“True Lender” Lawsuits Causing Business and Legal Headaches for Banks

hat tip Bill Paatalo

You can’t pick up one end of the stick without picking up the other end as well. Or, if you like, you can’t eat your cake and still have it.

Banks used third party intermediaries all the time, and in non-mortgage loans they are considered as the real lender for purposes of being able to charge the interest rate stated in the consumer loan agreement.

But the situation is quite different and maybe the reverse in most alleged mortgage loans for the past 20 years. Usually a non-bank funding source was using a third party intermediary to originate the loan. Hence the term “originator” which in reality means nothing more than “salesman.”

The actual party funding the loan is not disclosed at all, ever. In most cases it is an investment bank which is different from a commercial bank, but the investment bank is not funding the loan with its own money but rather using money diverted from the advances of investors who thought they were purchasing mortgage backed securities.

In other words the investors think they are getting certificates that are backed by mortgage loans when in fact, in most cases, the certificate holders have no claim on any debt, note or mortgage executed or incurred by a borrower.

Since the loans are mostly originated rather than purchased by a Trust as advertised to investors, the actual ledner is neither disclosed nor shown on any of the closing documents possibly because it is impossible to determine the identity of a “Lender” whose money was  used from an undifferentiated slush fund in which money from investors is intermingled. Information ascertained thus far indicates that the slush fund includes money from the sale of certificates in the name of multiple nonexistent trusts.

Hence the issue of who is the “true lender.” But the Bank’s position in court in unsecured loans may be its undoing when it pretends to litigate a loan in which it was never actually a party to the loan transaction or the loan documents.

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Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
A few hundred dollars well spent is worth a lifetime of financial ruin.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see https://www.americanbanker.com/opinion/a-remedy-for-true-lender-lawsuits-already-exists

So if you think about it, you can explain why most documents in foreclosures are pure fabrications reflecting nonexistent transactions. If you look closely at these documents you will nearly always be able to ascertain a gap which makes the documents NOT FACIALLY VALID. Or, in the alternative, if the documents are facially valid, it is because of forgery, robosigning and fabrication.

Such a gap might be the oft-used “attorney-in-fact” designation. Without reference to a specific power of attorney and a warranty that it has not been revoked and that it covers the execution of the proffered document, the reference to “attorney-in-fact” is meaningless. Hence the document signed by Ocwen as attorney in fact, is really just a signature by Ocwen who is not in the chain of title, making the document facially invalid. In most cases Ocwen (or whoever is the claimed “servicer” is executing as attorney in fact for a real entity (like US Bank) with a nonexistent role — trustee of a nonexistent trust. Remember that US Bank is a real bank but is not acting in a real role. 

By attacking the facial validity of such false documents you are also attacking jurisdiction, which is a deal killer for the banks. Bank lawyers are coming to their own conclusions — independently of their arrogant bank clients and independently of the foreclosure mills who blindly follow whatever instructions they receive electronically. Bank lawyers see trouble on the horizon coming from TILA REscission, and the lack of REAL facial validity of the documents being used in foreclosure which are at odds with the documents used to sell derivatives, synthetic derivatives and hedge products all based upon the same loans.

Here is a quote from the above-referenced article on “true lender lawsuits” brought by borrowers who seek to avoid interest from a non-bank as being  contrary to state law:

As a general rule, the fact that a bank subcontracts marketing, loan servicing or other “ministerial,” or nonessential, lending activities to third-party service providers has no effect on the bank’s ability to export its home state’s interest rate under federal law. To this end, the Bank Service Company Act expressly authorizes banks to utilize the services of third-parties. In short, under the federal banking laws, there is no “tipping point” beyond which a servicer becomes the lender in lieu of the bank — so long as the bank remains the party that is performing the primary, or “non-ministerial,” lending activities laid out in the three-part test, the bank is the only lender.

Yet federal bank agency guidance is silent regarding true lender risk, despite the growing number of states in which such lawsuits have arisen. The FDIC published draft third-party lending guidance in July 2016 that had the potential to provide some clarity, but it is still pending. Moreover, the guidance merely observes in a footnote that “courts are divided on whether third-parties may avail themselves of such preemption.”

As to whether a bank’s status as the lender could be undermined by its use of agents, the guidance says nothing. This silence is problematic because, as things stand, one could evaluate the facts of the same loan program and reach opposite conclusions with respect to the program’s status under usury laws depending on whether federal interest rate preemption rules or judge-made, state true lender rules are applied.

Sheila Bair Had a Plan to Make Banks Pay for Dishonest Dealing Causing the 2008 Crash

Sheila Bair (ex FDIC Chairwoman) has always understood. She was fired for understanding. It’s hard to understand that the TBTF banks were NOT speculating and never lost any money. Harder still to understand how they stole trillions of dollars from the US economy. And finally harder still to understand how “lenders” could cause a crash.

