Bank Games: “Attorney in Fact”

The very idea of two huge Bank competitors naming each other as attorney in fact defies common sense — if they were dealing with anything real.

The use of “attorney in fact” is merely a ruse in order to bridge gaps in the facial validity of documents being used in foreclosure. It also is used to create the illusion that the grantor owned the asset over which the power of attorney was granted. In plain language it is simply a paper trail to cover up the fact that there is no money trail. People often forget that these cases are supposed to be about money.

And don’t forget that the entire purpose of using the names of large banks is to give a judge the impression that certain large banks are involved in the loan when in fact they are not.

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I recently received an email in which Deutsch was supposedly an attorney in fact for Chase and in which investigation revealed that Credit Suisse was in fact the person behind the curtain who was making gargantuan amounts of money off of derivative instruments based upon loans.

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Typically the banks don’t actually execute the powers of attorney. The execution of the powers of attorney are by a robo signer who works for a servicer (or third party vendor) who poses as an attorney in fact for the bank named as attorney in fact for someone else, usually another bank. It’s what gives an false institutional flavor to the paper trail. The bank’s tolerate the use of their names on such instruments because they don’t actually own the assets and therefore they have no risk — unless somebody sues them for being a co-conspirator in a fraudulent scheme.

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In discovery — the goal is to show that Deutsch did not have any administrative duties or authority over the active affairs of an existing trust that in fact owned your loan.
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So it is a two-step process. First you eliminate all attributes of a “trustee” you argue that although it held the title of trustee it was not a trustee under the law and therefore had no right, title or interest in your loan. then you can ask for the actual Financial Arrangements between Deutsch and Credit Suisse (or whoever Credit Suisse was acting through)and you can ask why Deutsch was getting paid at all and what services do each provided in exchange for the payments.
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But I don’t want to lead you down the rabbit hole. I don’t think you need to prove all that. All you need to prove is that neither Deutsch nor the supposed trust has any evidence of any transaction in which they acquired the debt by payment of value. If you are able to do that, you can then argue that since they did not own the debt, the attempt to foreclose cannot be an attempt to gain restitution for an unpaid debt.
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If they argue that through securitization they are representing parties who paid value for the debt, you would have two responses.
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The first is that Article 9 § 203 of the Uniform Commercial Code as adopted by state statutes does not permit a party to appear in a representative capacity for unknown owners of the debt. The second is that it is not enough for them to say that’s what they’re doing, they have to prove it. So you might ask in Discovery if they are appearing on behalf of an owner of the debt who paid value for it, and then ask for the identity of the owner of the debt and the details of any transaction in which the owner of the debt paid value for the debt.

Lehman to Pay $2.4 Billion out of Bankrupt Estate

“Lehman’s own documents show it was aware of the widespread problems and deteriorating performance of the loans it had securitized,” with half the loans at one point containing material misrepresentations, the trustees said in a court filing.

Editor’s Note: The difference is money — investors have it and borrower’s don’t. So while investors are successfully litigating fraud and deceit, the borrowers can’t afford to litigate the same issues. The idea that Lehman was somehow honest with borrowers and not with investors is preposterous.

Lehman recently closed out a $2 billion dispute with Citigroup Inc. over derivatives, and similar litigation over derivatives with Credit Suisse Group AG is the last major remaining contest.

Around 14 large institutional holders, including Goldman Sachs Asset Management LP and BlackRock Financial Management, broke ranks with hedge funds and accepted a settlement last year valuing claims around $2.4 billion. Chapman noted that these “sophisticated players” held around 24 percent of the RMBS.

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See Lehman Brothers Knew 1/2 the loans were misrepresented to both borrowers and investors

The trustees representing RMBS holders are Deutsche Bank National Trust Co., Law Debenture Trust Co. of New York, U.S. Bank National Association and Wilmington Trust Co., according to court papers.

A group of hedge funds, including Whitebox Advisors LLC, Deer Park Road Management Co. and Tilden Park Capital Management LP, was formed in 2016, and expanded in May 2017 to include Prophet Capital Management LP, Tricadia Capital Management LLC, BlueMountain Capital Management LLC and others, according to court records.

The case is In re Lehman Brothers Holdings Inc., 08-13555, U.S. Bankruptcy Court, Southern District of New York (Manhattan.)

Practice note: Dig into the pleadings and exhibits in these cases and you will find a treasure trove of information that supports your contention at trial that the documents are unreliable and therefore the proof of the matters asserted must be proven with facts, not assumptions. You will probably uncover inconsistent allegations from Deutsch, Credit Suisse et al. They are most likely saying one thing in court with borrowers and another in court with investors.

An important note here is that these actions are based upon the presumptive finding of the US Bankruptcy trustee as to Lehman misrepresentations.

 

 

Are Fraud Claims Barred by Statute of Limitations? Credit Suisse (Owner of SPS) Loses

For more information please call 954*495*9867 or 520-405-1688

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I have long argued that TILA claims are not barred and that fraud claims based upon intentional withholding of information (required by the Truth in Lending Act) are also not barred by the statute of limitations UNTIL the claimant knew or should have known about the fraud. What is interesting here is that Credit Suisse, parent company of Select Portfolio Servicing (SPS) went up against the New York attorney general banking (pardon the pun) on the idea that the Martin Act could not be used against them for committing financial fraud because it was barred by the statute of limitations. They lost.

And I think the arguments that caused them to lose can also be applied to common law fraud claims as well as RICO and TILA claims as long as the required disclosures were intentional withheld about the loan closing. Kudos to Schneiderman in New York for beating back people who know they have committed fraud but earnestly hope they can get away with it because of statutes of limitations and statutes of repose. I know that the US Supreme Court has recently come out with some decisions that go against this idea, but I think in the long run they will not apply it to financial fraud arising from the mortgage crisis.

So if you raise claims that relate to TILA and you are litigating against SPS, they will argue that the statute of limitations bars any mention of TILA claims. This decision presents credible argument to the contrary. You might want to say that their parent company Credit Suisse already lost that argument.

All that money going into PR and getting “objective” securities analysts and pundits to say that BOA and the stock of other banks are a great buy now may have worked up until now, but the pyramid is starting to collapse. In my opinion things are going to go pretty bad for the big banks. When people wake up to realize that the smaller regional banks, community banks and credit unions can pick up the slack left behind by the collapse of a few large banks with extreme dominance over the marketplace, support for the big banks is going to crumble. Senator Warren might seem like an extremist to some but to me she just a realist who is sticking to the truth.

see Credit Suisse Loses in Attempt to Bar Action Under Martin Act

Reuters: Ex-Credit Suisse Manager Pleads Guilty in Subprime Bond Probe

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Editor’s Comment: So SOMEONE is going to jail for up to five years. But the meat of this lies between the lines.
First, it was a conspiracy charge. You can’t run a PONZI scheme the size of the Madoff scheme without channels that are sending “marks” to you to “invest.” The securitization scam is several hundred times the size of the Madoff scam, and that means there were literally thousands of traders and managers who knew that they were acting improperly — illegally, that is.
Second, Higgs told a Federal Judge that his criminal behavior consisted of manipulation and inflation of the cash bond position markings in his tradings book (called ABNI), in order to hide the losses. Most people will never know what that means. It simply means that the trades were kept out of the system where losses would be easily apparent.
There are numerous reports that the book was kept literally in pencil on paper, so they could change the contents or destroy the book if that became necessary. This is why tracking the the actual money trail becomes challenging but it can be done through what one of our senior analysts calls “reverse engineering. IN other words, take the money going into the system and see where it went or where the trail ends. This will give you sufficient clues to determine whether payments in part or in whole were made to REMICS upon whose behalf foreclosures are being filed. In most cases, the figures are wrong, the debt to the investor has been paid in whole or in part, and there is no default. That is why we do the loan level accounting for those readers who are willing to fight about it.
Sadly, this guy seems like the fall guy for what was ordered by his managers. HIs statement that he fooled Credit Suisse management rings hollow when you compare the facts and the the history of the business. It simply isn’t possible for these events to occur without senior management knowing what was going on. Their mantra is plausible deniability. Soon you will see other people, like Higgs, who “flip” and testify against the large Banks upon which they depended for employment at rates of compensation that were too high — unless you factor in the hush money.

Ex-Credit Suisse manager pleads guilty in subprime probe

NEW YORK |

(Reuters) – A former London-based Credit Suisse trader pleaded guilty to a criminal conspiracy charge on Wednesday, and he is cooperating with a U.S. government investigation on writedowns of subprime mortgage derivatives at the height of the financial crisis.

David Higgs told a federal judge in New York that while he was a managing director in the investment banking division of Credit Suisse in 2007 and 2008, he and others manipulated and inflated the cash bond position markings of a trading book, called ABNI, in order to hide losses.

“As a result of my actions, senior management of Credit Suisse was given the false impression that the ABNI book was profitable and caused Credit Suisse to report false year-end numbers for 2007 in their books and records,” Higgs said in court. “I did this because I wanted to remain in good favor with my boss, Kareem Seregeldin, and enhance my job performance.”

