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LET’S PROCEED STEP BY STEP. – Based upon actual documentation filed with the SEC
1. let’s assume that the mortgage is defective because it was not perfected. The note described a party who was not the creditor and gave no notice as to the actual identity of the creditor.
2. Let’s assume also that the note was paid in full from a variety of sources, which you know about ad nauseum.
3. Let’s further assume that the transfer documents are either non-existent or defective in that there was no actual transaction (they are false), there was no authority of the signatories etc.
4. Now let’s see what evidence I come up with to show that one or all of these things are true.
SUPPLEMENT TO PROSPECTUS:
We will issue and guarantee the certificates. Each certificate represents an undivided ownership interest in a pool of adjustable-rate residential mortgage loans. We offer each certificate by this prospectus supplement and the prospectus referenced in the pool statistics included herein.
Notice the reference to “pool statistics” and not the loans. There was a spreadsheet attached as though those were the loans, but it says later in the prospectus that those are not the real loans. So we have an offer, acceptance and consideration given by the investor to the broker dealer. If they had put the money in the trust, as they were required to do, then the Trust would have funded the transactions and received the necessary assignment through the Depositor. Discovery from hundreds of cases strongly suggests they never did that, because they were more interested in lining their own pockets (i.e., the broker dealers) than in giving the protection promised to the investors — which was an undivided ownership interest in the loans through a derivative security (mortgage bond). They got the mortgage bond but it was issued by a trust that in all probability never received the money and never engaged in any transaction.
What that means is that they (a) intend to do something in the future as of the date of this instrument, which appears to be some time in 2005 and (b) each certificate represents an undivided interest in the loans as a pool and do not represent direct ownership of the loans themselves (c) and it appears to indicate that that FNMA issues and guarantees the certificates, not the loans. Note that FNMA is not a lender but rather a guarantor although it is frequently referred to as a lender because it serves in the nominal position of “Master Trustee” for REMIC Trusts whose Trust Beneficiaries funded the loan, even if it wasn’t through the trust.
The certificates are issued under the terms of the ARM trust indenture dated as of July 1, 1984, as amended.
What that means is that the agreement and intentions of the parties were set long before the first contact or application was made by the borrower. This impacts the mortgage origination. TILA and RESPA require full disclosure of the identity of the lender because the very purpose of TILA was to make sure the borrower had enough information to make a choice between one lender or another. By depriving the borrower of this knowledge, the borrower was unaware that the purpose of his/her “loan” product was to sell securities and that the “securitization” parties had a greater incentive to sell the loan than make sure that the loan was viable — even if they had no intention of actually securitizing the loan in the manner set forth in the Prospectus and Pooling and Servicing Agreement.
The borrower is also not advised that his/her name and credit score would be used to sell those securities. Now this doesn’t mean the loan wasn’t real, but it does point to the fact that the actual identity of the funders of the loan was being kept secret and that the note was defective in failing to show that this was the intent of the parties sitting across the table from the borrower. By keeping this information from both the lender and the borrower, the “securitization” parties were obviously intending to use the identities of the lenders and use the identities of the borrowers to create actual or fictitious transactions to cover any excessive compensation or payoffs they were anticipating.
We have responsibility for the servicing of the mortgage loans in the pool. Every month we will pay to certificate holders scheduled installments of principal on the mortgage loans in the pool, together with one month’s accrued interest at the pool accrual rate. We guarantee to pay these amounts, whether or not the borrowers under the mortgage loans pay us. If we foreclose on a mortgage loan, we also must pay certificate holders the full principal balance of that loan even if we recover a lesser amount.
There are several possible interpretations here. And that is because “we” is not actually an identification of any party or parties. One is that FNMA was the creditor in fact the whole time. The fact that FNMA is not the creditor because it never loaned any money and never bought the loans (except possibly as Master Trustee for a REMIC Trust, which could only mean that the REMIC trust bought it acting through FNMA acting as a “manager”). Another is that the investors were the creditors, and still another is that the trust was the creditor. It’s really not that clear.
What IS clear is that the investors were paid no matter what, which means that from the investor point of view there could be no default — ever, unless FNMA defaulted. This is the quasi equivalent of servicer advances. In truth both servicer advances and the guarantee payments probably came from a reserve fund taken out of the investors’ pool of money sitting in the broker dealer’s account. The reason why the payments were made regardless of what the borrower did was that the broker dealers wanted to sell more bonds.
By creating the illusion that all is well with the loan pool, the investors continued to buy the mortgage bonds. The authority for paying the investors out of their own money is directly stated in language buried in the prospectus, at a point where most fund managers have stopped reading and are relying upon their trust of investment banks who have a reputation dating back as much as 150 years. This was a reputation they cashed. The only true securitization was that the reputation of the major banks was sold off multiple times in bogus instruments that do NOT qualify for security exemption and SHOULD be subject to SEC enforcement.
Hence the source of funding was paid and is being paid and is guaranteed to be paid in all events. So here is the problem: if the guarantee was of the certificate and not of the mortgage how exactly does FNMA claim direct ownership of the loan? You have a right to see those transactions and ascertain the true value of the mortgage and the true creditor. It is unlikely that there were two guarantees — one for the certificates and one for the loans. And the interesting part of that is my understanding of the process is that FNMA was to created to guarantee loans not certificates.
The point of this exercise is to emphasize the importance of actually reading the “securitization” documents and to compare the events set forth in the documents with the actual events. If the document says the loan was to be acquired through an assignment that is in recordable form and which is recorded, then there are several questions. Was the document of assignment prepared? Was it recorded? And most of all was there any transaction in which the Trust paid for the assignment?
And of course as almost everyone knows in foreclosure defense, when did this alleged transaction take place. The name of the trust usually has a year and sometimes a month in it and that gives the answer about when the transaction must have taken place in order to qualify for a valid acquisition of loan — i.e., the 90 day cutoff.
So we know by definition and from the facts of closing that if the closing took place on December 1, 2006 and the cutoff date for trust business was January 1, 2007, that the assignment was required during that period. But we also know from experience that these assignments appear out of thin air only for mortgages that are in litigation — leading to what some in foreclosure defense refer to as “ta da!” assignments — obviously fabricated minutes before they were used in court.
