THE TRANSFERRING OF SERVICING RIGHTS TO AVOID REVIEWING COMPLETE MODIFICATION APPLICATION

 

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To listen to Patricia Rodriguez discuss the latest foreclosure defense issues please visit the Neil Garfield Show here and here.

By Patricia Rodriguez, Esq.

Nothing in this article is meant to be construed as legal advice; there is no attorney-client relationship that is being created. This is for general education purposes only. 

After years of litigating against alleged lenders, investors, servicers, and foreclosure trustee’s we are starting to see a clear trend of the servicing rights being transferred upon receiving a complete loan modification application. What is an alleged lender – this is usually the party that claims to have funded the original loan or the originator.

The alleged investors are those who claim to have received an ownership interest in the loan through an assignment and endorsements or multiple assignments and endorsements. The foreclosure trustee in non-judicial foreclosure states such as California are entrusted with overseeing the foreclosure process. The servicers are entities that claim a right to collect payments, modify the loan, etc. as agents of the principals (lender or investor). The servicer’s, through an agreement with these other entities, claim to have the right to enforce the note on behalf of the principal (lender or investor).

The servicer can start as one entity in the Deed of Trust and be changed by a simple letter from the original servicer to the borrower advising them that there is a new servicer. The borrower typically has agreed to such in the Deed of Trust. It is generally this servicer that the borrower or the borrower’s representative is negotiating with in order to conduct a short sale, short pay, cash for keys settlement, reinstatement, forbearance, and/or modification. The servicer could stay the same the life of the loan or switch anywhere from 1 to 10 times.

Each time the servicer changes the new servicer is obligated to credit the borrower’s account with all prior payments, honor any pending offers (for a short sale, short pay, settlement, reinstatement, forbearance, and/or modification), and continue to review any pending complete applications for a short sale, short pay, etc. However, many times this is why servicer changes are made so that the new servicer can claim they will not honor an offer to short sale, short pay, etc. or to state that the new servicer never received the complete package.

The above scenario will at most times be actionable; meaning this is something that is a cause of action. There is an obligation on the part of the new servicer to honor offers and pending complete applications, otherwise, it is a breach of contract- among other claims. In addition, to there being an obligation on the part of the servicer to honor offers and pending complete applications, the homeowner needs to make sure that the servicer’s failure to do such caused you or the party you are representing harm (damages).

MAKING HOMES AFFORDABLE – HAMP & HARP ARE GONE

Making homes affordable is an official program of the United States Department of Treasury and the United States Department of Housing and Urban Development.  HAMP and HARP were government funded programs in existence until December 31, 2016. As of December 31, 2016, the programs no longer exist as there was a sunset statute. These two programs were designed to help struggling borrower’s who could no longer afford their mortgages to modify their loan under specific government guidelines. Now that these government programs have ended that does not mean modifications will end.

“As far as the consumer financial protection bureau (CFPB) and Mark Mc Ardle, deputy secretary for the Office of Financial Stability is concerned ‘the economy is still not back on track and may take much more time while many homeowners are struggling, they still are having a difficult time making  their mortgage payments. The CFPB has issued non-binding guidelines based on proven principles and protocols. Based on NPV (net present value); with this foundation the CFPB has stated principle goals for financial institutions to follow when dealing with at- risk homeowners including affordability, accessibility, sustainability and transparency.  The overall goal is to prevent “avoidable foreclosures” and offer a win-win situation for investors and homeowners.'” David Smith

There are still government sponsored programs to help struggling homeowners such as the hardest hit funds that reaches eighteen states. It is Keeping Your Home California for the state of California and offers funds to help with a portion of the arrears for reinstatement or modification. Additionally, the Making Homes Affordable website still has a vast amount of information contained on it; especially, if you are already in a HAMP trial or permanent modification.

Contact Attorney Patricia Rodriguez:

Patricia Rodriguez, Esq.

Lead Attorney/Chief Executive Officer

http://attorneyprod.com

Rodriguez Law Group, Inc.

 

1492 West Colorado Boulevard Suite 120

Pasadena, CA 91105

phone: (626) 888-5206

fax: (626) 282-0522

24 Responses

  1. CementBoots. The only investors in these REMICs were investors in already declared distressed debt buyers – whether they knew it or not. The cause of all the problems is that these were never “mortgages ” to begin with. That is why we have a mess and nothing can be fixed.

