U.S. Bank: Many Names, Many Creditors — the ultimate shell game

U.S. Bank, Trustee of What?

U.S. Bank shows up in many foreclosure cases and many cases that go into litigation. I believe they are allowing the use of their name for a fee and that they have little or nothing to do with most of the cases where their name is used. A little discovery might cover that and a challenge to the attorney as to proving that he represents U.S. Bank as they have portrayed themselves would be a useful tactic.

One case in Florida U.S. Bank portrayed itself as the holder of the note. In the end the attorney who appeared for U.S. Bank admitted under questioning from the Judge that U.S. Bank was not the holder, was not a trustee, and that the attorney had no idea whether he actually represented U.S. Bank because he never had any contact with them.

In bankruptcy court, which is confusing enough, you must realize that it is actually an administrative hearing with a tinge of legal. Some lawyers file adversaries to prove this or that based upon the filing of conflicting papers in the administrative part of the bankruptcy. I think that is a mistake. What are you going to say in your adversary pleading. You are taking on the burden of proof for facts that are exclusively in the possession of either the people you are dealing with, or some other third parties. The Bankruptcy is an administrative action where the forms and procedure are everything. If conflicting claims are present, it isn’t up to you to clear it up. It is up to the creditors or have their claim denied.

It looks to me like you have an OBJECTION to their claim when they change horses, especially when it happens multiple times in one case. If they have not filed a proof of claim within the 90 day time limit (check statutes and consult with attorney) you are allowed to file one for them. In your version be sure to say they are unsecured. The primary grounds for your objections would be that there are obviously multiple creditors, each seeking to collect on the same debt. Don’t say it in your pleading but ONE of them must file an adversary against the others, or at least a motion with affidavits and potentially witnesses to explain the discrepancies.

Here is another case:

“After nearly 4 years of fighting, the “lender” has finally changed their position (again) and now submitted a request for notice in my BKR as the attorneys for US BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR RASC SERIES 2005- EMX4.
Here are some of the names they have used previously (in violation of California Rules of Evidence 623):
  • US Bank, NA as Trustee by Residential Funding Company, LLC fka Residential Funding Corporation Attorney in Fact
    • in a letter sent in conjunction with the NOD dated 12/24/2008 (NOD did not use this name or any derivative)
    • 1st assignment 1/2009 (MERS as nominee for MLN, and MLN went into BKR 2/2007)
    • Proof of Claim circa 5/2009
    • Motion for Relief from Stay circa 9/2009
    • Response to various state lawsuits saying “everything was fine with the recorded documents” (paraphrased)
  • US Bank, NA as Trustee
    • Note endorsement allegedly on or before 11/17/2005 (numerous intervening endorsements, but endorsement to depositor is skipped)
    • 2nd Assignment 7/2009 (MERS as nominee for MLN, and MLN went into BKR 2/2007)
    • Motion for Summary Judgment filed by NDeX West 5/30/2012 in my state court case
  • RFC Trustee 04
    • MERS Servicer ID states that the “investor” is RFC Trustee 04 (not sure when record was created, presumably in November/December 2005)
  • MERS
    • Motion for Summary Judgment filed by NDeX West 5/30/2012 in my state court case
  • US Bank, National Association as Trustee for RASC Series 2005-EMX4
    • Request for Notice filed in my Chp. 11 on 7/31/2012 by Barrett Daffin Treder & Weiss
    • This is the first time EVER this name appears in this form by ANY of the parties I have sued or sent letters. They have never mentioned the trust before.
They cannot perfect their security interest because there is a TRO in the state court case (plus I have the BKR automatic stay).
Attached is this notice, my preliminary status report (read section #6 where I describe the use of different names and tell the judge that I have no idea who I will be naming in the adv. proc. because they constantly change the name of the creditor), and my objection to their request for notice.”
The last sentence is exactly right. So why file it? If for some reason you feel the court requires you to take on the burden then I would suggest conducting a 2004 examination (deposition) in which you ask pertinent questions about the “Story” of how it changed from this creditor to that creditor.
BUT FIRST challenge the competency of the witness they produce to even testify. For those of you who attended my seminars, you know the four rules of competency — Oath, Personal Knowledge, Memory and Communication — all of which are required to establish the foundation for their testimony. If you get to the point where the witness admits they have no personal knowledge of either the particulars of your case or insufficient knowledge as to the records upon which they rely, then shut up and don’t ask questions about the facts of the case. Why put what THEY want into the record?
If the above is Greek to you then you need to attend one of our seminars on the 25th of August in Emeryville outside San Francisco or Anaheim 8/29-8/30, outside L.A.
Here is another case, which is being seen all over the place: “U.S. Bank, as trustee relating to ” and then there is description of certificates, but not certificate holders nor any other reference to a PSA or trust document.
So when they lose the case at the end, and the Judge is awarding attorney fees, many judges are allowing their ridiculous explanation that the award of fees must be against some other party but not U.S. Bank who is not the trustee of a trust but was merely acting as agent or servicer for a disclosed principal. The fact that they did the foreclosure without providing the trustee with evidence of the trust, and that they obtained a deed in foreclosure with a credit bid, without providing the trustee with proof of loan status from the “disclosed principal” seems lost on many judges.
And just for good measure notice that US Bank often enters the foreclosure process AFTER a different creditor has applied for relief from stay — one which has an easier time establishing grounds for the relief. THEN U.S. Bank does the foreclosure, violating the stay order, and contrary the terms of the order lifting stay naming the OTHER creditor as the owner of the loan. Precious few judges have the tenacity of patience to wade through this whirlwind of words to ask simple questions like — who has a loan receivable on their books for this loan? That is the creditor if the entry is supported by competent evidence.
But not all Judges are hoodwinked by these absurd word games. Millions of dollars in sanctions in fines have been levied against the banks and servicers for misdirecting the court and committing perjury or suborning perjury.