The last item is the most deadly for the banks. It is perfectly appropriate to ask for the transaction in which the transfer took place. The assignment, fabricated or not, says it took place on a certain date. The banking system is set up so that there are multiple sets of footprints for the movement of money. So your question is, show me the transaction where the Trust issued a check or wire transfer for this mortgage. Their answer is no. They will cite all sorts of reasons for this, but the real one is that the transaction does not exist.
It doesn’t exist now, it didn’t exist then and it never will exist because in most cases the money advanced by investors to the broker dealers was never used in the manner set forth in the prospectus. That is a subject for litigation between investors and broker dealers and there have been hundreds of such claims now that the truth is coming out. The only significance to you is that you now have actual knowledge that the investors directly and involuntarily funded the origination or acquisition of your loan, but failed to get the what they should have received — a note and mortgage payable to the investors.
Naming the mortgage broker or originator on the note and mortgage is pure fiction and in my opinion renders those instruments void. The alleged transaction at the closing with the borrower was a sham. He or she was induced to sign closing documents upon the mistaken belief that the originator or mortgage broker was actually lending the money to him or her. The moment the borrower signed the note and mortgage, and the moment the mortgage was recorded, there was a cloud on title because the mortgage was defective — a mortgage which the investors themselves allege was unenforceable for exactly the reason set forth in this article.
Analysis taken from
ADJUSTABLE RATE TRUST INDENTURE FOR ADJ RATE PRIOR TO 6-1-07.pdf;
SET 2 TEXT RECOGNIZABLE FM 000471 – MERS history of lender, investor, servicing.pdf;
FNMA LISTING OF ARM MBS SUBTYPES.pdf;
FORM 10-K ANNUAL REPORT FOR DECEMBER 2005.pdf;
LOAN LEVEL INFO.pdf;
monthly reporting.pdf;
NOTES WHILE REVIEWING SECURITIZATION DOCUMENT.wpd;
Prospectus July 1, 2004.pdf;
SECURITY SPECIFIC DETAILS FROM FNMA WEBSITE BASED ON POOL NUMBER PROVIDED IN DISCLOSURE.pdf;
Supplement to Prospectus.pdf
Filed under: CORRUPTION, discovery, evidence, expert witness, Fannie MAe, foreclosure, foreclosure defenses, foreclosure mill, GARFIELD KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MBS TRUSTEE, Mortgage, Motions, Pleading, Servicer, TRUST BENEFICIARIES | Tagged: 10-K annual report, assignments, date of assignment, date of transaction, Fannie Mae guarantee, Fannie Mae Master trustee, mortgage bonds, payments on behalf of investors, payments to investors, Pooling and Servicing Agreement, Prospectus, Servicer advances |
It is so unbelievable when you are a victim of an illegal foreclosure and have met the Burden of Proof and had a preponderance of evidence but a JUDGE made an UNETHICAL DECISION which ignored the Rules of Law! I am alive but not living because I was a person that never missed a mortgage payment and our paid off home was illegally stolen. I know people who haven’t paid their mortgage in 3 1/2 years and are still living in their home? WHere is the JUSTICE?
I Like these Guys! They Remind Me of Someone!
And they make me Laugh!
40 years on a Private Lake with a VP of Flagstar.
Long Time Family Friends 5 generations.
… I asked him Questions until his Face was as Blue as the Flames in the Bonfire.
Watch the Video.
Illinois is a Lien Theory State.
But you can waive a lien.
This is worth the time to listen to …
kc –
“Generally, there are two different categories of mortgages in the US. A mortgage in a lien theory state does constitute a simple lien against the property. When it’s paid off the lender will release t its lien. A mortgage in a title theory state is an actual conveyance of the property to the lender. However, the transfer is conditional. If the mortgage is paid the lender must return all its right, title and interest to the mortgagor by recording a discharge. In a title theory state the lender can take possession of the property and sell it if there is a default in the mortgage. In a lien theory state a judicial process is used in the case of a foreclosure.”
This is what my cursory search found. You live in a title theory or lien theory state? I remain horrified by a conveyance to MERS, a computer program, or anyone not the lender (but especially to MERS). MERS takes title to people’s home when those people got a mtg loan? You gotta be kidding me.
Maybe this will help ……. Securitizations and Trusts
http://stopforeclosurefraud.com/securitization-101/
In your closing packages there should be a Temp POA the Grantors signed at closing.
Who did you Grant Temp POA to?
For How Long?
To do What?
But then again .. that Trustee Deed is as valuable as the piece of paper it is forged on without the Trustee Agreement!
You are correct JG, … but somebutty created this fancy thing called a Mortgage Note and DOT.
Very Problematic for someone who was under the impression they had paid for full fee simple title (as per Trustee Deed) and authorized a Mortgage Lien.
RE: a right of redemption
Yep! Been There. Done That!
A Very Large Lump Sum to a Scallywag!!
kc – imo, no. A dot grants one form of title (equitable) to the dot trustee to hold in trust for the ben of the beneficiary, who pre=mers was the stinking lender. The borrower retains the other, the legal title (I get them confused but it’s one or the other). It isn’t a total conveyance, like what I saw in a mtg. When a dot is f/c’d non-judicially, the ben is saying okay, trustee, now I want both forms of title – yours and the borrowers so I have fee simple and all to myself.
I just don’t believe that conveyance in a mtg is legal, actually. A conveyance doesn’t a lien make and a lien is what I thought was supposed to be created in and by a mtg (not just treated like one, but literally a lien, like a car loan only recorded with the land recorder and subject to real property laws. But, take 10, not my thing.
JG, I know little to nothing about DOT.. but
RE “:instrument contains an actual conveyance of title to a lender, then I suppose it
could be called a repo – ”
Is this not what the DOT purports to do to?
Example ..
Mortgage Broker .. Capital Mortgage
Lender .. 1st Advantage Mortgage
Grantee on Warranty Deed .. 1st Capital Asset funding
And JG … Guess What?
The Law firm Attorney signed as a POA for Trustee without out that you know authority (contract)
MERS holds legal title only. (for Grantor Trust)
Look a Like Name (of the broker) Funding Co a MERSCorp Funding Member.
Hubby and Da Buttwipe Lawfirm were granted a Trustee Deed (not a Warranty Deed), the Lawfirm was whited out and the Trustee Deed recorded without the Trust Agreement.