  2. ANON – you are correct – however the point I was trying to make is at the onset of these particular REMICs, if the PSA would be violated by the attempted insertion/assignment of a particular “MBS” aka your mortgage “arriving too late to save a drowning witch”, then the assignment/insertion is void ab initio and never made it legallly into the REMIC trust. It can only be cured by a later, SPECIFIC, ratification by vote of the holders of the investment certificates… Now why would they invite a 100% tax liability on their tax-free investment to make OCWEN, Wells Fargo, or USBANK happy? They would not. And – they have never been asked to vote on it. It is dead, stinks and has maggots. Sensibly, no investor wants to touch it and bring it back to life. It would be a “Zombie MBS” with the power to destroy the REMIC and all its tax free benefits.

    Do you get that?

  3. ANON- thx for the summary. I suspected as much

  4. Let’s let Neil do that. But basically – the trust pays potential debt buyers a premium amount – usually monthly – in order to stand by and be ready to purchase claimed defaulted loans At that point those loans are swapped out of the trust. The trustee has nothing to do with those loans once swapped out. Nether does the trust. But the servicer secretly continues to service for the undisclosed debt buyer, falsely , under the name of the trust and trustee. It is a violation of the fdcpa and RESPA to not name the true creditor. They are typically undisclosed and unregulated hedge funds or other distressed debt buyers who got the debt dirt cheap. Let Neil elaborate. But Mnuchin and Wilbur Ross – that was their businesses.

  5. ANON- rock on! Pls explain the derivatives aspect of the mbs thx!

  6. . This is exactly my spot as I was body of working diligently on my modifications with Wells Fargo I started to turn to KUHC toward December 2016 WF transfered the loanword to severer Christiana Wilmington then My midification couldn’t preserve with KYHC they not connected together the report body of work house were still looks like the like WF but when I called them BSI never called back when I asked why they said there is nothing u can do!

  7. “MAKING HOMES AFFORDABLE – HAMP & HARP ARE GONE”

    This is going to sky rocket non-judicial foreclosures !

  8. CementBoots: What stand out to me in the article you attach is — “ILLIQUID ASSETS.” How were illiquid assets securitized? Should be impossible. What the courts and judges fail to consider, and what the government failed to disclose by settlements, is– DERIVATIVES. Yet we all know that a trustee does not act for DERIVATIVES. Trustee role is only for CURRENT cash pass through. Without current cash pass-through — there is no role for the trustee. So, neither the trustee, or the trust, has any standing, and the borrower’s right to challenge standing is OUTSIDE the PSA and trust — and STANDS. Further, without disclosure of the “debt buyer” via DERIVATIVES, and outside the trust, the FDCPA is violated. When will we see anyone challenge this?

  9. We have continuing problems with judges ruling against homeowners out of their sheer disbelief that the sophisticated “craftsmen” in the Wall Street banking/investment system left any stone un-turned, because they just are way too educated to screw up so bad as to render their Ponzi own schemes void.

    Bank of America v. Bassman: a standing-challenge defeat for defendants (land owners)

    In Illinois, standing requires proof of “some injury in fact to a legally cognizable interest.” It is required under the Illinois Constitution in order to have proper subject matter jurisdiction over a case. Standing is no mere procedural technicality. It is a core component of justiciability that vests a court with subject matter jurisdiction over a matter.

    Recently, the second appellate district decided Bank of America v. Bassman.” In Bassman, the plaintiff was acting as a trustee on behalf of certain certificate-holders who alleged the right to foreclose on two commercial mortgages.

    The defendant’s primary argument was that the mortgages were never validly transferred into the trust and, as a result, the plaintiff did not have proper standing to bring the foreclosure. The plaintiff contended that the defendant lacked standing to challenge the actions of a trust to which it was not a party. The court conducted a lengthy analysis of mostly foreign precedent in resolving this issue.