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  4. In The Superior Court of Carroll County

    Otis Wayne Phillips vs U.S. Bank, NA Case # 11 CV 00504

    November 2, 2011

    Order Denying Defendant’s Motion to Dismiss

    Sometimes, only the courts of law stand to protect the taxpayer.
    Somewhere, someone has to stand up. Well, sometimes is now, and the place is the Great State of Georgia. The defendant’s motion to dismiss is hereby denied.

    The court finds the following to be the facts and law applicable to this motion:
    – Otis Phillips is behind on his house payments and is in grave danger of foreclosure.
    -The United States Government paid taxpayer dollars to the largest of our financial institutions, and to the European Union Banks, in order to prop up those poorly run organizations.
    -Twenty Billion of those dollars were handed over to the defendant, U. S. Bank.
    -U. S. Bank agreed to participate in the U. S. Government’s HAMP program to help struggling homeowners.
    -D. S. Bank signed a Service Participation Agreement (SPA), in which the bailed out bank agreed to comply with the HAMP Guidelines for loan modification.
    -The HAMP guidelines require U. S. Bank to perform modification services for all mortgage loans it services.
    -Otis Phillips applied to modify his mortgage with U. S. Bank.
    -U. S. Bank denied the request, without numbers, figures, or explanation, reasoning, comparison to the guidelines, or anything. U. S. Bank would not reveal to Mr. Phillips how his income, or his house, or his expenses would make him ineligible according to HAMP guidelines.

    (This court cannot imagine why U. S. Bank will not make
    known to Mr. Phillips, a taxpayer, how his numbers put him
    outside the federal guidelines to receive a loan modification.
    Taking $20 Billion of taxpayer money was no problem for U. S.
    Bank. A cynical judge might believe that this entire motion to
    dismiss is a desperate attempt to avoid the discovery period,
    where U. S. Bank would have to tell Mr. Phillips how his
    financial situation did not qualify him for a modification. Or,
    perhaps he was qualified, yet didn’t receive the modification, in
    violation of U. S. Bank’s Service Participation Agreement
    (SPA). A cynical judge might think that, if the guidelines
    clearly prevented Mr. Phillips from getting his modification,
    then U. S. Bank would have trotted out that fact in mathematic
    equations, pie charts, and bar graphs, all on 8 by 10 glossy
    photo paper, with circles and arrows and paragraphs on the
    back explaining each winning number. U. S. Bank’s silence
    on this issue might heighten the suspicions of such a cynical
    jurist. I, on the other hand, am sure that nothing of the sort
    could be true. Maybe U. S. Bank no longer has any of the $20
    billion dollars left, and so their lack of written explanation
    might be attributed to some kind of ink reduction program to
    save money. I’m sure there is a perfectly reasonable
    explanation for why the U. S. Bank will not print out the ONE
    page of figures that show Mr. Phillip’s financial’s compared to
    the HAMP guidelines to clear all this up.)

    -Otis Phillips claims to have suffered as a result of U. S. Bank’s actions, and
    -Otis Phillips wishes to avoid foreclosure.
    Georgia law allows third party beneficiaries to sue on contracts that
    are clearly intended to benefit a third party. Multiple courts from a variety of jurisdictions have extended such standing to third parties harmed as a result of HAMP violations. (HAMP is not old enough to have generated a huge volume of cases.) Clearly, U. S. Bank cannot take the money, contract with our government to provide a service to the taxpayer, violate that agreement, and then say no one on earth can sue them for it. That is not the law in Georgia. In fact, since no administrative review is provided within HAMP, the courts are the only recourse. The Bank claims that the intended
    beneficiaries of HAMP are the very people who CAN’T sue. Such argument· is absurd.
    Georgia law allows a third party to sue for negligence. Negligently
    implementing HAMP could sustain a claim in Georgia.

    Georgia law allows claims for breach of a duty of good faith and fair
    dealing. Here, there are two contracts, the SPA and the loan with Mr. Phillips. U. S. Bank, like all parties to any contract, has a duty of good faith and fair dealing. While difficult to define, jurors know good faith and fair dealing when they see it, and jurors can spot the absence of same.
    Georgia allows claims for Negligent Infliction of Emotional Distress
    by persons who are victim’s of malicious, willful, or wanton conduct
    specifically directed at them, even if not a party to the contract whose breach causes such injury. This is a question for the jury.
    Georgia prohibits wrongful foreclosures. In fact, Federal law also
    prohibits wrongful foreclosures. Mr. Phillips claims that U. S. Bank is not the proper party to pursue such an action, and is merely the servicer of the loan, not the holder. Further, Mr. Phillips asserts that compliance with HAMP guidelines is a condition precedent to foreclosure.
    There is no merit to Defendant’s motion to dismiss, and same is
    hereby denied.
    Judge Dennis Blackmon

  5. @usedcarguy…. I recently saw in my registry, “corrective” assignmnets from Wells regarding HSBC that actually said on them “to correct the assignee”…. I just shook my head. It’s disgusting.