Higgs said Seregeldin and others he did not identify had known about the manipulation and assisted in it.

Higgs faces a maximum possible prison sentence of up to 5 years on the charge of conspiracy to commit falsification of books and records and to commit wire fraud. He was released on a $500,000 bond and will be allowed to return to his home in Britain while the investigation continues.

(Reporting By Grant McCool; Editing by Lisa Von Ahn)

 

MERS: A FAILED ATTEMPT AT BYPASSING STATE AND FEDERAL AUTHORITY

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Fannie-Freddie’s Hypocritical Suit Against Banks Making Loans that GSEs Helped Create

Fannie-Freddie’s Hypocritical Suit Against Banks Making Loans that GSEs Helped Create

EDITOR’S NOTE:  Practically everything that the government is doing with respect to the economy and the housing market in particular is hypocritical. If we look to the result to determine the intent of the government you can see why nothing is being done to improve DOMESTIC market conditions. By removing the American consumer from the marketplace (through elimination of available funds in equity, savings or credit) the economic prospects for virtually every marketplace in the world is correspondingly diminished. The downward pressure on economic performance worldwide creates a panic regarding debt and currency. By default (and partially because of the military strength of the United States) people are ironically finding the dollar to be the safest haven during a bad storm.

 The result is that the federal government is able to borrow funds at interest rates that are so low that the investor is guaranteed to lose money after adjusting for inflation. The climate that has been created is one in which investors are far more concerned with preservation of capital than return on capital. In a nutshell, this is why the credit markets are virtually frozen with respect to the average potential consumer, the average small business owner, and the average entrepreneur or innovator who would otherwise start a new business and fuel rising employment.

 While it is true that the lawsuits by Fannie and Freddie are appropriate regardless of their past hypocritical behavior, they are really only rearranging the deck chairs on the Titanic. Ultimately there must be a resolution to our current economic problems that is based in reality rather than the power to manipulate events. The scenario we all seek  would cleanup the rising title crisis, end the foreclosure crisis, and restore a true marketplace in the purchase and sale of real estate. We have all known for decades that the housing market drives the economy.

 There is obviously very little confidence that the government and market makers in the United States are going to seek any resolution based in reality. Therefore while investors are parking their money in dollars they are also driving up the price of gold and finding other innovative ways to preserve their wealth. As these innovations evolve it is almost certain that an alternative to the United States dollar will emerge. The driving force behind this innovation is the stagnation of the credit markets and the world marketplace. My opinion is that the United States is pursuing a policy that virtually guarantees the creation of a new world reserve currency.

 The creation of MERS was a private attempt to substitute private business plans for public laws. It didn’t work. The lawsuits by the government-sponsored entities together with lawsuits from investors who were duped into being lenders and homeowners who were duped into being borrowers in a rigged market are only going to result in money judgments and money settlements. With a nominal value of credit derivatives at over $600 trillion and the actual money supply at under $50 trillion there is literally not enough money in the world to fix this problem. The problem can only be fixed by recognizing and applying existing law to existing transactions.

 This means that MERS, already discredited, must be treated as a nonexistent entity in the world of real estate transactions. Nobody wants to do that because the failure to disclose an actual creditor on the face of a purported lean or encumbrance on land is a fatal defect in perfecting the lien. This is true throughout the country and it is obvious to anyone who has studied real property transactions and mortgages. If you don’t have the name and address of the creditor from whom you can obtain a satisfaction of mortgage, then you don’t have a mortgage that attaches to the land as a lien. It is this realization that is forming a number of lawsuits from the investors who advanced money for mortgage bonds. Those advances were the funds that were used to finance pornographic Wall Street profits with the balance used to fund absurd mortgage products.

 This is basic property law and public policy. There can be no confidence or consistency in the marketplace without a buyer or a lender knowing that they can rely upon the information contained in a government title Registry at the county recording office. Any other method requires them to take the word of someone without the authority of the government. This is a fact and it is the law. But the banks are successfully using politics to sidestep the basic essential elements of law. Under their theory the fact that the mortgage lien was never perfected would be ignored so that bank and non-bank institutions could become the largest landholders in the country without ever having spent a dime on loaning any money or purchasing the receivables. Politics is trumping law.

 The narrative and the debate are being absolutely controlled by Wall Street interests. We say we don’t like what the banks did and many say they don’t like banks at all. But it is also true that the same people who say they don’t like banks are willing to let the banks keep their windfall and make even more money at the expense of the taxpayer, the consumer and the homeowner. There are trillions of dollars available for investment in business expansion, government projects, and good old American innovation to drive a healthy economy. It won’t happen until we begin to drive the debate ourselves and force government and banking to conform to rules and laws that have been in existence for centuries.

from STOP FORECLOSURE FRAUD…………….

Lets NOT forget both Fannie and Freddie, like most of the named banks they are suing, each are shareholders of MERS.

Again, who gave the green light to eliminate the need for assignments and to realize the greatest savings, lenders should close loans using standard security instruments containing “MOM” language back in April 26, 1999?

This was approved by Fannie Mae and Freddie Mac which named MERS as Original Mortgagee (MOM)!

Open Market-

“U.S. is set to sue dozen big banks over mortgages,” reads the front-page headline in today’s New York Times. The “deck” below the headline explains that that the Federal Housing Finance Agency, which oversees the government-sponsored enterprises Fannie Mae and Freddie Mac, is “seen as arguing that lenders lacked due diligence” in the loans they made.

A more apt description would probably be that Fannie and Freddie are suing the banks for selling them the very loans the GSEs helped designed and that government mandates encourage — and are still encouraging them to make. These conflicted actions are just one more of the government’s contributions to the uncertainty that is helping to keep unemployment at 9 percent.

Strangely the author of the Times piece, Nelson Schwartz, ignores the findings of a recent blockbuster

[OPEN MARKET]

Bankruptcy Trustee Accuses banks of Manipulating “Margin Calls” on Mortgage Bonds

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COLLUSIVE SCHEME ALLEGED

EDITORIAL COMMENT: WELL it looks like this is not over yet. The accusations are right on target — the more they drill down the more they find which is what we have been saying on Livinglies for 3 1/2 years. That’s what we keep doing in our COMBO title and securitization analysis and what we are teaching lawyers in our seminars.

Maybe the judiciary will wake up and realize that all these title and securitization reports should not be the burden of homeowners to produce. Maybe they should realize, in line with existing law, that the party seeking affirmative relief is the pretender lender who wants to forcibly take a home away from otherwise good citizens. Maybe Judges will realize that the party seeking affirmative relief is the plaintiff no matter what foreclosure procedure is invoked and that party must plead and prove a foreclosure case just like banks have been doing for centuries.

Maybe everyone will realize that just because the borrower stops paying doesn’t mean the payment was due or that the creditor didn’t get the money and that the declaration of default and all that comes after that is a farce without the laughs. Deutsch was Trustee for most of these pools, followed by US Bank. We already know they lied, cheated and stole at all levels of the fake securitization that was never backed up by actual transfers, and that that the original mortgages were fatally defective. Acknowledging that fact will cause pain only to Wall Street which in all events MUST go through the pain of shrinking back down to a proper size of 12-14% of GDP instead of its current reign of 50% of all measured services and products produced by the United States.

Maybe the narrative wil finally shift to the truth. It isn’t borrowers who are delaying the inevitable foreclosure. It is the banks that are delaying the inevitable collapse of the entire foreclosure and mortgage structure and the reduction not just of principal due on the mortgages, but a reduction in the real value of assets on their balance sheets and hence their power and market-share in what SHOULD be a free market.

Banks Sued in Thornburg Bankruptcy

By REUTERS

WILMINGTON, Del. (Reuters) — The bankruptcy trustee for Thornburg Mortgage has sued Goldman Sachs, Barclays and other big banks for a combined $2.2 billion, blaming them for its bankruptcy.

The trustee filed four separate lawsuits, the most extensive of which blames a “collusive scheme” by units of JPMorgan Chase & Company, Citigroup, the Royal Bank of Scotland, Credit Suisse and UBS for driving the company into bankruptcy.

The trustee, Joel Sher, accused the five banks of acting together to use a series of unjustified margin calls to extend their control over Thornburg, which was once a leading provider of “jumbo” home loans.

The lawsuit seeks to recover $2 billon for fraudulent conveyances and transfers by the banks, which had financed Thornburg’s mortgage-backed securities.

The trustee said the banks eventually drove Thornburg into Chapter 11 in May 2009. It sought protection from creditors with $36.5 billion in assets, making it one of the largest bankruptcies during the financial crisis.

Citigroup said the lawsuit was without merit. Credit Suisse and UBS declined to comment. JPMorgan and RBS did not immediately return a call for comment.

Mr. Sher was appointed to run Thornburg after the company’s executives were accused of using Thornburg’s staff and offices, without creditors’ approval, to start a new company.