It’s really quite simple. Usually prices and values are within the same range. Fair market value has always been closely related to the ability of people to pay for housing — i.e., household income. Prices rise when demand becomes high OR, and this is the big one, when the big banks flood the market with money.

Like the 2008 crisis if you look at the Case Schiller Index, you will see that prices went through the roof by unprecedented increases while fair market value was flatlined. The crash was thoroughly predictable and was predicted on these pages and by many other economists and financial analysts.

For more than two decades, maybe three, the housing market has been floating on a sea of unsustainable debt because the investment banks became the “source” of funds in a marketplace where their principal objective was movement of money instead of management of risk. That is because investment banks do that while commercial banks and other lenders don’t — unless they are paid to act as though they are the lender in a transaction where they have no risk. Then they will advertise to people with low FICO scores and anyone else whose loan is likely to fail. They bet on the failure of the loan and the collapse of certificates issued as derivatives.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consent to many people and lawyers so they can spot the key elements of a scam. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Hat tip Greg da Goose

https://www.huffingtonpost.com/entry/why-does-wells-fargo-still-exist_us_5b80148ee4b0729515126185

From Huffington Post:

“Wells Fargo may not even be the worst big bank out there. Citigroup, another merger monstrosity, is so poorly pieced together that today, Wall Street investors don’t even believe the bank is worth its liquidation price. JPMorgan Chase has notched 52 fines and settlements since the crash. Goldman Sachs has 16, three of them this year.

In a revealing interview with New York Magazine earlier this month, former FDIC Chair Sheila Bair said she wished regulators had broken up a bank after the crisis, probably Citigroup. [Editor’s note: Obama initially gave that order but Tim Geithner refused]. Forcing at least one institution to pay the ultimate corporate price would have put pressure on other major firms to clean up their acts.

Both the Bush and Obama administrations rejected Bair’s plan. And so today, the American banking system ― rescued by taxpayers a decade ago to protect the economy ― has transformed into a very large, very profitable criminal syndicate.”

So I ask the question again: “Why are foreclosure defense lawyers not more aggressive about challenging legal presumptions upon which the banks and judges rely?”
Legal presumptions are ONLY supposed to be used in cases where (1) the source of the document or testimony is credible and has no interest in the outcome of the litigation and (2) it serves “judicial economy.”
The banks have been publicly humiliated for acting like thieves, liars, fabricators, and the source of sophisticated mechanical forgeries. Neither they nor their puppet “servicers” are entitled to a presumption of anything. If they want to proffer a fact, make them prove it. These people are so not credible that we regularly talk about robosigners, robowitnesses and other people who are hired to say or write something about which they have no knowledge or understanding. Where is the credibility in that?
And equally where is the judicial economy? In all cases where the presumptions are used and the homeowner contests the foreclosure it would take FAR LESS time for the so-called lender to prove its case with actual facts (not presumed facts) than to spend years changing servicers, changing recorded documents, changing Power of Attorney, etc.
Where is the prejudice?  If the Defense raises issues as to the standing and facts alleged in the complaint or initiation of foreclosure proceedings, then the obvious answer is to have the “lender” prove their case with real facts in the real world that do not rely upon jsut testimony from robowitnesses or documents that have been robosigned.

New Jersey Court Invokes Golden Chicken of Law

Not only did this court get it wrong, it apparently knew it was getting it wrong and so ordered that the case could not be used as precedent.

Steve Mnuchin, now Secretary of our Treasury, was hand picked by the major banks to lead a brand new Federal Savings Bank, called OneWest, which was literally organized over a single weekend to pick up the pieces of IndyMac. By the time of its announced failure in the fall of 2008 IndyMac was a thinly capitalized shell  conduit converted from regular commercial banking to a conduit to support the illusion of securitization.

The important part is that in terms of loans IndyMac literally owned as close to nothing as you could get. OneWest consisted of a group of people who don’t ordinarily invest in banks. But this was irresistible. Over the shrieking objections of FDIC chairwoman who lost her job, OneWest was allowed to claim (a) that it owned the loans that IndyMac and “originated” and (b) to claim 80% of claimed losses which the FDIC paid.

see OneWest “Wins” Again

Thus OneWest claimed losses vastly exceeding the “investment” by certain members of the 1% whom I won’t name here. This enabled them to do 2 things. Claim 80% of the fictitious losses from loans that were not owned by Indymac and the foreclose to collect the entire amount.

Mnuchin was put in charge of “operations.” He ran nothing and basically did as he was told. He knew that the IndyMac residential loan portfolio was at practically zero, he knew that the 80% claim was fictitious, and he knew that neither IndyMac nor OneWest, its supposed successor owned the loans. Nonetheless the “foreclosure king” was entirely happy with foreclosing on homeowners who were caught in a world of spin.