    Nothing at this point surprises me. And I do mean nothing.

  6. how much theft of America? http://www.youtube.com/watch?v=bXIwg-7RHOA

    The preferred tool of Anglo-saxon banking criminals.

    The Financial Times CONFESSION/EXPOSE of the creator of this chicanery software—plus specified “enhancents” upon request–as I learned visting the software website today was initially designed by an unnamed “Canadian Investment bank” and implemented as a reproducible software package by Mr.MABBITT.

    The special enhancements requested by individual entities and people would be an area where I would want to focus energy if I were lucky enough to be able to investigate this entrepeneur’s confessed contribution to the misery besetting the world today–outside of the cash-flush offshore hedgefunds of course.

    However that is not my topic on this post–see earlier post for a better explanation of Mabbitt’s confession.

    For the past few years I have held a deep respect for the Canadian Banks generally. Although they are part of what the North Europeans describe as the “Anglo-Saxon” system of banking philosophy, meaning the light touch regulation afforded City of London and NYC investment bankers in particular, unlike all of their Anglo-Saxon peers the Canadian banks escaped the financial meltdown unscathed.

    I thought it was a rigoroous regulatory system in place in Canada. I wondered why –the seeming standout system was not the subject of substantial scrutiny by the US Congress etc as US and UK reforms were contemplated. Why would they not replicate the apparent success story?

    It seems I am simply naive. The Canadian banks were not immune to the crooked conduct—they were just a lot better at it. They INVENTED the fixed game. Ergo they had mapped out the entire sequence of events and knew when to get out–they were ahead of the crowd and did not get caught late in the stampede to the fire escape exits. Now it all makes sense.

    More recently, in the fiasco surrounding the acquisition of Florida’s BankUnited expansion plans, it turned out that Toronto Dominon Bank was a quiet backer—and when regulators jumped on top of the secretive offshore hedge fund operators that controlled BankUnited with FDIC bailout guarantees and up-front cash—TD hastly beat it to the exit once again. TD barely came up in the discussions which finally lead to one of the largest hedge fund operators Stephpen Schwartzman of Blackstone to basically tell the Federal Reserve FDIC and SEC ‘kiss my ass’ when they demanded disclosures of his other controlled offshore businesses. Instead he took the [really] easy way out of converting his large stake in BankUnited common stock to an equally large stake in its preffered stock. Is this a distinction without a difference? Hard to say without looking at the fine print–but in either case that stake was acquired with taxpayer subsidies and FDIC guarantees. That much is certain.

    What was it that Scwartzman was hiding? it must have been pretty bad if he was willing to jerk around half the federal govt to keep it hidden. An inquisitive regulator would hardly say “OK now that you can’t register a vote on the record were totally satisfied that you are sufficiently clean to operate this growing bank from the shadows.”

    After all the bank is still foreclosing homes and selling them off to supposed thrird parties at FMV prices. Except that unlike most banks—this one has an FDIC guarantee of its mortgage loans’ value. So if I understand this–and Im not privy to the detail of this private deal–which is one problem when the govt starts siezing public companies and selling them off to secret societies of offshore operators—the FDIC provides compensation to these shadowy operators if there are losses on the sale of REO siezed properties. The question that might pop into the head of a cynical person would be “why would these guys not simply have a secretly-owned offshore controlled affiliate come in, cherry pick the properties and buy them at a fixed sale held in a parking lot someplace in the middle of the night –or functional equivalent with something that is real close to a credit bid? The low ball uncompetitive price theoretically could be made up to BankUnited by an claim on the FDIC??? All hypothetical here–because of course all these players are unregulated secretive offshore non-tax paying members of the “shadow banking system” and nobody including IRS has any idea what they are doing or who they are doing it with.

    That is the problem—its govt money that makes it possible.

    Its govt money that draws the shadowy players like flies to fresh dung.

    And Lo and behold Toronto Dominion was somehow to be a key part of this scheme. Now it makes sense—a Canadian bank –working the cutting edge of a nice little scheme. Now there are fairly obvious reasons why a TD might want to get in on this action–get a cut—

    As anybody will attest its not easy to get a bankloan these days. Its got to be worse if you are a Canadian trying to buy swampland or flawed title real estate at a discount from a Caymani corporation. Having the name of the hometown bank on the deal is going to make it smell a lot better. And who else will lend you money? And geez –its even better if say TD and BankUnited have some sort of expedited deal–as say via a joint venture–that enables you the Canadian buyer to make this purchase without taking a month for your downpayment to clear.

    Even more interesting are the possibilities if indeed the foreclosed home was purchased by a Caymani corporation —Canadian banks have long dealt with US companies through so called offshore “booking offices” —thus the loan is made in connection with a closing that may be arranged to technically occur as a result of offshore activities—and the income generated by all the parties is not associated with the US. Thats uit–gain on sale–not US—interest on the loan—paid by a canadian to a canadian bank with a loan handled through a caymani corpration—proceeds paid to a cayman shell company. Nothing to do with the US but the situs of the real estate. hmmmm—not sure but it seems like there are a lot of possibilities there.

    and the Canadian Banks now are stated to be on the cutting edge—ill bet Mr Mabbitt did not run his article by any Canadian banks—or maybe he did and the unedited version is a true sight to behold.