The trustee also sued Barclays, claiming it improperly seized mortgage bonds from Thornburg in 2007 by undervaluing the securities in a series of margin calls. The trustee is seeking at least $94 million.

Barclays declined to comment.

Mr. Sher sued Goldman Sachs, seeking at least $71 million and accusing the bank of scheming to seize hundreds of millions of dollars of investment-grade mortgage bonds that Thornburg had pledged as collateral.

Goldman Sachs declined to comment.

The final lawsuit claims Countrywide Home Loans, which was acquired by Bank of America, breached representations and warranties on the loans it sold to a unit of Thornburg.

That lawsuit was also brought on behalf of a group of investors known as the Zuni Investors, who were represented by David Grais of Grais & Ellsworth.

Mr. Grais has brought numerous “putback” lawsuits that seek to have originators like Countrywide repurchase mortgages that fell short of promised standards.

Bank of America did not immediately return a call for comment.

SECRET BANKING ELITE: WHERE THE REAL DECISIONS ARE MADE

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Notable Quotes:

“The men share a common goal: to protect the interests of big banks in the vast market for derivatives, one of the most profitable — and controversial — fields in finance. They also share a common secret: The details of their meetings, even their identities, have been strictly confidential.”

“big banks influence the rules governing derivatives through a variety of industry groups. The banks’ latest point of influence are clearinghouses like ICE Trust, which holds the monthly meetings with the nine bankers in New York.”

“The banks also required ICE to provide market data exclusively to Markit, a little-known company that plays a pivotal role in derivatives. Backed by Goldman, JPMorgan and several other banks, Markit provides crucial information about derivatives, like prices.”

“None of the three clearinghouses would divulge the members of their risk committees when asked by a reporter. But two people with direct knowledge of ICE’s committee said the bank members are:

  • Thomas J. Benison of JPMorgan Chase & Company;
  • James J. Hill of Morgan Stanley;
  • Athanassios Diplas of Deutsche Bank;
  • Paul Hamill of UBS;
  • Paul Mitrokostas of Barclays;
  • Andy Hubbard of Credit Suisse;
  • Oliver Frankel of Goldman Sachs;
  • Ali Balali of Bank of America; and
  • Biswarup Chatterjee of Citigroup.”

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EDITOR’S ANALYSIS: For those of us tracking the strategies employed in courtrooms across the country and various foreclosure tactics, it has been obvious that there has been a single governing hand that is controlling the action. Hidden under the rubric of a risk control committee, this group actually makes all key decisions that affect the largest segment of the marketplace and thus the rest of the markets. These banks are operating for themselves, not in the interests of performing the service that Wall Street was always intended to do — create increasingly fluid access to the capital markets for businesses to innovate, start, grow, finance and merge.

They operate without any regulation. Quite the contrary. The decisions from this group actually effect both legislation that is proposed and passed and the rules and regulations of agencies that are supposed to be acting as referees to make sure the players don’t run amok. They dictate to government rather than the other way around and they create the strategies affect every individual in this country and many other countries. They are in essence a single virtual bank acting as though they are separate, each with profit centers that are strictly controlled by this elite group.

The upcoming WikiLeaks disclosures may have some references to this group which is comprised of the largest banks in the world and which exclude other large banks from membership, like Bank of New York/Mellon. Together they control the direction of the recession and how power is exercised by governments and central bankers around the world. That is because together they control nominal wealth many times the total currency in the world and “market value” that is roughly equal, at a minimum, to 2/3 of the GDP of the entire world.

We are at a crossroad whether we want to admit it or not. Either we simply give up and let bankers rule the world, or we stop them, disassemble them and bring them down to a size where they can be and are in fact regulated. But the choice is not up to government which now is owned by them as well. The choice is entirely up to the people — all the people — who ultimately, for the moment, have the power to dismiss the exercise of this kind of ultra vires power and bring things back to normal. Whatever we do, we are headed for turbulent times. The only real question is whether those turbulent times will be leading us down a path of abandoning our nation of laws or whether it will be as Teddy Roosevelt did, devoted to taking back the power for the people, by the people.

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A Secretive Banking Elite Rules Trading in Derivatives

By LOUISE STORY

On the third Wednesday of every month, the nine members of an elite Wall Street society gather in Midtown Manhattan.

The men share a common goal: to protect the interests of big banks in the vast market for derivatives, one of the most profitable — and controversial — fields in finance. They also share a common secret: The details of their meetings, even their identities, have been strictly confidential.

Drawn from giants like JPMorgan Chase, Goldman Sachs and Morgan Stanley, the bankers form a powerful committee that helps oversee trading in derivatives, instruments which, like insurance, are used to hedge risk.

In theory, this group exists to safeguard the integrity of the multitrillion-dollar market. In practice, it also defends the dominance of the big banks.

The banks in this group, which is affiliated with a new derivatives clearinghouse, have fought to block other banks from entering the market, and they are also trying to thwart efforts to make full information on prices and fees freely available.

Banks’ influence over this market, and over clearinghouses like the one this select group advises, has costly implications for businesses large and small, like Dan Singer’s home heating-oil company in Westchester County, north of New York City.

This fall, many of Mr. Singer’s customers purchased fixed-rate plans to lock in winter heating oil at around $3 a gallon. While that price was above the prevailing $2.80 a gallon then, the contracts will protect homeowners if bitterly cold weather pushes the price higher.

But Mr. Singer wonders if his company, Robison Oil, should be getting a better deal. He uses derivatives like swaps and options to create his fixed plans. But he has no idea how much lower his prices — and his customers’ prices — could be, he says, because banks don’t disclose fees associated with the derivatives.

“At the end of the day, I don’t know if I got a fair price, or what they’re charging me,” Mr. Singer said.

Derivatives shift risk from one party to another, and they offer many benefits, like enabling Mr. Singer to sell his fixed plans without having to bear all the risk that oil prices could suddenly rise. Derivatives are also big business on Wall Street. Banks collect many billions of dollars annually in undisclosed fees associated with these instruments — an amount that almost certainly would be lower if there were more competition and transparent prices.

Just how much derivatives trading costs ordinary Americans is uncertain. The size and reach of this market has grown rapidly over the past two decades. Pension funds today use derivatives to hedge investments. States and cities use them to try to hold down borrowing costs. Airlines use them to secure steady fuel prices. Food companies use them to lock in prices of commodities like wheat or beef.

The marketplace as it functions now “adds up to higher costs to all Americans,” said Gary Gensler, the chairman of the Commodity Futures Trading Commission, which regulates most derivatives. More oversight of the banks in this market is needed, he said.

But big banks influence the rules governing derivatives through a variety of industry groups. The banks’ latest point of influence are clearinghouses like ICE Trust, which holds the monthly meetings with the nine bankers in New York.

Under the Dodd-Frank financial overhaul, many derivatives will be traded via such clearinghouses. Mr. Gensler wants to lessen banks’ control over these new institutions. But Republican lawmakers, many of whom received large campaign contributions from bankers who want to influence how the derivatives rules are written, say they plan to push back against much of the coming reform. On Thursday, the commission canceled a vote over a proposal to make prices more transparent, raising speculation that Mr. Gensler did not have enough support from his fellow commissioners.

The Department of Justice is looking into derivatives, too. The department’s antitrust unit is actively investigating “the possibility of anticompetitive practices in the credit derivatives clearing, trading and information services industries,” according to a department spokeswoman.

Indeed, the derivatives market today reminds some experts of the Nasdaq stock market in the 1990s. Back then, the Justice Department discovered that Nasdaq market makers were secretly colluding to protect their own profits. Following that scandal, reforms and electronic trading systems cut Nasdaq stock trading costs to 1/20th of their former level — an enormous savings for investors.

“When you limit participation in the governance of an entity to a few like-minded institutions or individuals who have an interest in keeping competitors out, you have the potential for bad things to happen. It’s antitrust 101,” said Robert E. Litan, who helped oversee the Justice Department’s Nasdaq investigation as deputy assistant attorney general and is now a fellow at the Kauffman Foundation. “The history of derivatives trading is it has grown up as a very concentrated industry, and old habits are hard to break.”

Representatives from the nine banks that dominate the market declined to comment on the Department of Justice investigation.

Clearing involves keeping track of trades and providing a central repository for money backing those wagers. A spokeswoman for Deutsche Bank, which is among the most influential of the group, said this system will reduce the risks in the market. She said that Deutsche is focused on ensuring this process is put in place without disrupting the marketplace.

The Deutsche spokeswoman also said the banks’ role in this process has been a success, saying in a statement that the effort “is one of the best examples of public-private partnerships.”

Established, But Can’t Get In

The Bank of New York Mellon’s origins go back to 1784, when it was founded by Alexander Hamilton. Today, it provides administrative services on more than $23 trillion of institutional money.

Recently, the bank has been seeking to enter the inner circle of the derivatives market, but so far, it has been rebuffed.