The investors in the OneWest deal split the spoils of war. To be fair they didn’t actually know the truth of the situation. Mnuchin painted a very rosy profit picture that would happen over the short-term and he was right.

As with WAMU, Countrywide et al, the business of IndyMac was largely run through remote vehicles posing as mortgage brokers, originators or just sellers. These entities did exactly what IndyMac told them to do and in so doing IndyMac was doing exactly what it was told to do by the likes of Merrill Lynch, and indirectly Bank of America, Chase, Goldman Sachs, and Citi.

As the descriptive literature on securitization says, all vehicles are remote and special purpose so as to protect everyone else against allegations of wrongdoing. But there was nothing remote about these companies. Yet here in this decision in New Jersey the court predicated its ruling on the proposition that none of the players were liable for any of the unlawful activities of their predecessors.

It’s decisions like this that leave us with the knowledge that we have a long way to go before the courts get curious enough to apply the law as it is — not as the courts and others say it is.

Investigator Bill Paatalo: FOIA Request Reveals Servicer’s “Justification” For Fraud In Obtaining Limited Power Of Attorney From FDIC

This FOIA response from the FDIC dated June 29, 2017 contains a request to renew CIT Bank, N.A.’s “Limited Power of Attorney” from the FDIC regarding the failed IndyMac Bank, fsb and IndyMac Federal Bank, fsb. The “Justification” for CIT Bank’s request states as follows:

                                                                                  Justification

We have undertaken a thorough review of our books, records, and existing loan files for all Group 2 loans and believe we have completed assignments into the appropriate entity for both portfolios where appropriate, available, and where such a need for an assignment is known. However, in our mortgage servicing activities, we continue to be faced with legal and technical challenges, such as borrower bankruptcies and enjoined proceedings, requiring we recreate a chain of title based on factors that cannot be identified in advance without obtaining an updated title report on every loan serviced. It is cost prohibitive to obtain an updated loan level title report for each loan we are servicing, which, again, would be the only way to ensure a clean chain of title through all prior transfers.

Absent a renewed power of attorney, to avoid the risk of jeopardizing our lien position and to enable the bank to transfer title when regularly permissible we would be obliged to approach the FDIC for each instance requiring a signature on an assignment or other instrument of transfer or conveyance where, despite having exercised considerable efforts, we find at the commencement of collection or bankruptcy activities that we do not have a recorded assignment into the appropriate entity.”

(See: FDIC FOIA Response – IndyMac LPOA Servicer Request 2017  )

The document then states,

FOIA Snip - fdic

Though this document needs no further explanation, I’ll take the liberty to simplify: The only way this servicer believes it can ensure a “clean chain of title” is to obtain an updated title report for each loan it services. However, that costs too much money. CIT Bank is basically saying, “So with your permission FDIC, and knowing as much as we do, we’re going to recreate the chains of title by executing assignments and endorsing notes for all these loans to which we have no ‘clean’ chain of title as your attorney-in-fact.”

This also begs the question. If you don’t have a clean chain of title in your servicing records, and won’t invest in a title report to determine who owns the loans you service, who are you sending the money to?

From Investigator Bill Paatalo’s blog on www.bpinvestigativeagency.com

Private Investigator – OR PSID# 49411

Bill.bpia@gmail.com

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Deadline December 31, 2017! File your LPS/BlackKnight FOIA Request NOW with your State Attorney General & Contact the ACLU when they fail to respond!

LPS-300x178

State AGs have not forced LPS/Black Knight to comply with the Consent Judgment

Editor’s Note:  Eric Mains, a former FDIC Team member who saw the securitization fraud first hand, has been encouraging homeowners who are in foreclosure, or were foreclosed upon, to send FOIA requests to their state Attorney Generals and ask for information about the enforcement of the LPS/Black Knight consent judgment they signed.  The LPS consent judgment was agreed to by all 50 state AGs and it appears the states took the funds, but did little else to ensure compliance with the order- including the remediation of fraudulent documents filed in county records.  For background on FOIA strategy and Eric Mains, see here and here, and listen here.

File a Complaint with the ACLU if the AG’s office in your State refuses to Comply with a FOIA/Public Records Act Request regarding the LPS Consent Judgment.

by Eric Mains

The ACLU has initiated and assisted with legal actions in numerous instances where FOIA/Public Records Acts Requests have been denied in violation of state laws. The ACLU takes a dim view of government entities trying to deny the public its rights to access such information, and may decide to help in your case. Here’s how to get started.

 

Step #1. Gather copies of your records request and the response/refusal of the AG’s office to respond to your request.