    Look at it today–itll be gone on Monday

  9. @ALL
    In the weekend edition of Financial Times there is a peculiar article by a fellow named JEREMY MABBITT. He writes an apologetic piece called “I Helped cause the Credit Crunch”.

    MABBITT created and marketed a software program called GALOPAGOS … “to structure credit portfolios…”—to create CDOs.

    Per MABBITT; Galopogous was 1st outlined by a Canadian investment banks–and he Maffitt then built the software to perform the functions “Galopagos exploited any weaknesses, or even on occasion outright errors in the redit rating agencies’ models, in order to make more money for the arranging banks. But the rating agencies were willing partners–they licensed us to use their models in this way, seeing it as a revenue-generating opportunity.”

    Mabbit then states; “The banks liked to ramp up the complexity of their deals, so they could stay ahead of the investors and rating agencies, and maximize their margins. It was complexity for conplexity sake.”

    he then places the blame—for intentional deception as I see it—
    “Mostly I blame the firms that invested in these things–the fund managers, insurance companies and banks. They were keen to invest in rated credit products that aid as high a yield as possible for a given rating. and they have got off lightly. They used [other] people’s money and never took a proper look at what they were investing in, If you are dumb enough to invest in AAA rated CDOs without knowing what you’re invesing in, you’re bound to get in trouble. It’s like buying a car and demanding certain specifications as cheaply as possible. The car won’t last”

    This sociopath states that Lehman was the 1st to buy his software and that “most” others soon followed —noting that “some senior structuring staff would nly move [to other] banks on condition they were bought a Galopagos license.”

    The writer offers this expose as a sort of resume to herald a new package hes now marketing “called Vidivici–from the Latin–I saw, I conquered”

    I have read and re-read this piece a couple times. Two competing emotions run through my mind. ABSOLUTE SHOCK AT THE AUDACITY OF THIS CONFESSION of collusive criminal conduct—and REVULSION.

    I have long suspected that there was a common software program used to structure the “designed to fail trusts” that were founded and triggered by “designed to fail” mortgage loans. The latter include: illusory teaser rates that evapaporate to create negative amortization to drag a borrower from prime to subprime status–destroying refi potential. Extremely complex ARM rates tied to LIBOR. [what else now we know the rest of the story], steep unassailable payment adjustment cliffs, inflexible terms necesitating default as a condition to discussing any alteration of the loan or mortgage terms–even a simple easement, exagerated in house appraisals designed to give te borrower a false sense of confidence, 4 option ARMS that prohibit autopayment to facilitate lost payments, force placed insurance that enable the servicer to more easily engage in insurance fraud post vacate–ie sieze and freeze etc.

    All of these garbage loans then stuffed into the bottom tiers of collapsible trusts that will predictably trigger waterfalls of cash flows from subordinate investment tranches superficially supported by conventional fixed rate conforming loans.

    The private lable operators now conveniently bankrupt with missing records were prone to use these formats—a boilerplate system replicated in millions of loans in thousands of trusts. This was clearly a system driven by common software –designed like GALOPAGOS to achieve a fraudulent result—possibly integral to the GALOPAGOS package. The software that arranged the underlying mortgages and collasable trusts had to be recognizable by GALOPAGOS even if it was supposedly limited to use in selecting MBS that would be used as reference points for the synthetc CDOs as the confessor suggests.

    This people is the smoking gun. This confession is clear evidence of intent to defraud. The only question in my mind is the degree and nature of the interface with the design of the individual loan documents and the trust design. The concept that the ratings agencies were party to the enterprise—is new to me but not surprising

    How could investment managers delve down through layers of CDOs into the MBS trust structure and thence to the underlying loans? That was the purpose of the ratinfgs–is there no real right to rely on ratings?? Then what investment is safe?

    And if the underlying assumption is that invetment managers in exrcise of due diligence are to claw through the several feet of paper that were common to each CDO–each trust and to examine the documentation and origination of the underlying loans, how was that to be done if the securitizers never filed any mortgage loan schedules –despite SEC requirements–that would provide the touchstone of what was supposed to be in the trust loan group that backed the tiers of tranches????

    SEC’s failure to follow up on the manually [un]filed mortgage loan schedules disabled scrutinaization of the contents. In fact the trustee banks —who themselves negligentlently relied on servicer provided lists—also failed. The ratings agencies if any due diligence was actually performed apparently looked at the cooked book of loans without ever verifying that there was a filing made with SEC that corresponded. This is complete negligence. the fact that 60% of many private lables had unfiled loan schedules screams that the “negligence” was wanton disregard–or worse.

    There is no problem with evidence here—–not for a poerful govt agency–its that they apparently dont have room in the prisons or the courtrooms for all of the particpants. and more than a few were govt employees—as recently as 2010 SEC was covering up the extent of the failure to file mortgage loan schedules by my own personal experience. This is an outrageous failure of govt–to regulate in the beginning–then to react when the truth is demonstrated. The fact that this fellow happily recites his participation and confesses it in the major financial publication in the world–without hesitation as part of the promotion of another scheme–is further evidence of the contempt in which the financial world holds the US enforcement agencies.

    If I were a financial fraud enforcement employee—I would be ashamed to cash my payroll check next week.

