Back to Basics: Countrywide as a Vehicle for Fraud on Borrowers and the Courts

Home Affordable Modification Agreement (HAMA) is really a HAMMER.

In my discussions with Charles Marshall and Bill Paatalo we frequently analyze and discuss attributes of documents and the underlying real events that occurred, which are often not connected in any manner with  what is written on the documents. One such fact pattern came to our attention and I issued the commentary below.

It is not hard to see why nearly everyone can’t keep track of what is really happening, to wit: investor cash was converted to investment bank cash which was converted into underwriting and “trading” fees and profits plus loans issued in the name of remote originators who were mostly unaccountable. Neither the investors nor the borrowers received any benefit from the use of their cash and credit without their consent. 

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One of the interesting things that I notice about the Countrywide documents is that it identifies CW as the lender and discloses that  the loan can be transferred. What is does not say is that the loan has already been transferred to an undisclosed third party who may or may not be a lender. 
By selling forward the loans are sold before they exist. Hence CW, despite the representation on the document, is not the lender but rather a broker at best. The answer to most everything is in the gaps, not he documents or even the money trail. One of the things that people forget or never looked for is whether CW was ever capitalized with enough money to make loans, much less in the volume attributed to CW. It wasn’t. This same question could be applied to Quicken Loans and hundreds of other “originators” who used that moniker because it is undefined. 

The loan is with a ghost. And foreclosures are with a ghost, for the most part. In fact, that leads to the question of whether it was a loan at all or if the terms of repayment are set forth in an enforceable loan contract. If the note and mortgage (or deed of trust) name a ghost then we already know that the contract violates public policy and law, too wit: disclosure of the identity of the lender.

While there is an argument to say that the paper becomes bearer paper there are two things wrong with that line of thinking. First a mortgage is not and cannot be bearer paper if it seeks to be contract longer than one year in order to satisfy the statute of frauds. Second, the mischief of “bearer documents” is that the right to rescind and the rights to sue for violation of lending laws is eviscerated. 

The signature page of the Home Affordable Modification Agreement pretty much sums up the deficiencies and illegal activities of the banks acting through layers of conduits such that the real party in interest, as in organized crime, can never be positively identified without a wiretap. 

  1. It is dated 2013 which is long after CW was dead and buried.
  2. It is signed by a robosigner which means she didn’t know what she was signing or why. You can be sure she was not named in any existing corporate resolution as “assistant secretary” of any company let alone “Urban Settlement Services, LLC.”
  3. It is signed on behalf of Urban Settlement Services, LLC (USS) which as its name implies is merely an agent for purposes of settlement. BUT it is not signed by USS on its own behalf. Instead it is purportedly executed on behalf of Bank of America where USS is the “attorney in fact”. An attorney in fact means that there is a power of attorney. In order for the statement to mean anything it must reference or attach a power of attorney. This is never done, and it certainly is not here. So at best the assertion of attorney in fact must be ignored because it does not settle the question of whether USS has such a power of attorney, nor what might be within the scope of the power of attorney. Thus far, then, there is no execution of the instrument by any party.
  4. BOA is mentioned not as BOA but as successor to BAC Home Loans. BAC Home is merely a name change from Countrywide, which was acquired by Red Oak Merger Corp, a controlled BOA entity. Just like the nonexistence reference to a power of attorney the “Successor” moniker is used to imply that something happened in relation to the subject loan or debt. But like the missing power of attorney, there is no mention or assertion that BAC or CW owned the loan or the servicing rights at the time of the merger, nor which assets or liabilities were merged into BOA after the Red Oak merger. 
  5. The  agreement implies but does not state that BOA is the owner of the debt, note or mortgage and does not state that BOA is authorized to act as servicer but certainly implies that BOA is a servicer for an undisclosed third party because all loans from CW were “sold” into the secondary market and subject to claims fo securitization. BUT the one thing that is modified by implication is that the lender is no longer CW but rather BOA regardless of whether CW ever owned the debt or servicing rights and regardless of whether or not BOA owned the debt , note or mortgage or servicing rights. There is an obvious internal conflict between the parole evidence of sale into the secondary market and “securitization” and the implied assertions by BOA. THUS THE REAL PURPOSE OF THE DOCUMENT IS UNVEILED. IT TAKES A DEBT WITH AN UNKNOWN THIRD APRTY OWNER AND TRANSFERS IT WITHOUT CONSENT TO BOA. 
  6. This raises other interesting issues with MERS. MERS is a naked nominee meaning it has no power to do anything ever except on direction of its principal which in this context MUST be the party named as Lender. That defines the agency relationship. CW existed so the agency relationship is between MERS and CW. When CW sold the debt to an undisclosed third party (probably before the debt ever came into existence) it could no longer sell the debt to anyone else by definition. Nor would an assignment or any other implied assertion of transfer of the loan be valid after it had already been sold. The successor is the party who bought it not BOA who merely claims it by way of a tortured chain of implied statements. And yet MERS has title to the mortgage. It must receive instructions from CW only, unless CW transferred the right to direct MERS to a new party. It can’t because it is dead. So the modification agreement is intended to cure that by inducing the borrower to sign another false document, this time naming an entirely new fake lender. In other words it is a REFINANCING to the benefit of BOA in which BOA may or may not have paid any number of parties to become the new “lender,” but among those parties, none of them was CW. 

