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I have always said that these cases will be won in discovery. Discovery must of course be preceded by proper pleading. Typically borrowers ask all the right questions and get no answers. They are met with objections that are, to say the least, disingenuous. The motion to compel better answers or to overrule the objections of the party seeking foreclosure is the real battle ground, not the trial. And speaking from experience, just noticing the objections for hearing or using a brief template and then relying on oral argument will not, in most cases, cut to the quick. The motions and hearings aimed at forcing the opposition to answer fairly simple questions (yes or no responses are best) should be accompanied with a brief that states just why the question was relevant, and why you need the answers from the opposition and why you can’t get it any other way. This involves educating the judge as to the fundamentals of your position, your defenses and your claims as the backdrop for why the discovery requests you filed should be compelled.
Practically every case in which there was a major settlement under seal of confidentiality involves an order from a judge wherein the servicer or bank was required to answer the real questions about the actual money trail and the accounting and management of the money from soup to nuts. So if a judge says that the borrower gets all the information about the loan starting with the source of funding at the alleged time of origination and the judge says that the borrower is entitled to know where the borrower’s money was sent after being received by a servicer, and the judge says the borrower can know what other payments were made on account of the subject loan, the case is ordinarily settled in a matter of hours.
The only money trail is the one starting with investors who thought they were buying mortgage backed securities, the proceeds of which sale would go to a REMIC trust, but were instead diverted to the coffers of the investment bank who created and sold those mortgage backed securities. And it ends with a “remote” vehicle sending money to a clueless closing agent who assumes that the money came from the originator. BECAUSE THE MONEY DIDN’T COME FROM THE ORIGINATOR, THERE IS NO MONEY TRAIL AFTER THE ALLEGED “CLOSING.” Who would pay an originator for a loan they know the originator never funded? Who would pay an assignor when they know the assignor never paid any money to acquire the loan, debt, note or mortgage? Answer nobody. And that is why the servicers and banks cannot open their books up — the entire scheme is an illusion.
What follows is an abstract from my notes on one such case: (The trial was bifurcated in time)
What we are seeing here is a master at obfuscation. In one case I have in litigation, Wells Fargo wants to assert that it can foreclose on the mortgage in its own name. It has alleged in the complaint that it is the owner of the loan and then testified that it is not the owner but rather the servicer. It has testified that Freddie Mac was the investor from the start but it has produced an assignment from a nonexistent entity in which Wells Fargo was the assignee.
Nobody testified that they were in court on behalf of any investor and the only thing we have is the bare assertion from the witness stand that Freddie Mac is the investor from the start. And yet during this whole affair, Wells posed as the lender, owner and then servicer of the loan without any authority to do so. And they posed as a party who could foreclose on the borrower without any evidence and probably without any knowledge as to what was showing on the books and records of whoever actually did the funding of this loan (or if the funding was in the amount claimed at closing) or whoever is claimed to be the owner of the loan.
The point should be made that the defendants are the sole source of records, data and witnesses by which the Plaintiff’s case can be proven as to liability, damages and punitive damages. We have limited discovery to asking about their procedures as they relate to this particular alleged loan.
The issue at hand is that our position is that they knew that the alleged originator could not have been the lender because they did not exist, did not have bank account etc. And they have admitted that the named successor was not the lender either and admit that the foreclosing party did not buy the loan, the debt, the note or the mortgage.. Not until the first part of trial did the representative from Wells state that contrary to the pleading they were acting as servicer not the creditor or owner of the loan. And they stated that the real lender was Freddie mac “from the start.”
So we are asking how it happened that Wells entered the picture at all as servicer or representative for any actual creditor — the only indication we have that some creditor exists is the surprise testimony from the designated representative of Wells in which he admitted that the named originator was not the lender, could not explain how such an “originator” was put on the note and mortgage and that Wells Fargo was not the lender or owner of the loan either. But we have no documentary evidence or data or witness from them explaining why they proceeded to assert any right to collect any money much less enforce a loan of money that came from somewhere but we don’t know from where.
The corporate representative of Wells says Freddie Mac was the “investor from the start.” But we have the direct refusal of Wells Fargo to produce a servicing, agency or representative agreement that applies to this loan.
We know that Freddie Mac was never a lender in the sense that they never originated any loans. So now we are asking for how they did get involved. The charter of Freddie Mac allows them to be two things: (1) guarantor and (2) Master trustee for REMIC Trusts. Freddie can buy loans with either cash or mortgage backed bonds issued by the REMIC Trust if such bonds were issued by one or more Trusts to Freddie Mac.
But all of that still leaves the question of where did the money come from — the money that was used to give to the borrower? It appears that the money came from investors who bought mortgage backed securities from REMIC Trust if Freddie Mac was really involved (A fact that is unknown at this time) or that the money came from investors who bought mortgage backed securities from a private label REMIC trust that is not registered with the SEC. But the money came from somewhere and we want to know the identity of the source because it will tell us who was really involved. And it is only in the context of knowing who was really involved that we assess the behavior of Wells Fargo and why they did what they did.
They should be compelled to answer our discovery requests in a more forthright manner. If they are answering truthfully, which we must assume they are, for the moment, then that could only mean that there is a deal somewhere in which they have some potential exposure and which has never been disclosed. That exposure has nothing to do with the debt, note or mortgage that was originated in the name of the alleged originator. And THAT goes to the essence of their motivation to lie to the borrower and to interfere with her ability to sell the property and pay off the loan.
The exposure relates to the fact that without a foreclosure judgment and subsequent sale of the property, they lose their ability to recover servicer advances. Servicer advances are the exact opposite of the basis for a foreclosure action. In a foreclosure action it is based upon the fact that the creditor experienced a default — i.e., the creditor did not receive payments. With servicer advances, the investor gets the money regardless of whether or not the borrower pays. They are volunteer payments because the borrower is not in privity with the advancer of payments to the creditor and in fact is completely unaware of the fact that such payments are being made.
It also hints at another proposition: that some third party would hold them responsible unless they got a foreclosure judgment. We are left with equivocating answers that continue the pattern of obscurity as to the nature of the origination of the loan and the ownership or authority to represent anything. So it might just be that they they could not give a payoff figure and that their motivation was obtain the foreclosure judgment at all costs, even if they had to lie and dodge to get it. It would also explain why they lured her into the default. Certainly their turnover of SOME of the audio files which did not include the call in which she was told she needed to be 90 days behind (contrary to HAMP) in order to get some sort of relief.
And there is another issue that comes up when you consider borrower’s testimony that she did receive a forbearance 2 years earlier. Did they have authority to do that? What changed, if anything? Did some other party intervene? Was there a change in internal Wells Fargo policy?
All these things could be answered if they would be more forthright in their answers and if they reconciled the obvious discrepancy between not being the owner of the loan, but alleging that they were, not being the servicer or unwilling to state the source of their authority to represent another party, and testifying that they were the servicer, and testifying about Freddie Mac involvement without any records showing that involvement (indicating that the witness did NOT have access to the entire file). This also goes to the issue of whether there was any default at all if there is a PSA for a trust that claims ownership and if that PSA shows that through servicer advances or other payments means the real creditors — the investors — were NOT showing any default at all.
The point of this diatribe is that this case highlights the fact that in virtually all Wells Fargo cases (and with other banks), the real party seeking a foreclosure judgment is the servicer (since they are the only ones showing up at trial anyway), but that whatever the servicer’s interest is or whatever their risk of loss is, it relates to a claim either not against the borrower or not based upon the mortgage which is either void or owned by someone else.
If the self-proclaimed servicer is saying they will suffer damages upon default and they admit they have no ownership of the loan nor did they fund the original loan transaction, then any recovery would be based upon a cause of action other than a foreclosure of a mortgage where they are neither the mortgagee, successor or creditor. Their claim if caused by volunteer payments (servicer advances) to the creditors, it is based upon unjust enrichment not breach of the contractual duty to pay the loan.
Remember that the witness testified to being the corporate representative of Wells Fargo as servicer and not to being a corporate representative of the “investor.” And the witness testified that the records of the investor were never available to him, so how can he testify that the creditor has experienced a default? Since the borrower never had any privity with Wells Fargo as servicer or lender how else could they be exposed to a loss? And more importantly, why are they suing the borrower for collection on the note and enforcement of the mortgage when the actual creditor has not experienced any default?
THAT is the draft of the memo or brief that should accompany the Motion to Compel answers to simple questions. It is almost comical that their answer to a yes or no question was an objection that it was too broad, ambiguous etc. What IT platform are you using? Answer: None of your business. But it is written as an objection to the form or content to the question. That is how the servicers stonewall borrowers and that is how borrowers are prevented from ever knowing the truth about the origination or management of their loan.
Filed under: foreclosure | Tagged: dsicovery, foreclosure defense, money trail, Servicer advances |
David, I stumbled on an assgt and assumption agreement between RFC and RAMP for 477M in loans. It’s at scribd. Haven’t had time to digest it yet.
Enforcement of “Due-on-Sale” Clauses
The accompanying prospectus supplement specify whether the master servicer or the
servicer, as applicable, directly or through a subservicer, to the extent it has knowledge of the
proposed conveyance, will be obligated to exercise the trustee’s rights to accelerate the maturity of
such loan under any due-on-sale clause applicable thereto, when any mortgaged property relating to
a loan, other than an ARM loan, is about to be conveyed by the borrower. A due-on-sale clause will
be enforced only if the exercise of such rights is permitted by applicable law and only to the extent
it would not adversely affect or jeopardize coverage under any primary insurance policy or
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applicable credit enhancement arrangements. See “Certain Legal Aspects of the Loans—
Enforceability of Certain Provisions.”
The depositor will cause the trust assets constituting each pool to be assigned without
recourse to the trustee named in the accompanying prospectus supplement, for the benefit of the
holders of all of the securities of a series. The master servicer or servicer, which may be an affiliate
of the depositor, named in the accompanying prospectus supplement will service the loans, either
directly or through subservicers or a Special Servicer, under a servicing agreement and will receive
a fee for its services. See “The Trusts” and “Description of the Securities.” As to those loans
serviced by the master servicer or a servicer through a subservicer, the master servicer or servicer,
as applicable, will remain liable for its servicing obligations under the related servicing agreement
as if the master servicer or servicer alone were servicing the trust assets. With respect to those
mortgage loans serviced by a Special Servicer, the Special Servicer will be required to service the
related mortgage loans in accordance with a servicing agreement between the servicer and the
Special Servicer, and will receive the fee specified in that agreement; however, the master servicer
or servicer will remain liable for its servicing obligations under the related servicing agreement as if
the master servicer or servicer alone were servicing the related trust assets. In addition to or in place
of the master servicer or servicer for a series of securities, the accompanying prospectus supplement
may identify an Administrator for the trust. The Administrator may be an affiliate of the depositor.
All references in this prospectus to the master servicer and any discussions of the servicing and
administration functions of the master servicer or servicer will also apply to the Administrator to the
extent applicable. The master servicer’s obligations relating to the trust assets will consist
principally of its contractual servicing obligations under the related pooling and servicing
agreement or servicing agreement, including its obligation to use its best efforts to enforce purchase
obligations of Residential Funding Corporation or, in some instances, the Special Servicer, the
designated seller or seller, as described in this prospectus under “Description of the Securities—
Representations with Respect to Loans” and “—Assignment of Loans” or under the terms of any
private securities
PATTERSON BELKNAP WEBB & TYLER LLP
Philip R. Forlenza (prforlenza@pbwt.com)
Erik W. Haas (ehaas@pbwt.com)
Robert P. LoBue (rplobue@pbwt.com)
Peter W. Tomlinson (pwtomlinson@pbwt.com)
Ella Campi (ecampi@pbwt.com)
1133 Avenue of the Americas
New York, New York 10036
Telephone: (212) 336-2000
Fax: (212) 336-2222
Attorneys for Ambac Assurance Corporation and
The Segregated Account of Ambac Assurance Corporation
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x
AMBAC ASSURANCE CORPORATION and
THE SEGREGATED ACCOUNT OF AMBAC
ASSURANCE CORPORATION,
Plaintiffs,
– against –
FIRST FRANKLIN FINANCIAL
CORPORATION, BANK OF AMERICA, N.A.,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INC., MERRILL LYNCH MORTGAGE
LENDING, INC., and MERRILL LYNCH
MORTGAGE INVESTORS, INC.
Defendants.
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– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x
Index No. __________
COMPLAINT
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
——————– —————— x
FINANCIAL GUARANTY INSURANCE
COMPANY,
:
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Mot. Seq. 001
Index No. 652853/2014
Justice Friedman
Part 60
ORAL ARGUMENT
REQUESTED
Plaintiff,
– against –
MORGAN STANLEY ABS CAPITAL I INC. and
MORGAN STANLEY MORTGAGE CAPITAL
HOLDINGS LLC, as successor to MORGAN
STANLEY MORTGAGE CAPITAL INC.,
Defendants.
——————– —————— x
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S COMPLAINT
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
Attorneys for Morgan Stanley ABS Capital
I Inc. and Morgan Stanley Mortgage
Capital Holdings LLC
and the fat lady is singing louder and louder. on that one. how could any judge in this country say the trust or investors lost money. ???? no way and no how.
this go’s to show that no one , i mean no one lost a dime. except for insurance companys. and they should be the ones suing homeowners but cant. they did not have a securitiy ownership in anything.
read it. no one lost a dime.
GMACMs Securitizations and Financial Guaranty Insurance Generally
(1) Financial Guaranty Insurance Policies
53. To increase the marketability of its RMBS, GMACM from time to time sought
credit enhancement for its securitizations from FGIC, a financial guaranty insurer, in the form of
financial guaranty insurance policies. Such financial guaranty insurance policies were generally
issued to the indenture trustee for the insured securities, for the benefit of the holders of the
insured RMBS, to insure the risk of shortfalls in cash available to the trust to repay the insured
securities.
54. In a typical GMACM-sponsored securitization, including the 2006-HE1
Transaction, GMACM, as servicer, remits proceeds from the mortgage loans backing the
securitization to the indenture trustee, along with a servicers certificate that details the
distributions to be made. Then, in accordance with the servicers certificate, the indenture
trustee allocates those funds to the payment of principal and interest due on the RMBS, as well
as the payment of fees to GMACM and other participants, and in some cases to reserve funds
and other uses.
55. The primary source of the funds administered by the indenture trustee is the
remittance of payments on the underlying loans. Delinquencies by borrowers in making their
mortgage loan payments, by definition, will reduce cash flows to the trust, which will directly
impair the ability of the trust to meet its obligations. Delinquencies, if not cured, will eventually
result in mortgage loan charge-offs, which reduce the aggregate principal amount of the loan
pool supporting the RMBS. In this manner, high levels of mortgage loan delinquencies and
defaults can lead to shortfalls in cash available to pay RMBS investors. Such shortfalls result in
claims on FGICs policies.
56. Under the terms of a financial guaranty insurance policy, like the one FGIC issued
here, the insurer unconditionally and irrevocably guarantees to the indenture trustee for the
benefit of the holders of the insured RMBS that, if there is a shortfall in cash available to it to
make required payments on the insured securities, the financial guaranty insurer will pay the
amount of the shortfall to the indenture trustee for the benefit of the holders of the insured
securities.
david, yes, far as I know the bk or 86ing of a business ends any agency it has with anyone. Wow – 10,000 pages. are you kidding? and your loan wasn’t in there. That would make me drink. Why do these guys have so many loans as assets if they actually sold them to trusts? Are they really just indentures by design or otherwise? So what you’re saying is that Ramp wasn’t a member of merscorp and that rfc sold a gazillion loans to ramp, and ramp, not being a merscorp member couldn’t use its employees to execute assignments to a trust in mers’ name. So everyone of them needed an executed and recorded assignment from RFC to RAMP (by merscorp’ ‘rules’) and the loans removed from the software program. If this is true and it gets more loudly outed, watch them deny that mers is anything but thee ben (if they think it will help them). (Did you happen to see if RFC were a member? but just because they’re shown (if), doesn’t mean they are, just like others I’ve seen for out of business entities.) I found a case (looking up RAMP or I forget) a day or so ago wherein the court said NOT because RFC endorsed the note to the trust and not RAMP who had (allegedly) bought it from RFC. I’ll try to link it.
