Funds Seek Countrywide, Bear Stearns Home Mortgage Buybacks $11.6 billion


Investors face an “obstacle course” of challenges in attempting to get banks to repurchase loans that failed to match their description in bond documents, Grais said

bondholders said they have the power to order the trustee for the securities to start probes because the investors own 25 percent of the debt in particular bond issues.


Obviously the REAL LENDERS are getting pissed off. So the ankle biting is starting and there is an even playing field — both sides have the money to fight it out. The REAL issue for the real lenders (investors) is that the middlemen (investment banks et al) refuse to cooperate in accounting for the loans that were supposedly in the loan portfolios which were REPRESENTED to be in the pool. As stated numerous times on these pages, they are finding that the loans are non-existent, never made it into the pool or that the loans described by the pool managers are mis-characterizations of the actual loans.

That’s our point for the borrowers too. The REAL (SINGLE TRANSACTION) DEAL here was between these lenders and the homeowners with numerous intermediaries in between creating layers of “exotic” (fraudulent) documents, spreadsheets, the result of which was that the “borrower” was the special purpose vehicle – SPV (i.e., the pool, the trust or whatever you choose to call it which incidentally was never actually created in accordance with law) PLUS the co-obligors and guarantors PLUS the servicers PLUS the homeowners. Grais doesn’t want to go after the homeowners because he wants all the obligors to be liable, not just the homeowner who received part of the funds borrowed from investors. THAT is why investors are not kicking aside the intermediaries and going directly after the foreclosures.

These lenders could fire the trustee and fire the servicer and put in their own people to settle these foreclosures on far more favorable terms for both the lenders (investors) and the borrowers (homeowners) than the current process of foreclosures. But if they did that they would be letting deep pockets off the hook for the rest of the lost money. These lenders are getting VERY close to the truth of the matter — not only were the loans misrepresented, not only were the underwriting standards non-existent, not only were the loans never actually transferred legally into a legally organized pool, but there are two huge black holes into which a substantial portion of their money was poured, never to be seen again.


The first black hole was the spread between the money received from the lenders for funding mortgage loans and the actual money used for that purpose. My estimate is that at least 30% of the money went off-shore into SIVs never to be seen again. That is the “Tier 2 Yield Spread Premium” I have been talking about which I believe both the homeowners and the investors have right to recover under different laws. How many investors would have parted with pension fund money if they were told “Thanks for the $100 million. We are going to take $30 million and put it in our pocket and then buy $30 million worth of mortgages, change their descriptions and sell them to you for $100 million when their nominal value is less than $70 million.” Somehow I think even the stupidest fund manager would have said “No” to that proposition, but that is exactly what they got.

The second black hole is the money received from insurance, guarantees and credit enhancements which was represented to be covering the investors’ money but in fact was payable to the intermediaries. It’s really simple. Taking the $30 million they never used to fund the mortgages described in the preceding paragraph, they took a portion of that money and made some wild bets — not like a stupid bet though, because they had total control over the outcome. It was like betting on a horse and then shooting all the others as the race begins. The Jockey could drag the horse over the finish line and still win. In the world of securitization, they created contracts in which the party receiving the insurance was the one who declared the loss and the loss could not be contested by the insurer. The terms of the contract were that if a certain percentage of the loans defaulted then the value of the entire portfolio would be written down to a level chosen by the insured — yes the party receiving the insurance money decides how much the claim is worth and the insurer can’t say a word. By loading the portfolio (pool) up with loans guaranteed to fail, where the payments would reset to twice the person’s income for example these intermediaries made a fortune on paper. But of course AIG and AMBAC couldn’t pay all that so the American Taxpayer did. So the investor took the loss, the intermediary took the money, took the hedge money that would have covered the loss, and is now in the process of taking the homes too.

Grais wants to recover that money and he will. The investors will be made whole or will settle the obligation. But despite these settlements, and despite the fact that in many cases the loan principal of a homeowner loan has been paid several times over the media and the government don’t see that the the reason the housing market is getting a hosing, the reason the taxpayer is getting a hosing and the reason the economy is getting a hosing along with the budgets of local, state and federal governments, is that the trillions paid by the American taxpayer and private companies actually went somewhere. And the homes were just pawns in the game. If you stop the foreclosures dead in their tracks right now, nobody would lose any money. All we want is a fair share of this money to be credited to the loan obligations — which automatically means a correction in the principal amount due and an opportunity to adjust the loan terms to the new reality of the real obligation due and real value of the property that was fraudulently appraised to begin with and fraudulently represented to the lenders and the homeowners.

