Just like I said: Megabanks are doing just fine despite economic downturn — at the expense of investors, taxpayers and homeowners.

Posted on July 21, 2020 by Neil Garfield

Major banks, including Citigroup, JPMorgan and Morgan Stanley used massive trading revenues to beat profit expectations despite the continued struggles of the United States economy during the coronavirus pandemic. Those trading units tend to perform best when markets are volatile, helping to guard the major banks against economic struggles.

see https://www.cnbc.com/2020/07/17/without-big-wall-street-trading-arms-regional-banks-lean-on-mortgages-and-fees-to-beat-earnings.html

Way back in 2006 and 2007 and when I first started publishing articles about the mortgage meltdown (before most people realized there was a meltdown) I reported that the major banks were siphoning off much of the wealth contained inside the U.S.

I said that these mega banks were parking ill-gotten gains off-shore in various assets, — frequently using  a tax avoidance scheme based in Bermuda. And I said that they would repatriate that money only when they needed to do so.  And because they had taken trillions of dollars, they would forever use it to consistently report higher earnings whenever they needed to do so in order to maintain the value of their stock.

I said that they would do it by reporting higher trading profits. They are reporting higher trading profits merely by creating false trades at their trading desks between fictitious entities in which one of the subsidiaries is the “seller” who is reporting a profit.

Sure enough that is exactly what is happening. Small and regional banks don’t have that “nest egg.” They must rely on old fashioned fees and interest to earn money. But the big banks are reporting “trading profits” to offset deficits in interest and fee income caused by the huge economic downturn caused by coronavirus.

Part of those trading profits also come from foreclosures. The proceeds go to the megabanks, who have retained little or no financial interest in the alleged loans much less any losses from the alleged default.

There was no default in any obligation owed to any creditor because there is no creditor who maintains an accounting record on which it claims to own any homeowner debt, note or mortgage by reason of having paid value for it in exchange for a conveyance of ownership of the debt, note or mortgage from one who legally owns it.

Simple common sense. If you don’t own the debt you have no reason or authority to mark it “paid” even if you receive the money.  Homeowners and their lawyers should stop taking that leap of faith in which they admit the existence of a default. A default cannot exist on an obligation in which there is a complete absence of a legal creditor. Homeowners didn’t create this mess. It was all the megabanks who made a fortune stealing from investors and homeowners.

A default is the failure to perform an obligation or duty owed to a particular person — not a failure to perform a duty owed to the world in general.

There could be many reasons for the absence of a legal creditor — including the simple fact that everyone has received sufficient payments and settlements such that nobody needs to step into the shoes of a lender which could produce liability for violations of lending and servicing laws.

IT SHOULD NEVER HAVE BEEN THE BURDEN OF HOMEOWNERS TO PROVE THE EXISTENCE OF THE REAL CREDITOR. There isn’t one and the banks and their lawyers have been laughing at us for 20 years over getting away with that one. 

It was the mega banks that created loans without lenders — i.e., transactions in which there was no legal person or entity claiming ownership of the obligation.

The banks are using smoke and mirrors. They claim (through third party intermediaries) a “default” in the obligation to pay a nonexistent creditor. The money they receive from foreclosure is pure revenue offset only by the fees they pay to the other intermediary foreclosure players who exist solely to produce profits for themselves and the megabanks.

And pro se homeowners and even lawyers are confounded by this system. They admit the basic elements of the claim even though the basic legal elements are missing.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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Filed under: Bailout, boarding process, burden of persuasion, BURDEN OF PROOF, community banks, CORRUPTION, credit unions, foreclosure, foreclosure defenses, foreclosure mill, forensic investigation, investment banking, Investor, jurisdiction, legal standing, Mortgage, Motions, originator, Pleading, Presumptions, prima facie case, Servicer, sham transactions, standing | 4 Comments »

Regulatory Capture and Monopoly of Residential Lending by Wall Street

Posted on June 16, 2020 by Neil Garfield

It is simply not true and has not been true for 20 years that lending is subject to free market forces or that lenders are subject to regulation. 

all of this has resulted from extraordinary illegal Market Control which has resulted in the complete inability of small financial institutions to compete with lending practices sponsored by investment banks on Wall Street.

As a result consumers are negatively affected. Contrary to the requirements of law they do not have the right to choose the party with whom they are dealing, they do not have the protections of the truth in Lending Act, and they are lured into a dangerous transaction in which the counterparties have an incentive merely to bring a transaction into existence and label it as a loan.

When it comes to regulation, it is the legislature that deems who is worthy of regulating and on what terms. The legislature then enacts into law those terms and creates the agency or enforcement mechanism.
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Regulatory Capture occurs when persons and companies whom the legislature has deemed worthy of regulating have control over the agency or enforcement mechanisms. This happens all the time when the regulators are persons formerly, currently or intended to be employed by the companies that they are supposed to regulate.
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I am sure, now that it has been pointed out, that there has been in a concerted strategy of regulatory capture that has negatively impacted the legal profession and therefore chilled access to the courts and to counsel. This has enabled a monopoly that has so constrained free market forces as to make them virtually irrelevant. It is simply not true and has not been true for 20 years that lending is subject to free market forces or that lenders are subject to regulation.
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Even the most uninformed lay person knows by now that the Wall Street banks screwed the market and the marketplace. True, they don’t understand how it was done. But they know it happened, which is why I have counseled persons running for public office to run against the banks, because right now, almost everyone hates the Wall Street securities firms that call themselves “investment banks.”  But very little is being done to counter their illegal impact on free markets, consumer rights, and the hallmark of any capitalist economic system — competition.
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This has shown up in regulation and discipline of lawyers. Lawyers who advance false claims in court go with both impunity and immunity. Lawyers who defend homeowners from those false claims almost always find themselves the target some investigation, complaint discipline, sanctions or judgements from Bar associations, the FTC or the attorney general of some state.
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The result is entirely predictable. Most trial lawyers won’t take on cases involving foreclosure defense because they fear for their livelihood. Consumers are the ones who suffer the most because they can’t find a lawyer to take their case. So they try to appear pro se and they lose because only lawyers know how to navigate the judicial system. It’s a perfect storm for the Wall Street firms.
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I am also sure that all of this has resulted from extraordinary illegal Market Control which has resulted in the complete inability of small financial institutions to compete with lending practices sponsored by investment banks on Wall Street.
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Homeowner transactions sponsored by Wall Street do not rely upon profits from the transactions with homeowners. They rely entirely upon profits from false claims arising out of securitization Cycles. so it is literally possible and often happens that the marketing and other expenses associated with generating transactions with homeowners are much higher than any cash flow that could be considered Revenue. This makes it possible to offer incentives and lower interest rates for the sole purpose of initiating another securitization cycle, which is the source of all actual profit.
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As a result consumers are negatively affected. Contrary to the requirements of law they do not have the right to choose the party with whom they are dealing, they do not have the protections of the truth in Lending Act, and they are lured into a dangerous transaction in which the counterparties have an incentive merely to bring a transaction into existence and label it as a loan.
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Those counterparties also have an incentive to see the transactions fail, since they have knowingly created obligations based upon false appraisals and false assessments of viability. In doing that they have guaranteed themselves additional profit simply by insuring the certificates that are indexed on the performance of the homeowner transactions. And they further profit from false claims leading to forced sale of property for profit rather than restitution for an unpaid obligation.
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Thus this monopolistic control causes homeowners to enter into transactions that they think are loans but instead are investments into securitization schemes. The terms and incentives for conduct are far different than the reasonable expectation of any reasonable consumer borrower. 
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The other class negatively impacted by this strong arm behavior is the U.S. class of approximately 7,000 community banks, credit unions and savings and loan associations that would otherwise be able to compete for loan business but can’t because they are presented with a bad choice: either they serve merely as sham conduits to feed securitization or their loan business virtually fails. In turn this negatively impacts their ability to cross market for depository business and other bank services. 
My point is that just like 100 + years ago when the big trusts were considered impregnable, they were brought down with a thud by claims that they had ruined the free markets with both economic control and asymmetry of information. Regulatory capture was of course a perk that enabled them to write and make laws that made their ruinous behavior totally legal — until the courts and Congress said it wasn’t legal.

Plaintiffs present this evidence as a prototypical example of “regulatory capture,” a term coined by public choice economists to indicate when members of a regulated occupation also dominate the regulatory and law-making process in their field. Professor Todd Zywicki of George Mason University School of Law, a leading scholar in law and economics, testified that the limitations on funeral home ownership in Maryland are consistent with the principles of regulatory capture. He stated that in his opinion the Morticians Act appears to be:

an effort to create governmentally imposed barriers to entry in the funeral home industry and thereby to transfer wealth to a discrete, well-organized interest group at the expense of consumers of funeral home services and the public at large. The result of this regulation is reduced competition in the provision of funeral home services and higher prices and reduced choice in funeral home products and services for consumers.

Brown v. Hovatter, 516 F. Supp. 2d 547, 553 (D. Md. 2007)

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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Filed under: CORRUPTION, credit unions, Fabrication of documents, foreclosure, foreclosure defenses, forgery, investment banking, Investor, jurisdiction, legal standing, originator, Pleading, securities fraud, Servicer, sham transactions, standing, STATUTES | Tagged: , , , , | 1 Comment »

Ally $52 Million settlement for “Deficient Securitization”

Posted on November 25, 2016 by Neil Garfield

All of these adjectives describing securitization add up to one thing: the claims were false. For the most part none of the securitizations ever happened.

And that means that the REMIC trusts never purchased the debt, note or mortgage.

And THAT means the “servicer” claiming the right to administer a loan on behalf of the trust is false.

And THAT arguably means the business records of the servicer are not business records of the creditor.

And THAT my friends means what I have been saying for 10 years: virtually none of the foreclosures were legal, moral or justified. The real transaction was never revealed and never documented. The “closing” documents were fake, void and fraudulent. And THAT is grounds for cancellation of the note and mortgage.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see http://www.nationalmortgagenews.com/news/compliance-regulation/ally-to-pay-52m-to-settle-subprime-rmbs-investigation-1091364-1.html

It is hard to imagine any scenario under which Government cannot know what I have been saying for years — that the claims of securitization are false and the documents for the loans were fraudulent. Government has decided to ignore the facts thus transforming a nation of laws into a nation of men.

In plain English the decision was made to let the chips fall on borrowers, who were victims of the double blind fraud, despite clear and irrefutable evidence that the banks malevolent behavior caused the 2008 meltdown. The choice was made: based upon information from the birthplace of securitization fraud, Government decided that it was better to artificially prop up the securities markets and TBTF banks than to preserve the purchasing power and household wealth of the ordinary man and woman. The economy — driven by consumer spending (70% of GDP) — had the rug pulled out from under it. And THAT is why the effects of rescission are still with us 8 years after the great meltdown.

The fact that there are 7,000 community banks, credit unions and savings banks using the exact same electronic payments platform as the TBTF banks was washed aside by the enormous influence exerted by a dozen banks who controlled Washington, DC, the state legislatures, and the executive branch in most of the states.