11 Responses

  1. Roger – absolutely investors are not lenders. Stated lenders or hidden “lenders” were not lenders at all either.

    This is not going away. The stock market party, I think, is over. Middle and lower income America never benefited. All went to the top. All concealed. Sucked the life blood out of the one source of American “equity” that was left after trade agreements — HOMES.

    Trump is going to take the fall for what was inherited. He is tying to fix before all is beyond repair. However, as things get worse, and they will get worse, he will be forced to go further. The last thing we want is to return to the fraud of past decades.

    People need to get head out of social issues for voting. Sure, all have an opinion on social issues, but we have far bigger fish to fry. Decades of fraud — and corruption.

    You are right — all need to do everything they can do.

    And, if Neil can give help — get it.

  2. ANON, I meant to say that INVESTORS are not LENDERS, and the LENDERS were using FED money or credit lines from foreign national banks.

  3. I believe in the Donald! Always have. The ultimate outsider; too much money to be bought! The status quo is terrified of him and his quest to defeat the racketeering operation that Washington has become. He is a true patriot! And ANON, you are right on point!
    We’ve had….what…..almost 8,000,000 foreclosures from 2007-2016,
    ( I think you’ve had another million or so since, and the foreclosure rate is rising again. We’ve got plenty of victims here to make a point with him. I already wrote the letter.
    The Republicans are as much to blame as the Dimms, But Obama and his Justice Department (and special mention goes to the US Bankruptcy Trustees Office) for allowing it all to go down.
    May I suggest a letter thanking him for taking on the task at hand, and include a description of the frauds committed against you and attach your exhibits, judgments, and detail the statutes violated.
    Louise (Happy Thanksgiving, honey!) is right on! I’m here to tell you: the fraud hasn’t stopped. The kinky foreclosures keep coming: bogus allonges, trailing assignments, rubber-stamped endorsements in the middle of a blank page! I see them all: not just in my case, I’ve been a process server now for years.
    So I think that is great idea, ANON!
    Nadia, Wells Fargo is servicing and foreclosing on alot of Countrywide loans. All kink! Remember: the collateral files were mostly shredded by Iron Mountain. All they have are copies of copies. Originals are gone!
    KS: you need to have your loan researched and find out where it was placed, if it was placed, and how many times it was placed. Not a big fan of “forensic audits”, as they aren’t admissible in court. But having the right information is essential to defending.
    Here in Cheeseland, Wisconsin, the Supreme Court has already stuck the knife in our back, and we’ve realized that they are indeed behind the racketeering committed by the State of Wisconsin by absconding the foreclosure settlement money and ignoring homeowners claims of fraud. No restitution to the homeowners whatsoever, in contravention of the settlements themselves.
    But the fight must go on, folks! There is no giving in.
    And Neil, please post on “Right of Redemption” periods. Too many people leaving there homes way before they have to. I guess they’re afraid: our Government has done a great job of instilling that fear. No one wants confrontation (except assholes like us that refuse to give in).
    Sad state of affairs. Lots of blame to go around, but not enough people fighting.

  4. And if Trump was smart — he would slam the Dems for concealment. Not that smart I guess.

  5. The contract never left the GSEs. There were “corridor” agreements between Countrywide and BofA (and others the same). . And the big banks had big contracts/agreements with the GSEs. But, the “loan” itself was nothing more than a debt with the contract remaining with GSEs. Modification? Also called a restructure. But, the “debt” is long gone from GSEs – and is not with security investors – now with debt buyers. And, you will never know their name. .

    You know — why did the government promote modifications instead of a refinances? Because the loans could not be refinanced. Title already destroyed. Lien separated from the debt. I know courts have done away with this concept, but it is the only true practice that went on and continues to go on.

    May get lucky with a judge who is smart and understands. But, for the most part, the U.S. Government has allowed the fraud to be settled with them, and allowed the fraud to continue against borrowers. Security investors have been paid. What did they lose? Ten percent or more interest on debt collection for their portfolio. They just got their money back. Absurd for any security investor to believe that they could earn so much on mortgages. What the hell were they thinking? .

    Investors did NOT lend. Investors invested in fake securities – for which the government itself received billions of dollars in “settlements.” Investors believed the mortgages were valid — but, again, were they nuts? The fraud to them is that they really invested in debt collection rights. Nothing more.

    How do you fix this for the real victims – the homeowners? The answer was never one borrower at a time. . .

  6. I don’t know if Neil Garfield will get this attachment, but it is sure very interesting to me and I believe as phony as ever in this huge never ending Ponzi Scheme!! Semper Fi.