Bank of New York officials say they have been thwarted by competitors who control important committees at the new clearinghouses, which were set up in the wake of the financial crisis.

Bank of New York Mellon has been trying to become a so-called clearing member since early this year. But three of the four main clearinghouses told the bank that its derivatives operation has too little capital, and thus potentially poses too much risk to the overall market.

The bank dismisses that explanation as absurd. “We are not a nobody,” said Sanjay Kannambadi, chief executive of BNY Mellon Clearing, a subsidiary created to get into the business. “But we don’t qualify. We certainly think that’s kind of crazy.”

The real reason the bank is being shut out, he said, is that rivals want to preserve their profit margins, and they are the ones who helped write the membership rules.

Mr. Kannambadi said Bank of New York’s clients asked it to enter the derivatives business because they believe they are being charged too much by big banks. Its entry could lower fees. Others that have yet to gain full entry to the derivatives trading club are the State Street Corporation, and small brokerage firms like MF Global and Newedge.

The criteria seem arbitrary, said Marcus Katz, a senior vice president at Newedge, which is owned by two big French banks.

“It appears that the membership criteria were set so that a certain group of market participants could meet that, and everyone else would have to jump through hoops,” Mr. Katz said.

The one new derivatives clearinghouse that has welcomed Newedge, Bank of New York and the others — Nasdaq — has been avoided by the big derivatives banks.

Only the Insiders Know

How did big banks come to have such influence that they can decide who can compete with them?

Ironically, this development grew in part out of worries during the height of the financial crisis in 2008. A major concern during the meltdown was that no one — not even government regulators — fully understood the size and interconnections of the derivatives market, especially the market in credit default swaps, which insure against defaults of companies or mortgages bonds. The panic led to the need to bail out the American International Group, for instance, which had C.D.S. contracts with many large banks.

In the midst of the turmoil, regulators ordered banks to speed up plans — long in the making — to set up a clearinghouse to handle derivatives trading. The intent was to reduce risk and increase stability in the market.

Two established exchanges that trade commodities and futures, the InterContinentalExchange, or ICE, and the Chicago Mercantile Exchange, set up clearinghouses, and, so did Nasdaq.

Each of these new clearinghouses had to persuade big banks to join their efforts, and they doled out membership on their risk committees, which is where trading rules are written, as an incentive.

None of the three clearinghouses would divulge the members of their risk committees when asked by a reporter. But two people with direct knowledge of ICE’s committee said the bank members are: Thomas J. Benison of JPMorgan Chase & Company; James J. Hill of Morgan Stanley; Athanassios Diplas of Deutsche Bank; Paul Hamill of UBS; Paul Mitrokostas of Barclays; Andy Hubbard of Credit Suisse; Oliver Frankel of Goldman Sachs; Ali Balali of Bank of America; and Biswarup Chatterjee of Citigroup.

Through representatives, these bankers declined to discuss the committee or the derivatives market. Some of the spokesmen noted that the bankers have expertise that helps the clearinghouse.

Many of these same people hold influential positions at other clearinghouses, or on committees at the powerful International Swaps and Derivatives Association, which helps govern the market.

Critics have called these banks the “derivatives dealers club,” and they warn that the club is unlikely to give up ground easily.

“The revenue these dealers make on derivatives is very large and so the incentive they have to protect those revenues is extremely large,” said Darrell Duffie, a professor at the Graduate School of Business at Stanford University, who studied the derivatives market earlier this year with Federal Reserve researchers. “It will be hard for the dealers to keep their market share if everybody who can prove their creditworthiness is allowed into the clearinghouses. So they are making arguments that others shouldn’t be allowed in.”

Perhaps no business in finance is as profitable today as derivatives. Not making loans. Not offering credit cards. Not advising on mergers and acquisitions. Not managing money for the wealthy.

The precise amount that banks make trading derivatives isn’t known, but there is anecdotal evidence of their profitability. Former bank traders who spoke on condition of anonymity because of confidentiality agreements with their former employers said their banks typically earned $25,000 for providing $25 million of insurance against the risk that a corporation might default on its debt via the swaps market. These traders turn over millions of dollars in these trades every day, and credit default swaps are just one of many kinds of derivatives.

The secrecy surrounding derivatives trading is a key factor enabling banks to make such large profits.

If an investor trades shares of Google or Coca-Cola or any other company on a stock exchange, the price — and the commission, or fee — are known. Electronic trading has made this information available to anyone with a computer, while also increasing competition — and sharply lowering the cost of trading. Even corporate bonds have become more transparent recently. Trading costs dropped there almost immediately after prices became more visible in 2002.

Not so with derivatives. For many, there is no central exchange, like the New York Stock Exchange or Nasdaq, where the prices of derivatives are listed. Instead, when a company or an investor wants to buy a derivative contract for, say, oil or wheat or securitized mortgages, an order is placed with a trader at a bank. The trader matches that order with someone selling the same type of derivative.

Banks explain that many derivatives trades have to work this way because they are often customized, unlike shares of stock. One share of Google is the same as any other. But the terms of an oil derivatives contract can vary greatly.

And the profits on most derivatives are masked. In most cases, buyers are told only what they have to pay for the derivative contract, say $25 million. That amount is more than the seller gets, but how much more — $5,000, $25,000 or $50,000 more — is unknown. That’s because the seller also is told only the amount he will receive. The difference between the two is the bank’s fee and profit. So, the bigger the difference, the better for the bank — and the worse for the customers.

It would be like a real estate agent selling a house, but the buyer knowing only what he paid and the seller knowing only what he received. The agent would pocket the difference as his fee, rather than disclose it. Moreover, only the real estate agent — and neither buyer nor seller — would have easy access to the prices paid recently for other homes on the same block.

An Electronic Exchange?

Two years ago, Kenneth C. Griffin, owner of the giant hedge fund Citadel Group, which is based in Chicago, proposed open pricing for commonly traded derivatives, by quoting their prices electronically. Citadel oversees $11 billion in assets, so saving even a few percentage points in costs on each trade could add up to tens or even hundreds of millions of dollars a year.

But Mr. Griffin’s proposal for an electronic exchange quickly ran into opposition, and what happened is a window into how banks have fiercely fought competition and open pricing. To get a transparent exchange going, Citadel offered the use of its technological prowess for a joint venture with the Chicago Mercantile Exchange, which is best-known as a trading outpost for contracts on commodities like coffee and cotton. The goal was to set up a clearinghouse as well as an electronic trading system that would display prices for credit default swaps.

Big banks that handle most derivatives trades, including Citadel’s, didn’t like Citadel’s idea. Electronic trading might connect customers directly with each other, cutting out the banks as middlemen.

So the banks responded in the fall of 2008 by pairing with ICE, one of the Chicago Mercantile Exchange’s rivals, which was setting up its own clearinghouse. The banks attached a number of conditions on that partnership, which came in the form of a merger between ICE’s clearinghouse and a nascent clearinghouse that the banks were establishing. These conditions gave the banks significant power at ICE’s clearinghouse, according to two people with knowledge of the deal. For instance, the banks insisted that ICE install the chief executive of their effort as the head of the joint effort. That executive, Dirk Pruis, left after about a year and now works at Goldman Sachs. Through a spokesman, he declined to comment.

The banks also refused to allow the deal with ICE to close until the clearinghouse’s rulebook was established, with provisions in the banks’ favor. Key among those were the membership rules, which required members to hold large amounts of capital in derivatives units, a condition that was prohibitive even for some large banks like the Bank of New York.

The banks also required ICE to provide market data exclusively to Markit, a little-known company that plays a pivotal role in derivatives. Backed by Goldman, JPMorgan and several other banks, Markit provides crucial information about derivatives, like prices.

Kevin Gould, who is the president of Markit and was involved in the clearinghouse merger, said the banks were simply being prudent and wanted rules that protected the market and themselves.

“The one thing I know the banks are concerned about is their risk capital,” he said. “You really are going to get some comfort that the way the entity operates isn’t going to put you at undue risk.”

Even though the banks were working with ICE, Citadel and the C.M.E. continued to move forward with their exchange. They, too, needed to work with Markit, because it owns the rights to certain derivatives indexes. But Markit put them in a tough spot by basically insisting that every trade involve at least one bank, since the banks are the main parties that have licenses with Markit.

This demand from Markit effectively secured a permanent role for the big derivatives banks since Citadel and the C.M.E. could not move forward without Markit’s agreement. And so, essentially boxed in, they agreed to the terms, according to the two people with knowledge of the matter. (A spokesman for C.M.E. said last week that the exchange did not cave to Markit’s terms.)

Still, even after that deal was complete, the Chicago Mercantile Exchange soon had second thoughts about working with Citadel and about introducing electronic screens at all. The C.M.E. backed out of the deal in mid-2009, ending Mr. Griffin’s dream of a new, electronic trading system.