The American voter came to understand that they had been screwed by their representatives in Government. They voted for Sanders, they voted for Trump and they voted for anyone who was for busting up government. But they still face daunting challenges as they continue to crash into a rigged system that favors a handful of merciless bankers who have bought their way into the Federal and State Capitals.

Chipping away at the monolithic Government Financial complex individual homeowners are winning case after case in court without notice by the media. It isn’t noticed because in most instances the cases are settled, even after judgment, with a seal of confidentiality. Most people don’t fight it at all. They sweep up and leave the keys on the counter believing they have committed some wrong and now they must pay the price. THAT is because they have not received the necessary information to realize that they can and should fight back.

Filed under: CORRUPTION, credit unions, discovery, foreclosure, Government Financial Complex, GTC | Honor, Investor, MBS TRUSTEE, Mortgage, securities fraud, Servicer, Title, TRUST BENEFICIARIES | Tagged: , , , , , , | 11 Comments »

Levitin and Yves Smith – TRUST=EMPTY PAPER BAG

Posted on September 26, 2014 by Neil Garfield

Living Lies Narrative Corroborated by Increasing Number of Respected Economists

It has taken over 7 years, but finally my description of the securitization process has taken hold. Levitin calls it “securitization fail.” Yves Smith agrees.

Bottom line: there was no securitization, the trusts were merely empty sham nominees for the investment banks and the “assignments,” transfers, and endorsements of the fabricated paper from illegal closings were worthless, fraudulent and caused incomprehensible damage to everyone except the perpetrators of the crime. They call it “infinite rehypothecation” on Wall Street. That makes it seem infinitely complex. Call it what you want, it was civil and perhaps criminal theft. Courts enforcing this fraudulent worthless paper will be left with egg on their faces as the truth unravels now.

There cannot be a valid foreclosure because there is no valid mortgage. I know. This makes no sense when you approach it from a conventional point of view. But if you watch closely you can see that the “loan closing” was a shell game. Money from a non disclosed third party (the investors) was sent through conduits to hide the origination of the funds for the loan. The closing agent used that money not for the originator of the funds (the investors) but for a sham nominee entity with no rights to the loan — all as specified in the assignment and assumption agreement. The note and and mortgage were a sham. And the reason the foreclosing parties do not allege they are holders in due course, is that they must prove purchase and delivery for value, as set forth in the PSA within the 90 day period during which the Trust could operate. None of the loans made it.

But on Main street it was at its root a combination pyramid scheme and PONZI scheme. All branches of government are complicit in continuing the fraud and allowing these merchants of “death” to continue selling what they call bonds deriving their value from homeowner or student loans. Having made a “deal with the devil” both the Bush and Obama administrations conscripted themselves into the servitude of the banks and actively assisted in the coverup. — Neil F Garfield, livinglies.me

For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone.

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John Lindeman in Miami asked me years ago when he first starting out in foreclosure defense, how I would describe the REMIC Trust. My reply was “a holographic image of an empty paper bag.” Using that as the basis of his defense of homeowners, he went on to do very well in foreclosure defense. He did well because he kept asking questions in discovery about the actual transactions, he demanded the PSA, he cornered the opposition into admitting that their authority had to come from the PSA when they didn’t want to admit that. They didn’t want to admit it because they knew the Trust had no ownership interest in the loan and would never have it.

While the narrative regarding “securitization fail” (see Adam Levitin) seems esoteric and even pointless from the homeowner’s point of view, I assure you that it is the direct answer to the alleged complaint that the borrower breached a duty to the foreclosing party. That is because the foreclosing party has no interest in the loan and has no legal authority to even represent the owner of the debt.

And THAT is because the owner of the debt is a group of investors and NOT the REMIC Trust that funded the loan. Thus the Trust, unfunded had no resources to buy or fund the origination of loans. So they didn’t buy it and it wasn’t delivered. Hence they can’t claim Holder in Due Course status because “purchase for value” is one of the elements of the prima facie case for a Holder in Due Course. There was no purchase and there was no transaction. Hence the suing parties could not possibly be authorized to represent the owner of the debt unless they got it from the investors who do own it, not from the Trust that doesn’t own it.

This of course raises many questions about the sudden arrival of “assignments” when the wave of foreclosures began. If you asked for the assignment on any loan that was NOT in foreclosure you couldn’t get it because their fabrication system was not geared to produce it. Why would anyone assign a valuable loan with security to a trust or anyone else without getting paid for it? Only one answer is possible — the party making the assignment was acting out a part and made money in fees pretending to convey an interest the assignor did not have. And so it goes all the way down the chain. The emptiness of the REMIC Trust is merely a mirror reflection of the empty closing with homeowners. The investors and the homeowners were screwed the same way.

BOTTOM LINE: The investors are stuck with ownership of a debt or claim against the borrowers for what was loaned to the borrower (which is only a fraction of the money given to the broker for lending to homeowners). They also have claims against the brokers who took their money and instead of delivering the proceeds of the sale of bonds to the Trust, they used it for their own benefit. Those claims are unsecured and virtually undocumented (except for wire transfer receipts and wire transfer instructions). The closing agent was probably duped the same way as the borrower at the loan closing which was the same as the way the investors were duped in settlement of the IPO of RMBS from the Trust.

In short, neither the note nor the mortgage are valid documents even though they appear facially valid. They are not valid because they are subject to borrower’s defenses. And the main borrower defense is that (a) the originator did not loan them money and (b) all the parties that took payments from the homeowner owe that money back to the homeowner plus interest, attorney fees and perhaps punitive damages. Suing on a fictitious transaction can only be successful if the homeowner defaults (fails to defend) or the suing party is a holder in due course.

Trusts Are Empty Paper Bags — Naked Capitalism

student-loan-debt-home-buying

Just as with homeowner loans, student loans have a series of defenses created by the same chicanery as the false “securitization” of homeowner loans. LivingLies is opening a new division to assist people with student loan problems if they are prepared to fight the enforcement on the merits. Student loan debt, now over $1 Trillion is dragging down housing, and the economy. Call 520-405-1688 and 954-495-9867)

The Banks Are Leveraged: Too Big Not to Fail

When I was working with Brad Keiser (formerly a top executive at Fifth Third Bank), he formulated, based upon my narrative, a way to measure the risk of bank collapse. Using a “leverage” ration he and I were able to accurately define the exact order of the collapse of the investment banks before it happened. In September, 2008 based upon the leverage ratios we published our findings and used them at a seminar in California. The power Point presentation is still available for purchase. (Call 520-405-1688 or 954-495-9867). You can see it yourself. The only thing Brad got wrong was the timing. He said 6 months. It turned out to be 6 weeks.

First on his list was Bear Stearns with leverage at 42:1. With the “shadow banking market” sitting at close to $1 quadrillion (about 17 times the total amount of all money authorized by all governments of the world) it is easy to see how there are 5 major banks that are leveraged in excess of the ratio at Bear Stearns, Lehman, Merrill Lynch et al.

The point of the article that I don’t agree with at all is the presumption that if these banks fail the economy will collapse. There is no reason for it to collapse and the dependence the author cites is an illusion. The fall of these banks will be a psychological shock world wide, and I agree it will obviously happen soon. We have 7,000 community banks and credit unions that use the exact same electronic funds transfer backbone as the major banks. There are multiple regional associations of these institutions who can easily enter into the same agreements with government, giving access at the Fed window and other benefits given to the big 5, and who will purchase the bonds of government to keep federal and state governments running. Credit markets will momentarily freeze but then relax.

Broward County Court Delays Are Actually A PR Program to Assure Investors Buying RMBS

The truth is that the banks don’t want to manage the properties, they don’t need the house and in tens of thousands of cases (probably in the hundreds of thousands since the last report), they simply walk away from the house and let it be foreclosed for non payment of taxes, HOA assessments etc. In some of the largest cities in the nation, tens of thousands of abandoned homes (where the homeowner applied for modification and was denied because the servicer had no intention or authority to give it them) were BULL-DOZED  and the neighborhoods converted into parks.

The banks don’t want the money and they don’t want the house. If you offer them the money they back peddle and use every trick in the book to get to foreclosure. This is clearly not your usual loan situation. Why would anyone not accept payment in full?

What they DO want is a judgment that transfers ownership of the debt from the true owners (the investors) to the banks. This creates the illusion of ratification of prior transactions where the same loan was effectively sold for 100 cents on the dollar not by the investors who made the loan, but by the banks who sold the investors on the illusion that they were buying secured loans, Triple AAA rated, and insured. None of it was true because the intended beneficiary of the paper, the insurance money, the multiple sales, and proceeds of hedge products and guarantees were all pocketed by the banks who had sold worthless bogus mortgage bonds without expending a dime or assuming one cent of risk.

Delaying the prosecution of foreclosures is simply an opportunity to spread out the pain over time and thus keep investors buying these bonds. And they ARE buying the new bonds even though the people they are buying from already defrauded them by NOT delivering the proceeds fro the sale of the bonds to the Trust that issued them.

Why make “bad” loans? Because they make money for the bank especially when they fail

The brokers are back at it, as though they haven’t caused enough damage. The bigger the “risk” on the loan the higher the interest rate to compensate for that risk of loss. The higher interest rates result in less money being loaned out to achieve the dollar return promised to investors who think they are buying RMBS issued by a REMIC Trust. So the investor pays out $100 Million, expects $5 million per year return, and the broker sells them a complex multi-tranche web of worthless paper. In that basket of “loans” (that were never made by the originator) are 10% and higher loans being sold as though they were conventional 5% loans. So the actual loan is $50 Million, with the broker pocketing the difference. It is called a yield spread premium. It is achieved through identity theft of the borrower’s reputation and credit.

Banks don’t want the house or the money. They want the Foreclosure Judgment for “protection”

 

Filed under: AMGAR, CASES, CDO, community banks, CORRUPTION, credit unions, escrow agent, evidence, expert witness, foreclosure, foreclosure defenses, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Neil Garfield Show, Occupy Movement, originator, Pleading, securities fraud, Servicer, STATUTES, Student Loans, taxes, Title, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , , , , , , , | 54 Comments »

ALERT: COMMUNITY BANKS AND CREDIT UNIONS AT GRAVE RISK HOLDING $1.5 TRILLION IN MBS

Posted on November 14, 2013 by Neil Garfield

I’ve talked about this before. It is why we offer a Risk Analysis Report to Community Banks and Credit Unions. The report analyzes the potential risk of holding MBS instruments in lieu of Treasury Bonds. And it provides guidance to the bank on making new loans on property where there is a history of assignments, transfers and other indicia of claims of securitization.

