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“Foreclosure judges don’t realize that they are entering orders and judgments on cases that are not in front of them or in which they have any jurisdiction. Foreclosure Judges are forcing bad loans down the throat of investors when the investor signed an agreement (PSA and prospectus) excluding that from happening. The problem is that most lawyers and pro se litigants don’t know enough to make that argument. The investor bought exclusively “good” loans. Foreclosure judges are shoving bad loans down their throats without notice or an opportunity to be heard. This is a classic case of necessary and indispensable parties being ignored.”
— Neil F Garfield, www.livinglies.me
Editor’s Comment: About three times per week, something occurs to me about what is going on here and then I figure it out or get the information from someone else. The layers of the onion are endless. But this one is a showstopper. When I started blogging in October 2007 I thought the issue of necessary and indispensable parties John Does 1-1000 and Jane Roes 1-100 were important enough that it would slow if not stop foreclosures. The Does are the pension funds and other investors who thought that they were buying mortgage bonds and the Roes were the dozens of intermediaries in the securitization chain.
Of course we know that the Does never got their bond in most cases, and even if they did they received it issued from a “REMIC” vehicle that wasn’t a REMIC and which did not have any money or bonds before, during or after the transaction. Instead of following the requirements of the Prospectus and Pooling and Servicing Agreement, the investment banker ignored the securitization documents (i.e., the agreement that induced the investor to advance the funds on a forward sale — i.e., sale of something the investment bank didn’t have yet). The money went from the investor into a Superfund escrow account. It is unclear as to whether the gigantic fees were taken out before or after the money went into the Superfund (my guess is that it was before). But one thing is clear — the partnership with other investors far larger than anything disclosed to the investors because the escrow account was from all investors and not for investors in each REMIC, which existed only in the imagination of the CDO manager at the investment bank that cooked this up.
We now know that in all but a scant few cases, the loan was (1) not documented properly in that it identified not the REMIC or the investor as the lender and creditor, but rather a naked straw-man that was a thinly capitalized or bankruptcy remote relationship and (2) the loan that was described in the documentation that the homeowner signed never occurred. The third thing, and the one I wish to elaborate on today, is that even if the note and mortgage were valid (i.e., referred to any actual transaction in which money exchanged hands between the parties to the agreements and documents that borrower signed) they never made it into the “pools” a/k/a REMICs, a/k/a Special Purpose Vehicle (SPV), a/k/a/ Trust (of which there were none according to my research).
The fact that the loan never made it into the pool is what caused all the robo-signing, fabrication of documents, fraudulent documents, forgeries, misrepresentations and corruption of both the title system and the court system. Because if the loan never made it into the pool, the investment banker and all the intermediaries that were used were depending upon a transaction that never took place at the level of the investor, to wit: the loan was not in the pool, the originator didn’t lend the money and therefore was not the lender, and the “mortgage” or “Deed of trust” was useless because it was the tail of a tiger that did not exist — an enforceable note. This left the pools empty and the loan from the Superfund of thousands of investors who thought they were in separate REMICS (b) subject to nothing more than a huge general partnership agreement.
But that left the note and mortgage unenforceable because it should have (a) disclosed the lender and (b) disclosed the terms of the loan known to the lender and the terms of the loan known to the borrower. They didn’t match. The answer was that those loans HAD to be in those pools and Judges HAD to be convinced that this was the case, so we ended up with all those assignments, allonges, endorsements, forgeries, improper notarizations etc. Most Judges were astute enough to understand that the documents were fabricated. But they felt that since the loan was valid, the note was real, the mortgage was enforceable, the issues of where the loan was amounted to internal bookkeeping and they were not about to deliver to borrowers a “free house.” In a nutshell, most Judges feel that they are not going to let the borrower off scott free just because a document was created or executed improperly.
What Judges did not realize is that they were adjudicating the rights of persons who were not in the room, not in the building, and in fact did not even know the city in which these proceedings were being prosecuted much less the fact that the proceedings even existed. The entry of an order presuming or stating that the loan was in fact in the pool was the Judge’s stamp of approval on a major breach of the Prospectus and pooling and servicing agreement. It forced bad loans down the throat of the investors when their agreement with the investment banker was quite the contrary. In the agreements the cut-off was 90 days after closing and required a fully performing mortgage that was originated utilizing industry standards for due diligence and underwriting. None of those things happened. And each time a Judge enters an order in favor of for example U.S. Bank, as trustee for JP Morgan Chase Bank Trust 1234, the Judge is adjudicating the essential deal between the investor and the investment banker, forcing the investor to accept bad loans at the wrong time.
Forcing the investors to accept bad loans into their pools, probably to the exclusion of the good loans, created a pot of s–t instead of a pot of gold. It isn’t that the investor was not owed money from the investment banker and that the money from the investment banker was supposed to come from borrowers. It is that the pool of actual money sidestepped the REMIC document structure and created a huge general partnership, the governance of which is unknown.
By sidestepping the securitization document structure and the agreements, terms, conditions and provisions therein, the investment banker was able, for his own purposes, to claim ownership of the loans for as long as it took to buy insurance making the investment banker the insured and payee. But the fact is that the investment banker was at all times in an agent/fiduciary relationship with the investor and ALL the proceeds of ALL insurance, Credit Default Swaps, guarantees, and credit enhancements were required to be applied FIRST to the obligation to the investor. In turn the investor, as the real creditor, would have reduced the amount due from the borrower on each residential loan. This means that the accounting from the Master Servicer is essential to knowing the actual amount due, if any, under the original transaction between the borrower and the investors.
Maybe “management” would now be construed as a committee of “trustees” for the REMICs each of whom was given the right to manage at the beginning of the PSA and prospectus and then saw it taken away as one reads further and further into the securitization documents. But regardless of who or what controls the management of the pool or general partnership (majority of partners is my guess) they must be disclosed and they must be represented in each and every foreclosure and Trustees on deeds of trust are creating huge liability for themselves by accepting assignments of bad loans after the cut-off date as evidence of ownership fo the loan. The REMIC lacked the authority to accept the bad loan and it lacked the authority to accept a loan that was assigned after the cutoff date.