The Warranty Deed we granted was to the Look a Like Name Funding Co with the LOC. It was never filed
Grantor Trust
kc – i guess you’re saying the warranty deed to you and hubby was never received and or never recorded, yet you think you granted title to an irrevocable trust? What trust? Even if you had conveyed title to
a lender (or MERS!!!!!!!), where’s the ‘trust’?
KC – I’ve said five times I don’t know about mtgs. Only that imo they were supposed to be liens, not conveyances. If a mtg instrument contains an actual conveyance of title to a lender, then I suppose it
could be called a repo – with all rights, including occupancy, of the borrower’s 86’d. X aren’t mtgs supposed to be subject to a right of
redemption? Like for a year or so? Next time you have a chance to visit your local recorder’s office, check out mtgs prior to l995 (or pre-MERS). I would be quite surprised if they contain words of conveyance (but again, mtgs not in my area).
spptt: The Plaintiffs (Estate’s Trust)s Note (and Mortgage).
Ut Oh ….
sppt … its a good time to do it
Shhhhhh … KC in Quiet Time Now.
Let me rephrase that …
They only needed one of the Estates borrowers to modify the ….
Estates Loan.
Just Say No! Yes We Can!
They only needed one of the Estates borrowers to modify the loan.
Who are the Estates borrowers/debtors?
And why were they trying to collect far more than the Loan amount from KC as part of the Estate?
Ut Oh!
Rescap/Alley .. Recon/CW/BAC .. You Who and Buttwipe …whatever
Think “Coyle”
What was it UKGs Judge said>
“There is no harm to him because he is still living on the property”?
~~~~Sending Sunshine Your Way UKG~~~
CAUSE OF ACTION
For Executory Contracts, Contracts of Adhesion and or all other agreements in perpetuities.
KC, on March 30, 2014 at 12:45 pm said:
Common examples of executory contracts include:
– Long-term purchase agreements;
– Service contracts;
KC, on March 30, 2014 at 12:20 pm said:
Certain contracts are incapable of assumption and/or assignment under section
365. Specifically, those to which applicable law excuses the nondebtor party to the
contract or lease from accepting performance from, or rendering performance to, an
entity other than the debtor or the debtor in possession.33 This preserves the common law
non-assignable nature of personal services contracts. Unless the nondebtor party
consents, assumption and assignment are not possible under section 365.34
KC, on March 30, 2014 at 11:52 am said:
JG, Seems to me that any time you have a repo or a guarantee that is effectively a repo, you don’t have a sale, you have an executory contract for sale, and it ought to get sorted out in the estate under 365.
Also look for executory contracts – probably in the BK petition.
(Trust) as the Creditor in the ISC choose to use a servicer to fc in the event that the debtor borrower defaulted?
ISC in an encumbrance and not a lien.
Something to do if you think your loan went thru Rescap / ALLY:
1. get a pacer account and scour the docket for any lists of
loans involved. Lot of work – any list may be an attachment
but it’s likely to be in the list of assets in the bk petition ( might
be trust(s) name(s) only – don’t know).
Also look all over online for hints etc.
2. Keep digging and find out what interests were avoided (“free of”).
3. See if those interests included those of cert holders / trusts.
And look for any signs those parties are objecting. Also look
for avoided CDS agreements fwiw.
Many sub-prime or otherwise non-conforming loans went thru
Rescap / Ally (or I’d be very surprised), so if one’s loan exceeded F of F
loans limits (conventional loan) or were sub-prime or even ALT-A
(general qualification with one or more exceptions), it may well have
gone thru these guys. I don’t think, but don’t know, that they got into
fha or va loans. If the interests of your trust or cert holders were avoided, it to me means ResCap / Ally still owned the loan and may have been paid already, so nothing for Buffet to buy. How could that
happen? Got me x that they didn’t bother advising of third party pymts.
Even for me, that’s hard to believe, but……. Also, I’d be hard pressed
to believe that Buffet wouldn’t know to a ‘t’ which loans were (alleged to be) in borrower default. Or, it’s possible he took them something like “as is”, but fwiw, if one’s loan were in borrower-default (and not paid by third party payments already), an ultimate look at payment records would show the loan in borrower-default. L & S, Buffet’s not a hidc on a loan in borrower-default and subject to all aff defenses, including prior payment. imo.
This isn’t advice of any kind. It’s just what I’d do. Ask a lawyer.
I was baffled to JG, … Until it dawned on me that the (unfiled) Warranty Deed wasn’t granted to us …
but by us …( after the purchase) (before the ISC) at closing …
We conveyed the Title to OUR Estate Irrevocably into a Living Trust (as per Instrument).
NG said:
“What IS clear is that the investors were paid no matter what, which means that from the investor point of view there could be no default — ever, unless FNMA defaulted.”
I said that’s not true when actually it is. The fnma guarantee payment and then repurchase precludes a default to the investors. It WOULD only be by fnma’s default that the loan in the trust would be defaulted.
BUT, I’m of a mind the investors / trust have to barrel thru fnma on its guarantee before seeking recourse against the borrower. This makes me dizzy. There’s not supposed to BE a guarantee for a true sale. It’s like a stinking rubic’s cube.
kc – the f/c involving a dot is not a repo. It’s a quite title. I don’t know about mtgs. I’m still in shock and disbelief over the conveyance recited in them since a mtg is supposed to be a lien, not a stinking conveyance. imo.
You are right about it not being the homeowners job to prove who it is.
You could put them on Notice and seek pretrial discovery.
If you were the debtor/borrower wouldn’t you want Proof before you paid someone a large lump sum of money?
I made that mistake once… I wont make it twice. That is a Guarantee!
JG, the party who has Standing to Me is absolutely positively important!
Because that is the only Party who can file a Release or Satisfaction of Mortgage. The debtor/borrower dag gone well dont want to pay off a stranger to the transaction whose Release or Satisfaction has as much value and worth as One Sheet of TP!
Am I not Right?
But Christine is right in that as long as we allow claimants to stand on
poss of bearer notes and article III alone (plus the self-assgts in MERS’
name), a court really might not care about the rest of it, except the
accuracy of the loan balance. The solution for that which I’ve come up with as a lay person is to ask for clarification as to holder v hidc and injury.