One way or another, they needed an assignment from RFC to Ramp. IF mers were an agent, it should be taking marching orders from the last note owner, not its buyer. imo. But an agent can’t convey the interest of its principal, anyway.
jg,
(a) Any Member that sells, transfers, or otherwise disposes of all or substantially
all of its assets to any entity that is not a Member of the MERS® System, shall, subject to
applicable federal or state law, regulatory requirements, or other agreements, provide written
notice of such transaction(s) to MERSCORP Holdings no less than ninety (90) days prior to the
effective time of such disposition of assets to such non-Member entity. The Member shall
complete the Resignation of Membership prior to the completion of the disposition of assets to
such non-Member entity. Notwithstanding the foregoing, the resigning Member shall not be
required to comply with this sub-section if the acquiring entity submits a MERS® System
Membership Application (the “Membership Application”) no less than thirty (30) days prior to
the sale or disposition of assets and subsequently becomes a Member bound by the Governing
Documents.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
—————————————————— x
FINANCIAL GUARANTY INSURANCE
COMPANY,
Plaintiff,
-against-
GMAC MORTGAGE, LLC F/K/A
GMAC MORTGAGE CORPORATION;
ALLY BANK F/K/A GMAC BANK;
RESIDENTIAL CAPITAL, LLC F/K/A
RESIDENTIAL CAPITAL
CORPORATION,
Defendants.
))))))))))))))
Index No. _______
SUMMONS
Date Index No. Purchased:
November 29, 2011
—————————————————— x
TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Complaint of the Plaintiff herein and
to serve a copy of your answer on the Plaintiff at the address indicated below within 20 days
after the service of this Summons (not counting the day of service itself), or within 30 days after
service is complete if the Summons is not delivered personally to you within the State of New
York.
YOU ARE HEREBY NOTIFIED THAT should you fail to answer, a judgment will be
entered against you by default for the relief demanded in the complaint.
VENUE: Plaintiff designates New York County as the place of trial. The basis of this
designation is Plaintiffs residence in New York County at 125 Park Avenue, New York, New
York 10017. A further basis of this designation is Defendant GMAC MORTGAGE, LLCs
residence in New York County and agreed submission to this venue.
Ú×ÔÛÜæ ÒÛÉ ÇÑÎÕ ÝÑËÒÌÇ ÝÔÛÎÕ ïïñîçñîðïï ×ÒÜÛÈ ÒÑò êëííðîñîðïï
jg, the reason i was saying that, the assignment in 2012 is void, is that
on top of residential asset mortgage inc, was not part of mers, merscorp.
is under the bk of gmac mortgage, llc and residential-rescap. is that they had to file a complete list of what they own, as of 2 yrs prior for assets. i went through all 10,000 plus pages of assets. of gmac mortgage ,llc and rescap.
even though they show many mortgages that they still own, for sale, mine was not to be found.
so by law they must own that mortgage and note to assign it to anyone. or give someone permission to assign it to someone.
not owned , mean they do not have any right to that mortgage and note. period. and someone signing that they are signing for gmac mortgage corp. that was dead in 2006. and signing for them in 2012.
fraud is fraud.
SECTION 4. Record Title and Possession of Mortgage Files. The Seller hereby sells, transfers, assigns, sets over and conveys to the Purchaser, without recourse, but subject to the terms of this Agreement and the Seller hereby acknowledges that the Purchaser, subject to the terms of this Agreement, shall have all the right, title and interest of the Seller in and to the Mortgage Loans. From the Closing Date, but as of the Cut-off Date, the ownership of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the related Mortgage File and all rights, benefits, proceeds and obligations arising therefrom or in connection therewith, has been vested in the Purchaser
. All rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with the Mortgage Loans and all records or documents with respect to the Mortgage Loans prepared by or which come into the possession of the Seller shall be received and held by the Seller in trust for the exclusive benefit of the Purchaser as the owner of the Mortgage Loans. On and after the Closing Date, any portion of the related Mortgage Files or servicing files related to the Mortgage Loans (the “Servicing Files”) in Seller’s possession shall be held by Seller in a custodial capacity only for the benefit of the Purchaser. The Seller shall release its custody of any contents of the related Mortgage Files or Servicing Files only in accordance with written instructions of the Purchaser or the Purchaser’s designee.
SECTION 5. Books and Records. The sale of each Mortgage Loan has been reflected on the Seller’s balance sheet and other financial statements as a sale of assets by the Seller. The Seller shall be responsible for maintaining, and shall maintain, a complete set of books and records for the Mortgage Loans which shall be appropriately identified in the Seller’s computer system to clearly reflect the ownership of the Mortgage Loans by the Purchaser
.
SECTION 6. Delivery of Mortgage Notes.
————————–
(a) On or prior to the Closing Date, the Seller shall deliver to the Purchaser or the Custodian, as directed by the Purchaser, the original Mortgage Note, with respect to each Mortgage Loan so assigned, endorsed without recourse in blank, or in the name of the Trustee as trustee, and signed by an authorized officer (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Seller, and if in the form of an allonge, the allonge shall be stapled to the Mortgage Note), with all intervening endorsements showing a complete chain of title from the originator to the Seller. If the Mortgage Loan was acquired by the endorser in a merger, the endorsement must be by “____________, successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired or originated by the endorser while doing business under another name, the endorsement must be by “____________ formerly known as [previous name].” The delivery of each Mortgage Note to the Purchaser or the Custodian is at the expense of the Seller.
In lieu of delivering the Mortgage Note relating to any Mortgage Loan, the Seller may deliver or cause to be delivered a lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced or destroyed, and, if available, a copy of each original Mortgage Note; provided, however, that in the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering the above documents, may deliver to the Purchaser a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loan in the Payment Account on the Closing Date.
(b) If any Mortgage Note is not delivered to the Purchaser (or the Custodian as directed by the Purchaser) or the Purchaser discovers any defect with respect to a Mortgage Note which materially and adversely affects the interests of the Certificateholders in the related Mortgage Loan, the Purchaser shall give prompt written specification of such defect or omission to the Seller, and the Seller shall cure such defect or omission in all material respects or repurchase such Mortgage Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth in Section 7.03. It is understood and agreed that the obligation of the Seller to cure a material defect in, or substitute for, or purchase any Mortgage Loan as to which a material defect in, or omission of, a Mortgage Note exists, shall constitute the sole remedy respecting such material defect or omission available to the Purchaser, Certificateholders or the Trustee on behalf of Certificateholders.
(c) All other documents contained in the Mortgage File and any original documents relating to the Mortgage Loans not contained in the Mortgage File or delivered to the Purchaser, are and shall be retained by the Servicer in trust as agent for the Purchaser.
In the event that in connection with any Mortgage Loan: (a) the original recorded Mortgage (or evidence of submission to the recording office), (b) all interim recorded assignments, (c) the original recorded modification agreement, if required, or (d) evidence of title insurance (together with all riders thereto, if any) satisfying the requirements of clause (I)(ii), (iv), (vi) or (vii) of the definition of Mortgage File, respectively, is not in the possession of the Servicer concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office, or, in the case of each such interim assignment or modification agreement, because the related Mortgage has not been returned by the appropriate recording office, in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, or because the evidence of title insurance has not been delivered to the Seller by the title insurer in the case of clause (I)(vii) of the definition of Mortgage File, the Servicer shall use its best effort
jg, i have been saying for long time. as i have shown you. residential asset mortgage ,inc. was not a MEMBER OF MERS. so when gmac mortgage sold the mortgage and notes to them . THAT ENDED ANY RELATION TO MERS,MERSCORP.
it would also end all of gmac mortgage corps involement to any mortgage that was sold to residential asset mortgage ,inc.
so you must look up any and all assignment on records, as i my case the first and only assignment was in 2012. from electr/resg.sys.inc. to trustee, but someone saying/signing for gmac mortgage corp/ that at that time was in full blown bk with rescap.
and gmac mortgage corpoation, was not in existent as of 2006.
making that assignment null and void.
DESCRIPTION OF CREDIT ENHANCEMENT
General
As described in the accompanying prospectus supplement, credit support provided for each
series of securities may include one or more or any combination of the following:
69
• a letter of credit;
• subordination provided by any class of subordinated securities for the related series;
• overcollateralization;
• a mortgage repurchase bond, mortgage pool insurance policy, mortgage insurance
policy, special hazard insurance policy, bankruptcy bond or other types of insurance
policies, or a secured or unsecured corporate guaranty, as described in the accompanying
prospectus supplement;
• a reserve fund;
• a financial guaranty insurance policy or surety bond;
• derivatives products, as described in the accompanying prospectus supplement; or
• another form as may be described in the accompanying prospectus supplement.
If specified in the accompanying prospectus supplement, the loans or home improvement
contracts may be partially insured by the FHA under Title I.
Credit support for each series of securities may be comprised of one or more of the above
components. Each component will have a dollar limit and may provide coverage for Realized
Losses that are:
• Defaulted Mortgage Losses;
• Special Hazard Losses;
• Bankruptcy Losses; and
• Fraud Losses.
Most forms of credit support will not provide protection against all risks of loss and will not
guarantee repayment of the entire outstanding principal balance of the securities and interest
thereon. If losses occur that exceed the amount covered by credit support or are of a type that is not
covered by the credit support, securityholders will bear their allocable share of deficiencies. In
particular, Defaulted Mortgage Losses, Special Hazard Losses, Bankruptcy Losses and Fraud
Losses in excess of the amount of coverage provided therefor and Extraordinary Losses will not be
covered. To the extent that the credit enhancement for any series of securities is exhausted, the
securityholders will bear all further risks of loss not otherwise insured against.
Credit support may also be provided in the form of an insurance policy covering the risk of
collection and adequacy of any Additional Collateral provided in connection with any Additional
Collateral Loan, as limited by that insurance policy. As described in the related agreement, credit
support may apply to all of the loans or to some loans contained in a pool.
70
For any series of securities backed by Trust Balances of revolving credit loans, the credit
enhancement
david, I missed your comment (the psa) at 8:47. I’ll read it.
Holy cow. Someone sent me this, probably because I’m big on
recoupment and statutes of limitation.
“First, Plaintiff argues Jay’s FDCPA counterclaims are barred by the statute of limitations. This argument is meritless. **The statute of limitations has been tolled since the commencement of this suit and the counterclaims are within the applicable statute of
limitations…..**
jg: I didn’t know this, but at any rate, they – the counter-claims -should be allowed in recoupment.
“Plaintiff makes repeated arguments that R’s FDCPA claims
are barred by the statute of limitations. Plaintiff’s argument
overlooks the tolling of the statute of limitations that
occurred when Plaintiff filed suit on June 18, 2012.
“[A]n action is commenced, within the meaning of any
provision of law which limits the time for the commencement
of an action, as to each defendant, when the summons naming
the defendant and the complaint are filed with the court. Upon commencement of this action, the statute of limitations was tolled.”
jg: the action here is a JUDICIAL action and I make that distinction
because banksters claim non-j isn’t an action because it isn’t a
Judicial action – “judicial” – again, an adjective not found in some or all laws mentioning an action. imo.
“A law limiting the time for commencement of an action is
tolled by the commencement of the action to enforce the
cause of action to which the period of limitation applies.”
Upon commencement of this action, the statute of limitations was
tolled.
An AMENDMENT to a pleading relates back to the date of the
original pleading when it asserts a claim arising out of the
“conduct, transaction, or occurrence” set out in the original
pleading. Fed. R. Civ. P. 15(c)(1)(C).
When reviewing a Rule 12(b)(6) dismissal of state law claims
based on a statute of limitations, we apply state law regarding
the statute of limitations and “any rules that are an integral
part of the statute of limitations, such as tolling and
equitable estoppel.” Parish v. City of Elkhart, 614 F.3d
677, 679 (7th Cir.2010)”
jg: If I got this right, if you’re still in court with Bankster X, the statute of limitations is tolled on ‘stuff’. The homeowner, as the defendant
is this case, must have amended her counter-claims to include one for violation of the FDCPA and the bankster is hollering that it’s barred by the sol. Well, it isn’t in my opinion, not in recoupment, and acc to X’s argument, the sol (app only one year) was tolled, anyway, by the filing of the complaint against her, the thing I didn’t know and which should be useful to some who have been in court for years now. It’s my understanding pursuant to, think it’s frcp 15, that as to a complaint, one amendment is allowed as a matter of course. A second amendment takes leave of court (motion to allow second amendment) or stip with banksters (good luck on that one). It’s also my understanding that courts are to generally allow further (the second, etc) amendment to complaints unless there is good reason not to.
I don’t know how this works on much else (like answers – v counter-claims). I appreciate the info, because I didn’t know that the suit itself tolls the sol, so maybe others here didn’t.
Don’t take my word for this (if anyone were so inclined). As to recoupment and my interpretation of what I’m reading, I could be misconstruing and or missing something that will blow the deal.
Ask a lawyer or 10
Issuing Entity
The depositor will establish a trust with respect to the GMACM Mortgage Pass Through
Certificates, Series 2006-J1 on the closing date pursuant to the pooling and servicing agreement.
there is no trust.
The
pooling and servicing agreement is governed by the laws of the State of New York. On the closing date,
the depositor will deposit into the trust a pool of mortgage loans that in the aggregate will constitute a
mortgage pool, secured by one to four family residential properties with terms to maturity of not more
than 30 years. All of the mortgage loans will have been purchased by the depositor from the seller
pursuant to a mortgage loan purchase agreement, dated as of the closing date, between the seller and the
depositor.
The pooling and servicing agreement provides that the depositor assigns to the trustee for the
benefit of the certificateholders without recourse all the right, title and interest of the depositor in and to
the mortgage loans. Furthermore, the pooling and servicing agreement states that, although it is intended
that the conveyance by the depositor to the trustee of the mortgage loans be construed as a sale, the
conveyance of the mortgage loans shall also be deemed to be a grant by the depositor to the trustee of a
security interest in the mortgage loans and related collateral.
Some capitalized terms used in this prospectus supplement have the meanings given under
“Description of the Certificates—Glossary of Terms” or in the prospectus under “Glossary.” The offering
of the certificates described in this prospectus supplement is a “Designated Seller Transaction” as that
term is used in the prospectus.
the settlement is rescaprmbssettlement.com . all securitized mortgage trust. and trustee settled any and all claims, to the amount of the trust,
so if all trust settled for a portion, of what the trust had in it. than ,the trust has been payed in full.
ALSTON & BIRD LLP
Martin G. Bunin
John C. Weitnauer (pro hac vice)
90 Park Avenue
New York, NY 10016
(212) 210-9400 (telephone)
(212) 210-9444 (facsimile)
Attorneys for Wells Fargo Bank, N.A. as Trustee
and Master Servicer of Certain Mortgage Backed
Securities Trusts
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEWYORK
In re
RESIDENTIAL CAPITAL, LLC, et al.,
Debtors.
)))))))))
Case No. 12-12020 (MG)
Chapter 11
Jointly Administered
NOTICE OF CURE CLAIM OF
WELLS FARGO BANK, N.A. AS TRUSTEE AND MASTER SERVICER
David – what you posted is part of a settlement agreement of a lawsuit.
“HERE. IS THE RELEASES. OF OVER 500 SECURITIZATION TRUST ”
It’s only a release of claims regarding breaches of their agreements by the banksters (but without re-reading, I think it’s a mutual release, if so as a cya(?) The investors’ position seems to be that the loans WERE transferred to the trusts. I suppose they dare not say otherwise because that is really a hornet’s nest for them, but it may have been a potential allegation “in the background”, complete with claims for damages re: taxation: either settle and cover our losses or we’re going to the mat and you can pony-up for ALL losses. That’s just speculation, of course, but ……
If loans had actually been transferred to trusts, “mers” (or anyone) wouldn’t now be purporting to transfer them as a current event. Maybe they WERE transferred by the “Assignment and Assumption Agreements”, a ‘writing’ and “the missing link” imo, even if the endorsements and so on weren’t done as called for in the PSA’s, and these yeahoos are trying to get it in public record at this date. ish. Lot to think about if one considers the “assignment and assumption agreements”. Be nice to have one to read. But I’ll say that at one time years ago, I recall these bulk transfers (maybe denominated ‘assignment’ – I dont’ recall, being recorded here and there (pre-securitization, like when B purchased A’s loan portfolio). Got me how the heck each loan was indexed with the recorder.
I couldn’t know if all deals included an assignment and assumption agreement, nor really, if they should have. Seems like it. SOMEthing has to identify these loans with sufficient particularity to form an agreement about them.