Based upon the above, if this isn’t a case where necessary and indispensable parties is the key issue, I do not know of one — and I won the book award in procedure when I was in law school besides practicing trial law for over 30 years.
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Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: CDO, credit default swaps, credit enhancements, creditor, escrow, Foreclosure judges, general partnership, homeowner, investment banker, JP Morgan Chase, lender, Master Servicer, pool, Pooling and Servicing Agreement, Prospectus, PSA, REMIC, straw-man, Superfund, U.S. Bank |
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“…if a purported assignment does not comply with the PSA, there was no assignment. In distinguishing cases which do not permit an “attack” on an assignment, the Court held that if there is no assignment in compliance with the (securitized trust) documents, then no assignment occurred, and as such the argument is not that there is an attack on an assignment, but that no assignment took place at all.”
Yahoo! (re: Jeff Barnes’ case)
Frankly, Scarlett, some people CAN file Chapter 11 and get rid of the bankster when the assgt has not been recorded. Here’s a clue (not the most complete explanation, but what I had available):
http://www.scribd.com/doc/79044012/Avoidance-of-Unrecorded-Assignments-of-Deeds-of-Trust
Good questions, Miss Scarlet. Wish we had answers. It takes an awful lot of patience to wait, wait, wait, while inroads against this tyranny are found. They’re there. I know it. The one thing I have suggested is that we ask for a more definitive statement (in just what format we make the request or even demand I’m not exactly sure, but lawyers should know) as to whether the bankster is claiming as a holder or hidc and go from there. I can’t frame the argument just yet, but imo there is no way a court can find the matter insignificant.
The first thing a bankster allegedly in possession of a note it’s trying to enforce is going to sqwauk is that it isn’t relevant. Hell it’s not. And what we’re after with that (besides our legitimate defenses against a mere holder, of course) is discovery, at least to the extent that the bankster must prove when and what it paid for the note to determine it’s holder v hidc status.
As to any alleged holder, one might at least try estoppel based on the two pleadings I have wherein the banksters and or MERS aver that these notes are not regulated by Art III of the UCC, which is the part of the UCC which provides for enforcement of bearer notes. Can’t formulate those arguments yet either, if I ever could. Attorneys might be able to. Might be good if only against the banksters who pretty much swore to that.
And Matt Weidner (I know this thanks to Carie’s link the other day) is making inroads on having the noteowner v. servicer certify the complaint. (think that’s now what it is in NY)
Are assignments still claiming to assign notes? Haven’t seen one lately. There’s always that attack. And a reminder, the Koontz court (google, yahoo, I have the decision, w/e, get it, then Pacer the pleadings) found the self-assignments of the dot to be fraudulent. So can borrow the successful arguments made in that case.
@DCB,
I hear you. Every state has an Unfair and Deceptive Business/trade practices statute which can allow anyone to get treble damages. BUT it is a hell of a lot easier to prove negligence that intentional wrong.
You ought to know that… As homeowners, we would be better advised to go for negligence (and be assured a win) that go for intentional wrong and miss the boat.
History of crooked judges & system from mouths of a judge & a lawyer: http://www.youtube.com/watch?v=55ofj3W6VUk&feature=related
@enraged: u’r right on point. the B-report is a usual reality spin to make more add to the sheep effect… in reality I think 4 out of 4 are underwater…
@Guest,
I must be missing something… Where do people get any money to pay anything off? And how can equity go up when 1 in 4 people is underwater? Yeah. I’m missing something…
re: IGNORANCE IS STRENGTH: http://www.bloomberg.com/news/2012-06-14/americans-see-biggest-home-equity-jump-in-60-years-mortgages.html
judges were bought long ago with free mortgages, like Senator Dodd, or with other bribes, right after the country was fed the 9/11 crap, and continues as they plunder peoples homes.
Any reason you guys have kept that Chase account and are still paying your mortgage and your credit card bills? Well then. Don’t complain.
http://seekingalpha.com/article/671271-why-the-senate-won-t-touch-jamie-dimon-jpm-derivatives-prop-up-u-s-debt
Why The Senate Won’t Touch Jamie Dimon: JPM Derivatives Prop Up U.S. Debt
June 20, 2012 | 4 commentsby: Ellen Brown | about: JPM When Jamie Dimon, CEO of JPMorgan Chase Bank (JPM), appeared before the Senate Banking Committee on June 13, he was wearing cufflinks bearing the presidential seal. “Was Dimon trying to send any particular message by wearing the presidential cufflinks?” asked CNBC editor John Carney. “Was he… subtly hinting that he’s really the guy in charge?”
The groveling of the Senators was so obvious that Jon Stewart did a spoof news clip on it, featured in a Huffington Post piece titled “Jon Stewart Blasts Senate’s Coddling Of JP Morgan Chase CEO Jamie Dimon,” and Matt Taibbi wrote an op-ed called “Senators Grovel, Embarrass Themselves at Dimon Hearing.” He said the whole thing was painful to watch.
“What is going on with this panel of senators?” asked Stewart. “They’re sucking up to Jamie Dimon like they’re on JPMorgan’s payroll.” The explanation in a news clip that followed was that JPMorgan Chase is the biggest campaign donor to many of the members of the Banking Committee.
That is one obvious answer, but financial analysts Jim Willie and Rob Kirby think it may be something far larger, deeper, and more ominous. They contend that the $3 billion-plus losses in London hedging transactions that were the subject of the hearing can be traced, not to European sovereign debt (as alleged), but to the record-low interest rates maintained on U.S. government bonds.
The national debt is growing at $1.5 trillion per year. Ultra-low interest rates MUST be maintained to prevent the debt from overwhelming the government budget. Near-zero rates also need to be maintained because even a moderate rise would cause multi-trillion dollar derivative losses for the banks, and would remove the banks’ chief income stream, the arbitrage afforded by borrowing at 0% and investing at higher rates.
The low rates are maintained by interest rate swaps, called by Willie a “derivative tool which controls the bond market in a devious artificial manner.” How they control it is complicated, and is explored in detail in the Willie piece here and Kirby piece here.