The law says an instrument executed by a such and such of a party is binding on that party. That’s one of the reasons, obviously, they decided to designate servicer employees et al as such. That to me leads to a couple unavoidable questions: 1) does MERS as an agent (you know what I think of the agency allegation) have the authority to assign the interest of its principal? 2) who is that principal for whom it alleges to be an agent? Taking the absurd “successors and or assigns” as factual (impossible imo) if it’s the last note owner, as it must be, how does one know that party is factually a successor or assign? If one of the parties in the act were an LLC in Egypt who sent the note around the world, succinctly, how is the last note owner (who could be a corp in Hong Kong) a successor or assign of the original principal?
The question not usually asked and got me why: ARE these people apptd by a Hultman resolution factually officers of MERS?* WHAT makes a corporate officer a corporation officer? Imo, Hultman has himself no authority binding on the company to appt these people (because there’s no corp resolution authorizing him to do so, but disregarding that (!), is a corp resolution ALL that’s factually necessary to make someone a corporate officer? I just don’t believe it.
*If these people are factually corporate officers, why hasn’t MERS/
MERSCorp been found liable for their robo-signing? That’s off-point here, but to me it’s a good question.
Christine said:
“The bigger part of the problem is that most of what Garfield alleges is still completely irrelevant, for what defenses available to homeowners in foreclosure is concerned. Knowing that SEC regulations, PSAs and what-not were breached does not help to save the house. All homeowners should concern themselves with is: does the foreclosing party have standing? Is the amount I am alleged to owe correct?”
I agree with the first part: the biggest problem I see is going in and alleging the investors funded the loans at closing with no evidence. To me, that’s bad, bad strategy. If one believes they did, what one wants is to have a strategy which will out that allegation as a fact. But I disagree about the second sentence. The word breach is not relevant imo to an unlawful act, such as one which doesn’t conform to rules and regulations of the SEC or any related thereto. Contracts are breached, yes. I agree no one should allege breach of contract re: the psa. The only thing which a judge would take heed of coming from a borrower is a law which says an act in contravention of that law is void. If the law says a thing is void, it goes to the standing of the foreclosing party. As to the amt being correct, borrowers need to support that it isn’t. I doubt that an “I don’t know if it is” out of the borrower will get it. And that becomes a complicated issue, depending on who actually owned the note AND was entitled to payment. An odd duo, that, but it may be
applicable these days.
Hubby and KC are T.I.E. with rights of Survivorship .
2nd correction … Sheesh, I might need a Nap.
They did tell me this .. “Don’t Sign Nuttin”
You Get What You Pay For …
My Friends are the Best!
But they don’t tell me nuttin … I think out loud to much.
Correction .. Sheriff Dan *our RE/Estate Attorney
COULD NOT REPRESENT US
BECUSE OF “CONFLICT OF INTEREST WITH HIS jOB.
Our RE/Estate attorney “Sheriff Dan” said to his clients just before closing….
“Whatever you do … Check and MAKE SURE BOTH NAMES ARE ON THE WARRANTY DEED. Checked, Double Checked …. YEP!
Smart Enough to make sure my name was on the Warranty Deed to!
Because of “Conflict of Interest” our RE/Estate attorney aka “Sheriff Dan” could represent us. And his referral, well 6yrs later she couldn’t turn down the job offer from the Fed Prosecutors Office. She’s a Good Apple just like Sheriff Dan!
I Like Them!
Neil,
RE: “a mortgage which the investors themselves allege was unenforceable for exactly the reason set forth in this article”
KC: Agreed We didn’t get the Notes!
The Mortgage is a Nullity without the Note!
We dropped claim against the titles and went after Buttwipes!
AND …..
RE: “Another is that the investors were the creditors, and still another is that the trust was the creditor. It’s really not that clear.”
KC: Silly Boy .. Its very clear .. Time to renew your Peepers.
Common examples of executory contracts include:
– Long-term purchase agreements;
– Service contracts;
Certain contracts are incapable of assumption and/or assignment under section
365. Specifically, those to which applicable law excuses the nondebtor party to the
contract or lease from accepting performance from, or rendering performance to, an
entity other than the debtor or the debtor in possession.33 This preserves the common law
non-assignable nature of personal services contracts. Unless the nondebtor party
consents, assumption and assignment are not possible under section 365.34
JG, Seems to me that any time you have a repo or a guarantee that is effectively a repo, you don’t have a sale, you have an executory contract for sale, and it ought to get sorted out in the estate under 365.
“The paper concludes that cases have been more aggressive in recharacterizing sales under Article 9 than is justified by the purpose of the doctrine. By contrast, the true sale status for bankruptcy purposes of the conveyance of receivables made in a typical securitization transaction is
inherently doubtful
under current law. Assurance that the typical securitization structure would survive legal challenge in bankruptcy therefore rests largely upon nondoctrinal factors.”
This is from an article written by “Kenneth Kettering”.
“An ABS investor doesn’t own anything except a security. The assets belong to the securitization vehicle (jg: if he says so!). The concern is that the assets of the securitization vehicle will be substantively consolidated with those of the originator/aggregator (if the originator or aggregator services the loans) **If so, the ABS investor would just have a claim in the originator/aggregator’s bankruptcy.” **
This is from a comment to an article by Levitin (below). A while back, I said I wondered what interests and claims Buffet took ‘free of’ in Rescap’s bk. I suspected it was the secn investors interests.
Maybe this explains it, which is what I thought at the time – that Buffet was able to avoid the interests of the trusts (I didn’t know how). There’s just a heck of a lot we don’t know. This is me trying: If the loans weren’t assigned to the trusts (and also weren’t true sales), the trust’s interests in the loans still held by Rescap (ally, et al) were unsecured and therefore subject to either avoidance by the trustee or the investors were in line with all the rest of Rescap’s unsecured creditors. But then, if that’s true and the ‘seller’ retained an insurable interest in the corpus (lack of better words), then any third party payment would have paid the notes dollar for dollar. I don’t want to think a bk trustee ignored this
to sell those loans to Buffet (or anyone) for pennies on the dollar* and one can’t count on ignorance of a bk trustee for that kind of bk, right? Anyone?
*those pennies on the dollar in this instance were still around 2.5 or 3 billion – I forget, but a LOT. I don’t know any of this. I’m doing what I said – trying. But we should all be interested in this true sale business imo. I think the banksters have a lot more to worry about re: transfers to trusts post-cut off (or actually any time) than the one law being cited in Glaski. I think the bottom line is we care because if these weren’t true sales or sales at all, the party who owned the loans likely has in fact been paid already. Fwiw, RFC was the original home of loans
which couldn’t go to F or F because of loan requirements or loan amt.