  10. @CARIE

    Re gap in whistleblower right to damages for non-employee ielitigant discovery of criminal conduct——my understanding is that there is a proposed bill that is going into the hopper in septeber—the discovery of robosigner issues with damages that ran only to people who raised losses to fed agencies seemed unjust–so penalties are to be shared under the new bill

  11. @ CARIE

    Even if the servicer diverted the funds from the trustee/investors, as long as it reports the income, it is not tax evasion. There are rewards for turning in tax evasion acts but in this particular case it would seem that only an insider would have the knoeledge necessary to make an affidavit to trigger a fraud review.

    Failure to meet REMIC standards that are obvious on the face of the record are subject to the rewards—so if failure to file mortgage loan schedules destroys REMIC qualification–and IRS does not already know–then you could make the affidavit.

    On the flip if you KNOW that a crime is committed see 18 USC 4. I dont recall off hand if tax evasion is a crime that must be reported.

    Be wary of reporting things that you are not obligate to report–retaliation may be acrime under 18 USC 1513 etc but its not enforced—and there are no damages for sticking your neck out. The whisteblower damages rules generally run to employees who blow the whistle–if you are a litigant and stumble into something….?????

  12. david, what district are you in?

  13. Does anyone know how to report IRS violations with regards to servicers? Isn’t it some kind of violation if the money from the sale of a foreclosure only goes to the debt collector/servicer—and no one else?

  14. I like it, jg. When the neighbor asks “why?” just tell him the rule of law just died.

    did you get your transcripts yet?

  15. I did a cursory review of the U.S. flag flying at half-mast issue. It appears that the gov’t mandate for half-mast is legislated, but that’s it – not private citizen’s flying half-mast. The use of half – mast has historically been reserved to show the utmost respect for certain events / peoples and that’s as it should be.
    However, our country has been gripped by unparalleled injustice and patent refusal to prosecute criminal behavior/acts. Imposing a mere financial sanction (which doesn’t even come close to financial restitution for those harmed) is an abhorrent abuse of the power and duty to hold accountable and punish.

    The consequences of the acts have crossed international boundaries and brought the citizens of this nation and many others to their knees. Until legitimate action is taken to punish those responsible and to foreclose any continuation of their acts, I think the flags we personally own should join us down here by being flown at half-mast.

  16. Jenna: no. my deal was a Wells private label that was shelved and then the credit default swaps from Bear Stearns ended up in TARP. The TARP assets (Held by BlackRock) are serviced by RESCAP in the ALLY bankruptcy, SDNY.

  17. Unfortunately, Mr. Breidenbach is exactly correct in his assessments of the criminal conduct of “process servers” and “property seizure preservers.” yes, they do case locations; I have this from my own practice. remember: the “process server” is paid a small fee to go drive all day and deliver some documents. He typically arrives during the day, when the target – and equally important, the neighbors -are not likely around. Knock on the door: nobody answers, out comes the jummy bar, slip in, steal anything of value real fast, out the door and be gone. if the cops stop him a few blocks away, hey, he is a “process server” and simply delivering a Summons. That break-in? Wasn’t him. By the time the homeowner comes back and finds his jewelry or silverware gone, the process server is long gone.

    With the house-preserver-trashout crowd, remember who gets hired to do that kind of work. Nobody respectable. Who wants a job trashing other peoples’ stuff? This is ugly work. So these outfits end up with workmen that are crackheads, people fresh out of prison, people that nobody wants to hire. With no supervisors around, it is a dream for a habitual thief. Easy dope money, cleaning out a house. It is not exactly as if anybody is taking an inventory.

    The solution to this is to file multiple lawsuits, against the “bank,” their lawyers, even the County if there is any hint of culpability. don’t put them all in one suit; file multiple suits, if necessary in multiple jurisdictions, even States. When you get them – finally – in front of the jury, you get your revenge.

    Of course, the other solution is one I do not personally recommend but have seen done, by a fellow living a mile from me: he posted a polite sign that said : “Armed homeowner. Trespassers will be shot. Survivors will be shot again.” Kinda sends the message.

  18. “In bankruptcy court, which is confusing enough, you must realize that it is actually an administrative hearing with a tinge of legal. Some lawyers file adversaries to prove this or that based upon the filing of conflicting papers in the administrative part of the bankruptcy. I think that is a mistake. What are you going to say in your adversary pleading. You are taking on the burden of proof for facts that are exclusively in the possession of either the people you are dealing with, or some other third parties. The Bankruptcy is an administrative action where the forms and procedure are everything. If conflicting claims are present, it isn’t up to you to clear it up. It is up to the creditors or have their claim denied.”

    Understand the point, but in Bk the creditor needs very little to establish color of claim. An assignment from their friendly substitute trustee or declaration by a bank employee looking at a screen shot of your note and DOD is enough to get the Motion for Relief From Stay granted. With the Adversary comes the right to discover the documents they claim to have, and depose witnesses. My case turned around into my favor after filing the Adversary. But I have a reasonable judge and young opposing lawyers who screwed up and lost control of their case.

  19. @LV
    ” If servicer sues, could a homeowner counter sue and defend themselves? Does this action allow the owner discovery?”