With Citadel out of the picture, the banks agreed to join the Chicago Mercantile Exchange’s clearinghouse effort. The exchange set up a risk committee that, like ICE’s committee, was mainly populated by bankers.

It remains unclear why the C.M.E. ended its electronic trading initiative. Two people with knowledge of the Chicago Mercantile Exchange’s clearinghouse said the banks refused to get involved unless the exchange dropped Citadel and the entire plan for electronic trading.

Kim Taylor, the president of Chicago Mercantile Exchange’s clearing division, said “the market” simply wasn’t interested in Mr. Griffin’s idea.

Critics now say the banks have an edge because they have had early control of the new clearinghouses’ risk committees. Ms. Taylor at the Chicago Mercantile Exchange said the people on those committees are supposed to look out for the interest of the broad market, rather than their own narrow interests. She likened the banks’ role to that of Washington lawmakers who look out for the interests of the nation, not just their constituencies.

“It’s not like the sort of representation where if I’m elected to be the representative from the state of Illinois, I go there to represent the state of Illinois,” Ms. Taylor said in an interview.

Officials at ICE, meantime, said they solicit views from customers through a committee that is separate from the bank-dominated risk committee.

“We spent and we still continue to spend a lot of time on thinking about governance,” said Peter Barsoom, the chief operating officer of ICE Trust. “We want to be sure that we have all the right stakeholders appropriately represented.”

Mr. Griffin said last week that customers have so far paid the price for not yet having electronic trading. He puts the toll, by a rough estimate, in the tens of billions of dollars, saying that electronic trading would remove much of this “economic rent the dealers enjoy from a market that is so opaque.”

“It’s a stunning amount of money,” Mr. Griffin said. “The key players today in the derivatives market are very apprehensive about whether or not they will be winners or losers as we move towards more transparent, fairer markets, and since they’re not sure if they’ll be winners or losers, their basic instinct is to resist change.”

In, Out and Around Henhouse

The result of the maneuvering of the past couple years is that big banks dominate the risk committees of not one, but two of the most prominent new clearinghouses in the United States.

That puts them in a pivotal position to determine how derivatives are traded.

Under the Dodd-Frank bill, the clearinghouses were given broad authority. The risk committees there will help decide what prices will be charged for clearing trades, on top of fees banks collect for matching buyers and sellers, and how much money customers must put up as collateral to cover potential losses.

Perhaps more important, the risk committees will recommend which derivatives should be handled through clearinghouses, and which should be exempt.

Regulators will have the final say. But banks, which lobbied heavily to limit derivatives regulation in the Dodd-Frank bill, are likely to argue that few types of derivatives should have to go through clearinghouses. Critics contend that the bankers will try to keep many types of derivatives away from the clearinghouses, since clearinghouses represent a step towards broad electronic trading that could decimate profits.

The banks already have a head start. Even a newly proposed rule to limit the banks’ influence over clearing allows them to retain majorities on risk committees. It remains unclear whether regulators creating the new rules — on topics like transparency and possible electronic trading — will drastically change derivatives trading, or leave the bankers with great control.

One former regulator warned against deferring to the banks. Theo Lubke, who until this fall oversaw the derivatives reforms at the Federal Reserve Bank of New York, said banks do not always think of the market as a whole as they help write rules.

“Fundamentally, the banks are not good at self-regulation,” Mr. Lubke said in a panel last March at Columbia University. “That’s not their expertise, that’s not their primary interest.”

INVESTORS SUE FOR INFLATED HOME APPRAISALS, WHY DON’T YOU?

The model concluded that roughly one-third of the loans were for amounts that were 105 percent or more of the underlying property’s value. Roughly 5.5 percent of the loans in the pools had appraisals that were lower than they should have been.

In one pool with 3,543 loans, for example, the CoreLogic model had enough information to evaluate 2,097 loans. Of those, it determined that 1,114 mortgages — or more than half — had loan-to-value ratios of 105 percent or more. The valuations on those properties exceeded their true market value by $65 million,

EDITOR’S NOTE:  POINTS TO BE MADE:

  • Investors’ are proving the case for appraisal fraud, aligning themselves with borrowers. They are doing the borrower’s work. Get yourself copies of these complaints, discovery etc., send them to me and use them in your own case.
  • The little guy is starting to get attention. The court’s are getting the point that these loans were fraudulent. In my surveys I have found that appraisal fraud accounts for nearly all the loans 2003-2008, and that the amount of the fraud was a s much as 150% in some cases with an average of around 35%. The moment you closed, whatever down payment you made was lost and you were underwater.
  • The obligation to present a proper appraisal is on the lender not the borrower.
  • Just like the investors, borrowers were deprived of vital information about their loan that would have prevented any reasonable person from closing. Thus whether the Court’s like it or not, rescission, is a proper remedy, if not under TILA then under fraud statues and common law doctrines of fraud. Combine that with damages available, and the prospect of getting loan reduction and adjustment of loan terms comes into clearer view.
  • THE CONNECTION BETWEEN THE INVESTOR’S ADVANCE OF FUNDS AND THE HOME APPRAISAL IS PRESUMED AND ALLEGED. THUS THE ARGUMENT THAT THE INVESTOR WAS THE CREDITOR AND THE BORROWER IS THE DEBTOR IS CORROBORATED BY THE PLEADINGS OF THE INVESTORS.
June 18, 2010

The Inflatable Loan Pool

By GRETCHEN MORGENSON

AMID the legal battles between investors who lost money in mortgage securities and the investment banks that sold the stuff, one thing seems clear: the investment banks appear to be winning a good many of the early skirmishes.

But some cases are faring better for individual plaintiffs, with judges allowing them to proceed even as banks ask that they be dismissed. Still, these matters are hard to litigate because investors must persuade the judges overseeing them that their losses were not simply a result of a market crash. Investors must argue, convincingly, that the banks misrepresented the quality of the loans in the pools and made material misstatements about them in prospectuses provided to buyers.

Recent filings by two Federal Home Loan Banks — in San Francisco and Seattle — offer an intriguing way to clear this high hurdle. Lawyers representing the banks, which bought mortgage securities, combed through the loan pools looking for discrepancies between actual loan characteristics and how they were pitched to investors.

You may not be shocked to learn that the analysis found significant differences between what the Home Loan Banks were told about these securities and what they were sold.

The rate of discrepancies in these pools is surprising. The lawsuits contend that half the loans were inaccurately described in disclosure materials filed with the Securities and Exchange Commission.

These findings are compelling because they involve some 525,000 mortgage loans in 156 pools sold by 10 investment banks from 2005 through 2007. And because the research was conducted using a valuation model devised by CoreLogic, an information analytics company that is a trusted source for mortgage loan data, the conclusions are even more credible.

The analysis used CoreLogic’s valuation model, called VP4, which is used by many in the mortgage industry to verify accuracy of property appraisals. It homed in on loan-to-value ratios, a crucial measure in predicting defaults.

An overwhelming majority of the loan-to-value ratios stated in the securities’ prospectuses used appraisals, court documents say. Investors rely on the ratios because it is well known that the higher the loan relative to an underlying property’s appraised value, the more likely the borrower will walk away when financial troubles arise.

By back-testing the loans using the CoreLogic model from the time the mortgage securities were originated, the analysis compared those values with the loans’ appraised values as stated in prospectuses. Then the analysts reassessed the weighted average loan-to-value ratios of the pools’ mortgages.

The model concluded that roughly one-third of the loans were for amounts that were 105 percent or more of the underlying property’s value. Roughly 5.5 percent of the loans in the pools had appraisals that were lower than they should have been.

That means inflated appraisals were involved in six times as many loans as were understated appraisals.

David J. Grais, a lawyer at Grais & Ellsworth in New York, represents the Home Loan Banks in the lawsuits. “The information in these complaints shows that the disclosure documents for these securities did not describe the collateral accurately,” Mr. Grais said last week. “Courts have shown great interest in loan-by-loan and trust-by-trust information in cases like these. We think these complaints will satisfy that interest.”

The banks are requesting that the firms that sold the securities repurchase them. The San Francisco Home Loan Bank paid $19 billion for the mortgage securities covered by the lawsuit, and the Seattle Home Loan Bank paid $4 billion. It is unclear how much the banks would get if they won their suits.

Among the 10 defendants in the cases are Deutsche Bank, Credit Suisse, Merrill Lynch, Countrywide and UBS. None of these banks would comment.

As outlined in the San Francisco Bank’s amended complaint, it did not receive detailed data about the loans in the securities it purchased. Instead, the complaint says, the banks used the loan data to compile statistics about the loans, which were then presented to potential investors. These disclosures were misleading, the San Francisco Bank contends.

In one pool with 3,543 loans, for example, the CoreLogic model had enough information to evaluate 2,097 loans. Of those, it determined that 1,114 mortgages — or more than half — had loan-to-value ratios of 105 percent or more. The valuations on those properties exceeded their true market value by $65 million, the complaint contends.