Imo chances are good they moved right into subprime. Buffet got the loans out of the bk and I think it was NS which got the servicing.
http://www.creditslips.org/creditslips/2011/04/skin-in-the-game-true-sale-implications.html
“What if a transfer is not a true sale?
If the transfer of assets for the benefits of investors is not a true sale, it might mean:
the investors are unsecured lenders
the transfer is regarded as creating security interest in favour of investors; so the investors are secured LENDERS (**whether such security interest is perfected or not will depend on the procedure relating to perfection of security interests**)
worst of all, since the transaction would not have been backed by loan documentation, the investors may not be regarded as lenders as well – meaning, they might only have an **equitable right to recover their money** but would not stand as unsecured lenders.
Hence, the consequences of the transfer not being a true sale could be really disastrous. ”
LENDERS = imo lenders to the stinking seller – more of a cdo
I’ve said, because it was all I knew to say at the time, that a true sale requires assumption of risk. For more info on true sales and the failure of a true sale, try this (which also has a link to more info on true sales:
http://vinodkothari.com/truesale/
I errantly said (again – oops) that after four months fnma must repurchase. It’s really that fnma MAY repurchase to end its guarantee. No repurchase = fnma continued guarantee payments, in which case, the loan is not in default with the trust. I wish I could remember, but I can’t – there was a particular case where the judge was irate that fnma was having the servicer f/c as if in the servicer’s own right (when it was allegedly foreclosing for fnma). If a loan went thru fnma and were then subject to fnma’s guarantee which is paid to the trust, the trust can’t call default because the loan’s not in default (it would be if fnma didn’t honor its guarantee). I believe the judicially noticeable fnma guarantee is an aff defense. If fnma is foreclosing, fnma should have repurchased the loan and taken any certs on that loan with it (how would that be done as to the certs? I don’t know).
If a loan went thru fnma and anyone other than fnma is the foreclosing party, it’s a trickery to me and very likely that the fnma repurchase has been wrongfully avoided. I once pondered if fnma’s guarantee payment – the big one – paid off the note to the trust and wasn’t in fact a repurchase at all. Which one is true may depend on whether or not these trusts may re-sell their assets at any time, including after a cut-off date, and I don’t know. In order for it not to be a re-sale (if it’s relevant), fnma’s guarantee would have to be paying off the note (and one way or another, the payments made on the note before the
repurchase have to be credited to the note’s balance). I just don’t think that’s that tough – for them to credit the payments made and for which the borrower paid by way of the g fee built into his rate (and not disclosed). If this isn’t all some chicanery or another, why don’t they
simply show the application of those payments? Rather than finding
the issue of fnma’s guarantee off the wall, judges imo should embrace the matter and ask that question themselves. Is there any other most likely answer than someone (svcr comes to mind) in a position to do so is making off with that money? The trust has already been paid those four payments, so it won’t see a short. FNMA knew it had to absorb those four payments, so it won’t see a short, either.* The one wrongfully being charged those payments when they’re not properly credited is the homeowner or possibly even the buyer at the f/c sale (and all account balances rendered are inaccurate).
*but surely there’s some accounting somewhere to fnma which should reflect and consider those payments ESPecially if fnma is actually honoring its commitment to repurchase, an issue not reached in that case I mentioned which p.o.’d the judge; there was mol a presumption that FNMA had. As I recall, when the issue of the loan’s ownership came up, it was only on the word of a third party that fnma owned it.
Oh My! … “A Little Bit”
God Grant Me Strength … because just one “Slap” will do the Job.
KC,
“Did you know you can get discovery in advance of a lawsuit? It takes some fancy work, but can be done”
Yes You Can!”
Really? Pray tell, when did you last use it and under what circumstances? We already know you’re an expert in Trust (rofl, rofl!), Title (rofl,rofl!), Securitization (rofl, rofl!), Child-rearing (rofl, rofl!), Morality and Ethics (rofl, rofl!)… Besides precomplaint discovery, what else do you know?
Truly sad… And those are the people we entrust our kids to, right from kindergarten, to give them some smarts and education. Any question?
RE: johngault, on March 29, 2014 at 3:42 am said:
“Did you know you can get discovery in advance of a lawsuit? It takes some fancy work, but can be done”
Yes You Can!
Heads Up/7UP … Good Luck!
They are not giving it up before either. Trust Me!
Did you know you can get discovery in advance of a lawsuit? It takes some fancy work, but can be done. I prob won’t get around to exploring this any more, so I’m just mentioning it for anyone who wants to check it out. I’d try “pre-suit discovery”. If the opposition has an opp to weigh in (because I think it’s done thru a court and they do), one might get them locked into a position and or hear their arguments against your need for discovery ahead of the actual suit.
Ng, you said:
“What IS clear is that the investors were paid no matter what, which means that from the investor point of view there could be no default — ever, unless FNMA defaulted.”
No, or please explain this to me. FNMA must make four payments (because apparently that’s the time allocated for determination the loan is staying in borrower-default), after which time, fnma must repurchase. If fnma is repurchasing the loan, it is going to be at a note amt which reflects its four payments. FNMA isn’t going to pay them again by paying an amt which doesn’t reflect its guarantee payments.
“This is the quasi equivalent of servicer advances.”
??? The servicer contractually must advance the payments for fnma and then get reimbursed by invoice mol.
“In truth both servicer advances and the guarantee payments probably came from a reserve fund taken out of the investors’ pool of money sitting in the broker dealer’s account.”
Well, maybe that’s the source of their advances on behalf of fnma, but fnma’s source of funds (so where the buck stops) is the guarantee fee (“g fee”) built into the borrower’s rate.
“The reason why the payments were made regardless of what the borrower did was that the broker dealers wanted to sell more bonds.”