 

Step #2. Go to: https://www.aclu.org/about/affiliates You will find your State ACLU office website here, and links to where you can file a complaint.

 

Step #3. If you have filed a suit to force a release of the denied records, or intend to, there will be a space to fill this out on the ACLU’s intake form. Fill out all required information as requested. Below is an example of a description you can use for your complaint regarding a denial of information as to the 2013 LPS Consent Judgment.

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Example Complaint-ACLU

 

The complaint regards the refusal of the (XX State here) Attorney General’s office to release basic & non-privileged information covering a 2013 Multi-State Consent Judgment (“CJ”) under (State Code here) (See attached request and response from XXXX AG’s office). The CJ was touted by the various state AG’s offices as being a “Win” for consumers in remediating widespread forgery and robo-signing which affected thousands of homeowners who faced foreclosure, especially in minority and low-income neighborhoods. The CJ covered affected foreclosures from 2008- 2013, as well as through the present (See attached copy and synopsis also available at http://www.mass.gov/ago/news-and-updates/press-releases/2013/2013-01-31-lps-settlement.html).

 

A majority of the 50 State Attorney General’s offices entered into the CJ with Lender Processing Services (“LPS”), an entity which was brought to the nation’s attention largely because of a report done by CBS news in a “60 Minutes” episode from April 2011 (See http://www.cbsnews.com/news/mortgage-paperwork-mess-next-housing-shock/  , where CBS reported on Lynn Syzmoniak’s investigation into “robo-signing” used in the foreclosure of her home.

 

The (XX State here) AG’s office has refused to release the most basic and important information regarding the CJ– Information as to how compliance by LPS under the CJ was being tracked, the metrics being used to ensure LPS compliance, how many consumers obtained relief under the CJ in (XX State here), and the monetary figures of this relief. Without this basic information, it is impossible for the public to know IF the CJ is being enforced as required. The AG’s office further refused to release the quarterly compliance reports required to be given it by LPS, which would have shown HOW and IF LPS was complying with the CJ.

 

In short, it appears not only has the AG’s office not lived up to its mandate of protecting the public (as the CJ it touts as a “Win” would require), it has also chosen to stonewall the public’s right to obtain basic information about the CJ in order to protect itself from embarrassment and to shield LPS from being required to live up to the terms of the CJ. The AG’s office accepted over ($ XX- settlement $ accepted from LPS here) million from LPS in 2013 as well, and how this money was spent to protect injured homeowners remains in question.

 

The ACLU has historically helped to pursue many cases nationally where state government(s) have intentionally violated public records acts, impeding the ability of the public to obtain basic information as to how government is fulfilling its responsibilities. The basic information regarding this CJ is being categorically denied to citizens by the AG’s offices in every state, Indiana being one of them, and it is critical that the ACLU help citizens obtain this information to ensure citizens rights are being protected as the AG’s office(s) would represent.

 

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Step #4. File the complaint and all requested back-up documents with the ACLU in your state. Turn-around time is usually 6-8 weeks. Complaints can be filed, online, by fax, or by mail or e-mail.

*Important point to remember- Much as was mentioned regarding the FOIA requests to the various AG’s offices, you have 50 bites at the state(s) apple(s) here to get the 50 individual  state ACLU offices involved…if only ONE state is forced to release the compliance reports and information regarding the LPS CJ with the ACLU’s help, it’s going to have a huge positive impact for future foreclosure actions.

Another PennyMac Crash! CA Case for Homeowner

American jurisprudence is clearly still struggling with the fact that in most cases the forecloser either does not exist or does not have any interest in the loans they seek to enforce. In virtually all instances PennyMac is acting in the role of a sham conduit while allowing its name to be used as the front for a nonexistent lender.

Such foreclosers use semantics and legal procedure to create and cover-up the illusion of “ownership” of the debt (the loan) and the illusion of having the rights to enforce the note bestowed by a true creditor. This case opinion is correct in every respect and it conforms with basic black letter law in all 50 states; yet courts still strive to find ways to allow disinterested parties to foreclose.

Get a consult and Chain of Title Analysis! 202-838-6345
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Hat tip to Bill Paatalo
see GULIEX v. PennyMAC HOLDINGS LLC, Cal: Court of Appeal, 5th Appellate Dist. 2017 https://scholar.google.com/scholar_case?case=9436462246811997539&hl=en&lr=lang_en&as_sdt=2006&as_vis=1&oi=scholaralrt
This case amply demonstrates the following:
  1. The need for a chain of title report
  2. The need for a chain of title analysis
  3. The need for legal research and good memorandums of law
  4. The need to understand “chains of title” or “chains of events” and the laws applicable thereto (e.g. judicial notice, legal presumptions etc.)
  5. The need to formulate a presentation to the judge that is very persuasive.
  6. The need to appeal when trial judges don’t apply the law or don’t apply the law correctly.