The risks include but are not limited to

  1. MBS Instrument issued by New York common law trust that was never funded, and has no assets or expectation of same.
  2. MBS Instrument was issued by NY common law trust on a tranche that appeared safe but was tied by CDS to the most toxic tranche.
  3. Insurance paid to investment bank instead of investors
  4. Credit default swap proceeds paid to investment banks instead of investors
  5. Guarantees paid to investment banks after they have drained all value through excessive fees charged against the investor and the borrowers on loans.
  6. Tier 2 Yield Spread Premiums of as much as 50% of the investment amount.
  7. Intentional low underwriting standards to produce high nominal interest to justify the Tier 2 yield spread premium.
  8. Funding direct from investor funds while creating notes and mortgages that named other parties than the investors or the “trust.”
  9. Forcing foreclosure as the only option on people who could pay far more than the proceeds of foreclosure.
  10. Turning down modifications or settlements on the basis that the investor rejected it when in fact the investor knew nothing about it. This could result in actions against an investor that is charged with violations of federal law.
  11. Making loans on property with a history of “securitization” and realizing later that the intended mortgage lien was junior to other off record transactions in which previous satisfactions of mortgage or even foreclosure sales could be invalidated.

The problem, as these small financial institutions are just beginning to realize, is that the MBS instruments that were supposedly so safe, are not safe and may not be worth anything at all — especially if the trust that issued them was never funded by the investment bank who did the underwriting and sales of the MBS to relatively unsophisticated community banks and credit unions. In a word, these small institutions were sitting ducks and probably, knowing Wall Street the way I do, were lured into the most toxic of the “bonds.”

Unless these small banks get ahead of the curve they face intervention by the FDIC or other regulatory agencies because some part of their assets and required reserves might vanish. These small institutions, unlike the big ones that caused the problem, don’t have agreements with the Federal government to prop them up regardless of whether the bonds were real or worthless.

Most of the small banks and credit unions are carrying these assets at cost, which is to say 100 cents on the dollar when in fact it is doubtful they are worth even half that amount. The question is whether the bank or credit union is at risk and what they can do about it. There are several claims mechanisms that can employed for the bank that finds itself facing a write-off of catastrophic or damaging proportions.

The plain fact is that nearly everyone in government and law enforcement considers what happens to small banks to be “collateral damage,” unworthy of any effort to assist these institutions even though the government was complicit in the fraud that has resulted in jury verdicts, settlements, fines and sanctions totaling into the hundreds of billions of dollars.

This is a ticking time bomb for many institutions that put their money into higher yielding MBS instruments believing they were about as safe as US Treasury bonds. They were wrong but not because of any fault of anyone at the bank. They were lied to by experts who covered their lies with false promises of ratings, insurance, hedges and guarantees.

Those small institutions who have opted to take the bank public, may face even worse problems with the SEC and shareholders if they don’t report properly on the balance sheet as it is effected by the downgrade of MBS securities. The problem is that most auditing firms are not familiar with the actual facts behind these securities and are likely a this point to disclaim any responsibility for the accounting that produces the financial statements of the bank.

I have seen this play out before. The big investment banks are going to throw the small institutions under the bus and call it unavoidable damage that isn’t their problem. despite the hard-headed insistence on autonomy and devotion to customer service at each bank, considerable thought should be given to banding together into associations that are not controlled by regional banks are are part of the problem and will most likely block any solution. Traditional community bank associations and traditional credit unions might not be the best place to go if you are looking to a real solution.

Community Banks and Credit Unions MUST protect themselves and make claims as fast as possible to stay ahead of the curve. They must be proactive in getting a credible report that will stand up in court, if necessary, and make claims for the balance. Current suits by investors are producing large returns for the lawyers and poor returns to the investors. Our entire team stands ready to assist small institutions achieve parity and restitution.

FOR MORE INFORMATION OR TO SCHEDULE CONSULTATIONS BETWEEN NEIL GARFIELD AND THE BANK OFFICERS (WITH THE BANK’S LAWYER) ON THE LINE, EXECUTIVES FOR SMALL COMMUNITY BANKS AND CREDIT UNIONS SHOULD CALL OUR TALLAHASSEE NUMBER 850-765-1236 or OUR WEST COAST NUMBER AT 520-405-1688.

BLK | Thu, Nov 14

BlackRock with ETF push to smaller banks • The roughly 7K regional and community banks in the U.S. have securities portfolios totaling $1.5T, the majority of which is in MBS, putting them at a particularly high interest rate risk, and on the screens of regulators who would like to see banks diversify their holdings. • “This is going to be a multiple-year trend and dialogue,” says BlackRock’s (BLK) Jared Murphy who is overseeing the iSharesBonds ETFs campaign. • The funds come with an expense ratio of 0.1% and the holdings are designed to limit interest rate risk. BlackRock scored its first big sale in Q3 when a west coast regional invested $100M in one of the funds. • At issue are years of bank habits – when they want to reduce mortgage exposure, they typically turn to Treasurys. For more credit exposure, they habitually turn to municipal bonds. “Community bankers feel like they’re going to be the last in the food chain to know if there are any problems with a corporate issuer,” says a community bank consultant.

Full Story: http://seekingalpha.com/currents/post/1412712?source=ipadportfolioapp

Filed under: AMGAR, community banks, CORRUPTION, credit unions, currency, evidence, expert witness, Fannie MAe, foreclosure, GTC | Honor, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, trustee | Tagged: , , , , , , , , , , , | 112 Comments »

JPMorgan to Pay $13 BILLION in Mortgage Settlement: Which Homes are Affected?

Posted on October 20, 2013 by Neil Garfield

The banks have paid tens of billions of dollars in settlements with Federal and State agencies and law enforcement. Where did the money go? But more importantly the real question arises out of the investigation and the question Elizabeth Warren keeps asking — which homes were found to have defective notes and mortgages as alleged by investors in their lawsuits against the investment banks? Which homes did the agency investigation find were foreclosed by parties who were strangers to the transaction. I agree with Sen. Warren who thinks that nothing could be more important to answer as required public informations hand the finding already made by investigators and admitted by the banks to be illegal Foreclosures on defective mortgage liens based on enforceable notes.

Practitioners should be filing requests for public information disclosures and issuing subpoenas to the investigators and agencies to find out what was revealed in the investigation. As Warren has already revealed, the number might be as high as 95%. Nobody wants to reveal the details because they all reveal what I have said all along — none, or nearly none of the the mortgages were actually securitized, none of those mortgages were ever valid liens on the property, none of the notes were enforceable, no money was due from the borrower to the banks trying to collect, none of the Foreclosures were legal, which means that legally all of the foreclosed homeowners still legally own their homes because the Foreclosures were void, not voidable.

Filed under: CORRUPTION, credit unions, evidence, expert witness, Fannie MAe, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, Servicer | Tagged: , , , , , , | 52 Comments »

Fannie and Freddie Platinum Sponsors with (MERS and LPS) of Upscale Event for Bankers

Posted on October 16, 2011 by Neil Garfield

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

UNDERLYING THEME: HOW TO GET THE SIGNATURE OF HOMEOWNER WITHOUT ALERTING ALL HOMEOWNERS THAT THEIR SIGNATURE IS NOW A VALUABLE COMMODITY

AHC AND LIVINGLIES ANNOUNCE LAUNCH OF AMGAR

EDITOR’S COMMENT: Are they really that tone deaf? It appears the answer is yes as Fannie and Freddie Joined Hands with MERS and LPS to become Platinum Sponsors of this Bankers Convention. If they had the slightest notion of the mayhem caused by these two culprits, neither Fannie nor Freddie should have avoided the event altogether and certainly not underwritten the expenses.

MERS was the vehicle used to hide the real parties in interest, allow trading behind the scenes and leave clouds on title compounded by frivolous and heart-breaking actions taken by the Banks to foreclose on properties based upon alleged mortgages that were never perfected as liens for debts that were not owed to the Banks and never acquired by them. The paper shuffle to give the appearance of a real party in interest was accomplished by a document fabrication mill — LPS.

Fannie and Freddie are now effectively nationalized, which means that in addition to the bailout, they are still underwriting costs for the banking industry. Small wonder that protests are taking to the streets.

Well, they had a lot to talk about — especially the growing acknowledgment and recognition that the signatures of evicted homeowners on fresh documents were necessary to clear title whether or not they were successful in pushing or bullying through their bogus foreclosure. The market is growing for for programs that entice homeowners to sign documents under one pretense that are being used for the secret agenda of the banks to simply get a waiver that they can waive in front of a Judge and say the homeowner waived any defenses.

The principal weapon of choice now is the offer of a modification plan that will later be rejected. But in the meanwhile, the homeowners signs an application in which he or she has waived all rights to contest the foreclosure — even if the the party initiating the foreclosure doesn’t have a dime in the deal and even if that subjects the homeowner to double or multiple financial jeopardy. The second line of defense is the new BOA pilot in which it is offering a “cash for keys” program in which they offer up to $20,000, as long as the homeowner signs a waiver and release of all claims.

Livinglies and http://www.AmericanHomeownersCoop.com (site still under construction) have come together in a joint venture called American Mortgage Guarantee and Resolution (AMGAR) to provide an open auction in which those homeowners who choose to take a little money rather than go for the brass ring in litigation can exchange their signatures on a package of waivers, releases, assignments and conveyances to anyone who wants to buy them. BOA has set the price range, but the market will dictate the rest.

AMGAR is outcome-neutral. No guarantees are expressed or implied as to the success of litigation or the value of the package. It’s purpose is to provide a vehicle where the homeowners who have decided to step away from fighting can provide the signatures necessary to clear title.

Junior or previous putative lienors may purchase the homeowner package and offer a value added package of the entire securitization chain. For those homeowners confused by this and the previous paragraph, it is not for you — it is directed at highly sophisticated qualified BUYERS, traders and alleged pretender lenders that wish to clear up entire chains of title. The risk of loss is entirely on the BUYER with no warranty or representations by the SELLER, except their identification.The BUYER assumes the risk of loss or further litigation without any representation from anyone upon which BUYER can reasonably rely.

There is a fee charged to the BUYER equal to $250 for the first $5,000 and $500 for any transaction that exceeds $5,000. This supports the trading desk and auction site at which the SELLERS and BUYERS “meet” electronically.

We would rather the homeowners stand and fight but if they are going to walk away, it might as well be with $20,000 (more or less, depending upon what the market will bear) in their pocket. The vehicle is named a Reverse Credit Default Swap which is sold by the homeowner or previous lienor and bought by hedge funds, Banks, CURRENT AND FORMER LENDERS, title companies and other qualified speculators. Until the auction site on the AHC site is fully functional, inquiries should be directed to amgar.livinglies@gmail.com.

The service is free to homeowners who are members of livinglies or members of the new cooperative American Homeowners Cooperative. However, it is strongly recommended that you purchase the COMBO before making the decision as to whether to fight or sell and that you seek the services of competent legal counsel licensed in the jurisdiction in which your property is located. In addition to providing the prospective SELLER (homeowner) with vital information with which to make a decision to fight or sell, the link to the COMBO results will provide a prospective Buyer easy access to information needed to assess the value proposition (prices are set by the SELLER, i.e., homeowners).