I see some problems here with these guarantees since the transfers to the trusts are to be true sales, which I only recently learned meant the buyer must assume the risk of note-maker nonpayment (no guarantee, no surety, no mystery third-party co-signor). I’ve wondered, and thought it was because I didn’t know much about secn trusts, why the trust doesn’t just issue certs on its loans, sort of dollar for dollar, why someone else issues the certs. I think, in add’n to some self-fashioned and unlawful fix to avoid “seasoning” of these loans,
the guarantee may be SAID to be made on the certs v the loans, as if there’s a distinction (which, actually, there may be since they don’t seem to pay out dollar for dollar). However, just now, imo since at least fnma pays its guarantee to the trust (and not the cert holders) on the LOANS (the only assets of the trust to GET moolah on), it’s a thinly disguised loan-guarantee which undermines any purported true sale (if there otherwise were one, that is). That (no true sale) doesn’t mean the borrower doesn’t owe someone, UNless that someone has been the beneficiary of third party payment, like from AIG et al. A few things hold true imo: 1) it’s poss there were no true sale for whatever that means (I don’t purport to know) 2) If the trust actually got the loan, fnma or anyone’s guarantee payments must be applied to the note balance and reflected in any NOD (and on fnma loans,only after fnma has repurchased because it’s stuck making payments until and unless it does).
Is it possible that fnma guarantees the certs (even tho it pays the trust) and therefore, that’s what it buys back and leaves the loan up for grabs??!! (just a thought) I sure hope not. At any rate, I see guaranteeing the certs but paying the trust as a scam on true sale
requirements (for whatever that means – I don’t know except to say there were none with a guarantee).
Even if judges want to stand on article III (alleged) poss of a note, that note’s balance must be communicated accurately to those it impacts – and that’s a wide swath (or at least not limited to the borrower); it isn’t just the note maker. It could, say, impact the acceptance of a bid from a true arm’s length party at sale. It would also impact the amt of any
alleged deficiency. It’s poss for anyone to run an amortization
schedule online these days (at least on a fixed rate) and since people know what they paid and didn’t, they could figure out their loan balances, remembering fnma must make four payments before it may repurchase to end its guarantee. We should be able to tell with simple
math if those guar payments are applied or not.
I don’t see it as that big a challenge today to present certain f a c t s to a judge, including the issue of fnma’s guarantee payments. It isn’t
speculation. The challenge to me is knowing if one’s loan went thru fnma. If it were “A” paper or maybe even “ALT A” – where someone actually qualified and also not some teaser rate piece of junk – and the loan amt were within fnma (or fhlmc) loan amt limits at the time, that loan probably did go thru F or F. imo. In my strictly lay opinion, what one would need is an amortization schedule, the date of one’s last payment, a balance due out of the servicer, the trust info, and the fnma prospectus relevant thereto. And a subpoena deuces tecum to fnma would be nice.
@ Christine ,
Believe it or not I am not fully versed on how every court in the USA operates or makes documents available ,, in my experience anything beyond a docket usually requires an in-person visit…I deal with a rural county in Illinois that conducts business by FAX ,USPS and in person only… called them today in fact for an exact property tax payoff… I have racked up PACER fees and didn’t want to do so unnecessarily.. simply stating that this court made docs available online would have been enough.
Neidermeyer,
When you need to find a case in NY Supreme Court, go to their website. You already have all the info and the case number.
Do you people do any research? Is your time too valuable? Is your dime worth too much that you need people to do your footwork for you?
Unbelievable!
iwantmynpv said:
“More important, the Judge would look at you like you had six heads if you started talking about FNM Guarantees…”
I was surprised at that out of you. Do you say that because YOU don’t see any value in the fnma guarantee (on loans which went thru fnma) or because the judges don’t get it or? If the judges don’t get a fnma guarantee, imo it’s because we failed to present it properly (where applicable – which is on loans which DID go thru fnma and none others, at least as to fnma’s guarantee).
elexquisitor – do you know where it’s written that one must demonstrate
prejudice for ‘technical errors’ in foreclosure? Or did the judges just
decide that’s what it is? Is it to be found in the case(s) you cite?
A guarantee of payment vitiates the transaction as a true sale, even
if it were a transfer otherwise. A true sale requires assumption of risk of non-payment.
from KC:
“Generally speaking, a trustee serves in a fiduciary capacity, and fiduciary authority cannot be delegated or assigned to a third party.”
That’s also true of agents. So if an agent delegates a duty which it may not delegate, what does that make the act done? Void? Voidable? MERS, by way of a Hultman alleged resolution, to avoid this salient issue, simply calls the party to whom it’s delegating an act-in-fiduciary to another, calling that person a MERS’ officer – that way MERS claims the act done was its own act. No one may have it both ways – not even MERSCorp or MERS. IF the robo-signer is a MERS’ officer, MERS is liable for his acts. If the robo-signer is not a true corporate officer, then
MERS has delegated an act it may not.
Agent77.
Security Connections in Idaho. Bunch of Robo signing liars.
@miles – it’s not the causes of action, it’s the facts you have to work with and can allege. Most ‘robo-signing’ facts are ‘voidable’ because they can be re-done correctly and the net effect is only the passage of time. Those are the cases that get tossed off-hand.
The cases that pass thru the ‘demurrer’ sieve are the ones that allege specific facts demonstrating wrong beneficiary, wrong amount, or both. Anything else is only a delay of the inevitable and further saps a homeowner’s limited finances.
CA allows request for a ‘beneficiary statement’ in Civ Code 2923.6? that presumably refers to Civ Code 2943(4)(a) which has specific performance considerations. Optimally it should be done when you know you are about to miss your first payment. It can set up your case depending on the response. If the servicer replies then you are likely getting their set of books, which is your payments and the servicer’s fees only. If that appears to be the case, a second request, referencing the first may be in order, requesting the beneficiary’s set of books that would reflect any pre-payments and third party payments. If the identity of the ‘beneficiary’ or ‘investor’ is not disclosed, you may have grounds to cease making payments in order not to affirm an illegitimate debt. But then you are committed to initiating a court action, and cutting off any modification possibilities.
IANAL – I am not a lawyer, but I know leverage when I see it
Anyone who signs on the trust account should either be a trustee or an
agent lawfully appointed by the trustee. Someone who is merely the attorney-infact
under a personal power of attorney given by the principal (even if the
principal is the grantor of the trust) would not have the necessary authority.
Question: Is the FDIC coverage different for Irrevocable Trusts vs. Revocable
Trusts?
Answer: Yes, very much so. Irrevocable trusts are insured up to $100,000 per
beneficiary. Revocable trusts are insured up to $100,000 per beneficiary, but
only to the extent the beneficiaries are “qualifying beneficiaries.” Any interest of
a nonqualified beneficiary is added together with any other funds of the grantor
on deposit in the same institution and insured, in the aggregate, up to $100,000.
