors, said about the state probes. “
    “The failure to properly transfer possession of complete mortgage files has hindered numerous foreclosure proceedings and resulted in fraudulent activities,” the attorney general said in court documents.”

    And this from the bankster (and pseudo regulator) side:

    Laurence Platt, an attorney at K&L Gates LLP in Washington, disagreed that widespread problems exist with document transfers in securitization transactions that have impaired investors’ interests in mortgages. “There may be loan-level issues but there aren’t massive pattern and practice problems,” he said. “And even when there are potential loan-level issues, you have to look at state law because not all states require the same documents.”

    “Bank of America spokesman Rick Simon declined to comment about the claims made by states and investors. BNY Mellon performed its duties as defined in the agreements governing the securitizations, spokesman Kevin Heine said. ““We believe that claims against the trustee are based on a misunderstanding of the limited role of the trustee in mortgage securitizations,” he said.”

    Fixing Defects

    “Missing documents don’t have to prevent trusts from foreclosing on homes because the paperwork may not be necessary, according to Platt. Defects in the required documents can be fixed in some circumstances, he said. For example, a missing promissory note, in which a borrower commits to repay a loan, may not derail the process because there are laws governing lost notes that allow a lender to proceed with a foreclosure, he said.”

    “A review by federal bank regulators last year found that mortgage servicers “generally had sufficient documentation” to demonstrate authority to foreclose on homes.”

    “Teri Charest, a spokeswoman for Minneapolis-based U.S. Bancorp (USB), said the bank isn’t liable and doesn’t know if any party is at fault in the structuring or administration of the transactions. “If there was fault, this unhappy investor is seeking recompense from the wrong party,” she said. “We were not the sponsor, underwriter, custodian, servicer or administrator of this transaction.”

    “And here are a few choice excerpts from the comments section:
    There is a little something called the Statute of Frauds. All conveyances of land must be in writing. A mortgage (and assignments thereof) is a conveyance. Missing paperwork = unenforceable. At best these trusts are filled with a bunch of unsecured notes.”

    “A global solution is now required. Actual investor meet actual borrower. Work it out from there.”

    “Wrap a government guarantee around the legitimate transaction and we are where we should have been all along–a nation of homeowners, living in and contributing to our communities and free from the fear of a forced default by a claimant with no interest in the loan transaction at all.”

    “The article states “allegations that some home loans weren’t correctly transferred into securitizations.” Some? What about maybe ALL? Oh, and has the IRS been notified that the REMIC status possibly failed per trust and the banks owe “quazillions” in unpaid taxes and criminal indictments for tax evasion and fraud???”

    “Many of us have proved that our individual clients’ home mortgage obligations were not transferred to the trusts. It is very likely that the the trusts are empty of any assets at all. If the investors can get to the bottom of this, we can bring all the families back to their homes and they can start paying a negotiated amount to the investors. It will be a greater recovery than what the investors will get in damages from banks which failed to secure the investment as promised.”

  41. @Shelley,

    I waited and waited to say anything but I really have to since no one else will…

    There is a huge difference between WHO and WHOM and knowing when to use one versus the other may very well make or break your credibility..

    WHO is the subject. “Someone WHO was carrying something did this and that.” “A couple WHO had just bought…”

    WHOM is the object, whether direct or indirect: to WHOM it may concern. The man WHOM is saw in the parking lot. WHOM did you send your money to? Many people won’t read past the first line when grammar 101 is butchered and what happens is that, even if you had something very important to communicate, there are many people WHOM you will not reach.

    In doubt, drop WHOM altogether and stick with WHO. Most people will say “WHO did you pay your mortgage to?” Not perfect grammar but still much more acceptable and legible than that irritating WHOM you keep using as a subject of a verb. I skipped many of your posts because of it and I’m not the only one.

  42. What does that do for (against) Covington and Burling, if anything? After all, they gave their blessing to that MERS monstruosity and everything that follows derived directly from it…

  43. Off topic, but pretty scarey! I am trying to find a link to this new cast. One of my hair stylist in the spa, tells me May 3, 2012 11:00 KOMO 4 news, stated a couple whom had just purchased a foreclose home in Bonneylake Washington, were confronted by a party claiming to be from BOA, whom was carring a “SHOT GUN” told them the house is in foreclosure. I am digging into this and will get back with info if I can find it. CARRING A SHOT GUN! I am told Dan Lewis was the news man. Please anyone with info on this, post it.

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