Fannie and Freddie, Still the Socialites

By

THE mortgage business is moribund. New loans are down. New foreclosures are up.

But why let a little sorry news get in the way of a good party? Last week, almost 3,000 people descended on the Hyatt Regency in Chicago for the 98th annual convention of the Mortgage Bankers Association.

The price of admission: about $1,000 a head. But for that grand, you got to hear the band Chicago play hits from the ’70s. And David Axelrod and Jeb Bush give speeches. And experts discuss things like demographics, the politics of housing and the future of the mortgage industry, according to a flier for the event.

“Gather the information you need to help your business and our industry drive change,” the pitch went.

The city of Chicago was no doubt grateful for the conventioneers’ dollars. Besides, Mayor Rahm Emanuel knows something about this industry: he used to be a director at the mortgage giant Freddie Mac.

Nothing wrong with a bit of schmoozing. But it might seem jarring that Freddie, which was rescued by Washington and today exists at the pleasure of taxpayers, paid $80,000 to become a “platinum” sponsor of this shindig. Fannie Mae, that other ward of the state, paid $60,000 to become a “gold” sponsor.

Keep in mind that taxpayers bailed out Fannie and Freddie to the tune of about $150 billion.

Today, Fannie and Freddie are about the only games in mortgage town. Yes, banks make loans, but more often than not they hand them off to one of the two. So it’s a mystery why Fannie and Freddie needed to help foot the bill for the gathering.

Freddie’s companions in the platinum sponsor list make for interesting reading. One was the Mortgage Electronic Registration System, or MERS, which has repeatedly foreclosed on troubled homeowners and made a hash of the nation’s real estate records. Another was Lender Processing Services of Florida, which made robo-signing a household word.

MERS and Lender Processing Services are at the center of the foreclosure crisis. Why would Freddie keep such company?

Perhaps more disturbing is that Fannie and Freddie sent an army of their own to Chicago: 87 people in all. According to a list of registrants, that’s more than hailed from the Mortgage Bankers Association (60 people), Bank of America (58), Wells Fargo (54) and JPMorgan Chase (24).

Only Lender Processing Services had more — 91 — than Fannie and Freddie. (Perhaps they robo-signed their registrations.)

The C.E.O.’s of Fannie and Freddie were conference headliners and gave presentations. But Freddie also sent 15 vice presidents and 14 directors from various units. Fannie’s list included 12 vice presidents, 12 unit directors and three events managers.

I asked Fannie and Freddie what they got out of sending all of these people to Chicago. Representatives of both said participation was an efficient use of taxpayer dollars because it allowed their employees to hold crucial meetings with hundreds of customers to discuss ways to address the housing crisis.

Fannie Mae’s spokeswoman, Amy Bonitatibus, added that it has “significantly reduced sponsorship and support of events and industry-related conferences.”

Representative Randy Neugebauer, the Texas Republican who heads the oversight and investigations subcommittee of the House Financial Services Committee, said he was disturbed by the turnout from Fannie and Freddie. It reflected a troubling “business as usual” approach by the mortgage giants, he said.

“They don’t act like companies that have had a huge infusion of taxpayer money,” he told me. “Why do they feel the need to go out and spend the money for networking when they have all of the mortgage market in its entirety?”

Trying to tally the costs borne by the taxpayers for the four-day event in Chicago, Mr. Neugebauer sent a letter last week to the Federal Housing Finance Agency, conservator for Fannie and Freddie. “I am concerned that the expenditures that Freddie and Fannie made in connection with the conference bear no relation to furthering the actual purposes of the conservatorship,”he wrote.

He requested a rundown of amounts paid by the companies to cover travel, lodging, entertainment and sponsorship. He also asked for details about whether Fannie and Freddie had consulted with the agency beforehand about sponsoring and attending the conference. The agency was asked to respond within a week.

”We’re going to really look through their entire budget and see if we can see signs where they are tightening their belt,” Mr. Neugebauer said, referring to Fannie and Freddie. “The American people are tightening their belts, businesses all over the country are tightening their belts. These entities can certainly do the same.”

Filed under: AMERICAN HOMEOWNERS COOPERATIVE, AMGAR, bubble, CDO, community banks, CORRUPTION, credit unions, currency, Eviction, Fannie MAe, foreclosure, foreclosure mill, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , | 22 Comments »

Goldman Sachs Messages Show It Thrived as Economy Fell

Posted on April 26, 2010 by Neil Garfield
Editor’s Note: Now the truth as reported here two years ago.
  • There were no losses.
  • They were making money hand over fist.
  • And this article focuses only on a single topic — some of the credit default swaps — those that Goldman had bought in its own name, leaving out all the other swaps bought by Goldman using other banks and entities as cover for their horrendous behavior.
  • It also leaves out all the other swaps bought by all the other investment banking houses.
  • But most of all it leaves out the fact that at no time did the investment banking firms actually own the mortgages that the world thinks caused enormous losses requiring the infamous bailout. It’s a fiction.
  • In nearly all cases they sold the securities “forward” which means they sold the securities first, collected the money second and then went looking for hapless consumers to sign documents that were called “loans.”
  • The securities created the intended chain of securitization wherein first the investors “owned” the loans (before they existed and before the first application was signed) and then the “loans” were “assigned” into the pool.
  • The pool was assigned into a Special Purpose Vehicle that issued “shares” (certificates, bonds, whatever you want to call them) to investors.
  • Those shares conveyed OWNERSHIP of the loan pool. Each share OWNED a percentage of the loans.
  • The so-called “trust” was merely an operating agreement between the investors that was controlled by the investment banking house through an entity called a “trustee.” All of it was a sham.
  • There was no trust, no trustee, no lending except from the investors, and no losses from mortgage defaults, because even with a steep default rate of 16% reported by some organizations, the insurance, swaps, and other guarantees and third party payments more than covered mortgage defaults.
  • The default that was not covered was the default in payment of principal to investors, which they will never see, because they never were actually given the dollar amount of mortgages they thought they were buying.
  • The entire crisis was and remains a computer enhanced hallucination that was used as a vehicle to keep stealing from investors, borrowers, taxpayers and anyone else they thought had money.
  • The “profits” made by NOT using the investor money to fund mortgages are sitting off shore in structured investment vehicles.
  • The actual funds, first sent to Bermuda and the caymans was then cycled around the world. The Ponzi scheme became a giant check- kiting scheme that hid the true nature of what they were doing.
April 24, 2010

Goldman Sachs Messages Show It Thrived as Economy Fell

By LOUISE STORY, SEWELL CHAN and GRETCHEN MORGENSON

In late 2007 as the mortgage crisis gained momentum and many banks were suffering losses, Goldman Sachs executives traded e-mail messages saying that they were making “some serious money” betting against the housing markets.

The e-mails, released Saturday morning by the Senate Permanent Subcommittee on Investigations, appear to contradict some of Goldman’s previous statements that left the impression that the firm lost money on mortgage-related investments.

In the e-mails, Lloyd C. Blankfein, the bank’s chief executive, acknowledged in November of 2007 that the firm indeed had lost money initially. But it later recovered from those losses by making negative bets, known as short positions, enabling it to profit as housing prices fell and homeowners defaulted on their mortgages. “Of course we didn’t dodge the mortgage mess,” he wrote. “We lost money, then made more than we lost because of shorts.”

In another message, dated July 25, 2007, David A. Viniar, Goldman’s chief financial officer, remarked on figures that showed the company had made a $51 million profit in a single day from bets that the value of mortgage-related securities would drop. “Tells you what might be happening to people who don’t have the big short,” he wrote to Gary D. Cohn, now Goldman’s president.

The messages were released Saturday ahead of a Congressional hearing on Tuesday in which seven current and former Goldman employees, including Mr. Blankfein, are expected to testify. The hearing follows a recent securities fraud complaint that the Securities and Exchange Commission filed against Goldman and one of its employees, Fabrice Tourre, who will also testify on Tuesday.

Actions taken by Wall Street firms during the housing meltdown have become a major factor in the contentious debate over financial reform. The first test of the administration’s overhaul effort will come Monday when the Senate majority leader, Harry Reid, is to call a procedural vote to try to stop a Republican filibuster.

Republicans have contended that the renewed focus on Goldman stems from Democrats’ desire to use anger at Wall Street to push through a financial reform bill.

Carl Levin, Democrat of Michigan and head of the Permanent Subcommittee on Investigations, said that the e-mail messages contrast with Goldman’s public statements about its trading results. “The 2009 Goldman Sachs annual report stated that the firm ‘did not generate enormous net revenues by betting against residential related products,’ ” Mr. Levin said in a statement Saturday when his office released the documents. “These e-mails show that, in fact, Goldman made a lot of money by betting against the mortgage market.”

A Goldman spokesman did not immediately respond to a request for comment.

The Goldman messages connect some of the dots at a crucial moment of Goldman history. They show that in 2007, as most other banks hemorrhaged losses from plummeting mortgage holdings, Goldman prospered.

At first, Goldman openly discussed its prescience in calling the housing downfall. In the third quarter of 2007, the investment bank reported publicly that it had made big profits on its negative bet on mortgages.

But by the end of that year, the firm curtailed disclosures about its mortgage trading results. Its chief financial officer told analysts at the end of 2007 that they should not expect Goldman to reveal whether it was long or short on the housing market. By late 2008, Goldman was emphasizing its losses, rather than its profits, pointing regularly to write-downs of $1.7 billion on mortgage assets and leaving out the amount it made on its negative bets.

Goldman and other firms often take positions on both sides of an investment. Some are long, which are bets that the investment will do well, and some are shorts, which are bets the investment will do poorly. If an investor’s positions are balanced — or hedged, in industry parlance — then the combination of the longs and shorts comes out to zero.

Goldman has said that it added shorts to balance its mortgage book, not to make a directional bet that the market would collapse. But the messages released Saturday appear to show that in 2007, at least, Goldman’s short bets were eclipsing the losses on its long positions. In May 2007, for instance, Goldman workers e-mailed one another about losses on a bundle of mortgages issued by Long Beach Mortgage Securities. Though the firm lost money on those, a worker wrote, there was “good news”: “we own 10 mm in protection.” That meant Goldman had enough of a bet against the bond that, over all, it profited by $5 million.

Documents released by the Senate committee appear to indicate that in July 2007, Goldman’s daily accounting showed losses of $322 million on positive mortgage positions, but its negative bet — what Mr. Viniar called “the big short” — came in $51 million higher.

As recently as a week ago, a Goldman spokesman emphasized that the firm had tried only to hedge its mortgage holdings in 2007 and said the firm had not been net short in that market.

The firm said in its annual report this month that it did not know back then where housing was headed, a sentiment expressed by Mr. Blankfein the last time he appeared before Congress.

“We did not know at any minute what would happen next, even though there was a lot of writing,” he told the Financial Crisis Inquiry Commission in January.

It is not known how much money in total Goldman made on its negative housing bets. Only a handful of e-mail messages were released Saturday, and they do not reflect the complete record.