Consider an example of an individual who is not married, has no children, no
grandchildren, no siblings, and deceased parents. That individual would not be
able to construct any kind of revocable trust where there would be separate per
beneficiary insurance coverage, because there is no one who would fall within
the range of “qualified beneficiaries.” If that individual were to instead set up an
irrevocable trust, it would be insured on a per beneficiary basis, regardless of
who the beneficiaries might be.
@KC – in CA beneficiaries are not required to be identified by the county recorder, so there is no way to confirm the status of a beneficiary who ‘substitutes’ in their own trustee. This is a point I am making in my appeal to reverse Appellate decision that deed of trust loan assignments don’t have to be recorded in order for beneficiary to elect to foreclose non-judicially.
Question: How would we go about finding our State laws regarding Trusts?
Answer: Go to the BankersOnline Launch Pad and click on the category
“Legal.” There, you will find a number of links that will lead you to state laws.
http://www.findlaw.com/casecode/index.html#statelaw
First, look at who the applicant/borrower is. Is it the trust, or the
individual? If the individual is applying for a loan in their own name, but they
want to pledge trust property to secure it, the lender needs to look at the trust
agreement to see if it empowers the trustee to pledge trust property to secure
personal debt of the borrower. There would be some question regarding whether
the trust received consideration for doing so. If the trust itself is the
applicant/borrower, then the lender needs to make sure the trustee has the
power to borrow money and mortgage property. Some lenders ask the individual
to quit claim deed the property back to themselves personally in order to make
the transaction less subject to questions/issues.
http://www.bollearningconnect.com/cdimages/livingtrust1104_qanda.pdf
In turn, the law requires that the beneficiary execute and notarize and record a substitution
for a valid substitution of trustee to take effect.
http://www.hofj.org/virtualoffice_files/Robo-Signing-Overview.pdf
@javagold
who signed your assignment of mortgage?
Similar to a corporate resolution of authority, the trust document must explicitly state that the trustee has the authority to appoint a convenience signer or attorney in fact. The trustee does NOT have discresion in this matter. If the bank permits a trustee to exceed the authority granted them in the trust document, the trust beneficiaries could sue the bank for breach of fiduciary duty for allowing this to occur.
From the Illinois Complied Statutes:
(760 ILCS 5/5.1) (from Ch. 17, par. 1675.1)
Sec. 5.1. Duty not to delegate.
(a) The trustee has a duty not to delegate to others the performance of any acts involving the exercise of judgment and discretion, except acts constituting investment functions that a prudent investor of comparable skills might delegate under the circumstances. The trustee may delegate those investment functions to an investment agent as provided in subsection.
The trustee may consult with an investment advisor to help them manage the trusts assets, but they cannot give control of the trust assets to a power of attorney or convenience signer. Again, the default trustee powers can be overriden by the trust document, but only if the document specifcally provides the trustee those powers.
To read the complete section on trusts and fiduciaires go to TRUSTS AND FIDUCIARIES
Off-Topic help required..
I am looking for the attached exhibits to the “Sand Canyon V. AHMSI” suit filed in NY 2012 http://stopforeclosurefraud.com/2012/03/21/complaint-sand-canyon-corp-v-american-home-mortgage-servicing-inc/
Exhibit 1 is a “cooperation agreement” between the parties
and
Exhibit 6 is a “purchase and Assumption” agreement
If anyone has a good link to these or can send them to me as a mail attachment
THANKS
A successor trustee has absolutely no authority to act on behalf of a trust until her or she succeeds to the position of trustee. Therefore, it would be a mistake for a bank to allow a successor trustee to sign account documents.
Some state laws may permit a trust to appoint authorized signers, if the trust instrument specifically provides for such action, but if the trust instrument says nothing about such an appointment, only the current trustee(s) should be signing on accounts of the trust. Generally speaking, a trustee serves in a fiduciary capacity, and fiduciary authority cannot be delegated or assigned to a third party.
Good Morning Sunshine ….
F. Living Trusts. Property held in a living trust is eligible for FHA mortgage insurance for owner-occupied property, as long as an individual borrower remains the beneficiary and occupies the property as a principal residence. The lender must be satisfied that the trust provides reasonable means to assure that the lender will be notified of any subsequent change of occupancy (for owner-occupant loans only) or transfer of beneficial interest. The trust must appear on the security instrument (i.e., mortgage, deed of trust, security deed). The individual borrower must appear on the security instrument when required to create a valid lien under state law; otherwise, the individual borrower is not required to appear. The owner-occupant, if any, and other borrower(s), if any, must appear on the note with the trust. The individual borrower(s) is not required to appear on the property deed or title.
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&ved=0CFUQFjAG&url=http%3A%2F%2Fportal.hud.gov%2Fhudportal%2Fdocuments%2Fhuddoc%3Fid%3DDOC_20457.doc&ei=wo81U-7vO-jL2QXs8oA4&usg=AFQjCNEPI5vzchQywnEUJWTQQhOsg3LEbQ&bvm=bv.63808443,d.b2I
BTW, in the case of “forgeries” of Notice of Defaults and Trustee Sales in CA, the courts have ruled that if the signer was acceptable to the Trustee, then all was fine. Homeowner has no grounds to contest it.
JavaGold,
Read the Fannie Mae Selling and Servicing Guide. It details how the process works and deals with assignments as well.
According to UCC, one follows the terms of the Agreements, and the Selling Guide follows the Agreements.
People seldom win in courts alleging the lack of assignments. to the GSEs. Any cases won, the servicer has corrected things and then foreclosed. (The MA case, I have not followed closely, so I do not know current status.
NPV
You saying you get what you pay for. Kind of an oxymoron yes
Christine
said
” All homeowners should concern themselves with is: does the foreclosing party have standing? Is the amount I am alleged to owe correct? Was everything credited to my account as it should have been”.
That’s a big part because my name is on the line here and I have to be sure that if someone took my home ( my lifetimes work actually)
They better be who they say they are after getting every thing I had financially and then some. The then some is just as important if not more so.
So what would be the appropriate causes of action in your complaint that cannot be challenged in a demurrer which is common in a non judicial state such as California?
“Failure to state a cluster” ( typo but I like it). Got it. I do.