Kirby contends that the only organization large enough to act as counterparty to some of these trades is the U.S. Treasury itself. He suspects the Treasury’s Exchange Stabilization Fund, a covert entity without oversight and accountable to no one. Kirby also notes that if publicly-traded companies (including JPMorgan, Goldman Sachs (GS), and Morgan Stanley (MS)) are deemed to be integral to U.S. national security (meaning protecting the integrity of the dollar), they can legally be excused from reporting their true financial condition. They are allowed to keep two sets of books.
Interest rate swaps are now over 80 percent of the massive derivatives market, and JPMorgan holds about $57.5 trillion of them. Without the protective JPMorgan swaps, interest rates on U.S. debt could follow those of Greece and climb to 30%. CEO Dimon could, then, indeed be “the guy in charge”: he could be controlling the lever propping up the whole U.S. financial system.
Hero or Felon?
So should Dimon be regarded as a national hero? Not if past conduct is any gauge. Besides the recent $3 billion in JPMorgan losses, which look more like illegal speculation than legal hedging, there is JPM’s use of its conflicting positions as clearing house and creditor of MF Global to siphon off funds that should have gone into customer accounts, and its responsibility in dooming Lehman Brothers by withholding $7 billion in cash and collateral. There is also the fact that Dimon sat on the board of the New York Federal Reserve when it lent $55 billion to JPMorgan in 2008 to buy Bear Stearns for pennies on the dollar. Dimon then owned nearly three million shares of JPM stock and options, in clear violation of 18 U.S.C. Section 208, which makes that sort of conflict of interest a felony.
Financial analyst John Olagues, a former stock options market maker, points out that the loan was guaranteed by $55 billion of Bear Stearns assets. If Bear had that much in assets, the Fed could have given it the loan directly, saving it from being swallowed up by JPMorgan. But Bear did not have a director on the board of the NY Fed.
Olagues also notes that JPMorgan received an additional $25 billion in TARP payments from the Treasury, which were evidently paid off by borrowing from the NY Fed at a very low 0.5%; and that JPM executives received some very large and highly suspicious bonuses called Stock Appreciation Rights and Restricted Stock Units (complicated variants of employee stock options and restricted stock). In 2009, these bonuses were granted on the day JPMorgan stock reached its lowest value in five years. The stock quickly rebounded thereafter, substantially increasing the value of the bonuses. This pattern recurred in 2008 and 2012.
Olagues has evidence of systematic computer-generated selling of JPMorgan stock immediately prior to and on the dates of the granted equity compensation. Collusion to manipulate the stock to accommodate the grant of options is called “spring-loading” and is a violation of SEC Rule 10 b-5 and tax laws, with criminal and civil penalties.
All of which suggests we could actually have a felon at the helm of our ship of state.
There is a movement afoot to get Dimon replaced on the Board, on the ground that his directorship represents a clear conflict of interest. In May, Massachusetts Senate candidate Elizabeth Warren called for Dimon’s resignation from the NY Fed board, and Vermont Senator Bernie Sanders has used the uproar over the speculative JPM losses to promote an overhaul of the Federal Reserve. In a release to reporters, Warren said:
“Four years after the financial crisis, Wall Street has still not been held accountable, and that lack of accountability has history repeating itself—huge, risky financial bets leading to billions in losses. It is time for some accountability. . . . Dimon stepping down from the NY Fed would be at least one small sign that Wall Street will be held accountable for their failures.”
But what chance does even this small step have against the gun-to-the-head persuasion of a nightmare collapse of the entire U.S. debt scheme?
Propping Up a Pyramid Scheme
Is there no alternative but to succumb to the Mafia-like Wall Street protection racket of a covert derivatives trade in interest rate swaps? As Willie and Kirby observe, that scheme itself must ultimately fail, and may have failed already. They point to evidence that the JPM losses are not just $3 billion but $30 billion or more, and that JPM is actually bankrupt.
The derivatives casino itself is just a last-ditch attempt to prop up a private pyramid scheme in fractional-reserve money creation, one that has progressed over several centuries through a series of “reserves”—from gold, to Fed-created “base money,” to mortgage-backed securities, to sovereign debt ostensibly protected with derivatives. We’ve seen that the only real guarantor in all this is the government itself, first with FDIC insurance and then with government bailouts of too-big-to-fail banks. If we the people are funding the banks, we should own them; and our national currency should be issued, not through banks at interest, but through our own sovereign government.
Unlike Greece, which is dependent on an uncooperative European Central Bank for funding, the U.S. still has the legal power to issue its own dollars or borrow them interest-free from its own central bank. The government could buy back its bonds and refinance them at 0% interest through the Federal Reserve—which now buys them on the open market at interest like everyone else—or it could simply rip them up.
The chief obstacle to that alternative is the bugaboo of inflation, but many countries have proven that this approach need not be inflationary. Canada borrowed from its own central bank effectively interest free from 1939 to 1974, stimulating productivity without creating inflation. Australia did it from 1912 to 1923, and China has done it for decades.
The private creation of money at interest is the granddaddy of all pyramid schemes; and like all such schemes, it must eventually collapse, despite a quadrillion dollar derivatives edifice propping it up. Willie and Kirby think that time is upon us. We need to have alternative, public and cooperative systems ready to replace the old system when it comes crashing down.
See whay happens? To give them a country, you pay them and their neighbors billions yearly so that there are no wars, you fight for them every step of the way and… a the first opportunity, they come and S*%! on your shoes.
With freinds like thaqt, who needs enemies?
http://mycatbirdseat.com/2012/06/us-aiming-at-israeli-banks/
US Aiming at Israeli Banks
My Catbird Seat June 20, 2012 1
U.S. Department of Justice indicted Swiss branches of Bank A, and Bank B, large financial institutions headquartered in Tel-Aviv with branches and representations across several countries worldwide,’ including banking operations in Luxembourg.
by Chana Ya’ar / CNI
Arutz Sheva – Swiss branches of two Israeli banks have been indicted by the U.S. Department of Justice for allegedly helping Americans conceal their offshore assets. The indictment, filed June 14 with the U.S. District Court in California, centers on United Revenue Services, Inc. (URS), a California and Nevada-based tax preparation firm.