The following are significant quotes from the case.

Plaintiff, a homeowner and borrower, sued the defendant financial institution for wrongs allegedly committed in connection with a nonjudicial foreclosure sale of his residence. Plaintiff’s main theory was that the financial institution did not own his note and deed of trust and, therefore, lacked the authority to foreclose under the deed of trust. (e.s.)

The financial institution convinced the trial court that (1) it was, in fact, the beneficiary under the deed of trust, (2) a properly appointed substitute trustee conducted the foreclosure proceedings, and (3) the plaintiff lacked standing to claim the foreclosure was wrongful. The financial institution argued its chain of title to the deed of trust was established by facts stated in recorded assignments of deed of trust and a recorded substitution of trustee. The trial court took judicial notice of the recorded documents. Based on these documents, the court sustained a demurrer to some of the causes of action and granted summary judgment as to the remaining causes of action. On appeal, plaintiff contends he has standing to challenge the foreclosure and, furthermore, the judicially noticed documents do not establish the financial institution actually was the beneficiary under the deed of trust. We agree. (e.s.)

As to standing, the holding in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova) clearly establishes plaintiff has standing to challenge the nonjudicial foreclosure on the ground that the foreclosing party lacked the authority to initiate the foreclosure because it held no beneficial interest under the deed of trust. (e.s.)

As to establishing facts by judicial notice, it is well recognized that courts may take notice of the existence and wording of recorded documents, but not the disputed or disputable facts stated therein. (e.s.) (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (Herrera).) Under this rule, we conclude the facts stated in the recorded assignments of deed of trust and the substitution of trustee were not subject to judicial notice. (e.s.) Therefore, the financial institution did not present evidence sufficient to establish its purported chain of title to the deed of trust. Consequently, the financial institution failed to show it was the owner of the deed of trust and had the authority to foreclose on plaintiff’s residence.

We therefore reverse the judgment and remand for further proceedings.

….

The Links in PennyMac’s Purported Chain of Title

“Links” in a chain of title are created by a transfer of an interest in the underlying property from one person or entity to another. An examination of each link in the purported chain of title relied upon by PennyMac reveals that certain links were not established for purposes of the demurrer. Our analysis begins with a description of each link in the purported chain (and each related document, where known), beginning with the husband and wife who sold the residence to Borrower and ending with the trustee’s sale to PennyMac.

Link One-Sale: Clarence and Betty Dake sold the residence to Borrower pursuant to a grant deed dated April 19, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Two-Loan: Borrower granted a beneficial interest in the residence to Long Beach Mortgage Company pursuant to a deed of trust dated June 21, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Three-Purported Transfer: Long Beach Mortgage Company purportedly transferred its rights to Washington Mutual Bank by means of a document or transaction not identified in the appellate record. Also, the appellate record does not identify when the purported transaction occurred. Borrower disputes the existence of this and subsequent transfers of the deed of trust. (e.s.)

Link Four-Purported Transfer: Washington Mutual Bank purportedly transferred its rights to JPMorgan Chase Bank, National Association in an unidentified transaction at an unstated time. (e.s.)

Link Five-Assignment: JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, purportedly transferred the note and all beneficial interest under the deed of trust to “JPMorgan Chase Bank, National Association” pursuant to an assignment of deed of trust dated July 25, 2011, and recorded on July 26, 2011.

Link Six(A)-Assignment: JPMorgan Chase Bank, National Association transferred all beneficial interest in the deed of trust to PennyMac Mortgage Investment Trust Holdings I, LLC pursuant to a “California Assignment of Deed of Trust” dated September 14, 2013, and recorded on November 15, 2013.

Link Seven-Trustee’s Sale: California Reconveyance Company, as trustee under the deed of trust, (1) sold the residence to PennyMac at a public auction conducted on November 20, 2013, and (2) issued a trustee’s deed of sale dated November 21, 2013 and recorded on November 22, 2013. PennyMac, the grantee under the deed upon sale, was described in the deed as the foreclosing beneficiary.

Link Six(B)-Purported Assignment: The day after the trustee’s sale, JPMorgan Chase Bank, National Association executed a “Corporate Assignment of Deed of Trust” dated November 21, 2013, purporting to transfer the deed of trust without recourse to PennyMac Holdings, LLC. The assignment was recorded November 22, 2013. This assignment was signed (1) after JPMorgan Chase Bank, National Association had signed and recorded the “California Assignment of Deed of Trust” described earlier as Link Six(A) and (2) after the trustee’s sale was conducted on November 20, 2013. Consequently, it is unclear whether any interests were transferred by this “corporate” assignment.