    As an initial matter, there was a question as to whether Illinois or New York law would control in this matter. Although the court stated that the defendants could not properly invoke the choice-of-law provision contained in the trust documents, they ultimately decided that since the trust documents governing the transaction contained a provision invoking New York law, it should be used to determine if the mortgages were validly transferred into the trust.
    In Bank of America v. Bassman, the court noted that tension existed between the cited statute and cases supporting the notion of voidness as opposed to the cases that held such transfers were simply voidable. However, the court declared this to be an issue for New York courts to resolve and that the existence of the line of cases finding theoretical ratification enough to make an act voidable was sufficient to support their finding that the defendants did not have standing to challenge the actions of the trust.

    i commented:
    If the late purchase or assignment of mortgages into a REMIC trust is prohibited (aka void), per se, by definition in the PSA – then would this not be a case of it being “void”, but later “ratifiable”? So if the beneficiaries have not already voted to allow a void transfer, then it ought to be considered prima facie “Void” with the possibility of being un-voided by such beneficiaries’ ratification – not the other way around… (If somebody has a heart attack and has no pulse, they are clinicly “dead” until the EMTs show up and re-start the heart and bring them back to life….) The REMIC is clinically dead – awaiting resuscitation.

    Read the full article here: http://www.foreclosuredefenselawoffice.com/challenging-a-trustee-plaintiffs-standing-to-maintain-a-foreclosure-action-in-illinois/

  10. CementBoots: Thanks, I know…many here I am in contact with off the blog. The judges and magistrates in North Carolina are a big issue. No matter how many courts have heard this case, they continue to allow the case to be reheard. Have been in Delaware Bankruptcy Court, Federal Court here twice..with a stay from one, Judge Fox, 3 times in District Court with 2 dismissals and it keeps going and going. Insanity! Ocwen has naught, nothing….the paperwork is proven counterfeit and the judge allows it. Now, filing an injunction and a civil suit. 10 years in….if you or I came to court with what they have presented we would criminally charged, that simple.

  11. All must write their Senators to vote NO to the Financial Choice Act.

    https://www.cbsnews.com/news/richard-cordray-consumer-financial-protection-bureau/

  12. @Marina: what you present is certainly intriguing but not entirely easy to understand. What is the significance of the 1812.601(b)(2) material? Does it mean a house can’t change hands at a foreclosure auction if it it contains no personal non-real property? If not, could you expand upon the real meaning? Which exclusion did you refer to when stating that some exclusion cannot be be a relevant consideration?

    Finally, does what you posted come from a current or recent lawsuit? If so, who are the parties and when was it filed?

  13. “The end date to get a HARP refinance is December 31, 2018.”

    The quoted sentence was copied from https://www.harp.gov/about and pasted here without any alterations. It is almost certainly authoritative.

  14. *****CALIFORNIA IS A JUDICIAL FORECLOSURE STATE*****
    see post below

  15. TO PATRICIA RODRIGUEZ, ALL ATTORNEYS, AND ALL CALIFORNIANS:

    …READ AND ASSERT BLACK LETTER LAW…
    WE HAVE TO TAKE BACK THE LAW & TAKE BACK OUR COURTS

    CALIFORNIA JUDICIARY’S FAILURE TO APPLY THE LAW
    They have created a LOOP HOLE where none exists.

    “Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Old Wayne Mut. I. Assoc.v McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808).
    “When interpreting a statute, the court must begin with the text.[e.s.] Allen ex rel. Martin v. LaSalle Bank, NA., 629 F.3d 364, 367 (3d Cir. 2011).
    “If the statute’s plain language is unambiguous and expresses [Congress’s] intent with sufficient precision, we need not look further.” Psaros v Green Tree, NJ Federal District Court (New Jersey) Case #15-4277 (JLL) (JAD)
    “The statutory situations in which the remedy of unlawful detainer is available are exclusive, and the statutory procedure must be strictly followed.” Berry v. Society of Saint Pius X (1999, Cal App 2d Dist) 69 Cal App 4th 354, 81 Cal Rptr 2d 574, 1999 Cal App LEXIS 42, review or rehearing denied (1999, Cal) 1999 Cal LEXIS 2245.
    “The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor.” Anderson v. Heart Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing System Inv. Corporation v. Union Bank (1971) 21 Cal.App.3d 137, 153.
    “The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of his property” Moeller v. Lien (1994) 25 Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and “…a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute.” Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202, 211 (3d Dist. 1989), reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720. [Emphasis added]

    IN CALIFORNIA: CA Civ. Code 2924 et seq. is the customarily applied statue for Unlawful Detainer actions throughout California. Universally across the state, the Judiciary is engaged in the pattern and practice of conduct prejudicial to the administration of justice that violates California law with regards to Unlawful Detainer actions filed pursuant to CA Civ. Code 2924 et seq. Specifically, state courts are exercising a fictitious power to administratively nullify CA Civ. Code 2924(a) by unilateral judicial legislation and rulings that are contrary to Legislative intent and in violation of litigants’ constitutionally protected rights.