EXECUTION COPY
ny-1040888
RMBS TRUST SETTLEMENT AGREEMENT
This RMBS Trust Settlement Agreement is entered into as of May 13, 2012, by and
between Residential Capital, LLC and its direct and indirect subsidiaries (collectively, “ResCap”
or the “Debtors”), on the one hand, and the Institutional Investors (as defined below), on the
other hand (the “Settlement Agreement”). Each of ResCap and the Institutional Investors may
be referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, certain ResCap entities were the Seller, Depositor, Servicer and/or Master
Servicer for the securitizations identified on the attached Exhibit A (the “Trusts”);
WHEREAS, certain ResCap entities are parties to certain applicable Pooling and
Servicing Agreements, Assignment and Assumption Agreements, Indentures, Mortgage Loan
Purchase Agreements and/or other agreements governing the Trusts (the “Governing
Agreements”), and certain ResCap entities have, at times, acted as Master Servicer and/or
Servicer for the Trusts pursuant to certain of the Governing Agreements;
WHEREAS, pursuant to the Governing Agreements, certain ResCap entities have
contributed or sold loans into the Trusts (the “Mortgage Loans”);
WHEREAS, the Institutional Investors have alleged that certain loans held by the Trusts
were originally contributed in breach of representations and warranties contained in the
Governing Agreements, allowing the Investors in such Trusts to seek to compel the trustee or
indenture trustee (each, a “Trustee”) to take certain actions with respect to those loans, and
further have asserted past and continuing covenant breaches and defaults by various ResCap
entities under the Governing Agreements;
WHEREAS, the Institutional Investors have indicated their intent under the Governing
Agreements for each Trust in which the Institutional Investors collectively hold or are authorized
investment managers for holders of at least 25% of a particular tranche of the Securities (as
defined below) held by such Trust either to seek action by the Trustee for such Trust or to pursue
claims, including but not limited to claims to compel ResCap to cure the alleged breaches of
representations and warranties, and ResCap disputes such claims and allegations of breach and
waives no rights, and preserves all of its defenses, with respect to such allegations and putative
cure requirements;
WHEREAS, the Institutional Investors are jointly represented by Gibbs & Bruns, LLP
(“Gibbs & Bruns”) and Ropes & Gray LLP (“Ropes & Gray”) and have, through counsel,
engaged in arm’s length settlement negotiations with ResCap that included the exchange of
confidential materials;
WHEREAS, ResCap contemplates filing petitions for relief under chapter 11 of the
Bankruptcy Code (the “Chapter 11 Cases”) in the United States Bankruptcy Court for the
Southern District of New York (the “Bankruptcy Court”);
HERE. IS THE RELEASES. OF OVER 500 SECURITIZATION TRUST
EXECUTION COPY
-7-
ny-1040888
ARTICLE VII. RELEASES.
Section 7.01 Releases. Except as set forth in Article VIII, as of the Effective Date, with
respect to each and every Trust for whom the Trustee accepts the compromise contemplated by
this Settlement Agreement, the Investors, Trustee, Trust, and any Persons claiming by, through
or on behalf of such Trustee (including Institutional Investors claiming derivatively) or such
Trust (collectively, the “Releasors”), irrevocably and unconditionally grant a full, final, and
complete release, waiver, and discharge of all alleged or actual claims, demands to repurchase,
demands to cure, demands to substitute, counterclaims, defenses, rights of setoff, rights of
rescission, liens, disputes, liabilities, losses, debts, costs, expenses, obligations, demands, claims
for accountings or audits, alleged events of default, damages, rights, and causes of action of any
kind or nature whatsoever, whether asserted or unasserted, known or unknown, suspected or
unsuspected, fixed or contingent, in contract, tort, or otherwise, secured or unsecured, accrued or
unaccrued, whether direct or derivative, arising under law or equity, against ResCap that arise
under the Governing Agreements. Such released claims include, but are not limited to, claims
arising out of and/or relating to (i) the origination, sale, or delivery of Mortgage Loans to the
Trusts, including the representations and warranties made in connection with the origination,
sale, or delivery of Mortgage Loans to the Trusts or any alleged obligation of ResCap to
repurchase or otherwise compensate the Trusts for any Mortgage Loan on the basis of any
representations or warranties or otherwise or failure to cure any alleged breaches of
representations and warranties, (ii) the documentation of the Mortgage Loans held by the Trusts
including with respect to allegedly defective, incomplete, or non-existent documentation, as well
as issues arising out of or relating to recordation, title, assignment, or any other matter relating to
legal enforceability of a Mortgage or Mortgage Note, or any alleged failure to provide notice of
such defective, incomplete or non-existent documentation, (iii) the servicing of the Mortgage
Loans held by the Trusts (including any claim relating to the timing of collection efforts or
foreclosure efforts, loss mitigation, transfers to subservicers, advances, servicing advances, or
claims that servicing includes an obligation to take any action or provide any notice towards, or
with respect to, the possible repurchase of Mortgage Loans by the applicable Master Servicer,
Seller, or any other Person), (iv) setoff or recoupment under the Governing Agreements against
ResCap, and (v) any loan seller that either sold loans to ResCap or AFI that were sold and
transferred to such Trust or sold loans directly to such Trust, in all cases prior to the Petition
Date (collectively, all such claims being defined as the “Released Claims”). For the avoidance
of doubt, this release does not include individual direct claims for securities fraud or other
disclosure-related claims arising from the purchase or sale of Securities.
Section 7.02 Release of Claims Against Investors. Except as set forth in Article VIII,
as of the Effective Date, ResCap irrevocably and unconditionally grants to the Investors a full,
final, and complete release, waiver, and discharge of all alleged or actual claims from any claim
it may have under or arising out of the Governing Agreements. For the avoidance of doubt,
nothing in this provision shall affect Ally’s rights in any way.
Section 7.03 Agreement Not to Pursue Relief from the Stay. The Institutional Investors
agree that neither they nor their successors in interest, assigns, pledges, delegates, affiliates,
subsidiaries, and/or transferees, will seek relief from the automatic stay imposed by section 362
of the Bankruptcy Code in order to institute, continue or otherwise prosecute any action relating
to the Released Claims; provided, however, nothing contained herein shall preclude the
JG, PLEASE EMAIL ME. DJABELANGER@HOTMAIL.COM,.
EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
Company,
GMAC MORTGAGE CORPORATION,
Servicer
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of February 27, 2006
GMACM Mortgage Loan Trust 2006-J1
Residential Asset Mortgage Products, Inc.
GMACM Mortgage Pass-Through Certificates, Series 2006-J1
Assignment: An assignment of the Mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect of record the sale of the Mortgage Loan to the Trustee for the benefit of Certificateholders, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages secured by Mortgaged Properties located in the same county, if permitted by law and accompanied by an Opinion of Counsel to that effect.
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the “Agreement”) dated as of February 27, 2006 by and between GMAC Mortgage Corporation, a Pennsylvania corporation, having an office at 100 Witmer Road, Horsham, Pennsylvania 19044 (the “Seller”) and Residential Asset Mortgage Products, Inc., a Delaware corporation, and having an office at 8400 Normandale Lake Boulevard, Minneapolis, Minnesota 55437 (the “Purchaser”).
The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller certain mortgage loans on a servicing-retained basis as described herein (the “Mortgage Loans”). The following terms are defined as follows:
Aggregate Principal Balance
(as of the Cut-Off Date):
$550,003,046.49 (after deduction of scheduled
principal payments due on or before the Cut-Off
Date, whether or not collected, but without
deduction of prepayments that may have been made
but not reported to the Seller as of the close
of business on such date). Closing Date:
February 27, 2006, or such other date as may be
agreed upon by the parties hereto.
Cut-Off Date: February 1, 2006.
Mortgage Loan:
A fixed rate, fully-amortizing, first lien,
residential conventional mortgage loan having a
term of not more than 30 years and secured by
Mortgaged Property.
Mortgaged Property:
A single parcel of real property on which is
located a detached or attached single-family
residence, a two-to-four family dwelling,
manufactured home, a townhouse, an individual
condominium unit, or an individual unit in a
planned unit development, or a proprietary lease
in a unit in a cooperatively-owned apartment
building and stock in the related cooperative
corporation.
Pooling and Servicing Agreement: The pooling and
servicing agreement, dated as of February 27,
2006, among Residential Asset Mortgage Products,
Inc., as company, GMAC Mortgage Corporation, as
servicer and Wells Fargo Bank, National
Association, as trustee (the “Trustee”).
Repurchase Event:
With respect to any Mortgage Loan as to which
the Seller delivers an affidavit certifying that
the original Mortgage Note has been lost or
destroyed, a subsequent default on such Mortgage
Loan if the enforcement thereof or of the
related Mortgage is materially and adversely
affected by the absence of such original
Mortgage Note.
All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement. The parties intend hereby to set forth the terms and conditions upon which the proposed transactions will be effected and, in consideration of the premises and the mutual agreements set forth herein, agree as follows:
SECTION 1. Agreement to Sell and Purchase Mortgage Loans. The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller certain Mortgage Loans having an aggregate amount equal to the Aggregate Principal Balance as of the Cut-Off Date.
SECTION 2. Mortgage Loan Schedule. The Seller has provided to the Purchaser a schedule setting forth all of the Mortgage Loans to be purchased on the Closing Date under this Agreement, which shall be attached hereto as Schedule I (the “Mortgage Loan Schedule”).
SECTION 3. Purchase Price of Mortgage Loans. The purchase price (the “Purchase Price”) to be paid to the Seller by the Purchaser for the Mortgage Loans shall be the sum of (i) $537,891,820.77, (ii) the Class PO Certificates and Class IO Certificates and (iii) a 0.01% Percentage Interest in the Class R Certificates issued pursuant to the Pooling and Servicing Agreement. The cash portion of the purchase price shall be paid by wire transfer of immediately available funds on the Closing Date to the account specified by the Seller.
The Purchaser and Seller intend that the conveyance by the Seller to the Purchaser of all its right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage Loans by the Seller to the Purchaser.
It is, further, not intended that such conveyance be deemed to be a grant of a security interest in the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that the Mortgage Loans are held to be property of the Seller, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that (a) this Agreement shall be and hereby is a security agreement within the meaning of Articles 9 of the Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be, and hereby is, a grant by the Seller to the Purchaser of a security interest in all of the Seller’s right, title and interest, whether now owned or hereafter acquired, in and to the following:
(A) the Mortgage Loans, including (i) with respect to each Cooperative Loan, the related Mortgage Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan, the related Mortgage Note and Mortgage and (iii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, (D) all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, goods, letters of credit, letter-of-credit rights, oil, gas, and other minerals, and investment property consisting of, arising from or relating to any of the foregoing and (E) all proceeds of the foregoing; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of any of the foregoing shall be deemed to be possession by the secured party, or possession by a purchaser or a person holding for the benefit of such secured party, for purposes of perfecting the security interest pursuant to the Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-313 and 9-314 of each thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or persons holding for, the Trustee (as applicable) for the purpose of perfecting such security interest under applicable law. The Seller shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were determined to create a security interest in the Mortgage Loans and the other property described above, such security interest would be determined to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Seller shall prepare and deliver to the Purchaser not less than 15 days prior to any filing date, and the Purchaser shall file, or shall cause to be filed, at the expense of the Seller, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Purchaser’s security interest in the Mortgage Loans, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by (1) any change of name of the Seller or the Purchaser, (2) any change of type or jurisdiction of organization of the Seller, or (3) any transfer of any interest of the Seller in any Mortgage Loan.
SECTION 4. Record Title and Possession of Mortgage Files. The Seller hereby sells, transfers, assigns, sets over and conveys to the Purchaser, without recourse, but subject to the terms of this Agreement and the Seller hereby acknowledges that the Purchaser, subject to the terms of this Agreement, shall have all the right, title and interest of the Seller in and to the Mortgage Loans. From the Closing Date, but as of the Cut-off Date, the ownership of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the related Mortgage File and all rights, benefits, proceeds and obligations arising therefrom or in connection therewith, has been vested in the Purchaser. All rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with the Mortgage Loans and all records or documents with respect to the Mortgage Loans prepared by or which come into the possession of the Seller shall be received and held by the Seller in trust for the exclusive benefit of the Purchaser as the owner of the Mortgage Loans. On and after the Closing Date, any portion of the related Mortgage Files or servicing files related to the Mortgage Loans (the “Servicing Files”) in Seller’s possession shall be held by Seller in a custodial capacity only for the benefit of the Purchaser. The Seller shall release its custody of any contents of the related Mortgage Files or Servicing Files only in accordance with written instructions of the Purchaser or the Purchaser’s designee.
SECTION 5. Books and Records. The sale of each Mortgage Loan has been reflected on the Seller’s balance sheet and other financial statements as a sale of assets by the Seller. The Seller shall be responsible for maintaining, and shall maintain, a complete set of books and records for the Mortgage Loans which shall be appropriately identified in the Seller’s computer system to clearly reflect the ownership of the Mortgage Loans by the Purchaser.
SECTION 6. Delivery of Mortgage Notes.
————————–
(a) On or prior to the Closing Date, the Seller shall deliver to the Purchaser or the Custodian, as directed by the Purchaser, the original Mortgage Note, with respect to each Mortgage Loan so assigned, endorsed without recourse in blank, or in the name of the Trustee as trustee, and signed by an authorized officer (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Seller, and if in the form of an allonge, the allonge shall be stapled to the Mortgage Note), with all intervening endorsements showing a complete chain of title from the originator to the Seller. If the Mortgage Loan was acquired by the endorser in a merger, the endorsement must be by “____________, successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired or originated by the endorser while doing business under another name, the endorsement must be by “____________ formerly known as [previous name].” The delivery of each Mortgage Note to the Purchaser or the Custodian is at the expense of the Seller.
In lieu of delivering the Mortgage Note relating to any Mortgage Loan, the Seller may deliver or cause to be delivered a lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced or destroyed, and, if available, a copy of each original Mortgage Note; provided, however, that in the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering the above documents, may deliver to the Purchaser a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loan in the Payment Account on the Closing Date.
(b) If any Mortgage Note is not delivered to the Purchaser (or the Custodian as directed by the Purchaser) or the Purchaser discovers any defect with respect to a Mortgage Note which materially and adversely affects the interests of the Certificateholders in the related Mortgage Loan, the Purchaser shall give prompt written specification of such defect or omission to the Seller, and the Seller shall cure such defect or omission in all material respects or repurchase such Mortgage Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth in Section 7.03. It is understood and agreed that the obligation of the Seller to cure a material defect in, or substitute for, or purchase any Mortgage Loan as to which a material defect in, or omission of, a Mortgage Note exists, shall constitute the sole remedy respecting such material defect or omission available to the Purchaser, Certificateholders or the Trustee on behalf of Certificateholders.
(c) All other documents contained in the Mortgage File and any original documents relating to the Mortgage Loans not contained in the Mortgage File or delivered to the Purchaser, are and shall be retained by the Servicer in trust as agent for the Purchaser.
In the event that in connection with any Mortgage Loan: (a) the original recorded Mortgage (or evidence of submission to the recording office), (b) all interim recorded assignments, (c) the original recorded modification agreement, if required, or (d) evidence of title insurance (together with all riders thereto, if any) satisfying the requirements of clause (I)(ii), (iv), (vi) or (vii) of the definition of Mortgage File, respectively, is not in the possession of the Servicer concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office, or, in the case of each such interim assignment or modification agreement, because the related Mortgage has not been returned by the appropriate recording office, in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, or because the evidence of title insurance has not been delivered to the Seller by the title insurer in the case of clause (I)(vii) of the definition of Mortgage File, the Servicer shall use its best efforts to obtain, (A) in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, such original Mortgage,
Here’s a big enemy of ours imo: The UCC was created to help commerce, long and short. Okay. One article is article 3, the one killing us. Courts believe, so they say and with major encouragement from the banksters (but don’t forget Hilmon or that one White Paper relying on article 9, even tho erroneously in the propaganda, which I have somewhere), that these notes are regulated by article 3 and thus prescribe the term “holder” to one in possession and then that that holder may enforce, which in their minds is consistant with the goal of the UCC, good for commerce,and further, comports with the law. But the UCC is, as I’ve said, default law. Default law is turned to in the absence of clarity in a contract. There IS a bit of confusion in the langauge in these notes, but imo not enough to resort to default law. The notes say that one who takes the note by “transfer”, not negotiation, and is entitled to payments becomes the notes “holder”. In the Ucc, the word “transfer” has a specific meaning; it’s defined, and it isn’t a negotiation, which is something else, mol a change of possession. A transfer requires “A” to give “B” the note with the intention of giving B the right to payment, that is, the interest in the note (and this would require consideration).
“Holder”, I think, is an Article III specific term, whereas “transfer” isn’t, (I think from memory) and neither is “right to payment”. Odd as it sounds, there’s really no evidence that the drafters meant the UCC’s ‘holder’ in the note, tho I’ve no doubt that’ll be the argument if not consensus. But it conflicts with the word “transfer” imo. Until some brainiacs can successfully argue these loans aren’t moved by or subject to ‘negotiation’, the language in them says they must be transferred, not negotiated, and the guy trying to enforce must have the right to payment, AND upends the alleged ‘mers’ assgts
(aka transfers) of the notes, which imo is an attempt at the requisite “transfer”, we’re scr*wed, blue, and tattoo’d.