3. Links Three and Four Are Missing from the Chain

Postscript from Editor: This Court correctly revealed the fraudulent strategy of the banks, to wit: they created the illusion of multiple transfers giving the appearance of a solid chain of title BUT 2 of the transfers were fake, leaving the remainder of the chain void.

PROOF OF STANDING REQUIRED: SEFFAR v. RESIDENTIAL CREDIT SOLUTIONS INC

It is NOT enough to ALLEGE standing. They must PROVE it. Judges across the country are making mistakes with this simple concept. Standing to SUE is presumed if you allege (in words or by incorporation of exhibits) that you have it. Possession of the “original note” can be alleged but at trial the foreclosing party must PROVE (not argue) that (1) they have the original note and (2) they have the right to enforce it either because they own it or because they have been authorized by a person who owns it or a person who has the right to enforce it. 

Get a consult! 202-838-6345
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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In the end we are closing in on the unthinkable: that anyone who was entitled to be treated as creditor was severed from the transactions leaving all other parties floating and leaving legal analysts to wonder (the borrower, that is) or make fraudulent representations (the banks and servicers) that the putative creditors cannot refute.
In the end, with very few exceptions, none of the trusts own anything and none of the servicers or trustees have any authority over any loans. This is the direct result of asymmetry of knowledge. The investors, the borrowers and the closing agents and even the sales agents do not have sufficient information to know what is going on — forcing everyone to look to the “Bank” who appears to be the source of funding.
And the Banks get to explain it in whatever way benefits them the most. They are thus permitted to explain away any hint that they were stealing investor money on an unprecedented scale. That is what happened in the TARP bailout and that is what happens in court.
Here is a 4th DCA case in Florida that spells out the difference between alleging a case and proving it.

SEFFAR v. RESIDENTIAL CREDIT SOLUTIONS INC

Taoufiq SEFFAR, Appellant, v. RESIDENTIAL CREDIT SOLUTIONS, INC., Appellee.

No. 4D13–3514.

    Decided: March 25, 2015

David H. Charlip of Charlip Law Group, LC, Aventura, for appellant. Raymond Hora of McCalla Raymer, LLC, Orlando, for appellee.

Appellant challenges a final judgment of foreclosure, claiming that the court erred in denying his motion for involuntary dismissal. He claimed that appellee did not prove standing to foreclose at the time suit was filed. We agree that the evidence is insufficient to show the plaintiff had standing and reverse. (e.s.)

Appellant executed a note and mortgage to ABN Amro Mortgage Group [EDITOR’S NOTE: SEARCH ABN AMRO ON THIS BLOG]. (“ABN”) in 2006. In 2009, appellant received a letter from CitiMortgage informing him that the servicing of his note and mortgage was being transferred from CitiMortgage to Residential Credit Solutions (“RCS”). RCS also sent a letter informing appellant of the transfer of the servicing of the loan. When he defaulted on the mortgage, RCS sent him a notice of default and subsequently filed suit, alleging that it had the right to enforce the note and mortgage. [EDITOR’S NOTE: HOMEOWNER DID NOT DEFAULT ON ANY OBLIGATION DUE RCS]

Attached to the complaint was the mortgage and note to ABN. The note was stamped “original” and did not contain any endorsements or allonges. Also attached was an assignment of the mortgage from the Federal Deposit Insurance Corporation (“FDIC”), as receiver for Franklin Bank, to Mortgage Electronic Registrations Systems (“MERS”), as nominee for RCS. [EDITOR’S NOTE: THE PRESENCE OF EITHER FRANKLIN OR MERS TELLS US THAT THE SUBJECT LOAN IS SUBJECT TO FALSE CLAIMS OF SECURITIZATION WHERE THE SOURCE OF FUNDS HAS BEEN CUT OFF FROM ITS INVESTMENT DESTROYING ITS STATUS AS A CREDITOR]

About nine months after filing the complaint, RCS filed what it claimed was the “original” note. Filed with this note was an undated, blank allonge, payable to the bearer, allegedly executed by a vice president of ABN. Nothing about the appearance of this allonge, as contained in the appellate record, shows that it was affixed to the note with which it was filed. (e.s.) [EDITOR’S NOTE: NO PROOF THE “ALLONGE” WAS ATTACHED? THEN THE ALLONGE IS  A NULLITY. NO PRESUMPTION APPLIES].

Just two weeks before the foreclosure trial, RCS moved to substitute Bayview Loan Servicing as the plaintiff, alleging it had transferred servicing of the loan to Bayview. The documents attached to the motion do not mention that the ownership of the loan or mortgage was also transferred. The trial court allowed the substitution over appellant’s objection. (e.s.)