    California Civil Code Section 2924 provides in pertinent parts: (a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge. Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power SHALL NOT BE EXERCISED EXCEPT where the mortgage or transfer is made PURSUANT TO an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations, or is made by a public utility subject to the provisions of the Public Utilities Act, UNTIL all of the following apply: …[Emphasis added]

    Statute requires a Plaintiff to have acquired an Order, Judgment, or Decree from a court of record before it files its Unlawful Detainer action against the Defendant, which Plaintiffs failed to do. Within this same meaning an Order, Judgment, or Decree is required prior to any transfer of interest. Unlawful Detainer actions are commenced and prosecuted pursuant to CA Code of Civil Procedure Section 1161a(b) where real property is sold at a trustee sale in accordance with sections 2924 et seq., of the CA Civil Code under a power of sale contained in a deed of trust.

    The CA Judiciary’s hands are bound to strictly enforce the technical requirements for a foreclosure but instead, due to their unilateral failure, they have imposed upon thousands and thousands of property owners and their households a devastating fate of injustice, unlawfully handing over their homes to unwarranted parties.

    ADDITIONALLY…

    CA law requires foreclosures to be executed by auction.
    IN CALIFORNIA: CA Civ. Code 1812.600 et seq. – In 2012, while conducting an extensive research project Affiant discovered evidence of large scale systemic fraud by foreclosure trustees and their agents thereby defrauding the People of California. The state of California has one of the highest foreclosure rates in the nation.

    Upon review of the 56 trustee/auctioning companies who executed 343 Notice(s) of Trustee Sale ZERO were in compliance with CA Civ. Code 1812.600 et seq. thus these trustees were not qualified parties to execute foreclosure auction sales in California. Their violation has deprived foreclosure property sellers, buyers, and home owners remedy of restitution for injuries, and has circumvented millions of dollars in revenue to the State of California.

    As stated, CA Civ. Code 2924 et seq. is the CA law governing Unlawful Detainer actions. The procedures applicable to real property being sold in CA foreclosures is established by CA Civ. Code §2924(G)(a) “All sales of property under the power of sale contained in any deed of trust or mortgage … shall be made at auction..” CA. Civil Code 1812.600 et seq. clarifies that bonds are required for every auctioneer and auction company and that this law was enacted for the people of California as a means to gain restitution for damages incurred by the performance of an auctioneer, auction company, its representatives, or employees. The Legislature was clear in CA Civ. Code 1812.600 (c)(1): “No auctioneer or auction company shall conduct any business without having a current surety bond in the amount prescribed by this section and without filing a copy of the bond with the Secretary of State.” There is no overriding statute clause exempting compliance to CA Civ. Code 1812.600(a)’s requirement to be bonded when conducting the auction sale. Yet, California courts are denying Californians the protection of this statute and its restitution from auctioneers who are conducting foreclosure auctions in violation of CA Civ. Code 1812.609 which states: “Any waiver of the provisions of this title is contrary to public policy, and is void and unenforceable.” Only through judicial legislation have trustee sales in California been permitted to be conducted illegally for the execution of grand theft.

    In Californian the Courts have attempted to circumvent the law by executing Judicial Legislation from the bench in the instant matter by dismissing CA Civ. Code 1812.600 et seq. requirements upon the auctioneer trustees by misinterpreting CA Civ. Code 1812.601(b)(2) which addresses ‘real estate WITH personal property OR fixtures OR both in a unified sale…’, as does the referenced CC 9604(a)(1) (B) … the disposal real property with personal property IN CONJUNCTION WITH a sale of real property.

    *****THIS EXCLUSION IS NOT A RELEVANT CONSIDERATION***** herein when matter raised, the CA judiciary at every level has failed black letter law to the injury of CA property owners, victims of felony grand theft .