The selling document for that pool said that all of the mortgages had loan-to-value ratios of 100 percent or less, the complaint said. But the CoreLogic analysis identified 169 loans with ratios over 100 percent. The pool prospectus also stated that the weighted average loan-to-value ratio of mortgages in the portion of the security purchased by Home Loan Bank was 69.5 percent. But the loans the CoreLogic model valued had an average ratio of almost 77 percent.

IT is unclear, of course, how these court cases will turn out. But it certainly is true that the more investors dig, the more they learn how freewheeling the Wall Street mortgage machine was back in the day. Each bit of evidence clearly points to the same lesson: investors must have access to loan details, and the time to analyze them, before they are likely to want to invest in these kinds of securities again.

Follow the Trail —Don’t get lost in the documents

I THOUGHT THIS COMMENT WAS WORTHY OF MAKING INTO A POST.

See for Deutsch bank references Prospectus offered all over the world: Anyone who had a Deed of Trust with: Indymac, Wells Fargo, Countrywide, GMAC, Ocwen, American Home, Residential Funding Company, Washington Mutual Bank, BofA, and many others you might want to check this link out. SHARPS%20CDO%20II_16.08.07_9347

Editor’s Note: The only thing I would add is that the obligation arose when the borrower executed a note, but the creditor got a securitized bond with different terms, deriving its value from your note and thousands of others. Once you realize that the obligation is NOT the same as the Note, which is only EVIDENCE of the obligation, and that the MORTGAGE is NOT the obligation, it is only incident to the note, THEN you will understand that following the money means following the obligation, not the note or the mortgage. And figuring out what effect there was on the obligation at each step that the note was transferred, bought or paid, is the key to understanding whether the note became a negotiable instrument, and if it did, if it retained that status as a negotiable instrument.

FROM Jan van Eck

to foreclosurefight:

What you are missing in your attempt to analyze this is that you are trying to follow the “mortgage,” not the Note. the reason you are doing this is that only the “mortgage,” as the Security Instrument, is being recorded on the land records – so it is all you get to see.

the reason your adversaries, whoever they really are, “withdrew” from the relief from Stay Motion in the BK Court is that they do not have the Note. Somebody else does. And you have no clue as to who that is.

You have to start by determining what has happened to the Note, and how the Indorsements on the Note flow. And you have not seen the Note, not in years, so the raw truth is that you have no clue.

the “mortgage” never went into any “Trust.” Mortgages do not go into trusts. Only the Note (“maybe”) went into a trust – and only if it had proper Indorsement. Since Deutsche is involved, you can safely bet that it did not. Deutsche is NOTORIOUS for perpetrating fraud on the Courts and by fabricating documents. You may assume that EVERYTHING that Deutsche shows up with is a fraud, and has been fraudulently fabricated, typically in their offices on Liberty Street in Downtown Manhattan NY.

What is missing in your convoluted chain of title is that there was a ton of other parties involved in setting up that “Trust”, including some Delaware sham entity known as the “Depositor,” and then another sham known as the “Seller,” and more. When you burrow through that Prospectus you will find those entities listed. Now you have to dig out the Note, and find if those entities are individually and sequentially listed on the Note by consecutive Indorsements. Since Deutsche had their sticky fingers in the pie, you already know that they did not.

What State are you in? Yes, you need new counsel. You should never have gotten into this with old counsel.

You can still defeat them, but you probably will have to go file in District (Federal ) Court. You will have to sue Deutsche. Think in terms of suing them in the USDC for the Sou.Distr. NY, in White Plains, NY. Now you are not tangled up in the State-Fed politics of your local judges.

You cannot ask for Quiet title as you are asking for that in the State Court. You have to go in with entirely new grounds or they will not hear your case. So you sue them for fraud in interstate commerce. Try the “Commerce Clause” in the US Constitution (Amendment 16? I forget), to try to get “jurisdiction.” You get “venue” easily as Deutsche Bank is in NY. You do not need to show up; you just file and do your papers by mail. If yo ask for enough money, e.g. 40 million, then DB has something to start worrying about.

Right now, DB has no downside. If they lose, all they lose is some paper on some worthless piece of property in some state that is flooded with empty foreclosed houses that nobody can sell. So what do they care? DB probably does not even know or care that your lawsuit is going on; you are just dealing with lawyers that are running up their tab with DB, and DB has so many tabs that they do not try to keep track of it all. So you have to expose them to some serious hurt. A gigantic lawsuit is a good place to start.

You may assume that everything DB and those attys produce is utterly fraudulent. I have seen documents produced where the entire Trust Agreement was fabricated, and notarized by a notary who did not even get his first commission until two years after he swore that the parties were standing in front of him. Welcome to Wall Street banks – the international predator banks.

Besides Deutsche, Credit Suisse is also notorious for this type of flagrant fraud upon our Courts.

If the Bank of England wants this information, how can this court deem it irrelevant?

SEE ALSO BOE PAPER ON ABS DISCLOSURE condocmar10

If the Bank of England wants this information, how can this court deem it irrelevant? NOTE: BOE defines investors as note-holders.
information on the remaining life, balance and prepayments on a loan; data on the current valuation and loan-to-value ratios on underlying property and collateral; and interest rate details, like the current rate and reset levels. In addition, the central bank said it wants to see loan performance information like the number and value of payments in arrears and details on bankruptcy, default or foreclosure actions.
Editor’s Note: As Gretchen Morgenstern points out in her NY Times article below, the Bank of England is paving the way to transparent disclosures in mortgage backed securities. This in turn is a guide to discovery in American litigation. It is also a guide for questions in a Qualified Written Request and the content of a forensic analysis.
What we are all dealing with here is asymmetry of information, which is another way of saying that one side has information and the other side doesn’t. The use of the phrase is generally confined to situations where the unequal access to information is intentional in order to force the party with less information to rely upon the party with greater information. The party with greater information is always the seller. The party with less information is the buyer. The phrase is most often used much like “moral hazard” is used as a substitute for lying and cheating.
Quoting from the Bank of England’s “consultative paper”: ” [NOTE THAT THE BANK OF ENGLAND ASSUMES ASYMMETRY OF INFORMATION AND, SEE BELOW, THAT THE INVESTORS ARE CONSIDERED “NOTE-HOLDERS” WITHOUT ANY CAVEATS.] THE BANK IS SEEKING TO ENFORCE RULES THAT WOULD REQUIRE DISCLOSURE OF
borrower details (unique loan identifiers); nominal loan amounts; accrued interest; loan maturity dates; loan interest rates; and other reporting line items that are relevant to the underlying loan portfolio (ie borrower location, loan to value ratios, payment rates, industry code). The initial loan portfolio information reporting requirements would be consistent with the ABS loan-level reporting requirements detailed in paragraph 42 in this consultative document. Data would need to be regularly updated, it is suggested on a weekly basis, given the possibility of unexpected loan repayments.
42 The Bank has considered the loan-level data fields which
it considers would be most relevant for residential mortgage- backed securities (RMBS) and covered bonds and sets out a high-level indication of some of those fields in the list below:
• Portfolio, subportfolio, loan and borrower unique identifiers.
• Loan information (remaining life, balance, prepayments).
• Property and collateral (current valuation, loan to value ratio
and type of valuation). Interest rate information (current reference rate, current rate/margin, reset interval).
• Performance information (performing/delinquent, number and value of payments in arrears, arrangement, litigation or
bankruptcy in process, default or foreclosure, date of default,
sale price, profit/loss on sale, total recoveries).
• Credit bureau score information (bankruptcy or IVA flags,
bureau scores and dates, other relevant indicators (eg in respect of fraudulent activity)).

The Bank is also considering making it an eligibility requirement that each issuer provides a summary of the key features of the transaction structure in a standardised format.
This summary would include:
• Clear diagrams of the deal structure.
Description of which classes of notes hold the voting rights and what proportion of noteholders are required to pass a resolution.
• Description of all the triggers in the transaction and the consequences of them being breached.
• What defines an event of default.
• Diagramatic cash-flow waterfalls, making clear the priority
of payments of principal and interest, including how these
can change in consequence to any trigger breaches.
52 The Bank is also considering making it an eligibility
requirement that cash-flow models be made available that
accurately reflect the legal structure of an asset-backed security.
The Bank believes that for each transaction a cash-flow model
verified by the issuer/arranger should be available publicly.
Currently, it can be unclear as to how a transaction would
behave in different scenarios, including events of default or
other trigger events. The availability of cash-flow models, that
accurately reflect the underlying legal structure of the
transaction, would enable accurate modelling and stress
testing of securities under various assumptions.

March 19, 2010, NY Times

Pools That Need Some Sun

By GRETCHEN MORGENSON

LAST week, the Federal Home Loan Bank of San Francisco sued a throng of Wall Street companies that sold the agency $5.4 billion in residential mortgage-backed securities during the height of the mortgage melee. The suit, filed March 15 in state court in California, seeks the return of the $5.4 billion as well as broader financial damages.