At trial, a litigation manager for Bayview testified. He was not a records custodian for RCS or for Bayview. He was not familiar with the computer systems that either of the prior servicers, CitiMortgage and RCS, used for compiling information on the loan or how it was inputted into the systems. He had no information as to whether the information on the loans was inputted into the prior servicers’ systems correctly. He could not testify to the truth or accuracy of RCS’s records, just that they were provided to Bayview. (e.s. [EDITOR’S NOTE: THESE ARE ELEMENTS OF PROOF THAT ARE ABSENT FROM THE TESTIMONY OF NEARLY EVERY ROBO-WITNESS]

He testified that Bayview was the servicer and holder of the note. He believed that Bayview had acquired the note through a purchase agreement with RCS, but he had not seen the agreement, nor did he have a copy of it. His belief that Bayview was the owner of the note under the purchase agreement was based on “a screen shot of our capital assets systems, which has information in regards to the status of the loan with us.” This screen shot was not produced at trial.

[Editor’s NOTE: Recent case decisions state that screen shots are hearsay and do not fall within any exceptions to the hearsay rule and are therefore barred from being admitted into evidence. The most important point to take away from this is that the witness nearly always knows absolutely nothing other than the script that he was required to memorize. Getting to that is actually fairly easy if you know how to do cross examination.]

 

As to the allonge with the blank endorsement from ABN, he did not know when it was executed or whether the signature on it was a “wet ink” signature or a stamp. He did not know whether the allonge was affixed to the note prior to it being filed in the court file. He did not know if the vice president who signed the allonge on ABN’s behalf was in the employ of ABN in November 2009, when Bayview’s records showed that servicing of the loan had been transferred from ABN to Franklin Bank. (e.s.)

The manager agreed that on January 29, 2010, when RCS mailed appellant a notice of intent to take legal action on the note and mortgage, RCS was not the owner and holder of the note by way of the September 30, 2009 assignment of mortgage, but testified, “[t]here may have been a purchase agreement or some other document.” He testified that, on that date, “I only know that RCS was servicing. I don’t know for a fact who was the holder of the note at the time.” While he did testify that RCS owned the note and mortgage on the date the complaint was filed, he then inconsistently stated that RCS had brought the suit as the servicer of the loan, not its owner. (e.s.)

Although appellant moved for involuntary dismissal on the ground that Bayview had not proved standing because it had not shown that it had the right to enforce the note and foreclose the mortgage, the trial court rejected this claim. It entered a final judgment of foreclosure in which it found that Bayview was due and owing the unpaid balance of the note. This appeal follows.

Appellant argues that Bayview failed to prove that it was the owner or holder of the note and that it had the right to foreclose. Based upon this confusing record, we agree that it presented no competent evidence that RCS was the holder of the note at the time it filed suit or that it was a nonholder in possession and entitled to enforce the note. Therefore, Bayview failed to prove standing.

Standing of the plaintiff to foreclose on a mortgage must be established at the time the plaintiff files suit. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). McLean set forth the requirements that a plaintiff may prove standing in a mortgage foreclosure:

Standing may be established by either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint ․ For example, standing may be established from a plaintiff’s status as the note holder, regardless of any recorded assignments․

If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement․ Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff ․

Even in the absence of a valid written assignment, the mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.

Id. at 173 (citations and quotation marks omitted).

Appellant notes several deficiencies in Bayview’s proof which result in a failure to show standing to foreclose the mortgage. First, while the note and mortgage were originally held by ABN, the only assignment of mortgage attached to the complaint and introduced at trial was one from FDIC as receiver for Franklin Bank to MERS as nominee for RCS. There is no proof of any transfer of the note or mortgage from ABN to Franklin Bank. Second, while Bayview contends that the undated allonge supplies the connection, as it shows a transfer payable to bearer, there was no proof that the allonge was attached to the note, and Bayview presented no proof of when it was executed. (e.s.) [EDITOR’S NOTE: THE ENDORSEMENT MEANS NOTHING IF IT WASN’T ON THE NOTE. IT WASN’T ON THE NOTE UNLESS THE ALLONGE WAS AFFIXED TO THE NOTE. THE ENDORSEMENT MEANS NOTHING WITHOUT FOUNDATION TESTIMONY PROVING THAT THE ENDORSER HAD THE AUTHORITY TO EXECUTE THE ENDORSEMENT] Finally, there was no competent evidence of what rights Bayview acquired from RCS.

We recently addressed how a plaintiff may show it is entitled to foreclose on a promissory note in Murray v. HSBC Bank, 40 Fla. L. Weekly D239 (Fla. 4th DCA Jan. 21, 2015):

“Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be ․ a nonholder in possession of the note who has the rights of a holder.” Mazine v. M & I Bank, 67 So.3d 1129, 1130 (Fla. 1st DCA 2011).