The default-law-only UCC says one who takes by negotiation may enforce. DOES that equate to a right to payment as stated in the notes? Isn’t it the note owner who has a right to payment and isn’t that why the notes themselves call for “transfer” of the note – to preclude someone who has the note, but not BY TRANSFER, from trying to enforce them? The guys who created these notes, prob fnma, WANTED these notes transferred, not negotiated. As ‘ve said before, say, for instance, a warehouse lender has poss of notes and goes belly-up. His creditors could claim those are the w/h lender’s assets. But whatever “they wanted”, they wrote the notes to call for transfer and the right to payment. I posted that case yesterday or so wherein the court found no evid of ‘mers’ right to (sell and) assign – aka
transfer – the note, but as we know, it’s the exception and maybe it’s because the homeowner argued “intensely”.
Actually, when the brainiacs are done with this argument, then they have to argue better why at least an assgt / transfer of the coll instrument requires acceptance and why the trusts can’t accept even regardless of the tax consequence. Btw, I read another case last week wherein the judge actually said maybe the homeowner would like to reap a large reward by reporting to the IRS the alleged assignment to the trust! If I can find it, for sh&ts and giggles, I’ll link it.
At this point most people have stepped back and see the big picture there’s no way it adds up. We have the document creation systems with Wells Fargo and Chase. Like the Chase whistleblower said all you had to do was check incomes of neighborhoods and you knew something was wrong. IMO investors were in on it and had theur own derivative bets going. We have to quit wasting time investigating, research ing and nail them for their counterfeit notes and ponzi scheme.
Ian, The cost of money changes by the minute. It really does. Something called “par” is used to determine the prices charged for or paid for loans and it’s what changes constantly.(In the old days, we used to hate it when Volcker (former chairman of the fed reserve) opened his mouth because it always seemed to cause an adverse effect on the cost of funds). I imagine this is one reason these rubes had to act so quickly, too quickly to be bothered with physically moving notes, doing assignments, etc. Par can change a lot VERY quickly, so in order for anyone to commit to buy loans in this alleged chain, that had to be considered and really, they had to have gotten the funds at a price consistant with and would remain consistant with the sales prices. NG says they just used the deriv investors’ money either at closing or the next guy and the next and maybe they did. But however, they would’ve had to have funds in place at a set cost of the funds to live with any committed sales price for each alleged sale, and remember, the loans were accruing interest daily – all millions of them so any sales price would need to consider the interest accruing and or owed at the time of sale. They didn’t just take a 500k note and say ‘here take this for 500k’ because payments could’ve also been made on at least some of the loans. They could use an aggregate percentage rate as to accruing interest, I suppose, based on the average of the loans, but even that only works if the loans all have the same origination date. Since they decided the loans didn’t need to be seasoned to sec’n (still don’t have a handle on that one), there is no way in heaven or hell they could physically move all that paper at once imo in that amt of time (get the paper, endorse, move the paper, new endorsement, and so on) and they had to have known this when they agreed to do otherwise. They could’ve done some smack so that so and so could endorse for them, but there are rules about that, like if xyz endorses for abc without saying so AT THE ENDORSEMENT, abc remains liable for the note. If these loans were transferred at all from B to anyone, it was in bulk sales, evidenced by some kind of stinking writing – not concurrent movement of the paper, but even then, I don’t know how they handled the accrued and accruing interest due on the notes. Maybe they have a program for that. Got me.
There’s no doubt on my mind based on my ‘research’ that mers has a program to electronically deal with notes. The only question is: did they use it? The way I get it, their idea of movement of a note was for merscorp’ members to make a voluntary entry into the software program aka mers owned by merscorp. It could’ve been based on a writing (or it could have just as easily been pure fiction), but no way on all those notes individually. Instead of the consent order, when it got at least some of the picture, the government should’ve taken over that stinking deal and put many, many out of work Americans to the task of doing whatever could be done and returning our land records to where they belong. If we make it another hundred years, this’ll just be some tag in history books. I’m staring to look differently at those Southerners who wanted to secede, knowing I may not be getting the real story.
And then they threw billions of dollar at them for HAMP with NO strings. They must in fact have us by the short ones is all I can think. I’m still thinking about e.tolle’s take on whats-his-face needing to apologize to that gang for his needle-prick regarding their fraud, collusion, lying, cheating a$$ cheating. Debauchery, that’s what it is.
Well, there I went again, but they really couldn’t have done all that and met the trusts’ closing dates. I think these loans are moved contractually, (never by negotiation, an art III term) so why did they write psa’s to include endorsements they can’t have intended to execute? Just part of a dog and pony show for the deriv buyers (make the investors believe no on else could or would enforce the notes)? Really, is there any other conclusion? (one other comes to mind – sec’n rules, but I wouldn’t know about that)
JG- the Remics (mbs or rmbs) needed 2 true sales to make them bankruptcy remote entities. That would be a sale from the originator to the sponsor, the sponsor to the depositor, and the
depositor to the trust.
No onr has ever produced one mortgage that was properly securitized in this manner- not 1! Out of tens of millions, not a single one!
( why? )
MASSACHUSETTS MUT. LIFE v. RESIDENTIAL FUNDING (and everyone else)
843 F. Supp.2d 191
District Court, D. Massachusetts.
February 14, 2012.
“These actions arise out of the sale of RMBS certificates
to Plaintiff between 2005 and 2007. All of the certificates
at issue were created in a largely identical multi-step
securitization process.
*1) Loan originators originated mortgage loans to borrowers who
were buying or refinancing homes.
2) A sponsor bought loans from the originators and aggregated
them into a loan pool, which usually contained thousands of
loans.
3) The sponsor then sold the pool to a depositor, who transferred
the loans to a trust.
4) The trust issued certificates to the depositor, who sold the
certificates to underwriting financial institutions for
resale to investors, such as Plaintiff.”
(jg: I put the numbers there.)
“Defendants in these actions include institutions that served
as sponsors,depositors, and underwriters of the loans.
When sold, certificates were accompanied by offering documents
that included a prospectus and prospectus supplement. The
offering documents provided descriptions of the certificates,
summary loan information on the underlying loans, and summary
descriptions of the third-party originators’loan underwriting
guidelines.
Plaintiff alleges that the offering documents at issue in these
cases misstated or omitted certain material facts,
specifically:
(1) Defendants represented that the loans were underwritten
using prudent underwriting standards, but, in fact, loan
originators systematically disregarded their stated loan
underwriting guidelines;
(2) Defendants represented that the valuations of the
underlying properties were conducted in accordance with well-
established appraisalprocedure guidelines and that the
resulting loan-to-value (“LTV”) ratios were reliable, but,
in fact, appraisers routinely failed to follow these
procedures and Defendants knowingly reported false appraisals
and LTV ratios;
Plaintiff further alleges that the misrepresentations
materially affected the risk profile of the certificates and
caused Plaintiff to purchase securities that were far riskier
than disclosed. The certificates that Plaintiff
purchased now qualify as “junk.” ”
jg: ‘junk’.right.Junk for investors but what of homeowners
who were enticed into these junk loans? They lost and are losing their homes for Pete’s sake! But they’re just deadbeats
who don’t pay? What they are is people who got suckered,
just like the investors and further, because they didn’t
qualify and were victims themselves of predatory loans,
imo have a defense of ‘impossibility of performance’ to go
with their other defenses. I know that’s generally a contractual
defense, so it may be available here. I mean, it’s the truth.
If someone got a loan at 2% for three months and then the
note rate goes to 9% (courtesy of index = probably rigged
libor, + margin (add-on to index rate because banksters
don’t loan money without adding a margin, a big one, of
profit) of something absurd like 5% plus, sort of hard to make the payment when one prob didn’t really qualify at the 2% in the first place.
Jerkies. What a thing to do. Stinking a$$ yuppies. Probably costs
a thousand a mo. in Manhattan just to park their beamers.
David, saw one case wherein RFC, not ramp who should’ve,
endorsed the note to the trust. Don’t know what happened.
RFC was around since 80’s or 90’s, best I know. They started off buying “less than ‘A’ paper (full qual, reasonable ltv, good credit score and assets, job stability) and jumbo loans not eligible for F & F.
Guess they spiraled down to garbage. Looks like they all went
to hell in a little row boat or at least intended to send
everyone else there.
Samantha: “I also have three letters from the alleged remic trust trustee, US Bank NA, in 2012 refusing to allow my investor to view… That is to view only, my original note which was signed in a different colored ink. My investor wanted to make sure the original note would be coming back paid in full and not wandering on the open market as unpaid.
In these three letters beginning in June 2012, U.S. Bank reiterates that they are the trustee and Holder of the note for the certificate owners. But obviously no one informed U.S. Bank that they were substituted out as trustee, and their US bank alleged agent authorized substitution, (to Bank of America’s subsidiary, known as recontrust), with a substitution filed and recorded in March 2012. Even in November 2012 US Bank NA continued to write they were the current trustee.”
I think you may be confusing the dot trustee with the sec’n trustee.
Sounds like U.S. bank is claiming to be the trustee of the secn trust and claims that it owns the note for the cert holders of that secn trust and someone (?)sub’d the original DEED OF TRUST trustee to Recontrust. As to the refusal to see the orig note, what does your lawyer say?
david: “I HAVE THE PURCHASE AND SALES AGREEMNET OF LOANS TO THEM.” Like to see that, if I may. At scribd or anywhere?
How does the allonge purport to convert to party 1?
How does what the sercicer produces purport by endorsements to party 2?
How does MERS purport to transfer the note and mortgage together to party 3?
All 3 claims…what is a gal to do?
Let me count the ways……..
Lets start with the Broker.. the lender and the Capital Asset Funding Companies. All Fronts to hide the original creditor (the depositor)
The. Conversion.
ALL FRONT COMPANIES FOR THE BROKER!
The Conversion.
20%=fees lost upfront
Oh the Bonds!
40%=cancellation of note
Oh the Bonds!
60%=recapture
Oh the Bonds!
80%=Abandonment
Oh the Bonds!
100%= Basis in Assets
Oh the Bonds!
Unjust Enrichment Anyone?
Not a bad return for a Thief!
THIS is what i cant believe – how MERS was created arbitrarily.
We have recording system that had been in place since the time of English landlords. MERS is one sided with zero integrity with no safety net, plus we know banks cant be trusted MERS HAS TO GO.
The banks decided, the people with rights to own land were never part of thAt and could not see behind that corp veil the real motives and conflicts of interest and down right disaterous ( against borrowers who had no choice nor understanding of the cloud created on title)
I don’t believe a dot follows a note. ‘Stuff’ regarding real property is reg’d by the statutes of fraud (and other laws), which maybe didn’t even exist when Carpenter (was it) was decided way back when. It requires a written assignment or writing of some kind. It’s effective between the parties thereto when delivered and accepted, whether recorded or not, but it’s not effective, meaning doesn’t bind, third parties without notice of the assignment or writing (which is why unrecorded interests may be avoided in bk – which the banksters are behind the scenes working hard on changing). I believe the right to an assignment of the coll instrument is created by a transfer (v article III’s ‘negotiation’) of the note, but that’s it. And as I’ve said 10 times fwiw, I don’t believe 1) one in mere possession of a note, even one endorsed in blank, becomes vested with the right to sell / transfer the note* and 2) these notes must be transferred pursuant to the terms of the note and not “negotiated” ala article III and 3) in order to enforce these notes, a) 1there must have been a “transfer” of the note and 2) the transferee must have the right to payment.
*hence the transfer purported in the assgts of the collateral instruments. they speak out both sides of their mouths – claiming to rely on poss but yet creating a writing which alleges to (sell) and assign the note. I think what the jig is now is pretty much what it was pre-consent order with a twist: mers foreclosed by claiming its ‘officer had poss of the note and mers was the ben, so voila! Now its likely they’re relying on “mers” alleged poss of the note to (sell and) assign it. Bullsh&t!!! Being in poss doesn’t make one a successor in interest capable of selling anything. imo. The illegitimacy of the mers’ m.o. was recognized by the Consent Order, but they appear to still be at it – just a tad differently.
All their ‘records’ are prob so jacked, they couldn’t go back and get the missing stuff if they wanted to. Seriously – Hultman says over here mers minds instructions of note owners and says over there mers doesn’t get any. And then, the only entries into the computer program were made by members voluntarily with NO oversight (i.e., members entered the movements of the notes). Can you imagine running YOUR business with such a business plan? I still want to know what they’re doing with Genpact in India or the Bahamas or w/e the heck that was going to take 7 years. Prob part of the Consent Order we’ll never hear about – some effort to straighten out the bs (but carry on in the meantime; just don’t f/c in “mers” name).
Can anyone believe mers is buying these notes such that it would be the party to transfer them (as if in their own right)?
The capital asset funding lines are MERSCorp members.
They are the look alike name branch of the beast-.broker to hide the original creditor. The party named in a missing deed.
In the mortgage..lien theory…MERS is nominee for both parties by joint agreement. No beneficiaries named.
“Any” Title Company.
Read the Escrow Dispersement Agreement…
Buyers and Sellers direct and request that their real estate transaction be closed in escrow……
Good Reading…
okay, David. I’ll look at it, but I can tell you I’ve never seen anyone ask for confirmation (read evidence) that anyone is a merscorp’ member such that mers, acc to banksters, remains the beneficiary for any particular successors in interest to the notes. Which blows my mind. I think it was in In re: Walker (ca) where the originator’s mmsp was AFTER the loan was originated, but it appeared to me Walker’s attorney missed it. Too bad – he ALMOST had them.
(In re Walker, 10-21656, October 21, 2010, BK Court, ED CA at Sacramento)
This is the way I got it:
Part of Hultman declaration in Walker:
“AS OF THE DATE OF THE ORIGINATION OF THE NOTE AND DEED OF TRUST, Bayrock Mortgage was a MERS member, and pursuant to the MERS’ rule of membership, Rule 2, Section 5, Bayrock Mortgage appointed MERS to act as its agent to hold the deed of trust as nominee on Bayrock’s behalf. ……… Bayrock subsequently transferred the note to EMC. As of the date the note was transferred , EMC was a MERS member……..EMC subsequently transferred the note to Citibank……as of the date the note was transferred to Citibank, Citibank was a MERS member…..On March 5, 2010, MERS executed an assignment of the deed of trust to Citibank.”
http://sourceoftitle.com/blog_node.aspx?uniq=769
I discussed this deal with membership in this 2011 blog. Good Lord – how time flies when we’re not even having fun!
jg: Hultman attached an alleged copy of Bayrock’s membership dated January 2007. The note and deed of trust were dated November of 2006 (!) Don’t see then how Bayrock was a member two mos. earlier.
But imo the deal with mers is going to gt outed one of these days, as in mers isn” an agent of anyone’s. It’ll just be thee ben. They prob already have their arguments (some stinking White Paper, like the one I presume they did when they decided to go for broke and just purport to assign the loans to the trusts at this date, including the note by
“mers”, and imo in violation of all their Consent Orders ) and for why it doesn’t matter than a party other than the lender was made a ben in coll instruments, i.d., why the deal isn’t bifurcated. I’m still looking for an explanation out of the NV SC who stated to me confllicting and nutzoid stuff – 1) mers isn’t the ben even tho it says Mers is and 2) how a loan with no original unity may be REunited. Maybe they’re into reincarnation, because the only way I’m gonna be REunited with my settler family members (1800’s) or Abe Lincoln is if some of them are reincarnated.
Nobody who buys the alleged relationship between “lenders” and mers now ever demands evidence that each successor in interest to the note is a merscorp’ member (that I’ve ever seen) nor how the membership in one company has any legal impact on another. I think, but don’t want to misquote, it’s a DeadlyClear’s deal – or was – that the mmsp is with Merscorp, not Mers.
I see what you mean about RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC. So, acc to the ‘rules’, since RAMP’s not a member, an assigment should have been executed from “mers” and recorded
in the land records and then another to the trusts. I don’t know if RFC were a member or not. Mers records are messed up, anyway. I’ve seen companies out of business for two years, say, still showing as active members. To wiggle out of this, long and short,’mers’ MUST be thee ben (since by the bs spewed and believed by courts), it’s not the agent of ramp and can’t act for ramp. Or they’ll just say so what, or something amounting to so what and say we have no standing to argue anything about anything.
MERS HAS TO GO REFUSE TO SIGN A MERS ANYTHING
Trusts (Provided they exist) can sell this on contract … What deed?
Deb. ..a shortened version of irrevocable living trust….
Title Abstract
Acceptance and Delivery
Common Law…dictates tenants in common
Who is responsible for filing deeds?
So I inquired about the unfilled Deeds…..
So if I receive insurance and tax statements personally naming me with another party….common sense say….if the other party named does not pay…I better….or I could get my Estate fc on taxes.
Hold Me Tight….I am NOT on title at the recorders office because I was not on the fraud deed filed at the recorders office….nor am I a Borrower.
Can You See Me Now..?
Land Trust….