The case also provides interesting details on what the Federal Home Loan Bank said were misrepresentations made by those companies about the loans underlying the securities it bought.

It is not surprising, given the complexity of the instruments at the heart of this credit crisis, that it will require court battles for us to learn how so many of these loans could have gone so bad. The recent examiner’s report on the Lehman Brothers failure is a fine example of the in-depth investigation required to get to the bottom of this debacle.

The defendants in the Federal Home Loan Bank case were among the biggest sellers of mortgage-backed securities back in the day; among those named are Deutsche Bank; Bear Stearns; Countrywide Securities, a division of Countrywide Financial; Credit Suisse Securities; and Merrill Lynch. The securities at the heart of the lawsuit were sold from mid-2004 into 2008 — a period that certainly encompasses those giddy, anything-goes years in the home loan business.

None of the banks would comment on the litigation.

In the complaint, the Federal Home Loan Bank recites a list of what it calls untrue or misleading statements about the mortgages in 33 securitization trusts it bought. The alleged inaccuracies involve disclosures of the mortgages’ loan-to-value ratios (a measure of a loan’s size compared with the underlying property’s value), as well as the occupancy status of the properties securing the loans. Mortgages are considered less risky if they are written against primary residences; loans on second homes or investment properties are deemed to be more of a gamble.

Finally, the complaint said, the sellers of the securities made inaccurate claims about how closely the loan originators adhered to their underwriting guidelines. For example, the Federal Home Loan Bank asserts that the companies selling these securities failed to disclose that the originators made frequent exceptions to their own lending standards.

DAVID J. GRAIS, a partner at Grais & Ellsworth, represents the plaintiff. He said the Federal Home Loan Bank is not alleging that the firms intended to mislead investors. Rather, the case is trying to determine if the firms conformed to state laws requiring accurate disclosure to investors.

“Did they or did they not correspond with the real world at the time of the sale of these securities? That is the question,” Mr. Grais said.

Time will tell which side will prevail in this suit. But in the meantime, the accusations illustrate a significant unsolved problem with securitization: a lack of transparency regarding the loans that are bundled into mortgage securities. Until sunlight shines on these loan pools, the securitization market, a hugely important financing mechanism that augments bank lending, will remain frozen and unworkable.

It goes without saying that after swallowing billions in losses in such securities, investors no longer trust what sellers say is inside them. Investors need detailed information about these loans, and that data needs to be publicly available and updated regularly.

“The goose that lays the golden eggs for Wall Street is in the information gaps created by financial innovation,” said Richard Field, managing director at TYI, which develops transparency, trading and risk management information systems. “Naturally, Wall Street opposes closing these gaps.”

But the elimination of such information gaps is necessary, Mr. Field said, if investors are to return to the securitization market and if global regulators can be expected to prevent future crises.

While United States policy makers have done little to resolve this problem, the Bank of England, Britain’s central bank, is forging ahead on it. In a “consultative paper” this month, the central bank argued for significantly increased disclosure in asset-backed securities, including mortgage pools.

The central bank is interested in this debate because it accepts such securities in exchange for providing liquidity to the banking system.

“It is the bank’s view that more comprehensive and consistent information, in a format which is easier to use, is required to allow the effective risk management of securities,” the report stated. One recommendation is to include far more data than available now.

Among the data on its wish list: information on the remaining life, balance and prepayments on a loan; data on the current valuation and loan-to-value ratios on underlying property and collateral; and interest rate details, like the current rate and reset levels. In addition, the central bank said it wants to see loan performance information like the number and value of payments in arrears and details on bankruptcy, default or foreclosure actions.

The Bank of England recommended that investor reports be provided on “at least a monthly basis” and said it was considering making such reports an eligibility requirement for securities it accepts in its transactions.

The American Securitization Forum, the advocacy group for the securitization industry, has been working for two years on disclosure recommendations it sees as necessary to restart this market. But its ideas do not go as far as the Bank of England’s.

A group of United States mortgage investors is also agitating for increased disclosures. In a soon-to-be-published working paper, the Association of Mortgage Investors outlined ways to increase transparency in these instruments.

Among its suggestions: reduce the reliance on credit rating agencies by providing detailed data on loans well before a deal is brought to market, perhaps two weeks in advance. That would allow investors to analyze the loans thoroughly, then decide whether they want to buy in.

THE investors are also urging that loan-level data offered by issuers, underwriters or loan servicers be “accompanied by an auditor attestation” verifying it has been properly aggregated and calculated. In other words, trust but verify.

Confidence in the securitization market has been crushed by the credit mess. Only greater transparency will lure investors back into these securities pools. The sooner that happens, the better.

Bank Accuses Investment Houses of Lying About Mortgage Backed Bonds

“(T)he differences between the values ascribed to these properties and the prices at which the properties were sold in foreclosure are significantly greater than the declines in house prices in the same geographical areas over the same periods,”

Editor’s Comment: BINGO! Use this complaint for both discovery and as a pleading guide. Send me a copy of al pleadings when you get them. There a bank that gets it. They are manipulating the home values on the back end the same as they did on the front end. First they lied to borrower (debtor) and investor (creditor) about the value of the property when the loan was funded and then they lied about the value when the house was sold in foreclosure. Charles Koppa is close to publishing a study that shows that the price of most homes sold on the courthouse steps is dropped the morning of the sale to a price far below the fair market value of even the most distressed property.

‘About That $19 Billion …’

By DAVE TARTRE

SAN FRANCISCO (CN) – The Federal Home Loan Bank of San Francisco demands $19 billion from major banks and investment houses it accuses of lying about the quality of the subprime mortgage-backed securities they created and sold. The FHLB sued Deutsche Bank, Credit Suisse, JPMorgan Stanley, UBS, Banc of America, Countrywide Financial and others in two Superior Court complaints.
The FHLB claims the lending giants, including now-defunct Bear Stearns, Greenwich Capital Markets, RBS Securities and others failed to disclose material facts about the mortgages, such as how much equity the borrowers had in their homes, and that the omissions and misrepresentation led to much greater rates of foreclosures than promised.
The firms used exaggerated property appraisals so the loan-to-value ratios of the mortgage loans in the securities’ collateral pools understated the risks, according to the complaint.
“(T)he differences between the values ascribed to these properties and the prices at which the properties were sold in foreclosure are significantly greater than the declines in house prices in the same geographical areas over the same periods,” the FHLB says.
In addition, the number of borrowers who actually lived in the houses was lower than the defendants represented, and the borrowers’ credit scores were lower too, the FHLB says.
The lending giants did not tell the FHLB that their loan “originators were making frequent … exceptions to underwriting guidelines when no compensating factor was present,” and the originators systematically failed to detect or prevent borrower fraud, according to the complaints.
According to one complaint, “the Defendants sold or issued to the Bank 98 certificates in 80 securitization trusts backed by residential mortgage loans. The Bank paid more than $13.7 billion for those certificates. When they offered and then sold these certificates to the Bank, the defendants made numerous statements to the bank about the certificates and the credit quality of the mortgage loans that backed them. On information and belief many of those statements were untrue. Moreover, on information and belief the defendants omitted to state many material facts that were necessary in order to make their statements not misleading.”
The other complaint states: “the defendants sold or issued to the bank 36 certificates in 33 securitization trusts backed by residential mortgage loans. The bank paid more than $5.4 billion for those certificates. When they offered and then sold these certificates to the bank, the defendants made numerous statements to the bank about the certificates and the credit quality of the mortgage loans that backed them. On information and belief, many of those statements were untrue.”
The FHLB would like its $19.1 billion back. Its lead counsel is Robert Goodin with Goodin, MacBride, Squeri, Day & Lamprey. 

Credit Suisse Appraisal Fraud Cited by Investors

In the complaint, the plaintiffs’ lawyers contend that Credit Suisse and Cushman & Wakefield conspired by setting up a Cayman Islands branch to circumvent federal law on real estate appraisals.

Credit Suisse knew the resorts would most likely default under the weight of inflated values, which would allow the bank to take ownership as agent on behalf of the creditors, the suit contends.

Editor’s Note: Don’t overlook this piece. It points directly at the heart of the mortgage meltdown crisis. They knew how to inflate values for the purposes of inducing people to buy into financial instruments. That is what happened to homeowners and the investors who purchased mortgage-backed securities.
Read on. It also outlines the scheme by which the banks played “heads I win, tails you lose.” They structured the investments such that there could be no winner other than the bank. Again, exactly what happened to homeowners and investors. Create an investment you know is bad on both sides, and while the foreclosures come piling into courtrooms, quietly walk away with trillions of dollars leaving the investors and the homeowners with nothing.
January 5, 2010

Credit Suisse Is Accused of Defrauding Investors in 4 Resorts

HELENA, Mont. — Investors at four high-end resorts have filed a class-action lawsuit against Credit Suisse and the real estate services company Cushman & Wakefield, contending that they conspired to inflate the value of the properties so they could take them over.