    The point discussed was if the servicer -collecton agency filed a complaint against a homeowner for shutting off electricity and causing damage to a previously siezed home——could the homeowner raise a counterclaim

    there are rules as to when the counterclaim MUST be raised or lost–if it arises out of the same or related facts—-

    im no expert on procedure—im a complete novice on procedure—i freely admit and disclaim—

    im a substantive law geek—-learmning slowly–usually confounded by the intricacies and pitfalls

    lets just say—i think it would be a good time to raise your counterclaim to get your electric bills paid back–if they catch you in a settlement that compels you to pay utilities to prevent triggerring an unexpected trap in the agreement–like not causing damage–typically it wouldnt be at the front of your thinking that they would fail to change the utilities out of your name—–but when you think about it—if they want you to cause the house to freeze so they can get your insurance–thats exactly what they would do–you cant call the electric or gas company and say –take me off and send the bills to so a so–for one thing you dont know to whom–their atty? they would just deny–heat goes off and its your fault–water pipes freeze–thaw–water comes on and ceilings–walls melt–basement becomes swimming pool–your fault–you or your insurance must pay—-you lose–the servcer wins

  20. @dcb

    “and the servicer could sue the homeowner under tort negligence–or possibly breach of contract if an agreement prohibits the homeowner from actively causing harm to the property. ”

    If servicer sues, could a homeowner counter sue and defend themselves? Does this action allow the owner discovery?

  21. @ usedkarguy

    Can’t remember – was your loan part of the big Freddie V. Credit Suisse lawsuit?

  22. Off topic but good nevertheless. Big Pharma in trouble worldwide… It’s all part of our collapsing system.

    German Dialysis Maker Opens FCPA Probe
    By C.M. Matthews


    Fresenius Medical Care AG said in a regulatory filing Wednesday that it began the probe after receiving “communications alleging certain conduct that may violate the U.S. Foreign Corrupt Practices Act and other anti-bribery laws.”

    Teva Pharmaceutical Gets SEC Subpoena


    Teva, Israel’s largest company by revenue, is the latest to come under scrutiny in a three-year-old U.S. government investigation of the pharmaceutical industry’s compliance with the Foreign Corrupt Practices Act, a 1977 law that bars companies from paying bribes to foreign officials to obtain business

    Diebold Begins Initial Talks on FCPA Settlement
    By Samuel Rubenfeld

    Jim R. Bounds/Bloomberg News

    The security systems and automated-teller machine company said in a securities filing that it cannot predict the results of investigations by the Justice Department and the Securities and Exchange Commission, and that a settlement could result in changing earnings estimates.

  23. US Bank told me on the phone they were indemnified. I believe you can find more details in the PSA.

  24. Still playing games… Still hiding, covering up, scheming, shaming and scamming. Click on the link for the full article.


    The Fed’s Gold Is Being Audited… By The US Treasury

    Submitted by Tyler Durden on 08/02/2012 21:25 -0400

    When we started reading the LA Times article reporting that “the federal government has quietly been completing an audit of U.S. gold stored at the New York Fed” we couldn’t help but wonder when the gotcha moment would appear. It was about 15 paragraphs in that we stumbled upon what we were waiting for: “The process involved about half a dozen employees of the Mint, the Treasury inspector general’s office and the New York Fed. It was monitored by employees of the Government Accountability Office, Congress’ investigative arm.” In other words the Fed’s gold is being audited… by the Treasury. Now our history may be a little rusty, but as far as we can remember, the last time the Fed was actually independent of the Treasury then-president Harry Truman fired not one but two Fed Chairmen including both Thomas McCabe as well as the man after whom the Fed’s current residence is named: Marriner Eccles, culminating with the Fed-Treasury “Accord” of March 3, 1951 which effectively fused the two entities into one – a quasi independent branch of the US government, which would do the bidding of its “political”, who in turn has always been merely a proxy for wherever the money came from (historically, and primarily, from Wall Street), which can pretend it is a “private bank” yet which is entirely subjugated to the crony interests funding US politicians (more on that below). But in a nutshell, the irony of the Treasury auditing the fed is like asking Libor Trade A to confirm that Libor Trader B was not only “fixing” the Libor rate correctly and accurately, but that there is no champagne involved for anyone who could misrepresent it the best within the cabal of manipulation in which the Nash Equilibrium was for everyone to commit fraud.

  25. @ALL
    Totally off point on this article, but please note the article about the deceased homeowner’s son whose restored car was removed from the garage at his grandmothers home by the preservers and then basically destroyed. http://www.telegram.com/article/20120802/NEWS/108029877/1101/local

    Now this raises a lot of questions in my mind. BoA was the trustee apparently —possibly servicer. My question is who was the servicer? My experience personally and from reviewing the articles is that the servicer contracts a very large company as the preserver contractor–there are a few very large ones. these then sub-contract the real boots on the ground.

    The bigco preserver’s name appears on the sheet of paper that is posted on the front door of a siezed home that will typically state “this house has been secured by bigco” Previously either in a settlement agreement term or by a notice related to the siezure the homeowner will be notified that any personal property left in the home will be siezed and disposed by the “preserver” .

    We are bombarded by publicized accounts of homes which are cleaned out and the tell-tale notice left on the door. Occasionally the account will relate to a home being cleaned out while a person who did not expect a siezure was out of town—or a house was cleaned out before it was supposed to be siezed. There are stories publicized of homes that were simply in the vicinity of a foreclosed house being cleaned out under the pretext of address error. transposed address numbers–wrong street–next door etc.