TrustING folks get the realestate tax responsibilities…
Not just tHe hubby and Borrower.
Scratch that one!
Bitten Hard!
In PPM s. … There are two trusts…..!
When legal and equitable title are split a trust is created.
The trustees…The beneficiaries.
There can be multiple of both parties.
The trustee…may or may not be a beneficial party to.
When legal title and equitable title are rejofined the trust is dissolved.
JUST SAY NO
ENFORCE THE CONTRACT
Many Blessing to All from the rest of the Estate.
The trust is created in the instrument that created the Estate.
HAS ANYONE ASK FOR THE FOLLOWING FROM MERS. THE APPROVED MEMBERS APPLICATION. THAT MUST BE DONE.
JG. LOOK AT SEC/7 PART A/
AND EVERYONE WITH A MERS LOANS. SHOULD BE ASKING FOR THE APPROVED MEMBERS APPLICATION
READ SEC 5/ IF CANT PROVE THEY WERE APPROVED BY BOARD OF DIRECTORS AND THEY SIGN A AGREEMENT. THEN MERS HAS NOTHING TO DO WITH MORTGAGE/NOTE/
JOHNG.
GO HERE.
MERS 101 – FORECLOSURE FRAUD | by DinSFLA
stopforeclosurefraud.com/mers-101/
MersCorp and its specified members have agreed to include the MERS corporate name on any mortgage that was executed in conjunction ….. The Honorable Judge Jon Gordon – September 2005 (Emphasis added) …..
MERS 101 – FORECLOSURE FRAUD | by DinSFLA
stopforeclosurefraud.com/mers-101/
MersCorp and its specified members have agreed to include the MERS corporate name on any mortgage that was executed in conjunction ….. The Honorable Judge Jon Gordon – September 2005 (Emphasis added) …..
YOU WROTE THIS. have you read the mers rules of membership?
in 2005!
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC. IS AND NEVER WAS A MERSCORP/MERS/MORTGAGE REG,SYST.
I TO HAVE THIS, AS GMAC MORTGAGE CORP SOLD THIS SHAM COMPANY ALL RIGHTS/TITLE/INTEREST IN ALL LOANS IN TRUST/
I HAVE THE PURCHASE AND SALES AGREEMNET OF LOANS TO THEM.
SO ONCE IT WAS SOLD TO RES/ASS/MORT/PROD/ IT WAS SOLD TO SOMEONE NOT ON MERS MEMBER LIST. AND MERS COULD NOT HAVE ASSIGNED IT TO ANYONE. AS THEY WERE NOT PART OF MERSCORP/MERS/MERS/ AND MERS.
johngault, on July 13, 2015 at 8:16 pm said:
Loans which were ‘non-conforming’ loans (above the agencies’ loan amt limits and or ‘beyond’ the agencies loan guidelines) may have been sold to Residential Funding Corporation (“RFC”), which in turn sold them or at least some, to “Residential Asset Mortgage Products, Inc.(“RAMP”).
thank you JG
Yes- but the way i obtained that info may be unreliable ( planted) because there are a few things in my case ( AZ btw) that still puzzle me after 6 years looking at the cluster that it is and the course in court that it has taken – and its not even funny.
deb- I would hazard that title companies who receive wires for loan funding do so in a trust account. The funds probably can’t be commingled with, say, their operating moolah. They only hold those funds in trust for a definite purpose and that’s to make the disbursements pursuant to the HUD 1 Settlement Statement. I don’t know why they chose to identify it as an abstract trust account, but I think this offers at least a somewhat better explanation of what one is (but in my lay opinion if that’s all the info one gets about where funds were sent (generic name for some account), it doesn’t seem like much of an answer, nor do I know if it’s an appropriate answer in discovery):
https://nolonow.nolo.com/noe/modules/livtrust/resources/lm/livtrust_lm_19_a.html
If this applies to sec’n trusts, where rights are derivative (?), apparently I sit corrected about who the assignment should be to (trust v trustee):
“First, the creation of a trust involves the bifurcation of rights to the trust property; i.e., the title to trust property is split between the trustee and the beneficiaries. The trustee holds legal title to the property and the beneficiaries hold equitable title. Since the trustee holds legal title to the property, the property is always held in the trustee’s name.
This point is often confusing because many people believe that property should be held in the name of the trust. However, the trust itself is not a legal entity that can hold property. Instead, it is simply a name denoting the legal relationship between a grantor and a trustee. When we say that property is transferred to a trust, we really mean that property is transferred to the trustee to be held in trust according to the agreement between the grantor and the trustee.”
DW – what state are you in? You mean literally what you said – your funds for closing were wired to an account identified as an abstract trust account?
Irrevocable Conveyance in contract….trust
Warranty Deed to A Capital Asset Funding….deposited into trust
A Capital Lender… (One in the same)
Oops beneficiary – that is
Guys what do you think about this:
” abstract trust account” here iscwhere the money was purportedly wired on day of closing consiser what that means:
See from Cornell law
Definition:
A shortened version of a Living Trust document, leaving out certain details (what is in the trust, the beneficiaries’ identity). This is often used to provide proof that a trust has been established to a financial organization or other institution, without revealing specifics that you want to keep private.
Also known as a Certification of Trust
My Question is thAt Legal ? Why bother because same entity and then RECORDED THEMSELVES AS BENEFUCIARY ( entity that has that ” Purported abstract trust account”)
Loans which were ‘non-conforming’ loans (above the agencies’ loan amt limits and or ‘beyond’ the agencies loan guidelines) may have been sold to Residential Funding Corporation (“RFC”), which in turn sold them or at least some, to “Residential Asset Mortgage Products, Inc.(“RAMP”). Knowing this may assist research, but I kept this because it refers to what I think of as the “missing agreement” (like a home sales contract, the one where one agrees to sell and the other agrees to buy and what specifically) I knew of RFC, but not these other guys.Learned of them from this:
“On September 29, 2005, the Claimants ) executed a promissory note (the “Note”) in favor of Equifirst Corporation (“Equifirst”) secured by a deed of trust (the “Deed of Trust,” ) and together with the Note, the “Loan”) on real property located at 5540 Twin Creeks Drive, Reno, Nevada (the “Property”). (Obj. ¶ 7 (citing Simmons Decl.
Ex. 1).)
The Deed of Trust, though dated September 29, 2005, was executed and notarized on October 3, 2005. (Id. ¶ 7 n. 6.) It indicates that Equifirst is the “Lender,” Mortgage Electronic Registration Systems, Inc. (“MERS”) is the “nominee” for the Lender and its successors and assigns as well as the “beneficiary,” and First Centennial Title Company of Nevada is the “Trustee.” (Simmons Decl. Ex. 1 at 1-2.)
In December 2005, the Loan was placed into a securitization trust, with … Residential Funding Corporation (“RFC”) acting as the master servicer. (Id. ¶ 7; see Reply Ex. 2 (master servicing agreement).) The ASSIGNMENT AND ASSUMPTION **agreement, dated December 28, 2005 (the “Assignment and Assumption Agreement,” Reply
Ex. 3), indicates that: (1) RFC was the master servicer, (2)…
Residential Asset Mortgage Products, Inc. (“RAMP”) purchased the Loan among other mortgage loans …….. and (3) U.S. Bank National Association (“US Bank”) was the trustee for the securitization trust into which RAMP deposited the purchased loans. (Id.)
The pooling and servicing agreement (the “PSA”, Reply Ex. 2) provided that the original Note, Deed of Trust (which is registered on the MERS system), and any relevant assignment and assumption agreement (presumably the ASSIGNMENT AND ASSUMPTION Agreement (jg: I didn’t add this – it’s part of the case) were to be assigned by the “Depositor” (here, RAMP) to US Bank, as trustee for the underlying securitization trust
(id.). Debtor Homecomings Financial, LLC (“Homecomings”), and later GMACM, acted as sub-servicer of the Loan beginning in 2005 and continuing until 2013. (Obj. ¶ 7.)”
I just think we may be missing a piece of the puzzle…the buy / sell agreement which identifies the loans and it looks to me like it’s called an assignment and assumption agreement, at least by these guys.
SUPREME COURT OF THE STATE OF NEW YORK
QUEENS COUNTY
HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE
FOR STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST
2007-9 Index Number 705092/2014
V
CHUL SEUNG SHIN; JPMORGAN CHASE BANK, NA; ET AL., Motion Seq. No.
June 5, 2015
“The note bears an undated endorsement in blank, by MICHELE
SJOLANDER in her capacity as executive vice president of
Countrywide Home Loans,Inc. d/b/a AmericaA’S Wholesale Lender
(Countrywide), and indicates it is payable without recourse.
The mortgage names Mortgage Electronic Registration Systems,
Inc. (MERS) as nominee for Countrywide (and its successors
and assigns) and indicates that, for the purposes of recording
the mortgage, MERS is the mortgagee of record.”
jg: well, unless the mortgage literally says mers is the such and such for the purposes of recording, that’s not a fact in evidence.
“The December 27, 2011 assignment is between MERS, as nominee for Countrywide, and HSBC Bank USA, N.A., as trustee on behalf of
(SOME – SIC) Trust fund.
To the extent plaintiff relies upon the December 27, 2011
assignment to establish standing, the assignment to plaintiff
of the mortgage states that the mortgage was assigned
together with the note. Such an assignment of a note is
effective only if the party assigning the note has authority
to do so (see Bank of N.Y. v Silverberg, 86 AD3d at 280-283;
Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 109). The subject
mortgage, however, does not specifically give MERS the authority
to assign the note, and plaintiff has presented no
evidence that MERS was actually in possession of the note at
the time of that assignment.
jg: anyone direct me to info which clarifies that one in possession of a note has the right to transfer the interest in the note?
“Therefore, in the absence of any proof that MERS had the authority
to assign the note on behalf of Countrywide, and there being no
other proof that the note was assigned to plaintiff, the
December 27, 2011 assignment, at the most**, effected an assignment of the mortgage without the underlying note is a nullity (see Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636,
637 [2d Dept 2009]; Bank of N.Y. v Silverberg, 86 AD3d at 280),
plaintiff’s standing has not been established by virtue of the
December 27, 2011 assignment.”
**jg: it’s also likely a recorded false instrument
EXPANSION OF PRE-SUIT DISCOVERY IN FEDERAL COURTS
“Two recent Supreme Court decisions, Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal , 129 S.Ct. 1937 (2009), suggest that
the simple notice standard under Rule 8 of the Federal Rules of Civil
Procedure may be a thing of the past. Plaintiffs will now be held to a
higher pleading standard forcing them to state a claim that is “plausible” on the face of the complaint. Twombly, 550 U.S. at 570. …. This paper will take an in depth look at the possible expansion of pre-suit discovery in light of Twombly and Iqbal.
First, the paper will address the history of pre-suit discovery under the Federal Rules of Civil Procedure and its current implementation in the federal courts….Then we will explore the potential expansion of pre
-suit discovery under current federal rules.”
http://www.thefederation.org/documents/8.Expansion%20of%20Pre%20Suit%20Discovery.pdf
“Rule 26 provides general guidelines to the discovery process, it requires Plaintiff to initiate a conference between the parties to plan the discovery process after the initial complaint had been filed.[2] The parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). The parties should attempt to agree on the proposed discovery plan, and submit it to the court within 14 days after the conference. The Discovery Plan must state the parties’ proposals on subject of the discovery, limitations on discovery, case management schedule and timing deadlines for each stage of the discovery process, including the end-date of the discovery, dispositive motions and pre-trial order deadlines. Unless all parties agree otherwise, the parties should submit to each other the Initial Disclosures under Rule 26(a) within 14 days after the conference. Only after the Initial Disclosures have been send, the main discovery process begins, that includes: depositions, interrogatories, request for admissions(RFA) and request for production of documents(RFP). There are limitation on interrogatories to twenty-five requests per party each, but there is no limitations on RFAs and RFPs, unless there is a different Local Rule for the State. Depositions are limited to ten per party, with no deposition lasting longer than seven hours per day. A party may request more depositions from the court. See FRCP 30.[
Subdivision (a) provides for automatic disclosure, which first was added in 1993. Disclosure requires parties to share their own supporting evidence without being requested to by the other party. Failure to do so can preclude that evidence from being used at trial. This applies only to evidence that supports their own case, not anything that would harm their case. For example, a plaintiff brings a case alleging a negligent accident where the defendant damaged the plaintiff’s boat. The plaintiff would then be required to automatically disclose repair bills for his damaged property (Since this would only support his case) (26(a)(1)(c)).
Subdivision (b) is the heart of the discovery rule, and defines what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or otherwise protected. Under §1, relevance is defined as anything more or less likely to prove a fact that affects the outcome of the claim. It does not have to be admissible in court as long as it could reasonably lead to admissible evidence.”
If you want to avail yourself of rule 26, you prob have to come armed with plenty of case law because otherwise you’ll get objected or “priviledge’d” or “irrelevant’ed” to death. And they’ll just say, do say, ‘we have the note and the assignment and that’s all that we need to provide’.
https://en.wikipedia.org/wiki/Civil_discovery_under_United_States_federal_law
A quick and dirty of the frcp’s 26 to 37 (re: discovery)
There’s also a little-used pre-suit ‘suit’ available just to get discovery for one’s intended suit. It must be filed in the same venue as the court which will have juris over the actual suit when filed. (can’t file the pre-suit in state court if fed court will have juris over the ultimate case). As we all know, the banksters remove to fed and the only successful mtn for remand I know of was in Ukpe (NJ).
http://www.cozen.com/admin/files/publications/tarman285432.pdf
“DISCLOSURE REQUIREMENTS UNDER RULE 26 OF THE
FEDERAL RULES OF CIVIL PROCEDURE” (1994 – so won’t consider any amendments to the rule, most notably to that of experts)
(FRCP) Rule 26. Duty to Disclose; General Provisions Governing Discovery
a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as
otherwise stipulated or ordered by the court, a party must,
without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of
each individual likely to have discoverable information—along
with the subjects of that information—that the disclosing party
may use to support its claims or defenses, unless the use would
be solely for impeachment;
documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses, unless
the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the
disclosing party—who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on
which each computation is based, including materials bearing
on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any INSURANCE
agreement under which an insurance business MAY be liable to
satisfy all or part of a possible judgment in the action or to
indemnify or reimburse for payments made to satisfy the judgment.
https://www.law.cornell.edu/rules/frcp/rule_26
Problem is Fannie Mae ,sub prime doesn’t explain trillions going round in circles if not smoking something.
NG, what do you make of the fact that the borrower actually pays for fnma’s largess in guaranteeing payments and repurchasing? It’s built into the rate charged to the borrower and remitted to fnma monthly..if memory serves, it’s .25% (which is added to the rate to cover the ‘g fee”.
As I’ve said before, imo this is an UNdisclosed third party charge (tho it would be calculated in the a.p.r. because it’s in the rate).
Course, the banksters will just posit that they pay it (from funds resulting from raising the rate charged to the borrower), not the borrower. bull. If my math is correct, a borrower is charged $83.33 per month for this ‘g fee’ on a 400k loan. If my formula is off, it could be higher. (I did 400k x .25% / 12 mos.) And it’s a constant – for the life of the loan, regardless of fallen loan to value, unlike pmi which one can dump (with some ado) after the loan falls under 80% ltv.
re: Franklin Raines, case anyone thinks I’m smoking something:
“In 1969, Raines first worked in national politics, preparing a report for the Nixon administration on the causes and patterns of youth unrest around the country related to the Vietnam War.[2] He served in the Carter Administration as associate director for economics and government in the Office of Management and Budget and assistant director of the White House Domestic Policy Staff from 1977 to 1979. Then he joined Lazard Freres and Co., where he worked for 11 years and became a general partner. In 1991 he became Fannie’s Mae’s Vice Chairman, a post he left in 1996 in order to join the Clinton Administration as the Director of the U.S. Office of Management and Budget, where he served until 1998. In 1999, he returned to Fannie Mae as CEO.