The suit, outlined in an 84-page complaint filed Sunday in federal court in Boise, Idaho, details what it calls a sweeping loan-to-own scheme. Credit Suisse, according to the complaint, raked in huge fees on loans against the properties, which it syndicated and sold to hedge fund managers. If the resorts could not pay back the hundreds of millions of dollars in loans, based on the inflated values, Credit Suisse could either assume ownership as the agent for the creditors or sell the resorts.

The properties include the Yellowstone Club at Big Sky, Mont., which has multimillion-dollar “ski-in-ski-out” homes and private slopes. Its members include Bill Gates, the Microsoft chairman; the golfer Annika Sorenstam; former Vice President Dan Quayle; and Peter Chernin, former president and chief operating officer of the News Corporation.

In addition, developers and property owners at Lake Las Vegas in southern Nevada, the Tamarack Resort in central Idaho and Ginn sur Mer in the Bahamas are also party to the lawsuit.

The suit was brought on behalf of at least 3,000 investors by L. J. Gibson, who owns property at three of the resorts, and Beau Blixseth, the son and business partner of Timothy L. Blixseth, the developer who bought land near Yellowstone Park and developed the famous club. The involvement of 4,000 to 5,000 more litigants at 10 other resorts, including the Promontory Club in Utah, is pending.

A Credit Suisse spokesman, Duncan King, said, “We believe the suit to be without merit, and we will defend ourselves vigorously.”

Dwayne Doherty, a spokesman for Cushman & Wakefield, which provided appraisals of the property, echoed that statement. “The allegations are completely without merit, and we will defend ourselves vigorously,” he said.

The lead lawyer in the suit, Michael J. Flynn, of Rancho Santa Fe, Calif., said he could not comment until the judge allowed the class action to proceed.

The suit accuses the defendants of engaging in a sweeping conspiracy that focused on the developers of the resorts. Specifically, the complaint accuses Credit Suisse and Cushman & Wakefield of racketeering, breach of fiduciary duty, mail and wire fraud, money laundering and negligence. The suit describes Credit Suisse as an “international banking predator.”

In the complaint, the plaintiffs’ lawyers contend that Credit Suisse and Cushman & Wakefield conspired by setting up a Cayman Islands branch to circumvent federal law on real estate appraisals. The complaint also alleges that they inflated the value of the resorts and made millions of dollars in fees on loans against the properties. Credit Suisse knew the resorts would most likely default under the weight of inflated values, which would allow the bank to take ownership as agent on behalf of the creditors, the suit contends.

The Yellowstone Club borrowed $375 million from Credit Suisse in 2005. After the economy began to falter, Edra Blixseth, who won control of the property in a divorce from her husband, Timothy, was forced to declare bankruptcy in 2008. The property was sold to CrossHarbor Capital Partners in 2009 for $115 million, about a quarter of the estimated value of the club at the peak of the market, though Credit Suisse retained the right to collect the loan after it was sold.

In May, in the Blixseth bankruptcy case, Judge Ralph B. Kirscher of Federal Bankruptcy Court in Butte, Mont., wrote: “The naked greed in this case, combined with Credit Suisse’s complete disregard” for the developer and others, “shocks the conscience of this court.”

“While Credit Suisse’s new loan product resulted in enormous fees to Credit Suisse in 2005, it resulted in financial ruin for several residential resort communities,” he wrote. “Credit Suisse lined its pockets on the backs of the unsecured creditors.” The statement was written in a judge’s order that has since been vacated as part of a settlement agreement.

The complaint also contends that the money to finance loans came from a separate case in which Credit Suisse helped Iranian banks avoid United States sanctions by hiding profits. Credit Suisse paid the government $536 million in December to settle that case.

The suit seeks $8 billion in damages, which it says should be tripled as allowed under federal racketeering statutes.

The decline at many posh Western resorts has been stunning. Values have dropped precipitously, projects are unfinished and investor interest has waned. At the Tamarack Resort, 90 miles north of Boise, the tennis star Andre Agassi has abandoned plans to build a five-star hotel, unfinished buildings have been mothballed and Bank of America is asking a court to allow it to repossess the resort’s ski lifts. Homeowners who bought property and built homes are fuming.

In November, the new owners of the Yellowstone Club liquidated 13 tractor-trailer loads of antique furniture bought by the Blixseths, including a two-seat black walnut throne from a castle in Bavaria that Timothy Blixseth once planned to place in his 53,000-square-foot home. That home was never built.

THE NEED TO MISLEAD: How to Use Expert Declaration: MBIA Sues Credit Suisse with Details on Securitization

MBIA V CSFB-DLJ

Here you have a lawsuit that corroborates everything we have been telling you on Livinglies PLUS an example of how to use the third party report of an expert in pleadings. The content of the lawsuit is a clear explanation of the securitization process — the catch is that these are not just allegations — they are predicated on the expert report or declaration of people who are knowledgeable in securitization. The use of the expert findings takes the argument from theoretical to factual.

Your hidden agenda is to lead the Judge into the unavoidable conclusion that these securitized loans were based upon lies to borrowers, lies to investors, lies to insurers, lies to rating agencies and anyone else they needed to mislead in order to get these so-called mortgage-backed securities sold and insured.

The differences between this lawsuit and others that have been filed are many. MBIA is suing here because they were defrauded into insuring securitized mortgage loans that did not meet the criteria and representations concerning underwriting standards. The accusation is essentially that Credit Suisse, through its multiple subsidiaries and affiliates, lied to MBIA about the risk of defaults and therefore the risk of loss. And they are saying that the DLJ obligation to buy back the loans was breached.

Most importantly, the lawsuit describes the process of securitization with multiple pools created for multiple sales, each with its own set of fees and profits. While this lawsuit is yet another example of why borrowers and investors and insurers could join forces, it serves as an excellent resource for the content of an expert declaration, the allegations of a lawsuit alleging fraudulent underwriting representations, and the damage caused by reasonable reliance on the representations of multiple parties in multiple layers each designed to create “plausible deniability.”

My suggestion is that the description of this process be included in the expert report, that the allegations of the complaint be made simple, and that the tactical approach should be to allow the Judge to come to his/her own conclusion as to what happened. The important point here is that you make your appearance in court raising questions of fact that entitle you to discovery and to force answers to basic questions like who is the lender NOW and how much has been paid by whom on the obligation.

Mortgage Meltdown: It’s the People, Stupid. Stop the Defaults!

Perusing Credit Suisse’s latest proposal on Capital Hill, which expands Federal guarantees on mortgages, there is good news and bad news. Good that the severity of the problem is becoming more apparent to those with their fingers on the levers of power. Good also that Credit Suisse, while obviously seeking to protect itself, has at least addressed the issue of turning back the decline in the housing market. Good also that their assumption is that it is possible to turn back the decline. Bad that the assumption is still that foreclosures are going to proceed at a rapid clip.

Foreclosures on primary residences should not proceed, period. Political questions of who should qualify and who shouldn’t based upon political ideology should be put aside for the moment. There is no time to carve out language that satisfies a political consitutency. The housing market is in dire trouble and the threat to to the security of the nation is clear and present.

At this point the extremity of the situation makes the analysis increasingly simple and separate from politics: The cost of foreclosure and evictions to the economy and the taxpayers (and incidentally Credit Suisse), vastly exceeds the cost of keeping people in their homes, for the time being, at all costs. This obvious number crunching fact is evading the geniuses at Credit Suisse and all the other players.

They are assuming they can’t actually stop the foreclosures. Yes they can. They are factoring in a vast number of evictions becasue they are “inevitable.” Wrong again. Of course these points elude the geniuses who came up with the scheme that got us into this mess. The reason is that they are (1) crunching the wrong numbers and (2) not taking a broad enough view of the marketplace.

It is in the interest of every party effected to stop the foreclosures and evictions. The details of the workout are practically irrelevant except to say that the borrower must be convinced to stay put. At this point, any successful plan must include incentives for borrowers to reaffirm, modify or negotiate their payments and stay in the house they purchased. It might even apply to homes purchased speculatively at this point, although I admit that is a push too far for most people to accept. If you look at the economy as a whole and ask “what would be the best result if we had total control?” the answer is obvious — no defaults.

Remove defaults and the entire problem goes away. There is no time for political debate. Either this premise is accepted and acted upon right now or the worst case scenario IS inevitable. remove de faults and there are no write-offs. In fact, some of the write-offs can be recovered. Put a plan in place that contains incentives for EVERYONE (including government) to share the burden, and you have a working plan. The basic flaw of every plan proposed so far by anyone is that it focuses on one group or sector. That is no plan. It is an escape hatch that will allow the proponents to jump from the frying pan into the fire.

The ONLY plan is one which provides adequate incentives to all players —- borrowers, lenders, closing agents, mortgage brokers, lawyers, accountants, investment bankers, securities brokers, investors, fund managers, rating agencies and bond insurors. The plan does not need to be perfect to work. In order for it to START working it must first keep people in their homes.

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