    Accidents do happen–to be sure. But the potential for an “accident” allows a preserver to “case a joint” and determine whether there is personalty that would fetch a good price. This is really the perfect crime: even if caught in the act, the preserver can present documentation with a big bank name on it somewhere to which local police will automatically give credence. Indeed if a homeowner calls and complains of an entry in progress, as for example, the homeowner goes home for lunch–chances are more likely that the homeowner will be arrested than the illegallly entering preserver. Police and prosecutors just tend to give more credibility to a preserver from 100 miles away than to the homeowner who has lived there for 20 years–and pays the poiceman’s salary. Why? Because the preserver waives a work order with a banks name on it–that is all the preserver will have.It is a real life “get out of jail free card”.

    The criminal statutes require that the prosecutor prove that the preserver “intentionally” went into the house for an illegal purpose to charge/convict the preserver with breaking and entering. Similarly, the prosector must prove the personalty was intentionally siezed without a legal basis for doing so. otherwise it is abandoned and just legally siezed and sold—

    This makes the whole preservation field a very fertile area of opportunity for thieves—a dream come true. The preserver can get caught red-handed emptying the house and unless the address on the work order is plainly wrong the police will do everything but help load the truck–they will arrest the homeowner who attempts to interrupt—if he is obstreperous, even after it is demonstrated that they were cleaning out the wrong house, the police somewhat rightfully could charge the poor man with interfering with police business etc How does the cop know?

    One thing that iv heard –without verfication —is that preservers will lowball their pricing for preservation because they get to retain the proceeds of sale of the items removed. The presevation business could be very lucrative for this fact alone. another somewhat related aspect is that a house in the hands of the preserver may well be stripped of fixtures, [including the kitchen sink] –and even copper piping and wire.

    A fairly new large house which has suffered freeze damage is every preserver’s dreamhouse. They are able to legitimately enter and rip copper pipe and wiring from the walls, and fixtures–in a “salvage” operation. If the house ends up being too expensive to repair after this activity–then they can legitimately proceed to removal of interior and exterior doors, windows —–furnaces, electric panels, water heaters, anything of value. They maw leave nothing but a shell–they may even remove framing lumber and brick.

    From a nearly new house.

    What might trigger this opportunity? Why would a servicer allow it–after all the servicer really gets to keep the proceeds of sale of the house to cover fees–or because the trustee simply has abandoned the defaulted loan knowing that the fees will wipe out recovery–or because the trustee had slim hold anyway –perhaps lacking standing–and just wants to get the property disposed and as much distance as possible from it. the trustee may not want any proceeds because if hes not entitled he might be in fact committing a theft to receive the money—-or the trustee may simply not have a clue what the servicer is doing with REO.

    In any event why would the servicer who otherwise WILL get the monies not care about the house proceeds? there is a very simple answer. The homeowner’s casualty insurance typically holds over after the homowner vacates for anywhere from 30-90 days. The settllement under which the servicer collection agency gets possession may require that the homeowner continue to pay the insurance for some period —even to continue after the vacate date–so long as the insurer will permit coverage to survive.

    This offers a large opportunity to both servicer and preserver. If there is a covered casualty loss after the vacate date, the homeowners insurance will cover the loss. Example; assume the preserver takes possession on behalf of the servicer and trustee bank—under protection of the courts and police—in the dead of a northern winter. He turns the thermostats down to say 60 degrees and just happens to leave one or more exterior doors ajar–or otherwise unsecured. The wind blows the door[s] open and sections of the house if not the whole house freeze. Now the servicer can make an insurance claim on behalf of the mortgagee—typical coverage provision. and the servicer can turn a vacant house into a large up fron isurance recovery. The insurance company abandons the house after payout and the preserver moves in for a sweet salvage operation. Eerybody is happy–except the homeowner. Why? The insurance company simply rathchets up the insurance premiums on all such risky securitized loan houses–and the public has no idea why rates are escalating—what you dont know wont hurt you–the other insured homeowners may not even realize the rates are climbing because the insurance premium is ppaid out of escrow. This is one reason why the servicer wants to force place insurance–to make sure that there are few questions when these odd claims come in—-and to make sure coverage lasts and is broad enough to cover a wide variety of casualty losses that will provide a quick payoff.

    Insurance fraud? ? Hard to prove–but pays well.

    The real nice part is that the servicer does not need to have his own policy kick in to cover te loss–he avoids the high premium that comes with a claim on his own policy. instead this carryover policy is a black mark against the homeowners insurance experience.

    This is possibly the best deal going for servicers—and every lawyer representing homeowners should be on the lookout for attempts by the opposing counsel to insert provisions in a settlement agreement that require the homeowner to carry casualty insurance coverage beyond the vacate date. Absent an explicit limit –that is what happens–silence means the homeowners policy carries over–

    Another neat trick might be for the servicer to simply allow the homeowner to give an instruction to her utility company to shuoff electric or gas–therby triggering the loss–

    under this twist the homeowner actually CAUSES the damage–by negligently causing shutoff without assuring the servicer is immediately replacing the utility. The settlement or even common law might be called upon to assert that the homeowner has caused injury to the servicer—and the servicer could sue the homeowner under tort negligence–or possibly breach of contract if an agreement prohibits the homeowner from actively causing harm to the property. The servicer would be well within its rights to reinstitute the debt as a result of the homeowner stupidity in shutting off utilities and causing destruction of the home–and the homeowner will literally be left to plead with his insurance company to pay the servicer for the loss–and then watch the house ravaged in a messy salvage operation. that will buy no points with the homeowners previously freiendly neighbrs–who now are forced to live next to the newest crackhouse in the neighborhood.