    *Fred R. Schneider* *2210 Hatton Place* *Montrose, CO 81401* *970-240-0646*

    On Fri, Nov 23, 2018 at 8:49 AM Livinglies’s Weblog wrote:

    > Neil Garfield posted: ” Home Affordable Modification Agreement (HAMA) is > really a HAMMER. In my discussions with Charles Marshall and Bill Paatalo > we frequently analyze and discuss attributes of documents and the > underlying real events that occurred, which are often not conn” >

  7. And the game goes on, and on, and on!! I have contacted Mr. Garfield many times over the last 9 years I have been fighting the fight of my life with the five (5 initial refinance loans I did between 2002 and 2009).
    I started asking for help when the financial crises stared back in 2008 and I started asking for help in late 2009 as we had to start paying out over $100,000 per year for the full time care of my dear sweet mom who turned 95 and passed away in late 2016.
    I fought and fought with nasty old Bank of America and have five boxes of correspondence to prove my fight and being assigned over 20 different CRMs (consumer relations managers who all claimed they worked for the office of the President- what a joke that was and you could tell my the way the conducted themselves and talked that they were nothing more that minimum wage flunkies who would contact you once a month to claim they did NOT have all the documents or that the documents were now outdated. I kept copies of all this so knew they were tying.
    I also sent packet after packer to five different locations from back east to California and to Texas. What a joke and a con. They finally got one property using wrongful foreclosure and even had a transfer document of assignment by well known “robosignor Michele Sjolander and the use of MERS and of course a crooked law firm of Janeway law in Colorado who was fined by the Colorado Attorney General at the time (John Suthers) for nearly $1 million dollars for their crooked behavior- $650,000 with $350,000 to be held. Someone even said that Janeway law could have been part of the huge David Stern crooked lawfirm and “paper mill” source- all gone now as I understand things.
    Good question is what happend to David Dayen and many many others who I believe got bought off eventually like the “Morrows in the Montana Case that got settled out of court, confidential, and sealed so the case could NOT be used.
    The Morrow Case was a mirror to my case with my five loans but I am a 74 year old Vietnam Veteran and no money to put up a fight. Attorney’s love my case, but when I have no money they have no time to help me:(
    B of A sicked Shellpoint Mtg. on me to force one Sale and them B of A forced me on another and I have attached the phony, ridiculous reconveyance deed that I finally got nearly 4 months after the sale.
    Now they have a really nasty supposed “Servicer”- service transferred by B of A to SETERUS- one of the worst people next to Shellpoint Mtg and they are BOTH nothing more than “debt collectors” using the same tactics as nasty old B of A.
    I have all the phony “inhouse modifications” that were done my Urban Settlement Services, ins. as “attorney in fact for B of A and never recorded. In 2013 & 2014 I finally got these s0-called modifications and they are complete joke as well-robosigned documents based upon false, fabricated and phony documents. I am sure this will never be allowed to be published as too many attorneys are making a lot of money off these kinds of publications that have some very good information like Neil has been putting out and making more by offering his help now. Thanks Neil for at least keeping people like me on your Blog at least. I wish everyone a very blessed and happy Holiday season. I am still fighting on, but NOT much you can do when our very own government and congress people are pretty much all involved and up to their eyeballs on this!!!
    Somebody needs to find out how to follow the money if this is possible and see where all the money has gone- 1) all the bailouts, 2) the national mortgage settlement, 3) the nearly $17 billion dollar settlement between B of A and the USDOJ and the list goes on and on. Keep on fighting if you are unfortunate to be harassed by all the racketeering going on. Semper Fi.

  8. My loan origination was with BOA. All done online in 2007. While still in “good standing” we requested a modification when that bum Obama came on TV babbling about saving 4 million homes thru HAMP. No sooner that BOA start the shell game switching our account number, which still to this date never made any sense. And sending letters every 4-6 months switching Servicing names back and forth between BOA Home Loans and BOA NA claiming “merger”. We never dealt with CountryWide ever. But it seems to me we were dealing with CountryWide while online using the BOA name on origination. The final kicker is Freddie Mac claims they were involved from Day1 of the origination as a number of different names they have used investor, owner, holder, etc. even though we never heard of them until after 2011-12 and they have never appeared on any notice of intent to fraudclose documents we have received thru the years. Now at the present BOA has tired of our valid questions and sent the Servicing to The Debt Collecting Low Lifes known as SLS in September 2018. I guess the start up a new game of hide the pea under the shell.

    Note*. When applying for that Rust Settlement Money. BOA stated we did not qualify as our mortgage was not our 1st mortgage!!!!!!!??????

  9. What happens when your loan does not have MERS? Yes the fraud and theft continue and the courts are totally complicit. They don’t care about us or due process for all

  10. BoA cousins with @WellsFargo Fraud
    Happy thanksgiving Mr. Garfield! Wish all your efforts turns fraudelant system around to listen to you! side w victims of home foreclosures

  11. The fraud and theft is still going on just like it always has and nothing is done about it. Our courts, judges and attorneys are the land of fraud and theft.

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