On December 21, 2004 Raines accepted what he called “early retirement”[3] from his position as CEO while U.S. Securities and Exchange Commission investigators continued to investigate alleged accounting irregularities. He was accused by The Office of Federal Housing Enterprise Oversight (OFHEO), the regulating body of Fannie Mae, of abetting widespread accounting errors, which included the shifting of losses so senior executives, such as himself, could earn large bonuses.[4]
In 2006, the OFHEO announced a suit against Raines in order to recover some or all of the $90 million in payments made to Raines based on the overstated earnings,[5] initially estimated to be $9 billion but have been announced as $6.3 billion.[6]
Civil charges were filed against Raines and two other former executives by the OFHEO in which the OFHEO sought $110 million in penalties and $115 million in returned bonuses from the three accused.[7] On April 18, 2008, the government announced a settlement with Raines together with J. Timothy Howard, Fannie’s former chief financial officer, and Leanne G. Spencer, Fannie’s former controller, DISMISSING ITS CHARGES
jg: apparently the beginning of a gruesome pattern
The three executives maintained their denial of the charges but agreed to the payment of fines totaling about $3 million, which were paid by Fannie’s insurance policies. Raines also agreed to donate to charity the proceeds from the sale of $1.8 million of his Fannie stock newly issued to him by the company and to give up stock options, which were valued at $15.6 million when issued. The stock options however had no value.[citation needed] The OFHEO press release said Raines also gave up an estimated $5.3 million of “other benefits” said to be related to his pension and forgone bonuses. Raines denied that he gave up any such benefits or paid any money out of pocket for the settlement.[8]
An editorial in The Wall Street Journal called it a “paltry settlement” which allowed Raines and the other two executives to “keep the bulk of their riches.”[9] In 2003 alone, Raines’s compensation was over $20 million.[10]” (source: wikipedia)
Blank me. Courts think WE’RE DEAD BEATS? Seriously? What I believe I also heard at the time this was announced in 2008 is that employees of fnma were told to cool it, essentially, on audits of loans (lest they have to kick any back to the sellers and decrease Raines, et al’s production bonuses). !&*&!)#($@$ and then some.
Pt 3 on consummation here https://livinglies.wordpress.com/2015/07/06/non-judicial-cancelation-of-loan-docs-rescission-litigation-coming-on-many-fronts/
“The company will begin to purchase these loans in March 2010,
with the first purchases being reflected in the MBS pool
factors released on the fourth business day of April 2010.
We expect to purchase a significant portion of the current
delinquent population within a few month period subject to
market, servicer capacity, and other constraints.”
UNless fnma had rights of subrogation, this to me means that no loan which went un-repurchased by fnma was delinquent (since they continued the payment stream) and wasn’t a candidate for foreclosure. You know what I think of all that gang fwiw, but even I have a hard time with this sucker. I mean, really, is this to say that fnma was NOT repurchasing prior to March 2010?!
If one had a loan within fnma loan limits (whatever those were at the time), full doc or maybe even “alt A”, a more lenient form of full qual, credit score 620 or better, one’s loan prob went thru fnma and one may have lost one’s home when payments were current, courtesy of fnma. I actually hope that’s not the case.
sorry -i forgot to wiegh in on some of this:
Released sometime before January 1, 2010:
WASHINGTON, DC — Fannie Mae announced today it intends to
increase significantly its purchases of delinquent loans from
single-family MBS trusts. Under our single-family MBS trust
documents, Fannie Mae has the option to purchase from its MBS
trusts loans that are delinquent as to four or more
consecutive monthly payments.
jg: what, they didn’t want to talk about their guarantee and the payments made pursuant thereto? Why is fnma going to
“increase significantly its purchases of del loans”? Holy cow.
Were they making payments beyond 4 to avoid repurchase?
The delinquent loan purchases will help Fannie Mae preserve
capital by reducing net funding costs and will thereby reduce
the amount of additional draws from the U.S. Department of the
Treasury.
jg: “Net funding costs”? Seriously? Is that a new name for guarantee payments?
The purchases will not affect Fannie Mae’s foreclosure prevention activities including our important work under the Making Home Affordable Program.
jg: anyone you know get anything out of this program?
The company will begin to purchase these loans in March 2010,
with the first purchases being reflected in the MBS pool
factors released on the fourth business day of April 2010.
We expect to purchase a significant portion of the current
delinquent population within a few month period subject to
market, servicer capacity, and other constraints.
jg: market? servicer capacity? huh?
On January 1, 2010, Fannie Mae adopted new accounting standards
for transfers of financial assets and the consolidation of
variable interest entities – SFAS 166 and SFAS 167. As a result,
the cost of purchasing most delinquent loans from MBS and
holding them in portfolio will be less than the cost of
advancing delinquent payments to security holders.
jg: over my head, but I’m certain it’s more very carefully worded
code for God knows what (“consolidation of variable interest
entities”? What variable interests? I’d really be interested in what this is code for.
Fannie Mae will continue to review the economics of purchasing
loans that are four or more months delinquent in the future
and may reevaluate its delinquent loan purchase practices and
alter them if circumstances warrant.
jg: and this is consistant with the prospectuses? How bout if fnma is making good on the payments, including past 4 mos, the loan isn’t in default (unless maybe fnma has subrogation rights)?
As of December 31, 2009, the total dollar volume of all four
or more month delinquent loans in single-family MBS trusts was
approximately $127 billion.
jg: and of that 127 billion, how many were actually predatory loans wherein the borrowers didn’t really qualify pursuant to prudent and or fnma guidelines because Fathead(s) preferred a hefty bonus?
Of that amount, approximately $82 billion backed outstanding 30-year, single-family amortizing fixed-rate MBS (CL-prefix). We are providing below a table
showing in those CL pools the scheduled unpaid principal
balances of loans that were delinquent with respect to four
or more full consecutive monthly payments along with these
delinquencies as a percentage of scheduled unpaid principal
balances. The information below is categorized by MBS
pass-through rates with corresponding vintage information
(year of MBS issuance). Fannie Mae had approximately $45
billion of four or more months delinquent loans in non-CL
prefix MBS. We will provide the market with additional information on these securities within the next two weeks.
jg: guess I didn’t copy the table this release says is ‘below’.
Of this $127 billion, on how many was FNMA shown as the foreclosing party? Probably exactly none, not as long as ‘mers’ was handy pre-Consent Order. Post – Consent Order how many?? How many times were fnma’s volunteer (even if it’s in a prospectus) payments credited to anyone’s account balance? If fnma has a right to reimbursement of those volunteer payments, where is this right to be found?
Yes i know they call it all ” conspiracy theory” right right. Could never prove it anyway. Onward.
sC
Give me more – you said ” street name”
In my case i wonder if these new communities/ street name were in fact pledged prior to being even built prior to my name on the plot i bought and then the construction of my home.
I watched it being built and i felt it when it was taken away but as i got wiser the hime was never meant to be mine, never.
All I know for sure is that I crept down the stairs this morning to be greeted by the news headline, that read:
Obama To Visit Federal Prison
YES!!!</i<
I almost choked on a little rice krispie that instantly sought a different path down the wrong pipe, all due to extreme excitement. I thought, “Finally! Justice! Better late than never!”
As Bob Dylan wrote [some liberties taken]:
"What time is it" said the judge to Obama when they met
"Five to ten" said the president. The judge says, "That's exactly what you get. As a matter of fact, make it a double!”
And then there’s the former top law enforcement officer in the land, Holder. Oh God! Here comes that same rice krispie up from the depths of bileville to choke me all over again! Strangled to death twice in one day!
The National Law Review Journal article all giddy about Holder’s return to banksterdom says:
“Some corporate clients may be put off by his pursuit of misdeeds by major banks after the financial crisis in 2008, he acknowledged.”
Oh, he acknowledged that, did he? Well it’s about FUCKING TIME!
I don’t even know how to handle bullshit this deep. My waders are over-flowing. I haven’t felt like this since Baghdad Bob was an on air personality.
Screw them all.
Point 3 required reading on consummation. Have evidence in hand of different lenders, originators CORRUPT MERS information and they’re done.
Street Name
WHO ISSUED THE SECURITIES?
The securities issuers …….. Advances….or buys back.
NG: “The exposure relates to the fact that without a foreclosure judgment and subsequent sale of the property, they lose their ability to recover servicer advances. Servicer advances are the exact opposite of the basis for a foreclosure action. In a foreclosure action it is based upon the fact that the creditor experienced a default — i.e., the creditor did not receive payments. With servicer advances, the investor gets the money regardless of whether or not the borrower pays. They are volunteer payments because the borrower is not in privity with the advancer of payments to the creditor and in fact is completely unaware of the fact that such payments are being made.”
jg: hmmm…..I forget some, but it was like the servicer contractually (with fnma) advanced the payments the borrower wasn’t making and submitted a bill to fnma (so prob also fhlmc) for reimbursement (so the servicer still has no skin in the game). WHO do you mean loses its ability to recover advances? Not the servicer. They just bill fnma, per fnma’s info: servicer makes payment advance, sends fnma a bill, fnma remits. And as to fnma, as you say, a volunteer has no remedy for his voluntary payments, imo not even in any alleged equity.
I’ll dare say what I said years ago: no trust should be the foreclosing party on a fnma or fhlmc loan because there’s no default (or shouldn’t be). The first sentence of NG’s is maybe true as to non-conforming loans, meaning not sold to f or f and also maybe true about an fha or VA loan. I say maybe about other loans because I know nada of servicer advances for non-agency loans. I just remembered that as to at least fha, if not VA, the ISSUER is to (contractually) keep the deriv investors whole, repurchase the loan, and at some point AFTER THAT, it may turn in a claim to fha if not also va: the only way anyone is supposed to benefit from at least fha’s insurance is if the issuer meets the terms of its contract with fha, making the ISSUER the party who should be foreclosing. I suppose an Issuer could have a contractual agreement with some schlep, but even so, that schlep isn’t the rpii if it isn’t the one bearing any unreimbursed (by fha if not VA) loss. Because we don’t get meaningful discovery, we know little about what goes on with all these players, like ARE the Issuers repurchasing? Are they selling that right? Can they? Does their contract with the agencies prohibit them from selling or assigning their right (obligation) to repurchase? They prob have a software program that gives them a bottom line on moolah from foreclosure, akin to that net present value (hat tip to npv) deal of fnma’s.
Some banksters sit on properties for years, perhaps to wait it out on property values. They’re subject to laches if so imo. Laches is the inexcusable delay in asserting one’s rights mol. I can’t readily say if a defense of laches requires damages or not, and of course the banksters will just say a borrower got to “enjoy” his home while it sat on its thumbs. Who ‘enjoys’ anything with foreclosure looming like a dark, nasty cloud over one’s head, and further, absolutely zero way to mitigate with the other party to the agreement? There are one or two or more other jerkies in the middle and they have their own interests which appear to be inconsistant with the borrower’s and the lender’s, ie., the real parties in interest. This is just plain wrong. I hope someone successfully makes this case one day. It’s patently oppressive, unfair, and bs. I think those conflicts of interest are unconscionable, which is not nothing as a matter of law. Without discovery, we’re not likely going to be able to properly articulate them, tho.
.
On rescission per my experience bank is manipulating transaction date claiming note date is consummation. Even that was a manipulation as i described as purported date and loan.
Great posts getting beyond the court legalese trap finally. But not simple greed just like not just sub prime etc. Criminal and denial of basic rights. Like the criminal organization these “banks ” are they poisoned our gov’t courts and the supposed fixes. Investigation of Holder is being talked about and settlements, Monitor Joseph Smith also have to be investigated before they give them a clean slate for the next round. Not about figuring out MERS, legal procedure it’s all corrupt and they lie,change rules as they go along. In my case the answer to rescission was signed by a DIFFERENT BANK ‘s lawyer!
Not putting down anyone either but avg person doesn’t have the time or ability a shouldn’t have to “ferret” through stacks of paper to verify debt or figure out who “lender” is. Like JG said they were supposed to cut this crap out so we have to keep shoving it down the throats of courts, “officials” or they are part of the criminal enterprise.
The above article proves What Bullies these bankster are. This is why TILA rescission is so important.
This is the Banksters Attorneys they get it. It is almost as if Neil wrote the bellow article
http://www.blankrome.com/mobile/index.cfm?page=resource&&view=2&itemID=3490
Pure greed no other words for it
We were absolutely entitled to un- slandered title, under any other terms we would not gave given our signatures / besides the hyper inflated value of real estate that is
dw – I agree with the people who said “when hell freezes over”. Mers and securitization both NEED TO GO.
REFUSE TO SIGN A MERS ANYTHING
In fact, merscorp, mers, all the bankster need to be the subject of at least an antitrust suit (see AT&T’s).
So take NG’s case in his post. Someone originated the loan. An aggregator, a bigger fish, sold the loan in a bundle (most likely) of loans to fnma. FHLMC issued a prospectus (and some supplements, apparently) and offered derivatives in loans allegedly in or going into a trust. FHLMC would be the one selling and assigning the loans to the trust imo, thus making fnma the depositor. FHLMC gets the moolah from the pension funds and transfers the loans to the trust. FNMA has guaranteed payment on the derivatives to the pension fund guys. The loan goes into default. FHLMC has agreed to make four payments and after that (prob just like FNMA), it may repurchase the loan to end the guarantee committed in the prospectus to the deriv buyers (they ‘forget’ to credit the four payments which they only have a path to if they have a right of subrogation, which I doubt fhlmc did, but don’t know. But even if fhlmc had a right of subrogation, must this be made known – that the amt of the four payments is a right under subrogation and not ‘directly’ under the note itself?
How does fhlmc (or fnma) repurchase the loan? They pay the balance then due on the note to the trust or the servicer to disburse to the trust?? Either way, the deriv owners should get the disbursement (less Lord knows what fees) but it diminishes their return from then on – a known and assumed risk. WHO assigns the loan back to fhlmc when fhlmc makes good on its guarantee, pray tell? WHO may assign? This may be a monster question. Oh, heck what was I thinking? Someone wearing a ‘mers’ hat of course! But who has the authority to tell ‘mers’ to assign the collateral instrument? (fwiw, remember Hultman (depo) admitted mers gets it from no one. Would ‘mers’ NEED to get it if mers is thee ben?
But still, where does ‘mers’ get off (selling and) assigning the note AS IF IN ITS OWN RIGHT??? The assgt in NG’s case probably recites that WF paid consideration for the note and dot – and to mers!! I for one would like to hear more about that.
Well, supposedly, fhlmc has now repurchased the loan. Since it’s a defaulted loan, btw, to the extent article III has one thing to do with these loans, which I think not fwiw, fhlmc isn’t a hdc and is subject to all affirmative defenses. (If someone pays too little for a loan, it’s legally an indication the loan was in default, btw, so knowing the amt helps one know one’s defenses). But where is the assignment to fhlmc? In the NG case, looks like someone helped himself to an assignment to himself in mers’ *and then, under pressure, admitted the loan really belongs to fnma! Then what of that bogus assignment to
WF? WF isn’t the rpii if it isn’t getting the house or the mnoney from any deficiency judgment and has no right under 17 to invoke jurisdiction. And is there a false instrument also sitting on the recorder’s records? Is title slandered? WF has a history of this bs and unfortunately, so does at least fnma (if not fhlmc – I’ve never run across a case where fhlmc was in this kind of act).
The reason, to my knowledge, that some loans go to fnma and others go to fhlmc is that they have different loan programs. Pretty much the same as to qualification and so on, but some minor twists that make a difference for acceptance. Also, pricing could be better one day for one than the other.
*in mers’ name – guess that puts them on the hot seat, also.
Consider
http://www.ginniemae.gov/consumer_education/Pages/ginnie_mae_and_the_gses.aspx
So after what JG said below
What about the mers “originated ” loans that were then sold privately ( private placement)
I believe that was the planned fate for all the toxic sub prime jumbo ” mortgage/ deed if trust loans”
Heres what they think:
http://www.robertstoweengland.com/index.php/writer/449-rebooting-the-private-mbs-market.html
These guys have made a mockery of the law, our land records, notice, and so on, to wit – for example (only since there are tons) from the fnma re mers deal below):
“However, if SERVICING of a MERS-registered mortgage is transferred
to a lender that is not a member of MERS…., an assignment
from the servicer to Fannie Mae in recordable form but unrecorded
will be required. ”
I know that the merscorp’ mmsp rules compelled an assgt of the dot if the note went to a non-member (because mers can’t even pretend to have a relationship with non-members of its parent, merscorp**, but fnma wants one if the SERVICING changes to a non-member?! And they don’t want them recorded, leaving mers in public record to do as they will. Whether or not that stinking assgt to fnma is recorded, its delivery and acceptance is what makes it effective, just like a warranty or other deed. Why are they leaving, then, mers in public record as if mers is still the beneficiary? And though not all, some states mandate recordation of all assignments. Guess they don’t care.
And why the hell are they calling for an assignment from the servicer (to fnma)? An assignment of WHAT? II’s not the servicing; servicing isn’t transferred by way of an assgt generally – it’s by way of a contract and or at any rate, this refers to the collateral instrument – looks to me like it can be NOTHING but fnma asking for an assignment of the coll instrument FROM THE SERVICER – WHAT THE Hell?! (APPARENTLY IN MERS’ NAME) since a non-member servicer won’t have a “mers” “officer” to so execute an assignment when and if fnma wants one. FNMA is not asking ‘mers’ for an assignment – it clearly asks the servicer. If this doesn’t out the jig, I don’t know what would.