The Senate subcommittee began its investigation in November 2008, but its work attracted little attention until a series of hearings in the last month. The first focused on lending practices at Washington Mutual, which collapsed in 2008, the largest bank failure in American history; another scrutinized deficiencies at several regulatory agencies, including the Office of Thrift Supervision and the Federal Deposit Insurance Corporation.

A third hearing, on Friday, centered on the role that the credit rating agencies — Moody’s, Standard & Poor’s and Fitch — played in the financial crisis. At the end of the hearing, Mr. Levin offered a preview of the Goldman hearing scheduled for Tuesday.

“Our investigation has found that investment banks such as Goldman Sachs were not market makers helping clients,” Mr. Levin said, referring to testimony given by Mr. Blankfein in January. “They were self-interested promoters of risky and complicated financial schemes that were a major part of the 2008 crisis. They bundled toxic and dubious mortgages into complex financial instruments, got the credit-rating agencies to label them as AAA safe securities, sold them to investors, magnifying and spreading risk throughout the financial system, and all too often betting against the financial instruments that they sold, and profiting at the expense of their clients.”

The transaction at the center of the S.E.C.’s case against Goldman also came up at the hearings on Friday, when Mr. Levin discussed it with Eric Kolchinsky, a former managing director at Moody’s. The mortgage-related security was known as Abacus 2007-AC1, and while it was created by Goldman, the S.E.C. contends that the firm misled investors by not disclosing that it had allowed a hedge fund manager, John A. Paulson, to select mortgage bonds for the portfolio that would be most likely to fail. That charge is at the core of the civil suit it filed against Goldman.

Moody’s was hired by Goldman to rate the Abacus security. Mr. Levin asked Mr. Kolchinsky, who for most of 2007 oversaw the ratings of collateralized debt obligations backed by subprime mortgages, if he had known of Mr. Paulson’s involvement in the Abacus deal.

“I did not know, and I suspect — I’m fairly sure that my staff did not know either,” Mr. Kolchinsky said.

Mr. Levin asked whether details of Mr. Paulson’s involvement were “facts that you or your staff would have wanted to know before rating Abacus.” Mr. Kolchinsky replied: “Yes, that’s something that I would have personally wanted to know.”

Mr. Kolchinsky added: “It just changes the whole dynamic of the structure, where the person who’s putting it together, choosing it, wants it to blow up.”

The Senate announced that it would convene a hearing on Goldman Sachs within a week of the S.E.C.’s fraud suit. Some members of Congress questioned whether the two investigations had been coordinated or linked.

Mr. Levin’s staff said there was no connection between the two investigations. They pointed out that the subcommittee requested the appearance of the Goldman executives and employees well before the S.E.C. filed its case.

Filed under: CORRUPTION, credit unions, currency, Eviction, expert witness, Fannie MAe, foreclosure, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, trustee, workshop | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 6 Comments »

Magnetar Echoes Livinglies call for Alignment of Investors, Servicers and Borrowers

Posted on April 22, 2010 by Neil Garfield

see Magnetar%20Mortage%20Recovery%20Backstop%20Whitepaper%20Jun09.pdf

Magnetar Mortage Recovery Backstop Whitepaper Jun09

Two things jump out at me with this paper from June, 2009.

First it is obvious that the “real money” investors are defined as those seeking low risk and willing to take lower yield. The fact that they are called “Real Money Investors” underscores my point about the identity of the creditor. Those “traditional” investors are no longer available to buy the mortgage backed securities or any other resecuritized derivative package based upon mortgage backed securities. Legal restrictions requiring the securities to be investment grade would prevent them from jumping back in even if they wanted to do so, which they obviously don’t.

Thus the inevitable conclusion drawn almost a year ago and borne out by history, is that the fair market value of the securities, trading as pennies on the dollar, is reflective of a lack of demand for mortgage backed securities no matter how high the yield (i.e., no matter how low the price).

Second there is a growing realization that the interests of the investor and the borrowers are actually aligned in many ways and that the solution to mortgage modification, principal reduction, and other aspects of the mortgage mess and the foreclosure crisis lies in recognizing certain realities and then dealing with them in an equitable manner. The properties were never worth the amount of the appraisal in most instances and now they are worth even less than they were when the loan deals were closed. The securities were also “appraised” far too high thus creating a giant yield spread premium for the investment bank-created seller of mortgage backed securities.

In my opinion, based upon a sampling of the data available, it is entirely possible that the “true” fair market value of those securities in the best of circumstances is probably less than 40% of the initial offering price. It is this well-hidden analysis that is not getting the attention of the Obama administration and which completely explains why servicers are obstructing modifications under instruction from investment banking intermediaries like the “Trustee”.

Leaving the servicers and other parties as the middlemen “in the middle” to sort this out is another license to steal creating another mark-up applied against both borrowers and investors as the “real money” parties. The status quo is what is causing the stagnation in lieu of recovery. Until everyone accepts basic notions of “real party in interest” and eliminates those who don’t fit that description, the moral hazards will remain and escalate.

As concluded in this paper, either judicial or executive intervention is required to kick the middlemen out of the way and let the light in. When investors and borrowers are able to compare notes and work with each other the figures for both will be enhanced, foreclosures will decline, losses will be taken, and yes it is highly probable that the number of investor lawsuits will proliferate against those who defrauded them.

The lender is identified as the investor in this paper (indirectly) and the party who defrauded them is not some greedy borrower with stars in his eyes, it was the usual suspect — a financial wizard making a sales pitch that was so complex, the buyer basically was forced to rely upon the integrity of the investment banking house for appropriate pricing. That is where the system fell apart. Moral hazard escalated to moral mess.

Filed under: bubble, CASES, CDO, CORRUPTION, credit unions, currency, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, trustee, workshop | Tagged: , , , , , , , , , , , , , , , , , , , , , | 4 Comments »

Foreclosure Prevention 1.1

Posted on April 22, 2010 by Neil Garfield

Nobody ever thought that returning a lady’s purse to her after a purse snatcher ran away with it was a gift. So why is anyone contesting returning the purse to homeowners who had their lives snatched from them?

The baby steps of the Obama administration are frustrating. Larry Summers, Tim Geithner and those who walk with Wall Street are using ideology and assumptions instead of reality and facts.

First they started with the idea of modifications. That would do it. Just change the terms a little, have the homeowner release rights and defenses to what was a completely fraudulent and deceptive loan transaction (and a violation of securities regulations) and the foreclosure mess would end. No, it doesn’t work that way.

The reality is that these homeowners are being drained every day and displaced from their lives and homes by the consequences of a scheme that depended upon fooling people into signing mortgages under the false assumption that the appraisal had been verified and that the loan product was viable. All sorts of tricks were used to make borrowers think that an underwriting process was under way when in fact, it was only a checklist, they were even doing title checks (using credit reports instead), and the viability of the loan was antithetical to their goals, to wit: to have the loans fail, collect on the insurance and get the house too without ever reporting a loss.

Then it went to modification through interest rate reduction and adding the unpaid monthly payments to the end of the mortgage. Brilliant idea. The experts decided that an interest rate reduction was the equivalent of a principal reduction and that everything would even out over time.

Adding ANYTHING to principal due on the note only put these people further under water and reduced any incentive they had to maintain their payments or the property. Reducing the interest was only the equivalent of principal reduction when you looked at the monthly payments; the homeowner was still buried forever, without hope of recovery, under a mountain of debt based upon a false value associated with the property and a false rating of the loan product.

Adding insult to injury, the Obama administration gave $10 billion to servicing companies to do modifications — not even realizing that servicers have no authority to modify and might not even have the authority to service. Anyone who received such a modification (a) got a temporary modification called a “trial” (b) ended up back in foreclosure anyway (c) was used once again for unworthy unauthorized companies to collect even more illegal fees and (d) was part of a gift to servicers who were getting a house on which they had invested nothing, while the real source of funds was already paid in whole or in part by insurance, credit default swaps or federal bailout.

Now the Obama administration is “encouraging” modifications with reductions in principal of perhaps 30%. But the industry is pushing back because they don’t want to report the loss that would appear on their books now, if a modification occurred, when they could delay reporting the “loss” indefinitely by continuing the foreclosure process. The “loss” is fictitious and the push-back is an illusion. There is no loss from non-performance of these mortgages on the part of lending banks because they never lent any money other than the money of investors who purchased mortgage-backed bonds.

You want to stop the foreclosures. It really is very simple. Stop lying to the American people whether it is intentional or not. Admit that the homes they bought were not worth the amount set forth in the appraisal and not worth what the “lender” (who was no lender) “verified.” Through criminal, civil and/or administrative proceedings, get the facts and change the deals like any other fraud case. Nobody ever thought that returning a lady’s purse to her after a purse snatcher ran away with it was a gift. So why is anyone contesting returning the purse to homeowners who had their lives snatched from them?

Filed under: bubble, CDO, community banks, CORRUPTION, credit unions, currency, education, Eviction, expert witness, Fannie MAe, foreclosure, foreclosure mill, foreign relations, Forensic Analysis Workshop, GTC | Honor, HERS, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, Obama, politics, securities fraud, Securitization Survey, Servicer, taxes, workshop | Tagged: , , , , , , , , , , , , , , , , , , , | 9 Comments »

Regulation: Big Government or Big Business

Posted on April 21, 2010 by Neil Garfield

“the banks should not be allowed to be larger than the government’s ability to regulate them”

If you ask someone about big government, they will probably tell you they don’t want government meddling in their personal business. What they really mean is that they don’t want ANYONE meddling in their lives. In reality, that opened the door to the finance sector to meddle, control and alter our lives. Banks, insurance companies and non-bank financial institutions have co-opted governmental decision making, and forced us all to pay dearly — far more than those taxes that everyone is worried about. Just look at the Wall Street bailout or our ridiculous health-care system.

We have let our aversion to big government get in the way of GOOD government. When government is doing the job of protecting us, they do pretty well — better than we could ourselves. When they don’t, we get screwed.

So now we have a financial system with a death grip on virtually every American, present and future, while we pay ever higher fees, costs and other private taxes for services that are provided in other countries at a fraction of the cost we pay here. Today’s article in the New York Times about our $48 billion credit card bill is just an example of how we pay more in fees to use credit and debit cards than anyone else.

The current debate over “too big to fail” is an example of how we end up talking about the wrong things which in turn leads to the wrong regulation and the usual bad result: Americans have less money at the end of the month while financial institutions have more money at the end of the month.

Nobody will argue about our desire for convenience of having ATM access and branch access wherever we might happen to find ourselves. But there is no reason to allow a monopolistic control over the industry rather than impose reasonable regulation so that consumer costs go down with some healthy competition. The industry backbone is already in place for electronic payments and transfers. Every bank, credit union and others could have equal access to it if we required those who control it to be regulated as utilities instead of private enterprise for the sole benefit of its officers and shareholders.