  26. DCB,

    Recent update on the Duane Schwartzwald case. Still no decision, though…


  27. Too funny!

  28. Readers of this column are cautioned that the narrative above is strictly a sketch and not a portrait. It is insufficient (and dangerous) to “list” some supposed lender entity as “unsecured” without also check-marking it as “Disputed.” Remember that the Schedules and the Proofs of Claim that YOU file are taken as gospel by the Court, and you are stuck with them; you list it, you pay it (or otherwise discharge it). Another tactic is to list the “original lender” as named in that paper “Note” you signed (the one that does not even describe the actual lender) and mark it as Disputed. Also keep in mind that if a “lender” or creditor is not Noticed in the Schedules and creditor mailing matrix, that does NOT mean that they are not bound by the bankruptcy court and its results; you keep them roped in by making sure they have “actual knowledge” of the bankruptcy petition. One way to do that is to tell them: you send them a copy of the first two pages of the Petition (with your name and address on it, the court location, and so forth) and have it served by a process server or send it by registered mails. If they then choose not to file a Proof of Claim and ignore it, then the bar date will kick in soon enough.

    This is a rather tricky area of practice, and gets screwed up by a surprising number of practitioners. Don’t take my word for how to deal with it, every situation is different. Hire highly competent counsel, someone who is really sharp, even if only for consultation as to how to set it up. whatever you set forth in the Schedules, you are going to have to live with for a very long time. (Also: never go in with both husband and wife on a BK Petition; if you bomb one Filing, and get tossed, you have a fresh debtor with a clean sheet to go re-file. You would be surprised how many BK attorneys do not realize the advantages of this).

  29. My kind of news…

    Aug. 3, 2012, 1:32 p.m. EDT
    U.S. makes request to Swiss on alleged tax cheats

    By MarketWatch

    ZURICH–U.S. tax authorities have submitted a new request for information on Credit Suisse CS +6.60% clients suspected of dodging taxes by hiding money in secret Swiss bank accounts.

    A spokesman for the Swiss Federal Tax Administration confirmed that a request for administrative assistance had been made by the fiscal authorities in the U.S. last month.

    “We received a demand for administrative assistance from the U.S. authorities on July 9,” said Thomas Brueckner, spokesman for the Swiss Tax Administration.

    Further details of the request, including who and which institutions it concerned, were confidential, Mr. Brueckner said.

    “How far we have proceeded we cannot say at the moment,” he said.

    Eleven Swiss banks including Credit Suisse and Julius Baer Holding AG are under investigation in the U.S. for allegedly helping its citizens to avoid tax.

    “We can confirm that this requests Credit Suisse clients,” said Credit Suisse spokesman Marc Dosch.

    Swiss newspaper Neue Zuercher Zeitung Friday reported that around 100 American clients had received letters that they would be affected.

    The paper said customer information has been sent to the authorities in the Swiss capital Berne.

    The U.S. has been pressuring banks in Switzerland to hand over names and financial details of individuals it suspects of dodging taxes by hiding money in Swiss accounts.

    Switzerland is trying to get the investigations dropped in return for the payment of fines, and is also trying to negotiate a deal to shield its banks from U.S. prosecution.

    A spokesman for Julius Baer wasn’t immediately available for comment.

    Subscribe to WSJ: http://online.wsj.com?mod=djnwires

  30. from my witness list in the adversary…….

    Attorney XXX of XXX, LLP is the attorney who obtained the false foreclosure judgment against the Debtors, which was subsequently re-opened and dismissed without prejudice in exchange for the coerced HAMP agreement. He is expected to testify that he knew that there was no assignment of the Debtors’ mortgage to the REMIC trust and proceeded to foreclose on the Debtors’ home notwithstanding the fact that HSBC Bank USA, N.A. was not the assignee of the mortgage or the owner of the mortgage note. He will identify his billing statement which was provided to the Debtors in discovery and which shows that Wells Fargo Bank, N.A. retained the services of his law firm.
    He is expected to testify that he has never spoken to any employee, officer of agent of HSBC Bank USA, N.A. and was never authorized to represent HSBC Bank USA, N.A. by any person with the authority to do so at HSBC Bank USA, N.A. He is expected to testify that he had no
    dealings with HSBC Bank USA, N.A. He is expected to testify that he has never seen the Pooling and Servicing Agreement for the Wells Fargo Home Equity Trust 2005-2 or any Pooling and Servicing Agreement for an entity purportedly known as Wells Fargo Home Equity Asset- Backed Securities 2005-2 Trust, Home Equity Asset-Backed Certificates, Series 2005-2 and does not know if either entity ever existed or still exists as a Real Estate Mortgage Investment Conduit (REMIC) Trust. He is expected to testify that he knows nothing of the operations of Wells Fargo Home Equity Trust 2005-2 or any Pooling and Servicing Agreement for an entity purportedly known as Wells Fargo Home Equity Asset-Backed Securities 2005-2 Trust, Home Equity Asset- Backed Certificates Series 2005-2 and does not know if Debtors’ mortgage loan is or ever was in a REMIC trust bearing either the name Debtors state was its proper name or the name in which the Motions, Objections and Proof of Claim have been brought in these proceedings.

  31. Yeah, Bank of America has a FEW also! They ALL do.

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