The company is headed by dual Israeli-U.S. citizens father and son David and Nadav Kalai, who were also charged along with their Israeli employee, David Almog, with assisting clients to open offshore shell entities with accounts at Swiss branches of Israeli banks. In one instance, a case also involved an account at an Israeli bank whose branch was located in Tel Aviv.
The issue involves the failure to file an FBAR (“Foreign Bank Account Report”) form with the U.S. Internal Revenue Service (IRS) for annual tax returns. The FBAR lists the monies held in foreign bank accounts owned by American citizens.
The probe, which began with audits of individual U.S. taxpayers, eventually shifted to intermediaries.
Enforcement actions were then initiated against URS and Credit Suisse, ultimately forcing the two to reveal the identities of thousands of U.S. account holders to the United States government.
“Bank A was a large financial institution headquartered in Tel-Aviv, Israel. Bank A currently describes itself as maintaining a ‘premier position in the world of international private banking’ with private bankers who will be a customer’s ‘loyal and discreet consultant.’
“Bank A currently advertises that it has ‘more than 336 branches and representations across 18 countries worldwide,’ including banking operations in Luxembourg (“hereinafter ‘Bank A Luxembourg”).”
The indictment goes on to list the second bank headquartered in Tel-Aviv, Israel, also unnamed. “Bank B offered private banking services it currently describes as being tailored to a customer’s ‘preferred communications channels and information’ while ‘maintaining total discretion.’ Bank B advertises a ‘worldwide presence on four continents through subsidiaries, brances, and representative offices,’ including a branch of its Swiss banking operations located in Luxembourg (hereinafter ‘Bank B Switzerland-Luxembourg Branch’).”
U.S. citizens, resident aliens and legal permanent residents (people with ‘green cards’) are required to file an individual income tax return with the IRS reporting their worldwide income for year year, if their gross income exceeds a certain amount. The IRS requires on Form 1040, Schedule B, Part III, Line 7a, explains the indictment, that every taxpayer answer the following question by checking ‘yes’ or ‘no’: ‘At any time during [the calendar year] dud you have an interest in or a signature or other authority over a financial account in a foreign country…. ?” If yes, further information is required.
Some of the records date back as far as 2001, and unreported income amounts are as low as $483 in one case. A number of firms are named together with unindicted co-conspirators whose initials only are noted. Among the companies named as having been involved in filing false tax returns are Antelope Int’l Ltd., in Belize, Quattro International Consulting, Falcon Corporate Holdings, Ltd., in the Cayman Islands, PFL Management, Inc., Arcos Iris Investments, Inc. in Belize, Platinum Partners I, and others.
“U.S. residents with an aggregate of $10,000 in any foreign account in one particular calendar year must fill out a Department of Treasury Foreign Bank and Financial Accounts Report, (FBAR) form TD F 90-22.1, due by June 30 of the following year,” theindictment reminds.
Alert for Americans Living in Israel
This is particularly relevant to Americans living in the State of Israel at present, because over the past year, a new initiative has been launched which the IRS has calls the ‘Erroneous Refund Credit Project.’ Thousands of American citizens who filed legitimate, correct tax returns from Israel discovered this year they are under investigation and are being audited by the IRS for fiscal years 2009 and 2010.
According to an IRS source who requested anonymity because he was not authorized to speak with media, there are three “red flags” that at present are “almost automatically” triggering an audit of tax returns filed by Americans living in Israel:
1. the family for some reason is exempt from paying taxes in the US
2. the family is eligible to receive a refundable tax credit, such as the child tax credit
3. the family is not living in the United States (and is residing in Israel).
Unstated, but under particular scrutiny are joint returns that are filed, particularly those listing numerous children, the source said. “We have found a number of those who claim children that actually do not exist, or who are not legitimately American citizens,” he said.
Audit forms, and the lists of documents demanded in order to prove one’s compliance with U.S. government laws, are pages long and can include details such as listing one’s whereabouts during every single trip abroad, literally hour by hour, and the income — if any — derived during those times and the source from which it came.
The IRS audit demands can be daunting, but the consequences of not complying with them even more so. Such audits can be ameliorated, but individual cases must be addressed each in different ways. Readers are strongly advised to consult your personal tax accountant and if audited, to also contact the individual IRS tax auditor listed on the form
The LOAN DOCS in any Securitization Loan NEVER MADE IT TO THE TRUST. How to tell??
Plaintiff delivers the NOTE with BLANK ENDORSEMENT. PSA says ” Specific Endorsement ” but somehow yours is Blank.
Maybe IDIOT FL Judges are wising-up, and tired of the Ol UCC-3 defense?
Foreclosure sale was not bid rigging, supremes rule
by Curtis Wackerle, Aspen Daily News Staff Writer
Tuesday, June 19, 2012
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The Colorado Supreme Court on Monday ruled in favor of bidders at a 2007 foreclosure auction for an Aspen condo who were accused by the former owner of collusion and bid rigging.
The case of Amos v. Aspen Alps 123, LLC, stems from the foreclosure sale conducted in February 2007 for a condo in the slopeside Aspen Alps complex that was owned by Betty Amos and the estate of her late husband Thomas Righetti. Amos had used the condo as collateral for a $1.6 million loan that had fallen into default, and Equitable Bank of Florida, which made the loan, initiated foreclosure proceedings.
The bank submitted a credit bid of $1.6 million, and three other bidders participated in the auction on the Pitkin County Courthouse steps. They were Debra Mayer of Aspen, Mike Seguin of Aspen and Thomas Griffin, who was there on behalf of James Flaum, of the Vail area. The initial bidding was competitive, and Seguin submitted what was ultimately the final bid of $1.86 million.
However, according to legal documents on file in the case, after Seguin entered the $1.86 million bid, Griffin suggested that “instead of bidding the property up further and further,” the three parties stop bidding and form an LLC which would allow them to split the purchase three ways. All agreed, and they formed Aspen Alps 123, LLC, which was granted title to the condo by the Pitkin County Public Trustee in August 2007.
At issue in the case was whether the agreement, made by three people who had never met before the auction, was merely “joint bidding,” which is permissible, or rose to the level of “bid rigging,” which violates state and federal antitrust laws. The difference, according to relevant case law, is that joint bidding occurs when two or more people pool their resources to buy a property that they could not have afforded individually. Bid rigging is when parties collude to stifle competition.