Hey Christine,
Don’t be a dip….nancy drew has never taken a penny from anyone. I have known her for years because of this mess, and believe it or not she needs glasses from reading all the god forsaken documents that collectively bind us together, but guess what…she doesn’t have a pot to piss in, nor the funds to get a pair of spectacles so that she could look people like yourself square in the face. So get the facts straight, and next time put your own money where your mouth is. Geeeeez. Nancy Drew and MS in the same breath….really?! That is a stretch if I heard one.
Good Day.
Iwantmynpv,
“The defense attorneys do not read the registrant’s exhibits. Mostly, because they can’t, but also because it would take actual work, which the client is not willing to pay for.”
You actually put your finger on a big part of the problem. Many people have spent the last 7 years whining that attorneys were “only out to get their money”. Remarkably, those are also the same people who were more than willing to fork up anywhere between $2,500 and $4,000 for an absolutely useless “expert” report from Maher Soliman (some paid even more for a useless report from Nancy Drewe, hailed as a securitization genius by Garfield himself. To date, neither MH nor ND have been able to provide ONE case won thanks to their “expertise”. Ditto for Garfield…)
The bigger part of the problem is that most of what Garfield alleges is still completely irrelevant, for what defenses available to homeowners in foreclosure is concerned. Knowing that SEC regulations, PSAs and what-not were breached does not help to save the house. All homeowners should concern themselves with is: does the foreclosing party have standing? Is the amount I am alleged to owe correct? Was everything credited to my account as it should have been? I keep reading pleadings filed by people who ultimately lost and I can’t say I’m surprised.
It would be laughable if the outcome wasn’t so tragic… And here we are, 7 years into the mess, with no indication that people are learning anything about how the system works.
Inside of this latest rant – Neil brings out a valid point. The defense attorneys do not read the registrant’s exhibits. Mostly, because they can’t, but also because it would take actual work, which the client is not willing to pay for. Cheap clients get cheap defense attorney’s and lose the house. Why do you think OJ got off for butchering that white girl. Top dollar = Top Attorney.
More important, the Judge would look at you like you had six heads if you started talking about FNM Guarantees and and GSE tranches.
“…and it appears to indicate that that FNMA issues and guarantees the certificates, not the loans.”
Regardless of what FNMA guarantees, and this may well be significant (or maybe not), FNMA makes it very clear in its prospectus that FNMA will make any guarantee payments to the trust (and not to the cert holders directly, say). The ONLY way I think the trust may accept money is on the loans, it’s alleged assets (whether it’s the borrower’s payment or a third party’s pursuant to a guarantee or like that). To honor its guarantee (whether it’s on the certs or the loans), because fnma, in its prospectus, has told potential cert holders that any guarantee payment will be made to the trust, that’s where those payments are and must be made. Since (if) the trust may not take funds outside those generated by its assets (pass-thru only of monies paid on notes / assets), FNMA, nor anyone, may allege the fnma payments to the trust were anything other than a payment on a note. Just because the payments are made pursuant to a guarantee doesn’t change that they’re payments being made and accepted on the trust’s assets. If I or ANYONE wrote a check to a trust and it were accepted, it would have to be as a payment on the trust’s assets because that’s the only payment a trust may accept. Bottom line is regardless what is being guaranteed, it’s the loan being paid. (To reiterate – fnma says 1) it guarantees the certs and 2) those guarantee payments will be made to the trust, and that means applied to loans). imo.
This case has valuable information. …
Get Your Pen and Paper Ready to Take Notes.
http://stopforeclosurefraud.com/wp-content/uploads/2014/03/County-of-Cook-v.-HSBC-North-America-Holdings-Inc.-et-al.pdf
Thursday 27 march 2014
Off topic, but of great importance for anyone responding to a foreclosure and can initiate discovery, does anyone have or have
access to the links provided, but not unavailble, by Weidner in
this article:
http://livinglies.wordpress.com/2012/07/10/weidner-notes-are-not-negotiable-instruments/
The erased links are:
Motion to dismiss and Initial brief.
Making the Pf prove the notes are noegotiable, and offering
proof mortgage notes are not negotiable destroys their
ability to sustain any claim of standing and real party in interest.
If anyone saved them could s/he send me a copy?
mn
at
edgetraderplus
dot
com
Thanks…
which of the 3 properties is this referencing? Neil
Maybe this is a good time to ask. Somewhere I got in my head that Fannie Mae could not tender a credit bid at foreclosure because they are not a retail lender (CA statutes?) I cannot for the life of me find that reference, and seek your help. It’s possible that this premise was true before 2011, but the law has changed since then.
As Hilarious Clinton put it – “What difference does it make?!” Here we have a denial of a borrowers cause of action for wrongful foreclosure in CA by the trial court citing the following in the tentative ruling –
Also, Plaintiffs fail to show that the alleged defects in the foreclosure process prejudiced Plaintiffs. ( See, Fontenot v Wells Fargo Bank (2011) 198 Cal.App.4th 256, 272; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85 [plaintiff must allege facts showing that they suffered prejudice as a result of any lack of authority of the parties participating in the foreclosure process.])
TnHarry, .. Exactly!
RE: ” The borrower (The Estate) is also not advised that his/her name and credit score would be used to sell those securities ”
KC: … OK, now lets talk about how much they were sold for … and where the money from those proceeds went.
Lets talk about the How to Get our Titles back (or to get them to begin with) … or can we?
and get a firm grip on your papers as you get blown out of the courtroom on a motion to dismiss for failure to state a claim for this theory…
Neil , this is all good except, DB Structured Products INC, has a Photoshop history of showing the sale of notes and also adding history to them. I can send you copies of this to show you if you want, I know it happen to me.
Courts being uneducated in this area are accepting them . 🙁
Deb
Date: Thu, 27 Mar 2014 13:29:42 +0000 To: ttyson3@hotmail.com
My note has the mortgage brokerage name on it. Yet I come to find out years later, Fannie Mae is the investor since that very day of the refinance. What I don’t understand , is the assignment of mortgages (mine are robo signed and back dated, but that’s a whole other story) go from broker to SERVICER A to SERVICER B to SERVICER C, but never to Fannie Mae and foreclosure not in their name either …… So who is lender, credit or, investor, holder and any other names these frauds twist the meaning of !!!!!!!