But let’s look at this some more. Businesses (can’t help myself – from now on ‘banksters’) enter an agreement with Merscorp (“Company A”) which purports to bind those banksters to an agreement regarding behavior and actions with a separate and distinct corporation, MERS (“Company B”). Stop. How’s that work? Imo it doesn’t. Company A and Company B are – in fact – different entities. But FNMA is relying on its own membership in “A” to demand (ask, whatever) another bankster with whom it has no direct agreement, other than their “Seller-Servicer Agreement”, ** to perform in the name of Company B – not A, with whom it has an agreement, but “B”! FNMA, these days a bankster itself, tells another ‘contractee’ with “A” to perform in the name of “B” (not a party to ANY contract), and while you’re at it, don’t record the assignment. It could be that A has an agreement with B, but under the doctrine of privity, is it binding on the other parties to the agreement with A?? And what binds the contractee’s of A’s to each other, even if there were no company B in the act? I could have this part, about them not being bound to each other, wrong, but even if i do, where is anyone bound to or by Company B?
**fnma has this with all companies from whom it buys loans. The loans are sold to FNMA “servicing-retained” by the bankster (fnma does not service loans – it only buys them and that works out great for the loan-sellers because there’s big bucks in servicing and these days, is one of the real reasons to make home loans. The loans are also sold servicing-retained (generally by the original seller to fnma who retained the servicing when it sold to fnma) to trusts because trusts don’t service loans, either). Btw, and as a reminder, only FHA, VA, F or F approved servicers may service these loans respectively – at least FHA has kicked, denied, some claims out of non-FHA-approved servicers). My guess is that NOT one default servicer is approved by any of these agencies (but it IS just a guess – I don’t know).
And based on this mullarkey (UNrecorded assignments if fnma didn’t record the assignments they demanded (demand?) in “recordable form”), FNMA owes county recorders in states which mandate recordation a gazillion dollars. Oh, and statutory interest. Maybe I can be a whistle-blower. I could use the dough.
Point here, case I digressed: fnma asks for assignments FROM THE SERVICERS if the SERVICING – not the loan – is being sold to a servicer who doesn’t have an agreement with Company A and apparently, doesn’t want them recorded. (servicing rights have NEVER in the history of recordation been recorded).
The “Trust” is created in the “Contract” that created the “Estate”…….
The Estate is a Corporate.
And even after the 6 years has expired…..
Nothing Stops you from Enforcing the Contract…
Breach. .A contract can not be enforced while one party is in breach.
Like…consummate
Make them take a position in writing?
I have no use for liars and thieves!
JG.. When your Hot.. Your Hot!
Good Work!!!
TU. … Filing the complaints…
Yes And my former attorney is the prosecutor and a friend……
I know nothing…they tell me nothing.
What do I know?
I know the end result is fines….
That’s not very satisfying for someone like me….
I Don’t want money… Money does not buy happiness..
I can not be bought…….!
They figured that out long ago……!
I am just to HOT to handle…. TeeHeeeeaheeehe…..
“Rescission is Permissible in Residential Mortgage Transactions
In section II.1.c. of the Motion, the Defendant alleges that
the Plaintiff does not have a claim for rescission. In Nevada,
there is a six year statute of limitations for rescinding a
contract. Mackintosh v. California Federal Sav. & Loan
Assoc, 113 Nev. 393, 404 (NV 1997) citing NRS 11.190(1)(b).
Plaintiff’s loan is only three years old, so rescission
is available.
Moreover, in Nevada, the right of rescission has been extended
to land sale contracts and their accompanying mortgages if
fraud or deceptive practices are involved. See Ford v.
0ertheimer. The Plaintiffs are entitled to rescission
of their mortgage by reason of the fraudulent representations
of the defendants.
Moreover, as set forth above, the statutory time limits are
TOLLED when fraud or deceptive practices may be involved.**
Therefore, the Plaintiff has rescission claims.
jg: we need more on 1) tolling and 2) recoupment. imo
Nevada also recognies the unilateral mistake rule found
in the Restatement (Second) of Contracts, which allows for
rescission when a mistake at the time of contract was
made as to a basic assumption… which …has a material
effect on the agreed exchange of performances that is
adverse to him (who made the mistake)…and (b)the other
party had reason to know of the mistake or his fault caused
the mistake. HomeSavers, Inc. v. United Sec. Co., 103 Nev.
357, 358-59 (NV l997) quoting Restatement (Second) of
Contracts, Section 153 (1981).
By withholding all the proper disclosures from the Plaintiff,
the Defendant was responsible for its misrepresentations
of the transaction, something the Defendant knew or should
have known.
As a result, the Plaintiff may rescind her loan, under TILA,
under Nevada statutes, and Nevada law.
Accordingly, the Motion should be denied.
The Nevada Deceptive Trade Practices Act Provides for a
Private Cause of Action.
In two short paragraphs, the Defendant seeks to dismiss
the Plaintiff’s Deceptive Trade Practices Act claim by
arguing that the statutory scheme does not provide for a
private right of action…..
1. In these transactions, the Plaintiff was charged at least
$22,729.22 for services related to his loan. Those fees did
not culminate in services that adequately disclosed the loan’s
terms in accordance with TILA and RESPA. As such, the
Plaintiff was deceived, which is actionable under NRS 598.023(3)
because NRS Section 41.600(2)(e)provides for a private cause
of action for a person who is a victim of consumer fraud.
NRS 41.600(2)(e) defines consumer fraud to include a
deceptive trade practice as defined in NRS 598.0915, inclusive.
See In Re Schwalb, 347 B.R. 726. 757. Bankr. D.Nev
Plaintiff has an actionable claim under NRS 598.023(3)for
the violations outlined herein.
Secifically, by not disclosing all of its fees and services
properly, the Defendant misrepresented the quality and
character of its services. Misrepresenting the quality and
characteristics of a product or service is actionable under
NRS 598.0915(7)
By not providing a good faith estimate, by charging duplicative
fees, and by not providing a timely and proper settlement
statement to the Plaintiff, the Defendant misrepresented the
benefit of its services. Misrepresenting the benefits of your
product or service is actionable under NRS xxxxxxxx.
By not providing all the necessary and proper disclosures at
closing, the Defendant misre/resented Plaintiff’s rights in
the products, i.e. the loan. Misrepresenting the rights of your
product is actionable under NRS 598.0920(8)
As a result, the Plaintiff has claims.
The fees were charged by the Defendant as compensation for the
services of providing the loan and properly disclosing its terms.
The Defendant failed to provide these services in full, which
in turn gives rise to claims under Nevada law. Accordingly, the
Motion should be denied.”
jg: Far as I know, Nevada isn’t exactly a pioneer of the law, so other states probably enacted similar laws before Nevada (meaning other states have similar laws).
NG – if fhlmc operates like fnma, then fhlmc had to make 4 voluntary payments on the note prior to repurchasing it, which if history is a clue, haven’t been credited to the loan. Therefore, the figures submitted are also false. There is no claim under the note (at least not without rights of subrogation) for payments made by a volunteer. imo.
Nothing works?
Has one filed a criminal complaint? Does anyone know what a criminal complaint is? Are One afraid to make a complaint in the public? A complaint is already in the public, and when they finish with you, they are going to go after your credit report, and make it hard for you to rent, when they throw that foreclosure on it.
One says that no one will produce documents of contract or obligation while trying to steal real property?
Is it me? Am I the one who walked the mile, and came back to tell people some thing different is available than that harsh walk in the shadow of death. Maybe a flashlight is there, that shines a light on what they do claiming to their selves and your government that you agree to it, you want it, you accept it, and you’ll pay for it, and appeal it until you are broke.
Do people really not want to do anything but go to the court house and talk to all the people that already know each other, and see each other all the time, and care more about each other than the people who pop in one day for a few hours to claim a right to their property, to never be heard in that courtroom again, regardless of the decision, never again will you ‘appear’ in front of those people, you’ll appear in front of other people who all know each other and look out for each other.
Is it true, people will let all of them collude to steal the property so they can come here and complain when we can’t do anything cause it’s not criminal, until there is a criminal complaint naming the man or woman who is signing these docs and trying to steal the home.
It’s true, we are the ones we are waiting for, no savior other than you.
We are our save-your (house/home/property).
I’m not belittling any One, but I am trying to figure out if this is real, or is it just a place to discuss without indicating they have a strategy to bring these people back to their servant mode and not let them continue to steal pretending they have a right, power, or authority to do so.
I wish I was reading this a few years back. I’d have ears to hear and eyes to see and would not let anyone distort it with 6 and 7 year old arguments about discovery.
If it worked you wouldn’t have to fight for it.
it’s a lie.
Lie,
Lie
Lie, meant to waste your time.
THERE IS NO discovery, that’s why you don’t get one when you request, demand, motion, compel, or whatever.
It does not exist.
So either stay in the lie, and go rent like me, and be on the side of equitable tolling and still exposing, or expose and make them run away like the low life dark entities they are.
It’s an opinion, since I don’t give legal advice, or any advice for that matter, cause I know no thing, so I can’t tell anyone any thing.
LOL, no one will even consider what someone that knows no thing says, which is ironic, because that is what the ones who steal need. They need people to not give legal advice or they will get in trouble, and they need people to not tell people what to do or what they can do, because that’s interfering with what they are doing to steal.
So yeah, pay no thing any attention, cause no advice is worse than bad advice, right? Don’t hear no advice, hear bad advice. Right?
Trespass Unwanted, Creator, Corporeal, Life, Free, People, State, In Jure Proprio, Jure Divino
I said “Going simply by the dot, mers is the ben for the loan payee only.” Oops. Going by the dot, mers is thee ben, and unless agency agreement can be found elsewhere between the lender and mers, the note and dot are originally and thus imo fatally bifurcated. No agency is created imo in and by the dot if for no other reason than the lender nor mers signs it but if it were, it would only be between mers and the lender named on the note. So whether mers is the agent for the original lender or not, the dot can’t make successors in interest to the note mers’ principals. Another document could, but like I said, we never see it.
Of what value is the sec’n trustee’s membership in merscorp? Imo none since he never becomes the guy with the interest in the loans in his own right – except that these assignments are being done to the trustee, sometimes “on behalf of the trust”. I still say they should be to the trust itself, not the trust’s trustee. In fact, I don’t believe an assgt to the trustee, even on behalf of the trust, moves the loan to the trust. Why aren’t they making the assignmens to the trusts? The PSA’s, for instance, don’t call for assignments to the trustEE, right?
ATTORNEYS TRUST v. VIDEOTAPE COMPUTER PROD., 93 F.3d 593 (9th Cir. 1996)
http://www.leagle.com/decision/199668693F3d593_1596.xml/ATTORNEYS%20TRUST%20v.%20VIDEOTAPE%20COMPUTER%20PRODUCTS
BAd guys execute assignments to 1) impact diversity 2) forum shop, and 3) to pretend the assignee is the rpii, as if the assignee will bear the loss, for the purpose of invoking jurisdiction (regardless of, in the absence of, the diversity issue). This case discusses each of these. It also discusses a case wherein X assigned to Y and then Y (initially unknown to anyone) assigned 95% of the deal back to X while Y pretended to be the rpii (when it actually retained only a 5% interest for its collection efforts). Geez, wonder if these guys are reassigning anything or otherwise agreeing to unknown stuff and we just don’t know it.
Anyone interested in this issue might also look into “antecedent debt” and how one may or may not satisfy it.
“ANTECEDENT DEBT (Black’s Law Dictionary)
a previously contracted debt and one that was once binding but has since become unenforceable”
What does MERS HOLD for You?
Equitable Title?
Legal Title?
Land Trust?
What rights and assets did Grantors (notice I didn’t say borrowers) convey to MERS?
The trust is created in the contract that created the Estate.
THE CON TRACT …… OR.
The trust is in the contract that created the Estate….
MERS
Attack the Contract!
Jackasses
There are 2 trusts in the PPM securitization scheme.
[396 B.R. 516] Vargas
jg: Regarding “successors and or assigns” elsewhere, the bankster was appropriately sanctioned in Vargas for attempting to get relief for unknown parties by alleging in its pleadings that the relief was intended for itself and and “its successors and or assigns”.
[396 B.R. 516] Vargas
“The motion….must be denied on two separate grounds. First, it purports to include unidentified moving parties, who are intended to benefit from the ….order…..
MERS (insert any bankster – sic) purports to join as moving parties “its assignees and/or successors in interest,” which are otherwise unidentified. **No such unidentified parties are permitted in a motion before the court.**
(** = my emphasis)
Rule 10(a) of the Federal Rules of Civil Procedure provides in relevant part: “Caption; Names of Parties. Every pleading must have a caption. … The title of the complaint must name ALL of the parties.”
jg: also interesting from Vargas:
“Movant Mortgage Electronic Registration Systems, Inc. (“MERS”) (jg: insert any bankster) supports this …motion solely with evidence from a low level clerk whose only function is to compare the financial numbers on his evidentiary declaration with those on a computer screen. ….. the court finds that the clerk is not competent to testify as to anything relevant to the motion, under the applicable evidentiary rules, and that MERS (jg: insert any bankster) has presented no admissible evidence in support of its motion. In consequence, the court denies the motion. In addition, the court finds that sanctions should be imposed on the LAW FIRM under Rule 9011 for bringing the motion with no evidentiary support.”
“The DOCTRINE OF PRIVITY in contract law “provides that a contract can not confer rights or impose obligations arising under it on any person or agent except the parties to it.”
Didn’t those yeahoos (and courts) sort of overlook this when they attempted to make mers the ben for successors and assigns? The only way mers is the ben in the collateral instrument for successors in interest as to the notes is if mers is thee ben. As thee ben, “mers” remains so until it assigns the coll instrument, just like I would be had I been named thee ben. If I were the lender, I could NOT make my alleged agent anyone else’s agent. The language in the dot makes mers thee ben for the lender named on the note ONLY. This doctrine doesn’t preclude other agreements regarding the contract that I know of, so It’s possible another agreement could make mers thee ben for others, such as the successor(s) in interest in the note, but no evidence of that (possible) agreement is ever tendered. Going simply by the dot, mers is the ben for the loan payee only.
Chambers v. Nasco, Inc.
501 U.S. 32 (1991)
“In imposing the sanctions, the District Court first considered Federal Rule of Civil Procedure 11. It noted that the alleged sanctionable conduct was that Chambers and the other defendants had “(1) attempted to deprive this Court of jurisdiction by acts of fraud, nearly all of which were performed outside the confines of this Court, (2) filed false and frivolous pleadings, and (3) attempted, by other tactics of delay, oppression, harassment and massive expense to reduce plaintiff to exhausted compliance.” Id. at 138.
The court deemed Federal Rule of Civil Procedure 11 — which provides for the imposition of attorney’s fees as a sanction for the improper filing of papers with a court — insufficient to support the sanction against Chambers, since the Rule does not reach conduct in the foregoing first and third categories, and since it would have been impossible to assess sanctions at the time the papers in the second category were filed, because their falsity did not become apparent until after the trial on the merits.
The court likewise declined to impose sanctions under 28 U.S.C. § 1927, both because the statute’s authorization of an attorney’s fees sanction applies only to attorneys who unreasonably and vexatiously multiply proceedings, and therefore would not reach Chambers, and because the statute was not broad enough to reach “acts which degrade the judicial system.” The court therefore relied on its inherent power in imposing sanctions. In affirming, the Court of Appeals, inter alia, rejected Chambers’ argument that a federal court sitting in diversity must look to state law, not the court’s inherent power, to assess attorney’s fees as a sanction for bad-faith conduct in litigation.
Held: The District Court properly invoked its inherent power in assessing as a sanction for Chambers’ bad-faith conduct the attorney’s fees and related expenses paid by NASCO. Pp. 501 U. S. 42-58.
(a) Federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them. In invoking the inherent power to punish conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction, which may range from dismissal of a lawsuit to an assessment of attorney’s fees. Although the “American Rule” prohibits the shifting of attorney’s fees in most cases, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 421 U. S. 259, an exception allows federal courts to exercise their inherent power to assess such fees as a sanction when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, id. at 421 U. S. 258-259, 421 U. S. 260, as when the party practices a fraud upon the court, Universal Oil Products Co. v. Root Refining Co., 328 U. S. 575, 328 U. S. 580, or delays or disrupts the litigation or hampers a court order’s enforcement, Hutto v. Finney, 437 U. S. 678, 437 U. S. 689, n. 14. Pp. 501 U. S. 43-46.