In a 6-1 vote, the justices found that “we cannot say based on the limited evidence in the record that the purpose of the individuals joining to purchase the property was to eliminate, reduce, or interfere with competition.” Chief Justice Michael Bender, however, wrote a dissenting opinion and found that bid rigging did occur.
Amos also contended that the sale should be voided because the bank failed to properly notice the foreclosure sale to the estate, which included Righetti’s daughter, Brandy Righetti. Judges at the district and appellate court level never supported this argument, because Amos herself — who is a representative of the estate — was properly noticed. One of the seven Supreme Court justices wrote a dissenting opinion in favor of Amos’ arguments on the notice issue, but no other justices concurred.
The bidders were represented in the case by attorneys Chris Bryan and Matthew Ferguson of the Garfield and Hecht law firm, while Amos and her husband’s estate were represented by Wiley Mayne and Steven Collis of the Holland and Hart law office in Denver.
Amos initially tried to redeem the property by paying off the debt to the bank as allowed by foreclosure rules within 75 days after the auction. While she wired the necessary funds to reclaim the property on the last possible day, the public trustee never received an intent-to-redeem letter, according to court documents. Aspen Alps 123 exercised its right to veto the redemption.
Amos first initiated legal action on the grounds that she should have been allowed to redeem the property. But about 45 days prior to the 2008 trial before Judge Denise Lynch of the 9th Judicial District, her attorneys introduced the bid rigging charge, claiming it had just been brought to their attention. The trial was before Lynch only, and she ruled against Amos. Lynch did not allow Amos to amend the complaint due to the short notice, and discovery was limited in regards to the bid rigging charge. The court did allow the bid rigging theory to be used as a defense at the trial, but ruled in favor of Aspen Alps 123.
The Colorado Court of Appeals reversed Lynch in 2010, finding that bid rigging did occur, but the supremes upheld the trial court.
In backing the bidders, the court relied on testimony they offered during the initial trial, when Mayer and Flaum said that the bidding had exceeded the funds they had at their disposal. Mayer stopped bidding at $1.75 million, and Griffin was authorized by Flaum to spend no more than $1.8 million, according to the testimony. It was Mayer’s testimony that after Seguin had entered the $1.86 million bid, Griffin suggested the parties “stop bidding the property up further and further” and the three agree to a joint-purchase arrangement.
The Supreme Court, in its 20-page majority opinion, noted that the joint purchase arrangement did not shut any other bidders out of the process, because no one else was participating in the auction.
Amos’ attorneys assert in their opening brief to the Supreme Court that the property’s market value in 2007 was between $3.25 and $3.5 million, and that the agreement between the three parties was clearly an illegal conspiracy.
“The truth is we will never know what would have happened if Griffin had not offered the illegal bargain,” says the brief, written by Mayne.
Chief Justice Bender, in his dissenting opinion, cited the bidders’ own admitted intentions to stop the bidding process and keep the price from rising further. Justices in the majority are basing their exoneration of the bidders on the “self-serving testimony” that neither Mayer nor Flaum could afford to match Seguin’s final bid, he wrote.
“The existence of a conspiracy to rig an auction is neither dependent on the success of the conspiracy nor on any showing that the agreement injured the seller by negatively impacting the final sale price,” Bender wrote. “In the present matter, the parties explicitly agreed to stop bidding to prevent the auction price from rising. This is the definition of anti-competitive behavior.”
The property, still owned by Aspen Alps 123, is part of the Aspen Alps rental pool. It is currently valued by the Pitkin County Assessor at $2.02 million
curtis@aspendailynews.com
June 18, 2012
The past two weeks have seen positive strides in foreclosure defense, especially the compelling of securitization discovery and permitting borrower attacks on foreclosures.
A Florida Judge denied summary judgment in Duval County, Florida where the corporate borrower had been representing itself and had filed responsive pleadings late. The foreclosing party sought a court default and summary judgment, but the Court denied both Motions and granted the Motion filed by Jeff Barnes, Esq. (who represents the borrower) to vacate any default and to serve an Answer to the Complaint. Another Judge in Osceola County, Florida compelled discovery sought by Mr. Barnes in another securitization case over the objection of the foreclosing Plaintiff.
In a case pending in New Jersey where the Court had compelled the foreclosing Plaintiff to produce securitization discovery four (4) separate times, the Court dismissed the action after the subject discovery was not produced. The foreclosing Plaintiff has sought to reinstate the case, arguing with the Judge that it should not be compelled to produce the discovery that the Court has already ordered four (4) separate times. The Court has ordered that the discovery, including depositions, be completed by a date certain or the case will wind up being the first foreclosure case in New Jersey which is dismissed with prejudice for repeated discovery violations. The borrowers are represented by Jeff Barnes, Esq. and local NJ counsel Daniel Schmutter, Esq.
Several of the “banks” are utilizing removal of state court cases to Federal court in an apparent effort to stave off discovery obligations incident to the borrower’s state court discovery. These “banks” are just delaying the inevitable, especially in light of a recent decision from the New Hampshire Federal Court which held that if a purported assignment does not comply with the PSA, there was no assignment. In distinguishing cases which do not permit an “attack” on an assignment, the Court held that if there is no assignment in compliance with the (securitized trust) documents, then no assignment occurred, and as such the argument is not that there is an attack on an assignment, but that no assignment took place at all.
A Florida appellate court has also reversed summary judgment where court-ordered securitization discovery, including all documents referred to or attached to the PSA, were not produced.
We thank our readers for providing us with these new decisions.
Jeff Barnes, Esq., http://www.ForeclosureDefenseNationwide.com
Prosecuting Former Athletes, Not Banksters
Posted on June 19th, 2012 by Mark Stopa
In the wake of Roger Clemens’ acquittal, I feel compelled to write an open letter to the U.S. Government. (For those of you non-sports fans, Clemens was the best baseball pitcher of our generation, but like other star players such as Mark McGwire, Sammy Sosa, and Barry Bonds, is widely believed to have used steroids. The U.S. Government charged him criminally for lying to Congress about his past steroid use, and after his first trial ended in a mistrial, he was just acquitted of all charges.)