The irony is that DISCOVERY is the least likely way of actually getting the information to prove the fraud but the most likely way of showing that the other side is uncooperative. The fact is that these “brilliant” intermediaries were so narrow in their perspective that they really don’t know the answers to the questions put to them in discovery, they don’t have the paperwork and they don’t know how to find it. The work being done on behalf of borrowers in the TITLE AND SECURITIZATION ANALYSES AND OTHER SERVICES here and elsewhere is what reveals essential facts that prove the fraud like: the Notice of Default when they were reporting to the investor that the loan was fully performing and actually paying the the investor thus decreasing the obligation due, or a foreclosure on behalf of a pool that had long since been dissolved unknown to either the homeowner or the investor.

Funds Seek Countrywide, Bear Stearns Home Mortgage Buybacks
By Jody Shenn – Sep 22, 2010 6:47 PM ET

Mortgage-bond trustees Bank of New York Mellon Corp., Bank of America Corp. and Wells Fargo & Co. should demand lenders buy back home loans underlying securities owned by two hedge funds, a lawyer for the investors said.

The funds sent separate requests to the three banks that serve as trustees for 14 securitizations at issue with $11.6 billion in outstanding debt, said David J. Grais, a partner in the law firm Grais & Ellsworth LLP. He declined to name the funds in a Sept. 20 interview at his New York offices.

An increasing number of investors are taking action after the worst housing recession since the 1930s sparked a record drop in the value of mortgage debt. Banks face as much as $51 billion in losses tied to loan repurchases from poorly performing securities, FBR Capital Markets Corp. analysts said in a Sept. 20 report.

“The loss of patience has taken longer than we expected,” said Grais, whose hedge-fund clients are using data from real estate researcher CoreLogic Inc. to press their cause with the trustees. Grais said he has “been endlessly surprised” that more investors haven’t moved faster to assert contract rights.

His hedge-fund clients are looking to recoup money on loans in bonds from issuers including Countrywide Financial Corp., now part of BofA, and a unit of Bear Stearns Co., which was bought by JPMorgan Chase & Co.

Grais also represents the Federal Home Loan Banks of San Francisco and Seattle and Charles Schwab Corp. in separate lawsuits against securities underwriters, as well as hedge funds Ellington Management Group LLC and Greenwich Financial Services LLC in suits involving the servicing of mortgages within bonds.

Can’t Sue Underwriters

The hedge funds he’s representing in the request sent about 45 days ago to bond trustees can’t sue the securities’ underwriters because the funds bought the mortgage bonds in the secondary market, Grais said.

Kevin Heine, a spokesman for Bank of New York Mellon, and Jerry Dubrowski, a spokesman for Charlotte, North Carolina-based Bank of America, declined to comment.

Elise Wilkinson, a spokeswoman for San Francisco-based Wells Fargo, and Tom Kelly, a spokesman for JPMorgan in Chicago, also declined to comment.

Investors face an “obstacle course” of challenges in attempting to get banks to repurchase loans that failed to match their description in bond documents, Grais said. The funds he represents that are seeking buybacks used data from Santa Ana, California-based CoreLogic to show the quality of specific loans didn’t meet sellers’ contractual promises, Grais said.

Scraping Data

CoreLogic’s data is culled from bond reports, tax records, property-valuation models and credit services, Grais said. Typically, only bond trustees can review actual mortgage files, seek loan repurchases and file lawsuits if the demands aren’t met.

Earlier this month, Houston-based law firm Gibbs & Bruns LLP said its clients had demanded Bank of New York investigate mortgages backing $26 billion of Countrywide-issued bonds, a request the bank denied because it said it failed to meet multiple requirements.

Kathy Patrick, a partner at Gibbs & Bruns, said her unnamed clients are evaluating the response.

Who Has Power

In that case, bondholders said they have the power to order the trustee for the securities to start probes because the investors own 25 percent of the debt in particular bond issues.

Grais’s clients are relying on a different approach, in part because they don’t own 25 percent in all the cases they are pursuing, he said. Some contracts require not only that investors demanding trustee action own 25 percent of the overall deal, but rather 25 percent of each class of securities in a given issuance, he said.

So far Grais’s clients are relying on CoreLogic’s data, which he said costs about $5 per loan, to make the case for them. Gibbs & Bruns’ Sept. 3 statement didn’t mention offering such research to the bank.

CoreLogic’s information on 48 securitizations showed about 28 percent of properties were valued at least 5 percent more than they should have been, Grais said. About 21 percent inaccurately described consumers as planning to live in homes rather than rent or flip them, which can be determined in part through where borrowers’ tax and other bills get sent, he said.

While Grais said he’s having a “constructive dialogue” with Wells Fargo, he expects the push will end in court as trustees either balk at the requests or complete probes and demand repurchases that the mortgage lenders then dispute.

The next step may be to file so-called derivative lawsuits on behalf of bondholders, which Grais said is an untested approach that would rely partly on court precedent involving family trust cases.

To contact the reporter on this story: Jody Shenn in New York at

To contact the editor responsible for this story: Alan Goldstein at


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,


  • 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.
June 18, 2010

The Inflatable Loan Pool


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.

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


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.
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


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.

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