When AT&T was broken up it did eventually lead to much lower costs for voice communication and other forms of communication. So the argument for breaking up the big banks is based upon solid history and good sense. If AT&T had undertaken actions that put the entire country at peril and caused problems with our foreign relations, that would have been another reason to do it. But our government didn’t wait for something bad to happen, it acted in anticipation of the inevitable result of arrogance that comes with total control.

This time, we have the consequences of arrogance and total control and it did in fact put our entire country in peril and caused disruption in our influence and standing around the globe. But now, with the finance sector pouring $1 million per day into lobbying,  we have a debate about whether we should let that happen again. A debate?

We now have half the number of large financial institutions controlling virtually 100% of the finance system of our country than the number of such firms existing in 2007.  This increases the risk to our country, our lives and our world. So we have already ended up with a net loss and a much higher likelihood that we will see disaster, larger than before. How bad do things have to be for the outrage and consequences of Big Business to be confronted?

In my opinion, the banks should not be allowed to be larger than the government’s ability to regulate them. That simple proposition is the only satisfactory answer. Break them down, increase the size and resources of regulatory agencies and make sure there is real oversight of those agencies and we won’t have this problem again. It won’t solve the recovery issues that confront us today but it will at least take the future consequences of a repeat performance off the table for tomorrow.

Filed under: bubble, CDO, community banks, CORRUPTION, credit unions, currency, foreclosure, investment banking, Investor, MODIFICATION, Mortgage, securities fraud, STATUTES, taxes | Tagged: , , , , , , , , , , | 4 Comments »

U.S. Starts Criminal Probe of Lender Processing Services Inc. Foreclosure-Data Provider

Posted on April 7, 2010 by Neil Garfield

The case follows on the dismissal of numerous foreclosure cases in which judges across the U.S. have found that the materials banks had submitted to support their claims were wrong. Faulty bank paperwork has been an issue in foreclosure proceedings since the housing crisis took hold a few years ago. It is often difficult to pin down who the real owner of a mortgage is, thanks to the complexity of the mortgage market.

the majority of foreclosures go unchallenged, some homeowners have won the right to keep their homes by proving the bank couldn’t show, on paper, that it owned the mortgage.

[LPS a/k/a DOCX] produces documents needed by banks to prove they own the mortgages. LPS’s annual report said that the processes under review have been “terminated,” and that the company has expressed its willingness to cooperate. Ms. Kersch declined to comment further on the probe.

Editor’s Note: The executive branch is finally becoming involved. The foreclosure mills have been producing dubious and/or fraudulent, fabricated, forged documentation for 3 years or more. Some of these foreclosure mills are operating in the same office and owned by the law firms prosecuting foreclosures. Maybe sooner than later these unethical, illegal practices will stop and the people responsible will be prosecuted for criminal violations, civil fines, and administrative grievances in which their licenses will be revoked.

But in the end we still have millions of homes whose title is at least clouded, probably defective and will soon become unmarketable as title companies realize the issues presented by fraudulent foreclosures by entities other than the creditor.

Wall Street Journal

April 3, 2010

U.S. Probes Foreclosure-Data Provider

Lender Processing Services Unit Draws Inquiry Over the Steps That Led to Faulty Bank Paperwork

By AMIR EFRATI and CARRICK MOLLENKAMP

A subsidiary of a company that is a top provider of the documentation used by banks in the foreclosure process is under investigation by federal prosecutors.

The prosecutors are “reviewing the business processes” of the subsidiary of Lender Processing Services Inc., based in Jacksonville, Fla., according to the company’s annual securities filing released in February. People familiar with the matter say the probe is criminal in nature.

Michelle Kersch, an LPS spokeswoman, said the subsidiary being investigated is Docx LLC. Docx processes and sometimes produces documents needed by banks to prove they own the mortgages. LPS’s annual report said that the processes under review have been “terminated,” and that the company has expressed its willingness to cooperate. Ms. Kersch declined to comment further on the probe.

A spokesman for the U.S. attorney’s office for the middle district of Florida, which the annual report says is handling the matter, declined to comment.

The case follows on the dismissal of numerous foreclosure cases in which judges across the U.S. have found that the materials banks had submitted to support their claims were wrong. Faulty bank paperwork has been an issue in foreclosure proceedings since the housing crisis took hold a few years ago. It is often difficult to pin down who the real owner of a mortgage is, thanks to the complexity of the mortgage market.

During the housing boom, mortgages were originated by lenders, quickly sold to Wall Street firms that bundled them into debt pools and then sold to investors as securities. The loans were supposed to change hands but the documents and contracts between borrowers and lenders often weren’t altered to show changes in ownership, judges have ruled.

Related Documents

Documents processed by LPS that said an entity called “Bogus Assignee” owned the mortgage:

That has made it hard for banks, which act on behalf of mortgage-securities investors in most foreclosure cases, to prove they own the loans in some instances.

LPS has said its software is used by banks to track the majority of U.S. residential mortgages from the time they are originated until the debt is satisfied or a borrower defaults. When a borrower defaults and a bank needs to foreclose, LPS helps process paperwork the bank uses in court.

LPS was recently referenced in a bankruptcy case involving Sylvia Nuer, a Bronx, N.Y., homeowner who had filed for protection from creditors in 2008.

Diana Adams, a U.S. government lawyer who monitors bankruptcy courts, argued in a brief filed earlier this year in the Nuer case that an LPS employee signed a document that wrongly said J.P. Morgan Chase & Co. had owned Ms. Nuer’s loan.

Documents related to the loan were “patently false or misleading,” according to Ms. Adams’s court papers. J.P. Morgan Chase, which has withdrawn its request to foreclose, declined to comment.

Linda Tirelli, a lawyer for Ms. Nuer, declined to comment directly on the case.

Ms. Kersch said LPS didn’t actually create the document and that the company’s “sole connection to this case is that our technology and services were utilized by J.P. Morgan Chase and its counsel.”

While the majority of foreclosures go unchallenged, some homeowners have won the right to keep their homes by proving the bank couldn’t show, on paper, that it owned the mortgage.

Some lawyers representing homeowners have claimed that banks routinely file erroneous paperwork showing they have a right to foreclose when they don’t.

Firms that process the paperwork are either “producing so many documents per day that nobody is reviewing anything, even to make sure they have the names right, or you’ve got some massive software problem,” said O. Max Gardner, a consumer-bankruptcy attorney in Shelby N.C., who has defended clients against foreclosure actions.

The wave of foreclosures and housing crisis appears to have helped LPS. According to the annual securities filing, foreclosure-related revenue was $1.1 billion last year compared with $473 million in 2007.

LPS has acknowledged problems in its paperwork. In its annual securities filing, in which it disclosed the federal probe, the company said it had found “an error” in how Docx handled notarization of some documents. Docx also has processed documents used in courts that incorrectly claimed an entity called “Bogus Assignee” was the owner of the loan, according to documents reviewed by The Wall Street Journal.

Ms. Kersch said the “bogus” phrase was used as a placeholder. “Unfortunately, on a few occasions, the document was inadvertently recorded before the field was updated,” she said.

Write to Amir Efrati at amir.efrati@wsj.com and Carrick Mollenkamp at carrick.mollenkamp@wsj.com

Filed under: bubble, CDO, CORRUPTION, credit unions, currency, Eviction, expert witness, Fannie MAe, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, workshop | Tagged: , , , , , , , , , , , , , , , , , , , , | 16 Comments »

Tax Apocalypse for States and Federal Government Can be Reversed: Show Me the Money!

Posted on March 31, 2010 by Neil Garfield

SEE states-look-beyond-borders-to-collect-owed-taxes

states-ignore-obvious-remedy-to-fiscal-meltdown

tax-impact-of-principal-reduction

accounting-for-damages-madoff-ruling-may-affect-homeowner-claims

taxing-wall-street-down-to-size-litigation-guidelines

taking-aim-at-bonuses-based-on-23-7-trillion-in-taxpayer-gifts

payback-timemany-see-the-vat-option-as-a-cure-for-deficits

As we have repeatedly stated on this blog, the trigger for the huge deficits was the housing nightmare conjured up for us by Wall Street. Banks made trillions of dollars in profits that were never taxed. The tax laws are already in place. Everyone is paying taxes, why are they not paying taxes? If they did, a substantial portion of the deficits would vanish. Each day we let the bankers control our state executives and legislators, we fall deeper and deeper in debt, we lose more social services and it endangers our ability to maintain strong military and law enforcement.

The argument that these unregulated transactions are somehow exempt from state taxation is bogus. There is also the prospect of collecting huge damage awards similar to the tobacco litigation. I’ve done my part, contacting the State Treasurers and Legislators all over the country, it is time for you to do the same. It’s time for you to look up your governor, State Treasurer, Commissioner of Banking, Commissioner of Insurance, State Commerce Commission, Secretary of State and write tot hem demanding that they pursue registration fees, taxes, fines, and penalties from the parties who say they conducted “out-of-state” transactions relating to real property within our borders. If that doesn’t work, march in the streets.

The tax, fee, penalty and other revenue due from Wall Street is easily collectible against their alleged “holding” of mortgages in each state. One fell swoop: collect the revenue, stabilize the state budget, renew social services, revitalize community banks within the state, settle the foreclosure mess, stabilize the housing market and return homeowners to something close to the position they were in before they were defrauded by fraud, predatory lending and illegal practices securitizing loans that were too bad to ever succeed, even if the homeowner could afford the house.

Filed under: bubble, Bush, CDO, community banks, CORRUPTION, credit unions, currency, Eviction, expert witness, Fannie MAe, foreclosure, Forensic Analysis Workshop, GTC | Honor, HERS, inflation, interest rates, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, Obama, politics, securities fraud, Securitization Survey, Servicer, taxes, workshop | Tagged: , , , , , , , , , , , , | 8 Comments »

BAC assigned a note in 2010 that they sold in 2003

Posted on March 25, 2010 by Neil Garfield

Editor’s Note: Recontrust appears to be wholly owned by Bank of America. This particular deal looks like a “reconstituted” mortgage backed security comprised of new securities which are “backed” by old mortgage backed securities which in turn are backed by a list of “loans” which may or may not exist, and which certainly have at least in part been paid in whole or in part through insurance, credit default swaps and federal bailout.

From the comment Section of the Blog:

ReconTrust filed a NOD on behalf of BAC “servicer” for GRS Mort. Trust 2003-9, seven days later filed an assignment to GSR Mort. Trust of the deed of trust and note dated 8-13-03. I had no notice of GRS or Recontrust until seven years later. It looks like BAC assigned a note in 2010 that they sold in 2003. It also appears a pattern of fraud is occuring with all of us as their victims. If anyone knows what GSR Mortgage stands for please inform. I any one is interested in exposing the pattern let me know. I have 40 days before the notice of sale. I’m also pursuing this pro se.