Dear U.S. Government,
Please stop wasting your time and our money trying to get convictions against former athletes. The public at large knows most of these athletes, like Roger Clemens, probably used steroids, and many of them lied about it. But we don’t care. Do you hear me? WE DON’T CARE. We might have cared, perhaps a little, but we’re too busy being thoroughly disgusted at how various criminal banksters have committed fraud and theft on a massive, widescale basis, prompting an unprecedented financial bailout and essentially destroying the world economy, yet there are no criminal prosecutions for that misconduct.
Why do you care so much about Clemens – whose impact on the world right now is zero – yet care so little about those persons who caused America to suffer through the Great Recession? Don’t you realize how badly this makes you look in the eyes of most Americans? (Well, those who are awake, anyway?)
Here’s an idea for you … take the resources you’ve spent prosecuting former athletes and apply them towards prosecutions of those persons responsible for destroying the world economy. If you do that, and you put these criminal banksters before a jury, trust me … unlike Clemens and Bonds, you’ll get convictions.
What’s that? You don’t want convictions of these criminal banksters? Why is that, exactly? (Crickets …)
Mark Stopa
http://www.stayinmyhome.com
@davies910
My “players” are/were exactly the same as yours…Deutsche is pretending to have “ownership” to steal your house…what I still don’t get is how do they reconcile the fact that Deutsche’s own spokesman—a Mr. John Gallagher—has PUBLICLY stated (when faced with a “slumlord” lawsuit) that Deutsche ONLY acts as a trustee, and has purely an administrative role…and has “no beneficial ownership stake or interest in the underlying mortgage loans…”
“NO BENEFICIAL OWNERSHIP STAKE OR INTEREST IN THE UNDERLYING MORTGAGE LOANS.”
Brian, if you show this in your lawsuit—what would the court say to that?
Got a call from real estate agent requesting an appointment for interior inspection of my home. I advised her that the home is in litigation and I strongly suggested that she stay out of it. She said that some 3rd party representative of the servicer (that is suing me) and/or Fannie Mae contacted (or contracted maybe) with her. She said may it is for a short sale or DIL (mmm I am still the title owner!).
I said respectfully that if the bank wants to make an offer to me under Florida law they are required to speak with my attorney as I am represented. I suggested it may be a Fair Credit violation for her to be offering me mitigation (deed in lieu or short sale) on behalf of the bank.
She got the idea and hung up. I was very respectful with her.
I left an email with my attorney, but this just shows what sneaky rat bastards they are.
The bank has an attorney and I have an attorney. Why involve some 3rd party when their attorney could contact my attorney?
It is a small issue but shows you how the banks operate.
I am sure the bank will blame it on some computer scheduling inspections at such and such date but everyone knows that if you sue somebody and they get a lawyer you should contact the lawyer.
Miffed.
But you know, if the payments the investors received which they weren’t entitled to (loan not in trust) were catagorized as an offset to the amt owed to the investors (because they didn’t get what they bought), then there would be no taxable event for them to worry about. Big gamble, tho, because what if those payments weren’t at the end of the day called offset or otherwise just the return of their money?
Then they’re taxable. No wait…what are they literally? They’re not income. What the heck are those funds?!
Wait a minute, please. ‘The depositor (?) held onto the loan long enough to get insurance with it as the ben.’, essentially. Believing that the investor, as NG says, actually funded the loan, one has to look at the facts about that money, starting with did someone sell the loan forward? (Lord, I hate this stuff). ‘A’ takes money from Investors (“I”).
Loans are not in place yet. ‘A’ funnels (have to keep in mind this money may have been sold -right or wrong- down the line, as in now belongs to someone else) the money down to the originator BUT IS THE MONEY factually NOW ‘A’s????), thru maybe warehouse bank / line(s) and probably one or more (other) intermediaries? ‘A’ ends up with loan (yeah, right). But let’s just say the loan does get sold to ‘A’, who before he puts it into the trust insures it for himself. If ‘A’ has guaranteed the payment to ‘I’, ‘A’ imo certainly has an insurable interest and also, if only the right to payment is sold (wth), what if anything does ‘A’ STILL own? But did ‘A’ guarantee payment? What kind of insurance and what is the trigger for a payout? The loans are theoretically (only, it appears) put in remic’s / trusts and out come the certificates evidencing I’m not really sure what. Prorated shares of interests in the notes / loans or just a derivative which is, or represents, a right to payment on a performing (and is that a key word here?) asset? Whether or not the deriv represents a right to payment
on a performing v non-performing asset is itself critical, is it not? The answer certainly goes to remedy for non-performance. I mean, la-la-la, if I actually only bought performance (esssentially) am I factually sol
if and when non-performance occurs? That does seem incredible,
but not out of the realm of possiblity – despite the allegation of the interest being a mbs or even if someone forks over the pittance left
after f/c and fees to the investors. They may have been sold as mortgage-backed securities, but whether or not they are depends on who factually has the right to remedy for breach of the loan contract.
NG said judges are forcing the investors, by unsubstantiated claims and findings that the loans are in trusts, to accept nonperforming
loans, which means at least two things: 1) that is not in accord with the PSA as well as trust law (which has led to a lot of argument about whom may rely on that trust law and or the psa) and 2) the investors will take the hits IF the insurance (if any) did not innur to their benefit. Issues readily identifiable: the investors have been getting the payment stream (if any!) on loans that didn’t actually make it theretofore. It might be that in general equitable considerations could cause a court to find, I guess this is how to say it, that the investor benefitted from the bargain by receiving the payment stream while the loan was performing (and which – and this is the detail-devil at the heart of a lot of this, say I) actually had an ‘unearned’ preferred tax treatment). This doesn’t square with trust law, though. If we were talking about Patrick’s washing machines (or whatever), equitable considerations might come into play. But we know, don’t we? that is not possible with trust and remic law. There is no gray area or other room for equitable considerations. A loan made it or it didn’t, that is if I got it right, that an action, i.e., a transfer or w/e into a trust, is void after the cut-off date. Not voidABLE, void which in this context is significant.
So that’s the game? Judges making the investors eat it on loans they shouldn’t looks more like them just thinking well the investor has gotten the ben of the bargain so far, the homeowner owes someone, so get this off my calendar. What of all this was an assumed risk to the investors? Is that an appropriate question?