(b) There is nothing in § 1927, Rule 11, or other Federal Rules of Civil Procedure authorizing attorney’s fees as a sanction, or in this Court’s decisions interpreting those other sanctioning mechanisms, that warrants a conclusion that, taken alone or together, the other mechanisms displace courts’ inherent power to impose attorney’s fees as a sanction for bad-faith conduct. Although a court ordinarily should rely on such rules when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the rules, the court may safely rely on its inherent power if, in its informed discretion, neither the statutes nor the rules are up to the task. The District Court did not abuse its discretion in resorting to the inherent power in the circumstances of this case. Although some of Chambers’ conduct might have been reached through the other sanctioning mechanisms, all of that conduct was sanctionable. Requiring the court to apply the other mechanisms to discrete occurrences before invoking the inherent power to address remaining instances of sanctionable conduct would serve only to foster extensive and needless satellite litigation, which is contrary to the aim of the rules themselves. Nor did the court’s reliance on the inherent power thwart the mandatory terms of Rules 11 and 26(g). Those Rules merely require that “an appropriate sanction” be imposed, without specifying which sanction is required. Bank of Nova Scotia v. United States, 487 U. S. 250, distinguished. Pp. 501 U. S. 46-51.
(c) There is no merit to Chambers’ assertion that a federal court sitting in diversity cannot use its inherent power to assess attorney’s fees as a sanction unless the applicable state law recognizes the “bad-faith” exception to the general American Rule against fee-shifting. Although footnote 31 in Alyeska tied a diversity court’s inherent power to award fees to the existence of a state law giving a right thereto, that limitation applies only to fee-shifting rules that embody a substantive policy, such as a statute which permits a prevailing party in certain classes of litigation to recover fees. Here the District Court did not attempt to sanction Chambers for breach of contract, but rather imposed sanctions for the fraud he perpetrated on the court and the bad faith he displayed toward both NASCO and the court throughout the litigation. The inherent power to tax fees for such conduct cannot be made subservient to any state policy without transgressing the boundaries set out in Erie R. Co. v. Tompkins, 304 U. S. 64, Guaranty Trust Co. v. York, 326 U. S. 99, and Hanna v. Plumer, 380 U. S. 460, for fee-shifting here is not a matter of substantive remedy, but is a matter of vindicating judicial authority. Thus, although Louisiana law prohibits punitive damages for a bad-faith breach of contract, this substantive state policy is not implicated. Pp. 501 U. S. 51-55.
(d) Based on the circumstances of this case, the District Court acted within its discretion in assessing as a sanction for Chambers’ bad-faith conduct the entire amount of NASCO’s attorney’s fees. Chambers’ arguments to the contrary are without merit. First, although the sanction was not assessed until the conclusion of the litigation, the court’s reliance on its inherent power did not represent an end run around Rule 11’s notice requirements, since Chambers received repeated timely warnings both from NASCO and the court that his conduct was sanctionable. Second, the fact that the entire amount of fees was awarded does not mean that the court failed to tailor the sanction to the particular wrong, in light of the frequency and severity of Chambers’ abuses of the judicial system and the resulting need to ensure that such abuses were not repeated. Third, the court did not abuse its discretion by failing to require NASCO to mitigate its expenses, since Chambers himself made a swift conclusion to the litigation by means of summary judgment impossible by continuing to assert that material factual disputes existed. Fourth, the court did not err in imposing sanctions for conduct before other tribunals, since, as long as Chambers received an appropriate hearing, he may be sanctioned for abuses of process beyond the courtroom. Finally, the claim that the award is not “personalized” as to Chambers’ responsibility for the challenged conduct is flatly contradicted by the court’s detailed factual findings concerning Chambers’ involvement in the sequence of events at issue. Pp. 501 U. S. 55-58.
894 F.2d 696 (CA5 1990), affirmed.
“Inappropriate behavior, including litigation abuse and fraud, can be dealt with by a bankruptcy court pursuant to § 105 of the Code as an “abuse of the bankruptcy process.” Under § 105, sanctions may be warranted against parties who willfully abuse the judicial process. In re Gorshtein, 285 B.R. 118 (Bankr. S.D.N.Y. 2002). This power is broad enough to empower a court to impose sanctions for “filings [in a case] as well as commencement or continuation of an action in bad faith.” Id. (citing In re Spectee Group, Inc., 185 B.R. 146, 155 (Bankr. S.D.N.Y. 1995).
this is from phillips v als, us bank, et al – sd ala bk ct
I don’t readily know the fed (non-bk) version of 105.
NG: “We ask them about their risk of loss and they respond by saying that they deny that they would not incur damages if the borrower defaults on the loan.”
First of all, their response is not an answer – too vague. Secondly and unfortunately, I’m familiar with this trick. Their only loss, if WF is even the servicer, is that of the servicing fees. That’s not the ‘loss’ rule 17 is interested in. Maybe wf will lose other monies, but if they don’t suffer the corpus (lack of better word), they’re not the party to bring this suit, bs assgt or not. The granddaddy, as I call it, of jurisdiction-invocation by assignment case I can’t find I think has the name xxxx video in it, for what it’s worth (and “china”). In that case, it was determined that abc corp was assigned the debt to collect and would only receive a small amt of any recovery. Here, wf will prob really only lose servicing income by the note’s non-payment and not even be paid a small amt, though it will nail someone for expenses (filing fees, attorney fees, and who knows what else – 3 thousand dollar inspection fee?)
Acc to some of these cases, as the loan’s owner – if it is – fhlmc is also liable for wf’s bs.
I would further move to dismiss with prejudice or for sj before they try to voluntarily dismiss. Way I get it, at least a mtn for sj will preclude a voluntary dismissal. I wouldn’t know exactly what to file to nail them for lying in their complaint by posing as the creditor, but I’d move heaven and hell to find out (fraud?) lay opinions, of course.
NG: “What we are seeing here is a master at obfuscation. In one case I have in litigation, Wells Fargo wants to assert that it can foreclose on the mortgage in its own name. It has alleged in the complaint that it is the owner of the loan and then testified that it is not the owner but rather the servicer.
jg: Then, NG, you might want to see Nosek (MA bk) and Vargas (ca) and one other I have around here, but won’t hunt for ‘less you email me and say you want it. In these cases, at least in Nosek (I think), WF pulled the same bs and got nailed. FNMA actually owned the loan.
NG: “It has testified that Freddie Mac was the investor from the start but it has produced an assignment from a nonexistent entity in which Wells Fargo was the assignee.”
jg: abc originated the loan (and or is shown as the lender on note?) so it is likely that freddie mac purchased the loan (and guaranteed payment on the certs). Freddie prob sold it in a bundle to X. Not sure how loans get from F & F to a trust, x it appears they did their own offerings (derivatives) and trusts (because we’ve seen at least a fnma prospectus or two and fhlmc does the same).
Just a reminder, prior to sec’n F & F were referred to as the “investors”, so imo, that’s the reference – that fhlmc bought it from an aggregator (whom itself would need a sale and assignment unless it were also the originator). With Mers as the ben, they might wiggle out of an assgt of the dot/ mtg, but what of the note? The “non-existant” entity making the assgt to Freddie is ???? I don’t have any answer for this, but 1) since freddie was the orig “investor”, the loan was prob or allegedly sec’d. 2) When a loan guaranteed by F goes belly-up, freddie will REpurchase.
Btw, WHO assigns the loan back to freddie – just in general?
Shouldn’t it be the sec’n trustee on behalf of the trust? 3) Why did the assignor (read merscorp-member employee) assign to WF who’s probably just the servicer? Didn’t they try that smack in some case (dc) in Mass and get nailed (I forget the case, but it was around here in the past – was it Ibanez?) WF has no skin in the game unless it purchased the loan from the trust instead of freddie repurchasing, but you’ve said they’ve admitted Freddie owns the loan. Does it? Did fhlmc pay someone for the repurchase? where’s the evidence? If freddie’s money were used to get the loan out of the trust, then the money-less assignment to WF (for the sole purpose of enforcement) is a joke / pretense, esp it it recites consideration in an effort to make it appear WF bought and paid for the loan. Bottom line is, by their testimony – or allegation since there appears to be no evidence fhlmc itself repurchased – fhlmc owns the loan and is the rpii. Nothing else reads. imo. If I were involved, I’d find those cases where WF already tried this bs and got nailed as evidence of a pattern. And didn’t they enter a Consent Order to knock it off?
Don’t miss the boat/titanic – no transaction fake lender.
You are right Deb.
Title Abstract says it all.
I know how they kept the mortgages in false default…….
Current and Delinquent loans….
In the end it comes down to….that one tax figure.
Sc
This you said
“Yes..they bought mbs from private remic that was. Not registered with the “SEC. PPM
Is not rocket science
Sub prime /jumbos high loan to value
hyper- inflated appraisals in developer driven new communitites with the ” pretender lender ( dev sub company) selling 100% if these ” loans” were purported to meet fannie freddie guidelines but did not even meet ginnie
So go figure.
They dragged us through the mud to make us the scapegoats. They had to keep up the Great Scam. They’re trying to burn us out and now they’re using statute of limitations, and timeliness of TILA etc to pull the rug out. Those of us not in court should stay out of court trap and keep showing their deception and loan was never consummated.
1099-A ??????????????
They lied to the borrower and interfered with his ability to sell and payoff the debt. Nailed It!
Wow Neil…you are on a roll!
Yes..they bought mbs from private remic that was. Not registered with the SEC. PPM
The unanswered questions I had..was why would they spend so much dragging people through the mud…. ?
As in this case….they wouldn’t give a payoff.!!!
WHY?
What a coincidence!!!!
My fraudclosure story sounds just like some of the posts on this thread. Unreal , 7 years later and we are no closer to the truth being allowed to come to light for all to see.
If they were allowed to foreclose my estate. ….
They would be doing just that to me.
That is where the bull Stops!
JG.
I am a firm believer in the common law approach.
Pay the taxes and keep it insured.
Lack of due process (to overcome res judicata), annotated:
http://law.justia.com/constitution/us/amendment-14/36-procedural-due-process-civil.html
Diatribe on, Neil!
In California the bankstas own the bitches on the benches …
Regarding your post this morning about wells fargo claiming Freddie mac owns (investor) owns the note is a façade. I have been going thru the same thing with chase and fannie mae for 5 years yet after chase reneged on 2 loan modifications and by the way, I received the loan modification paper work. The first loan modification they gave me they claimed the lender to be JPMorgan Chase, N.A. successor in interest from the FDIC as receiver for Washington Mutual Bank and the second loan modification that I received the lender read as Chase home loan finance LLC. It is clear to me that the reason they reneged on both of these loan modifications is because they never knew who owned the note and today all they will tell me is that fannie mae is the owner and investor. I have long known that it is all a façade, however I really did not think about who owned my note, all I have ever tried to do is pay them and thru all of Chase’s stall tactics and lies and deceit, they have drove me so far in the hole that I Imagine at some point, I will either have to file bankruptcy (which I do not want to do, considering my house is my only unpaid debt) or short sale. They have already steamrolled me to foreclosure judgement, but I am still fighting. I just got my sale date cancelled and am trying for a loan modification. No attorney I had ever brought up the reneged loan mods. I was also part of the Chasemdlsettlement which was in federal court in boston. I was really hoping for justice from that lawsuit, but I received nothing but a harder push to foreclose on me which they have since done. I should be the poster child for what these banks have done stealing people’s homes and wreaking havoc on their lives and 6 years later , I am barely hanging in but it is the principal of what they have done and I refuse to let them steal my home. In my situation, JP Morgan Chase was the lender, servicer, investor. They want to claim that fannie mae is now the investor to release the liability of all the wrongs they have done to me. Also there is evidence that they sold off my loan when they knew it was in default. You see I have had every wrong done to my loan that could be done. They clearly preyed on me. Blackstone owns several homes on my street. It is a nice area, close to the beach and rents are high. I once had a 750 credit score before I dealt with JP Morgan Chase. They are just bullying out of my house because yes they want to recover the money that they never lend to me, but someone did lend me the money and I had cash out, but I never over extended myself. In 2006, my house appraised for 450k. I refinanced to consolidate and my refi was 310k. Today I owe 299,250(principal) (not counting what they slammed on the back end). The judgement was 439k. They drove me in the hole by their stalling and trying to make it look like I was the deadbeat when Chase could not (or would not) get their act together. By them driving the final nail in the coffin(burying me in debt), they think they have won, but I am not finished yet. I cant understand why proper discovery was not done on my foreclosure case, but I believe it is because Chase lost the paperwork and had no clue Date: Fri, 10 Jul 2015 12:44:21 +0000 To: lsnider52@hotmail.com
Nothing works in California… I have been trying to get into discovery, have mountains of paperwork and mistruths including from the office of Brian Moynihan, on his letterhead as CEO and president of Bank of America stating an incorrect lender and I have spent over $40,000 and climbing to get into court to disclose and prove my allegations.
I Received a loan in March 2007 and began asking who my lender is in late 2008 as I wanted to deal directly with the lender and not a glorified servicer bookkeeper. I was told that could not be disclosed by numerous individuals of the bank and eventually received a few letters on Moynihans letterhead where the author acknowledges my continued requests to know my lender and refers to Mr. Moynihans request to answer my questions and finally disclosing in late 2011 that my lender is
Wells Fargo effective jan 1, 2009. Yet
my loan was allegedly securitized in 2007…and became a Remic Trust.
After $40,000 plus of attorney fees I cannot seem to procure The right to discovery to prove my points. In California the judges accept The banks rendition of alleged ownership without the virtue of proving this ownership.
I also have three letters from the alleged remic trust trustee, US Bank NA, in 2012 refusing to allow my investor to view… That is to view only, my original note which was signed in a different colored ink. My investor wanted to make sure the original note would be coming back paid in full and not wandering on the open market as unpaid. In these three letters beginning in June 2012, U.S. Bank reiterates that they are the trustee and Holder of the note for the certificate owners. But obviously no one informed U.S. Bank that they were substituted out as trustee, and their US bank
alleged agent authorized substitution, (to Bank of America’s subsidiary, known as recontrust), with a substitution filed and recorded in March 2012. Even in November 2012 US Bank NA continued to write they were the current trustee.
And I can’t get before a judge to present any of these mountains of paperwork that I allege will disclose bank fraud on numerous banks.
During the same period of the summer and fall of 2012, well-known attorneys from Blank Rome LLP, also reinforced that US Bank NA was the current trustee on at least three letters. It should be noted that the two Blank Rome LLP attorneys included alleged true and accurate copies of my original note and deed of trust paperwork… But One of the alleged true copies given had stamped endorsements of the note while the other attorney submitted The same documents to me as the alleged true copies of my note and deed of trust but lacked any stamped endorsements on the note. I called this to the attention of management at Blank Rome LLP and never heard from Blank Rome again.I can’t stop asking myself why such a high-powered legal Office would be assigned by Bank of America to deal with my requests and QWR’s… ??
This is just a minute disclosure of the information I have in hand. California’s laws cast me as some kind of flake that failed to pay her bills which is so far from the truth. Maybe the judges hands are tied by our legislature but I do find it interesting that many of the judges making decisions as to our foreclosure cases when in fact they are victims of Mers and have sold numerous properties, without virtue of a clear title, to innocent purchasers…I sincerely hope this doesn’t cause them legal problems from the purchasers and title companies in the future. If there was only a Way to demonstrate their
questionable mortgage paperwork. Maybe the judges would then understand my plight and as well as thousands of other Californians to the rights of a clear and true title to our homes. I can’t do anything about it now, but at the conclusion of my ordeal I will forward documents to the judges showing them that the banks even had no respect for the judges and did many of the same things to them as they did to many, many Californians. Judges, you are selling homes that have been securitized and without the proper signatures to reconvey the property as paid in full.
Please excuse any spelling errors as I am doing this verbally on my cell phone and it is difficult to reread what I have written and correct errors.
Reblogged this on California Freelance Paralegal and commented:
Compelling responses to discovery in foreclosure defense cases blog post from Neil Garfield.
Excellent post. However,
“But we have the direct refusal of Wells Fargo to produce a servicing, agency or representative agreement that applies to this loan.”
didn’t work for me in CA. Forms Interrogatories from both JPM and Fannie Mae both stated ‘no’ to standard question of agency relationship(s). Yet the CA 1st App 2d proposed the argument that JPM was acting as an agent of FNMA, citing an unspecific (to loan) Power of Attorney. Ironically, I had introduced the PoA to show multiple PoAs from different entities claimed interest in the loan, yet both were inconsistent with the Form Interrogatory. In order to overcome this seeming ‘slam dunk’, the appellate court waited until parties were fully briefed and introduced the issue in their notification of oral argument. They then declined to invite additional briefs on the ‘issue’ and proceeded to raise it in oral arguments. And it appeared in their ruling that the CA Suckpreme Kourt declined to review. The whole concept of statute of frauds is a disposable element of law to these judges hiding behind judicial immunity.
IANAL, and your mileage may vary in a different state. Bear in mind the Governor lost his case about shifting $292M from banksters ‘settlement’ from helping distressed homeowners (e.g., attorney fees) to paying off state bonds for housing.