Filed under: bubble, CORRUPTION, credit unions, currency, education, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, workshop | Tagged: , , , , , , , , , , , , , | 20 Comments »

Give me a little help here: Trusts, REMICs, and the Authority of the Trustee or Trustee’s Attorney to Represent

Posted on June 25, 2009 by Neil Garfield

When U.S. Bank comes in as Trustee for the the holders of series xyz etc., the use of the words Trustee and series certificates give it an air of legitimacy. But this is probably just another bluff. Reading the indenture on the bond (mortgage backed security) and the prospectus, you will see that the “Trust” may or may not be the the Special Purpose Vehicle that issued the bonds.

And of course I remind you that the “borrower” (whom I call an “issuer” for reason explained in other posts) signed a note with one set of terms and the source of funding, the investor received a bond with another set of terms (and parties) who in turn received some sort of transmittal delivery or conveyance of a pool of “assets” from a pool trustee or other third party who obtained the “assets” under an entirely different set of terms (and parties) including a buy back provision which would appear to negate the entire concept of any unconditional “assignment” (a primary condition for negotiability being the absence of conditions and the certainty that the instrument sets forth all obligations without any “off-record” activity creating a condition on payment).

In short, we have a series of independent contracts that are part of a common scheme to issue unregulated securities under false pretenses making the “borrower” and the “investor” both victims and making the “borrower” an unknowing issuer of an instrument that was intended to be used as a negotiable instrument and sold as as a security.

One of the more interesting questions raised by another reader is this issue of trusts. care to comment on the following? I’ll make it an article and post it. Send it to me at ngarfield@msn.com. Want to be a guest on the podcast show? Submit an article that gets posted.

1. What is a trust? How is it defined? How is it established for legal existence? Does it need to be registered or recorded anywhere?
2. Can a trust legally exist if it is unfunded? (If there is nothing in the trust to administer, is there a trust?)
3. What are the powers of the Trustee of an unfunded trust? Can a Trustee claim apparent or actual authority to represent the holders of bonds (mortgage backed securities) issued by a Special Purpose Vehicle — as an agent? as a trustee? Again what are the “Trustee’s” (agent?) powers?
4. Who can be a Trustee.
5. Can a financial services entity otherwise qualified to do business in the state claim to be an institutional trustee?
6. Can a financial services entity that does not qualify to do business in the state, not chartered or licensed do business as a bank? a lender? a securities issuer? a trustee? a trust company?
7. If the mortgage backed securities (bonds) are sold to investors what asset or res can be arguably in the trust?
8. If the mortgage backed securities (bonds) contain an indenture that purports to convey a pro rata share of the mortgages and notes in a pool to the owner of the certificate of mortgage backed security (bond) what asset or res can be arguably in the trust?
9. If the Special Purpose Vehicle has filed with the IRS as a REMIC conduit (see below) then how it own anything since by definition it is a conduit and must act as a conduit or else it loses tax exempt status and subjects itself to income and capital gains taxes?

FROM WIKOPEDIA:

Real Estate Mortgage Investment Conduits, or “REMICs,” are a type of special purpose vehicle used for the pooling of mortgage loans and issuance of mortgage-backed securities. They are defined under the United States Internal Revenue Code (Tax Reform Act of 1986), and are the typical vehicle of choice for the securitization of residential mortgages in the US.

REMIC usage

REMICs are investment vehicles that hold commercial and residential mortgages in trust and issue securities representing an undivided interest in these mortgages. A REMIC assembles mortgages into pools and issues pass-through certificates, multiclass bonds similar to a collateralized mortgage obligation (CMO), or other securities to investors in the secondary mortgage market. Mortgage-backed securities issued through a REMIC can be debt financings of the issuer or a sale of assets. Legal form is irrelevant to REMICs: trusts, corporations, and partnerships may all elect to have REMIC status, and even pools of assets that are not legal entities may qualify as REMICs.[2]

The Tax Reform Act eliminated the double taxation of income earned at the corporate level by an issuer and dividends paid to securities holders, thereby allowing a REMIC to structure a mortgage-backed securities offering as a sale of assets, effectively removing the loans from the originating lender’s balance sheet, rather than a debt financing in which the loans remain as balance sheet assets. A REMIC itself is exempt from federal taxes, although income earned by investors is fully taxable. As REMICs are typically exempt from tax at the entity level, they may invest only in qualified mortgages and permitted investments, including single family or multifamily mortgages, commercial mortgages, second mortgages, mortgage participations, and federal agency pass-through securities. Nonmortgage assets, such as credit card receivables, leases, and auto loans are ineligible investments. The Tax Reform Act made it easier for savings institutions and real estate investment trusts to hold mortgage securities as qualified portfolio investments. A savings institution, for instance, can include REMIC-issued mortgage-backed securities as qualifying assets in meeting federal requirements for treatment as a savings and loan for tax purposes.

To qualify as a REMIC, an entity or pool of assets must make a REMIC election, follow certain rules as to composition of assets (by holding qualified mortgages and permitted investments), adopt reasonable methods to prevent disqualified organizations from holding its residual interests, and structure investors’ interests as any number of classes of regular interests and one –- and only one -– class of residual interests.[3] The Internal Revenue Code does not appear to require REMICs to have a class of regular interests.[4]

Qualified mortgages

Qualified mortgages encompass several types of obligations and interests. Qualified mortgages are defined as “(1) any obligation (including any participation or certificate of beneficial ownership therein) which is principally secured by an interest in real property, and is either transferred to the REMIC on the startup day in exchange for regular or residual interests, or purchased within three months after the startup day pursuant to a fixed-price contract in effect on the startup day, (2) any regular interest in another REMIC which is transferred to the REMIC on the startup day in exchange for regular or residual interests in the REMIC, (3) any qualified replacement mortgage, or (4) certain FASIT regular interests.”[5] In (1), “obligation” is ambiguous; a broad reading would include contract claims but a narrower reading would involve only what would qualify as “debt obligations” under the Code.[6] The IRC defines “principally secured” as either having “substantially all of the proceeds of the obligation . . . used to acquire or to improve or protect an interest in real property that, at the origination date, is the only security for the obligation” or having a fair market value of the interest that secures the obligation be at least 80% of the adjusted issue price (usually the amount that is loaned to the mortgagor)[7] or be at least that amount when contributed to the REMIC.[8]

Permitted investments

Permitted investments include cash flow investments, qualified reserve assets, and foreclosure property.

Cash flow investments are temporary investments in passive assets that earn interest (as opposed to accruing dividends, for example) of the payments on qualified mortgages that occur between the time that the REMIC receives the payments and the REMIC’s distribution of that money to its holders.[9] Qualifying payments include mortgage payments of principal or interest, payments on credit enhancement contracts, profits from disposing of mortgages, funds from foreclosure properties, payments for warranty breaches on mortgages, and prepayment penalties.[10]

Qualified reserve assets are forms of intangible property other than residual interests in REMICs that are held as investments as part of a qualified reserve fund, which “is any reasonably required reserve to provide for full payment of” a REMIC’s costs or payments to interest holders due to default, unexpectedly low returns, or deficits in interest from prepayments.[11] REMICs usually opt for safe, short term investments with low yields, so it is typically desirable to minimize the reserve fund while maintaining “the desired credit quality for the REMIC interests.”[12]

Foreclosure property is real property that REMICs obtain upon defaults. After obtaining foreclosure properties, REMICs have until the end of the third year to dispose of them, although the IRS sometimes grants extensions.[13] Foreclosure property loses its status if a lease creates certain kinds of rent income, if construction activities that did not begin before the REMIC acquired the property are undertaken, or if the REMIC uses the property in a trade or business without the use of an independent contractor and over 90 days after acquiring it.[14]

Regular interests

It is useful to think of regular interests as resembling debt; they tend to have lower risk with a corresponding lower yield. Regular interests are taxed as debt.[15] A regular interest must be designated as such, be issued on the startup day, contain fixed terms, provide for interest payments and how they are payable, and unconditionally entitle the holder of the interest to receive a specific amount of the principal.[16] Profits are taxed to holders.

Residual interests

Residual interests tend to involve ownership and resemble equity more than debt. However, residual interests may be neither debt nor equity. “For example, if a REMIC is a segregated pool of assets within a legal entity, the residual interest could consist of (1) the rights of ownership of the REMIC’s assets, subject to the claims of regular interest holders, or (2) if the regular interests take the form of debt secured under an indenture, a contractual right to receive distributions released from the lien of the indenture.”[17] The risk is greater, as residual interest holders are the last to be paid, but the potential gains are greater. Residual interests must be designated as such, be issued on the startup day, and not be a regular interest (which it can effortlessly avoid by not being designated as a regular interest). If the REMIC makes a distribution to residual interest holders, it must be pro rata; the pro rata requirement simplifies matters because it usually prevents a residual class from being treated as multiple classes, which could disqualify the REMIC.[18]

Forms

A REMIC can issue mortgage securities in a wide variety of forms: securities collateralized by Government National Mortgage Association (Ginnie Mae) pass-through certificates, whole loans, single class participation certificates and multiclass mortgage-backed securities; multiple class pass-through securities and multiclass mortgage-backed securities; multiple class pass-through securities with fast-pay or slow-pay features; securities with a subordinated debt tranche that assumes most of the default risk, allowing the issuer to get a better credit rating; and Collateralized Mortgage Obligations with monthly pass-through of bond interest, eliminating reinvestment risk by giving investors call protection against early repayment.

The advantages of REMICs

REMICs abolish many of the inefficiencies of collateralized mortgage obligations (CMOs) and offer issuers more options and greater flexibility..[19] REMICs have no minimum equity requirements, so REMICs can sell all of their assets rather than retain some to meet collateralization requirements. Since regular interests automatically qualify as debt, REMICs also avoid the awkward reinvestment risk that CMO issuers bear to indicate debt. REMICs also may make monthly distributions to investors where CMOs make quarterly payments. REMIC residual interests enjoy more liquidity than owner’s trusts, which restrict equity interest and personal liability transfers. REMICs offer more flexibility than CMOs, as issuers can choose any legal entity and type of securities. The REMIC’s multiple-class capabilities also permit issuers to offer different servicing priorities along with varying maturity dates, lowering default risks and reducing the need for credit enhancement.[20] REMICs are also fairly user-friendly, as the REMIC election is not difficult, and the extensive guidance in the Code and in the regulations offers “a high degree of certainty with respect to tax treatment that may not be available for other types of MBSs.”[21]

The limitations of REMICs

Though REMICs provide relief from entity-level taxation, their allowable activities are quite limited “to holding a fixed pool of mortgages and distributing payments currently to investors.”[22] A REMIC has some freedom to substitute qualified mortgages, declare bankruptcy, deal with foreclosures and defaults, dispose of and substitute defunct mortgages, prevent defaults on regular interests, prepay regular interests when the costs exceed the value of maintaining those interests,[23] and undergo a qualified liquidation,[24] in which the REMIC has 90 days to sell its assets and distribute cash to its holders.[25] All other transactions are considered to be prohibited activities and are subject to a penalty tax of 100%,[26] as are all nonqualifying contributions.