If it is, finding the answer is prob complex, I’d say, and dependent starting with what they actually purchased and then considering what they thought they were purchasing.
As to the judges, only the law, contracts, rights including due process, abuse of process, fraud, false recordations, perjury, and the fact that it was the banksters’ bad acts which caused many people before the court to not be able to make their payments have to be ignored.
I don’t know why, if they’re not, investors are not sqwauking about
insurance paid to other parties, not to them. It just suggests to me
they only bought a right to payment on performing loans, the idea being the payments would be made because the loans were collateralized by something we all need – our homes.
But as to the topic here, there is one lawsuit going on wherein the investors are sqwauking about their lack of notice of default from the sec’n trustees. And lots of lawsuits over quality, but no lawsuit I’m aware of alleging the loans didn’t make it, give us our money back, and also pay us what it’s gonna cost on the tax rams of the payments to which we weren’t entitled.
http://www.scribd.com/doc/97602530/DAVIES-V-DEUTSCHE-BANK-REPLY-BRIEF-OF-APPELLANT
Davies v, Deutsche Bank reply brief. My case is complicated. I have abandonment of property to pursue and adversary. The stay remains until discharge. Here the court prematurely discharged me to avoid a hearing on a belated (3rd) motion for relief. I won the previous 2 of them. There was a discharge to prevent placing newly discovered information that would void my secured interest. The judge I believe has been caught. Deutsche Bank never supplied information per Fed. Rule Civ. P. 7.1,
If this doesn’t get reversed, then we all should move to China.
Interesting…
http://www.huffingtonpost.com/2012/06/19/todd-larsen-dow-jones-resigns_n_1608858.html
Todd Larsen, Dow Jones President, Resigns
AP | Posted: 06/19/2012 11:02 am Updated: 06/19/2012 2:14 pm
Todd Larsen, the president of Dow Jones & Co., has resigned after 13 years with the company.
Larsen, 46, has served as the company’s president since January 2010.
Dow Jones, which is owned by News Corp. and publishes The Wall Street Journal, did not name a replacement.
Larsen joined Dow Jones in 1999. He previously served as chief operating officer of the company’s consumer media group and as president of its former consumer electronic publishing unit.
Dow Jones also runs MarketWatch, Factiva and Dow Jones Newswires.
[…] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: CDO, credit default swaps, credit enhancements, creditor, escrow, Foreclosure judges, general partnership, homeowner, investment banker, JP Morgan Chase, lender, Master Servicer, pool, Pooling and Servicing Agreement, Prospectus, PSA, REMIC, straw-man, Superfund, U.S. Bank Livinglies’s Weblog […]
Show me your friends and I’ll tell you who you are…
Clean up continues worldwide. Iceland is cracking up big time on the culprits of its economic crisis, including quite a few British. Foreclosures here are only a diversion. The big picture is what we need to focus on. America doesn’t live in a vacuum. The crisis didn’t happen in a vacuum. Everything is tied up. And solutions will not come from here but from outside. So, the choice is to be afraid (and change will happen regardless) or to go with the flow and keep an open mind on what will develop. We’ve seen the worst in people and nations. We’re soon to start seeing the best.
http://www.businessweek.com/news/2012-06-18/suicides-arrests-show-trouble-at-korean-savings-banks
Suicides, Arrests Show Trouble at Korean Savings Banks
By Seonjin Cha on June 19, 2012 Tweet
On the day she was supposed to have appeared before prosecutors for questioning last month, an executive of a shuttered South Korean savings bank hanged herself with her scarf in a Seoul motel.
The woman, identified by the police only as “Kim,” was a credit officer at Mirae Mutual Savings Bank whose chairman was caught fleeing to China in a fishing boat three weeks before. She’s the latest casualty of a scandal that has been eating at the periphery of Korea’s banking industry for more than a year.
So far, regulators have closed Korea’s 20 weakest banks. Prosecutors have uncovered illicit lending and lax oversight, leading to indictments of nearly 200 people and at least two jail sentences. Four bank executives have committed suicide, according to police. More than 88,000 depositors and bondholders, many of them retirees, saw 1 trillion won ($857 million) of their savings in excess of insured levels vanish.
“Everyone’s become a victim,” said Nam Joo Ha, an economics professor at Sogang University in Seoul. “Regulators lost the people’s confidence. The savings bank industry lost trust, a financial company’s most important virtue, and the people lost their money.”
Before the closures, South Korea used to have more than 100 so-called savings banks, which are small, separately licensed provincial lenders. They have narrower business models than the country’s 18 nationwide institutions, such as Kookmin Bank and Woori Bank, which collectively are 30 times larger by assets.
Mounting loan defaults related to property in South Korea’s sluggish real-estate market following the global financial crisis in 2008 led to capital and liquidity shortages.
Inadequate Capital
To survive, savings banks started selling customers subordinated bonds that had low priority for repayment in the event of default. The bonds became popular, particularly among the elderly living on interest payments. The yields, as much as 10 percent annually, were almost double the savings account rates at national banks.
The Financial Services Commission began suspending operations of savings banks that had inadequate capital in January last year. The first closures led to bank runs at other lenders, leading to more shutdowns.
At 6 a.m. on Sunday, May 6, Korea’s regulator announced the closing of four lenders including Korea Savings Bank (025610), whose more than 10,000 depositors included 50-year-old Je Mi Young.
Je had been excited two days earlier when she received a text message from the bank saying her 10 million won deposit would mature in three days. Before the day could come, the Seoul housewife sat trembling in her pajamas that Sunday morning, as headlines streamed across her television screen delivering the news that the bank was out of business.
‘Bad Dream’
Her savings would be protected by state-run Korea Deposit Insurance Corp., which guarantees as much as 50 million won at both savings banks and larger lenders. Still, the additional 40 million won bond investment she made on behalf of her mother would be wiped out.
“I wish it were a bad dream,” said Je, pulling her trimmed black hair behind her ear while attending a KDIC meeting on claiming restitution for the savings later that week. “I always wondered what kind of stupid people put precious money into messy banks. Now, I am one of them.”
