Closely Watched Case on Disgorgement Could Have Effects on Foreclosure Litigation

The SEC case is basically premised on one simple fact. If someone obtains money or property illegally they should never be allowed to keep it. And whatever they have should be given back to the rightful owner not as punishment but merely return of stolen assets.

One of the central themes of my articles has been that an affirmative defense asking for disgorgement is a proper strategy and one which eventually will prevail to knock out illegal foreclosures without undermining the entire securitization process.

There is nothing wrong with securitization. it has been the basis for capitalism for hundreds of years. You can argue about the flaws of capitalism but it is still the best system devised, so far, in human evolution. But theft is not capitalism.

Unfortunately the United States Supreme Court seems to be moving dangerously close the edge by allowing theft to prevail and the Securities and Exchange Commission is arguing with the court about it. For those concerned about the future of the country now i the time to start making calls to public figures and letting them know how you feel about this.

The SEC is simply taking the position that its powers of disgorgement should not be impinged by anything including the statute of limitations. The fact that victims do not really understand how they got scammed for long periods of time in which the perpetrators of the scam managed to conceal the information should not be an excuse for allowing the perpetrators to keep their ill-gotten gains. Such schemes upset the balance of market forces and the rule of law. Correcting them should be the obligation of law enforcement and the right of any victim to seek redress in court.


3 Responses

  1. Deadly Clear — Absolutely correct. The problem is — how did that happen? Not that it happened, but HOW did it happen?

    Answer — all these loans were put in default to the original investor — GSEs — without ever being in default. Yes, default may have come later for many, but since the loan was already in (false) reported default at time of refinance, it is only unsecured debt. So no one got a legitimate refinance — they got a transfer of default unsecured debt – never disclosed to them. Check the patents for this. Goal to foreclose? Subsequently – Absolutely! But this was NOT the original goal. Original goal was higher rates.

    Default reported at refinance? Absolutely – but default reported was FALSE.

    Servicers to GSEs became Investment bankers. Hey — they could get adjustable high rates rather than fixed with GSEs? ALL were game. And there was no regulation – anything was reported – without notice to borrowers. And, certainly, without notice to investors – which is why it all ultimately collapsed.

    Who took the hit? The victim homeowners. .


  2. Securitization – with full disclosure and without rehypothecation is palatable. The fault comes from failing to disclose the true intent which in the case of the last 20 years wasn’t a 30-year mortgage but actually a foreclosure process. The intent is found in the USPTO patents.

  3. This is an extremely productive post by Neil. Read it closely.

    Thank you Neil.

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