To avoid the 100% contributions tax, contributions to REMICs must be made on the startup day. However, cash contributions avoid this tax if they are given three months after the startup day, involve a clean-up call or qualified liquidation, are made as a guarantee, or are contributed by a residual interest holder to a qualified reserve fund.[27] Additionally, states may tax REMICs under state tax laws.[28] “Many states have adopted whole or partial tax exemptions for entities that qualify as REMICs under federal law.”[29]

REMICs are subject to federal income taxes at the highest corporate rate for foreclosure income and must file returns through Form 1066.[30] The foreclosure income that is taxable is the same as that for a real estate investment trust (REIT)[31] and may include rents contingent on making a profit, rents paid by a related party, rents from property to which the REMIC offers atypical services, and income from foreclosed property when the REMIC serves as dealer.[32]

The REMIC rules in some ways exacerbate problems of phantom income for residual interest holders, which occurs when taxable gain must be realized without a corresponding economic gain with which to pay the tax.[33] Phantom income arises by virtue of the way that the tax rules are written. There are penalties for transferring income to non-taxpayers, so REMIC interest holders must pay taxes on gains that they do not yet have.

Filed under: ATM, bubble, CDO, community banks, CORRUPTION, credit unions, Eviction, foreclosure, foreign relations, GTC | Honor, Investor, MODIFICATION, Mortgage, Obama, politics, securities fraud, Servicer | Tagged: , , , , , , , , , , , , , , | 19 Comments »

Those $18 billion in bonuses were earned from hidden profits: The Joke is on Us

Posted on January 30, 2009 by Neil Garfield

Obama is of course correct in his outrage. Taking hundreds of billions of dollars from the taxpayers to cover the appearances of catastrophic losses and then paying bonuses for good management is over the top by any standards. But neither he nor the media is correct in assuming that that the bonuses were not in fact earned by the people who defrauded us in the first place with the mortgage meltdown. Those bonuses were paid BECAUSE PROFIT WAS GENERATED even if it wasn’t completely reported. Nobody seems to get it — the key acronym is OPM (other people’s money). Wall Street did not lose any money, they made record profits, kept it, took taxpayer money too and now they are in the process of also taking the properties of unsuspecting homeowners who still don’t understand what hit them and how it was done.

At no time did the investment bankers have their own capital at risk during the selling of the mortgage backed securities. They were ALWAYS using the money of other people (investors). Every time money moves, financial insitutions make money. In this case both their existence and their profits and fees were and remain largely undisclosed. Starting with the “forward sale” (i.e., selling what you don’t have “yet”) of certificates of mortgage backed securities at a nominal rate of interest that could never be paid and filling in the void with either non-existent mortgage obligations or deals in which the actual expected life of the “loan” was as little as a month and at most five years, investment bankers made astonishing profits PLUS fees. Selling a note with a nominal interest rate of 18% to an investor looking for a 6% return enabled investment bankers to receive $900,000 on a “loan” that was funded for $300,000. You don’t really think they went wild selling these things because they were making money on volume with basis points as fees do you?

And at the “pretender lender” level where a financial institution pretended to be the underwriter of a home loan and where the committees to verify viability, value and income were disbanded, they put on a good face because they were being paid for the renting of their charter to people and companies who were operating as bankers without even being seen, much less regulated. So the “pretender lender” would charge all the “normal” fees for a sub-sub prime loan into which the borrower was steered when they qualified for a conventional loan, PLUS an undisclosed 2.5% fee for renting their charter out to an undisclosed third party. Now Countrywide and others are telling borrowers that they won’t reveal the true name of the lender because the information is confidential. Why? Because when the borrower and investor get together they will have proof positive of  identical fraud on both ends of this game. You didn’t think that these lenders were advertising for borrowers because they were making a few hundred dollars on each loan plus interest, did you? NO, they were never at risk because they were using OPM and they got paid $30,000 on that $300,000 loan funding.

Did you think home prices went up because of increased demand for housing? Take a look around you. We have enough inventory to satisfy demand for the next three or four years without another stick being nailed. Home prices went up because Wall Street needed to move money — lots of it — $13 trillion to be exact. And they had a problem. They had run out of borrowers, buyers, and homeowners seeking refinancing. So they invented them and inflated the “price” or “value” of the house to satisfy the demand from Wall Street for $100 billion per month in paper.

It isn’t that the bonuses were unearned or that actual losses were incurred. The story here is that they didn’t lose money and did earn the bonuses. It was everyone else who lost money. And yet we continue to throw money at the “infrastructure” (translation: big institutions) for the same stupid WMD reasons that got us into Iraq. There are 6,000 depository bank institutions in this country alone, most of whom are NOT in trouble. Most community bankers and loan managers at credit unions didn’t play the mortgage meltdown game. Without a penny of “bailout” they could have filled the void created by these giant thieves and credit would be flowing. There is nothing new in that model. Every time a financial institution buckles, the FDIC, OCC, FED or OTS steps in, breaks them up and distributes the assets with value to healthy institutions. The only reason that didn’t happen  this time is that government was in bed with the regulators.

Credit will flow when the world has confidence in the United States economy and financial system. A fraud has occurred under our watch (all of us). The system can’t correct until the fraud is corrected, the damages are measured and a plan is in place that will actually (not cosmetically) put people back in the position they were in before the fraud occurred. That means the mortgages must fall, the notes must be reduced (or eliminated) and the investors must have a GOOD bank representing them that will participate in equity appreciation in the homes, not a BAD bank that will apply lipstick to a pig. Right now it is the mortgage servicers and other middlemen who never put up a dime who are getting and keeping the houses and proceeds of foreclosure sales. They are laughing all the way to their own bank.

Putting homeowners back in the black will provide a greater stimulus than any plans being offered today, although the current stimulus packages are badly needed for us to compete globally. Putting investors in a position where they can recover some or all of their investment will inject confidence into limping marketplace. And putting the thieves in jail will tell the world, we recognize and correct our mistakes — giving us a chance to regain or re-earn some moral high ground.

Filed under: bubble, CDO, community banks, CORRUPTION, credit unions, Eviction, foreclosure, foreign relations, GTC | Honor, interest rates, Investor, Mortgage, Obama, politics, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , | 5 Comments »

HAPPY NEW YEAR !!! (I THINK)

Posted on January 2, 2009 by Neil Garfield
Happy New Year! We have much to talk about this year as we push forward. By all accounts, the economy, the dollar, the foreclosures, the job situation etc are all getting worse by the minute. Even if Obama is a magician it will be 2 years before there is a glimmer of hope. The homeowner aid programs are window dressing. Even the Sheila Bair one from FDIC/Indy Mac while well-intentioned does little for most homeowners. The ONLY hope for homeowners and the only hope for our economy is if we face the music and take the free market enthusiasts at their word, to wit: everyone agrees they artificially inflated real estate values and those values are still too high for the market to support. The only reason the “values” are stated so high is that the sellers are still deluding themselves in their asking prices. There is at least another 20% to go. As Brad Keiser says, we are only in about the 2nd or 3rd inning of a 9 inning game that might go into overtime.
 
Refi’s that leave homeowners under water simply will not work. People are not that stupid. It is easier to walk from the house and rent or buy another at real (lower) values.
 
Thus the Garfield Continuum plan is the only viable option — get rid of the note, obligation and mortgage altogether or at least force a modification that will bring the obligation to around 80% of true fair market value. Only a credible threat to the financial services sector pushing foreclosures will result in this relief. The threat comes from understanding and enforcing the basic law applicable to these mortgages — they screwed up and now they want borrowers to sign new paper that clears up their screw up and leaves the borrower in a horrible position.
 
The loss belongs where it was created — on Wall Street and Main Street Banks that rented their charter to Wall Street operatives who caused an unprecedented collapse of loan underwriting standards and crossing the line into fraud, forgery, and creation of false documentation. Companies SHOULD fail. Banks SHOULD fail. Borrowers CANNOT fail — because they are the backbone of the country and the economy. There are plenty of lenders, investment bankers and money managers who did not play the game and are perfectly healthy. Bailout money should go to the players who played by the rules and are healthy. They are the ONLY ones who can and will lend, thus freeing up, somewhat, the tightening death grip of no credit and thus no commerce.

Filed under: bubble, CDO, community banks, CORRUPTION, credit unions, currency, Eviction, foreclosure, foreign relations, GTC | Honor, inflation, interest rates, Investor, Mortgage, Obama, securities fraud | Tagged: , , , , , , , , , , | 5 Comments »

Resources: Trade Periodicals and Research – Use of Professional Information Sources

Posted on December 24, 2008 by Neil Garfield

Use of Professional Information Sources

Bank Systems & Technology

American Banker

Community Banker

Factiva

Independent Banker

Bank Technology News

Banking Strategies

Wall Street Journal/WSJ Online

Law firm/consultant/association-provided newsletters

ABA Banking Journal

NewsEdge

US Banker

Lexis/Nexis

Local associations publications

Internally provided news feed

Other; please specify — post on comments page

Filed under: CDO, CORRUPTION, credit unions, currency, education, Eviction, foreclosure, foreign relations, GTC | Honor, Investor, Mortgage, politics, securities fraud | Tagged: , , , , , , , , , , , | 1 Comment »

WORKSHOPS COMING UP 8 CA CLE & 9.5 FLA CLE CREDITS

Posted on December 17, 2008 by Neil Garfield

PLEASE SUPPORT THIS SITE !!! donation-form-1108

Florida Bar Approves Garfield Continuum for 9.5 CLE Credits

Lawyers Workshop Registration Form – November 2, 2009

Homeowners Workshop Registration Form – November 1, 2009

What Lawyers Are Saying About Neil Garfield\’s Seminars

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REQUIRED READING: appraisal-fraud-and-industry-standards-described-in-2003-official-white-paper-red-flags-described-in-detail-with-excellent-diagrams-explanations-and-descriptions-of-best-practices

Work and Play in Sunny Clearwater Beach FL

How to Save $$ while attending Garfield Event(s) Clearwater Beach FL November 1-2, 2009

* Reserve Workshop Seat prior to Oct 23, 2009 for Early Bird discount on Registration

* Mention Garfield’s Foreclosure Defense Group when reserving rooms to get special Group Rate of $99

* Check  into flying into  Tampa/St. Petersburg and other airports within a short drive multiple airports in the area 

* Consider Southwest Airlines only $200-$300 for RT

 

Note: If you are planning to attend it would be wise to book early. Experience has shown us that sometimes a large number of lawyers show up at these workshops intending to register at the door. We don’t want you driving two hours only to find out we don’t have a seat for you.

PURCHASE 600 PAGE ATTORNEY WORKBOOKS: Request to Purchase Lawyers Workshop Handbook-v4 0909

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Filed under: bubble, CDO, community banks, CORRUPTION, credit unions, currency, education, Eviction, foreclosure, foreign relations, GTC | Honor, inflation, interest rates, Investor, Mortgage, Obama, politics, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , | 5 Comments »

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