    In the matter of Affiant, DEUTSCHE’s Unlawful Detainer Complaint amounts to false claims submitted to the Court by unclean hands thus constituted sweeping fraud upon the court against Plaintiff. Defendant QUALITY LOAN SERVICE CORP., its agents, owners and law firm McCarthy and Holthus, and their clients OWB and DBNT are each liable in their fraud and failed compliance of CA Civ. Code 2924 et seq. and 1812.600 upon Affiant and the courts.
    Additionally, Defendants acting as Superior Court trial and Appellate Division judges are each liable to Affiant for their discounting legislative enactment and for dismissing Affiant’s extensive evidence of statutory violations and injury by judicial legislation.

    STATED PLAINLY:
    No bond = No legal auction business;
    No legal auction business = No legal auction;
    No bond filed with the CA SOS = No legal auction business or legal auctions;
    No bond filed with the CA SOS = No can do business in California.
    PERIOD…… SIMPLE ….

  16. Never peace with 4closure dealers politics

  17. Countrywide ceased to exist July 2, 2008. Anything executed in the name of Countrywide as of this date is counterfeit, a fraud, null and void. And parties involved are engaged in a conspiracy as a racketeering enterprise under RICO law, and should be pursued as such

  18. Thank You Neil Garfield for all your support! This is exactly my situation as I was working diligently on my modifications with Wells Fargo I started to turn to KUHC toward December 2016 WF transfered the loan to severer Christiana Wilmington then My midification couldn’t continue with KYHC they not affiliated together the paper work firm were still looks like the same WF but when I called them BSI never called back when I asked why they said there is nothing u can do! Sure enough they auctioned the house. They nerve those financial institutions they got cannot be without encouragement of their above government..etc. kind of colonization how they occupy bully other weaker life! It’s politic culture problem

  19. Poppy
    New Century and OCWEN et al. are a frequent topic here on this site…
    please research and review…
    CB

  20. Reblogged this on Deadly Clear and commented:
    There is an overall system in place designed with intentional fraud on the court and necessity for liquidity. The MBS computer software / financial products are not designed for 30 yr mortgages. Securitized trusts need liquidity for pension funds to be able to invest. Nothing has changed since ringleaders’ GSE conservatorship except ramping up wrongful foreclosures to feed the Treasury to prop up Obamacare. Servicing shifts are part of this process and all of it needs a criminal investigation and complete, detailed audit.

  21. Mr. Garfield,

    Would you have any attorneys in Washington State that would be capable of handling multiple properties with strong foreclosure defense experience? We are experiencing Wells Fargo taking our 4-plexes after stating/posting as cancelled then at the auction selling to an eviction attorney/broker! We have Arbritration attorneys working for us in Florida/New York but need a strong attorney in WA for restraining orders etc to work with us.

    Please let me know if you have anyone in mind as we have many properties needing representation asap.

    Thank you,

    Al White 360-620-9009

    Kim Rojo 360-649-8730

  22. I too had an “alleged” modification from Ocwen. Upon researching the ledgers, the payment never changed on the ledger from the origination, but did on the payment paperwork. There was a payment in full from “someone” for $10,000.00 when transferred to Ocwen. I can say with certainty, that was what they paid for the defaulted note…as debt collectors. They are now trying to come to court for the Fourth time, as “Owner” of the original note with rights of assignment from New Century in 2012, while New century was in bankruptcy, and the trust CSMC-NC1 OSI was named in a Federal suit for it being defunct, whereby cheating the investors. I have certified copies of transcripts, motions, memorandums and rulings on this matter from Federal Court, proving that they are liars, counterfeiters and fraudulently trying to foreclose with absolutely NO VALID paperwork. Try and get a judge to see it, challenging for sure, even with profound evidence.

  23. I have been a victim of all this BS on FIVE (5) refinance loans I completed with Countrywide Home Loans from 2002 to 2009. Ever since 2009 I have been totally harassed and harmed by nasty old Bank of America and all their racketeering scams that included phony modifications on behalf of Urban Settlement Services as “attorney in fact” for nasty, phony, pretend lender Bank of America.
    The government is in on all this as everyone knows full well and there is little if anything that can be done to these complete, outright crooks.
    Sure too bad there are not more concerned, dedicated people who can help people like me. I am a 73 year old Vietnam Veteran and sure never say this coming. Semper Fi.

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