Je recalls getting a text message in September 2010 from Korea Savings pitching five-year notes yielding 8 percent annually. It was easy, the bank promised. She invested her mother’s savings, four times as much as her own, in bonds that aren’t protected by deposit insurance.
“How can I tell my 80-year-old mother I’ve lost the funds she lives on?” she said. “I was deluded by a couple of percentage points of interest rate. Now I can see it was only a trap.”
Shares Plunge
Shares of Korea Savings Bank tumbled 49 percent this year until trading of the stock was halted on May 7 following the closure. Its Jinheung Savings Bank Co. (007200) unit, which is still operational, was unchanged at 1,210 won in Seoul trading today. The stock has dropped 63 percent this year.
Solomon Savings Bank (007800), the largest such lender, had plunged 47 percent this year by the time it was shut last month
“The bastards behind the curtains need to be identified sooner than later, and then rooted out with torches and pitchforks, leaving heads on pikes as lessons to others.”
We’ve gone through the worst. It’s coming down. I know it. I can feel it and when you look at what is happening worldwide, it confirms it. Have a bit of patience. What is hindering the process is that many ignorant people are resisting that change we can’t escape, under the misguided belief that things can ONLY be worse, as though we had it all, we created happiness and we hold the patent on it. fewer than 5% of the world population seriously believes that the American way is the only and the best way.
Very, very few people have the ability to look beyond what they’ve known all their life and when you listen to them, it’s eithetr what we have today, what we had in the 50s or a return to the pilgrims’ times. No in-between. No imagination to reconcile technology and order. Add to that the irrational fear planted in the American psyche that communism will overtake the planet or muslims will bomb us and you have collective hysteria and complete paralysis.
And you what klills me? People don’t read. People don’t open their eyes on the rest of the world. America has 320 millions of terrified walking navels…
From Neil’s comment:
“ ….the pool of actual money sidestepped the REMIC document structure and created a huge general partnership, the governance of which is unknown.
That’s the Rosetta Stone here. That’s what mankind needs to figure out, who exactly is calling the shots behind the scenes. I for one don’t believe that one day there was a sudden desire for tens of thousands of people to collude in the effort of dislodging everyone from their homes, at the same time stripping trillions from investors. The bastards behind the curtains need to be identified sooner than later, and then rooted out with torches and pitchforks, leaving heads on pikes as lessons to others.
I could even go for some drone strikes on Wall Street….the uninjured carted off to Guantanamo for a little life-long retrospection. Death to Wall Street. No quarter given.
Charles Hopper, Ex-Lehman Brothers Exec, Commits Suicide In Face Of Financial Distress
The Huffington Post | By Alexander Eichler Posted: 06/19/2012 11:42 am
Follow:
Sign outside the Tokyo branch of Lehman Brothers Holdings. Charles Hopper, who took his own life in May, lost his job at Lehman Brothers in 2007, which marked the beginning of a period of severe financial distress.
Charles Hopper — 63 years old and facing mounting financial troubles — hanged himself in the garage of his Connecticut home last month. But five years earlier, before desperation drove him to that point, he’d been an executive at Lehman Brothers earning seven figures a year.
Hopper’s fall from grace — as revealed in a detailed New York Post feature this week — is just one in a long series of tragic outcomes that can be traced back to the financial crisis.
Hopper had been a hedge fund advisory executive at Lehman, but he lost his job in 2007, about a year before that firm filed for bankruptcy and triggered the bank panic of 2008. Hopper struggled to find work for two years, eventually landing a job at Appomattox Advisory that paid $150,000. He was underwater on his mortgage and had borrowed and spent a little too freely during the good years — for himself, pricey watches and a Porsche; for his wife, whatever she wanted, it seems, including cameras, sculling lessons and graduate school courses.
His suicide, sadly, is far from the only recent example of a Wall Street worker driven to extreme measures after experiencing financial troubles.
In 2008, Rene-Thierry Magon de la Villehuchet, a French investment advisor, took his own life after losing both investors’ money and his own life savings in Bernard Madoff’s Ponzi scheme. De la Villehuchet reportedly felt consumed by guilt for his role in the loss.
Barry Fox, a research supervisor at Bear Stearns, jumped from his 29th-story apartment in 2008 after learning he wouldn’t be hired on by JPMorgan Chase, which was buying up the company.
A few months later, Eric Von der Porten, who founded the California investment fund Leeward Investments, took his own life after suffering major losses in the market downturn of late 2008. Von der Porten, who had been struggling with depression, had a reputation for integrity and community-mindedness.
Similar tragedies have been dotting the landscape in Europe, as a stark financial climate has left many investors and small business owners grappling with overwhelming levels of debt. So many suicides have occurred on the Continent in recent years that some European papers are referring to the trend as “suicide by economic crisis,” according to The New York Times.
BANK OF AMERICA HOME LOAN SERVICING AND NOW SWITCHED BACK TO BANK OF AMERICA NA. WHAT ARE THEY HIDING BEHIND THIS SHELL GAME.
This is an interesting view, but in the real world, how would it be argued or pled in a case against the newly assigned beneficiary (trustee for a trust that supposedly bought the loan from the pretender lender)?
We are all fighting the loan servicers and trustees of the REMIC MBS trusts, not the folks named on the trust deeds or mortgages.
Let’s say you have a home owner with a pile of forged and fraudulent loan docs…a lender out of business & in bankruptcy (a thinly capitalized straw-man lender) and a servicer who represents say..US BANK N.A. as trustee for bogus trust 2005-home-theives. The deed of trust is assigned via robo signer into the trust 6 years after the PSA says the trust closed.
The judge figures it was a mere technical error and believes the loan is in the trust and the homeowner is not a party to the trust and cannot point out the closing date or anything else to do with the trust or PSA. Fraudulent documents are called “mere technical errors” by the judges.
The judge wants the loan in there so US BANK can take the house and the judge can go home, feeling happy that a deadbeat homeowner didn’t get a “free house”.
How is this theory used in a cancellation of instruments – quiet title ?
A fraud case?
A chapter 11 bankruptcy with the loan called “unsecured”?
In a wrongful foreclosure case in a non-judicial state?
…any ideas anyone?