A “person entitled to enforce” an instrument is: “(1) [t]he holder of the instrument; (2)[a] nonholder in possession of the instrument who has the rights of a holder; or (3)[a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s[ection] 673.3091 or s[ection] 673.4181(4).” § 673.3011, Fla. Stat. (2013). A “holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2013). Thus, to be a holder, the instrument must be payable to the person in possession or indorsed in blank. See § 671.201(5), Fla. Stat. (2013).

Although, nine months after filing the complaint, RCS filed what purported to be the original note with an allonge payable to bearer, it was undated and there is no proof it was affixed to the promissory note. “An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” See Booker v. Sarasota, Inc., 707 So.2d 886, 887 n. 1 (Fla. 1st DCA 1998) (quoting Black’s Law Dictionary 76 (6th ed.1990)); see also Isaac v. Deutsche Bank Nat’l Trust Co., 74 So.3d 495, 496 n. 1 (Fla. 4th DCA 2011). The litigation manager did not know when the allonge was executed, or whether it was affixed to the note prior to filing. No evidence was presented that the allonge was executed and attached to the note prior to the filing of the initial complaint. Indeed, RCS did not allege in the complaint that it owned and held the mortgage. It merely alleged that it had the right to foreclose the note and mortgage. Therefore, the allonge provided no evidence that RCS was a “holder” at the time it filed the complaint.

Alternatively, Bayview argues that RCS was a nonholder in possession. However, Murray shows the fallacy of that claim. In Murray, we held that the lender, HSBC, had not proved standing where it had alleged that it was a nonholder in possession of the note and mortgage, because it did not prove that each prior transfer of the note conferred the right to enforce it: (e.s.)

HSBC was thus left to enforce the note under section 673.3011(2) as a nonholder in possession of the instrument with the rights of a holder. The issue then is whether HSBC is a nonholder in possession with the rights of a holder.

Anderson v. Burson, 424 Md. 232, 35 A.3d 452 (2011), is instructive. There, the court held that the plaintiff was a nonholder in possession and analyzed whether it had rights of enforcement pursuant to a Maryland statute that employs the same language as section 673.3011, Florida Statutes. Anderson, 35 A.3d at 462. “A transfer vests in the transferee only the rights enjoyed by the transferor, which may include the right to enforce [ment],” through the “shelter rule.” Id. at 461–62.

A nonholder in possession, however, cannot rely on possession of the instrument alone as a basis to enforce it․ The transferee does not enjoy the statutorily provided assumption of the right to enforce the instrument that accompanies a negotiated instrument, and so the transferee “must account for possession of the unendorsed instrument by proving the transaction through which the transferee acquired it.” (e.s.) [EDITOR’S NOTE: NO PRESUMPTIONS AND THEREFORE NO CASE FOR ENFORCEMENT IF NO TRANSACTION PROVEN. THE TRANSACTION IS NOT PRESUMED] Com. Law § 3–203 cmt. 2. If there are multiple prior transfers, the transferee must prove each prior transfer. Once the transferee establishes a successful transfer from a holder, he or she acquires the enforcement rights of that holder. See Com. Law § 3–203 cmt. 2. A transferee’s rights, however, can be no greater than his or her transferor’s because those rights are “purely derivative.” (e.s.)

Murray, 40 Fla. L. Weekly D239 (emphasis in original) (internal citations omitted). Because HSBC did not offer evidence of one of the prior transfers of the note, we held it did not prove that it was a nonholder in possession.

Similarly, in this case, Bayview did not prove that either RCS or itself was a nonholder in possession. It never connected FDIC as receiver of Franklin Bank, from which RCS acquired an assignment of mortgage, to ABN, the original note holder.

As alternative proof of its “ownership” of the note and mortgage, Bayview relied on a letter from RCS to the appellant, notifying him of the transfer of servicing rights to RCS, and a similar one from Bayview when it became the servicer of the loan. Neither letter addressed a right to enforce the note. None of the servicer agreements were placed in evidence to prove what rights either RCS or Bayview acquired under those agreements. (e.s.) [EDITOR’S NOTE: It is very rare that the servicer agreements are proffered by “Plaintiff” Trust (or other sham nominee) in evidence because those agreements, like Assignment and Assumption Agreements contain information that the securitization players don’t want the borrower, the court or government regulators or enforcers to see].Finally, as to the transfer between RCS and Bayview, the litigation manager testified that while he believed that Bayview purchased the note and mortgage from RCS, he had never seen a purchase agreement, and no document memorializing the purchase was entered into evidence. Therefore, because there is a gap in the transfer of the note and mortgage, Bayview did not prove that RCS, and subsequently Bayview, were nonholders in possession. See Murray, 40 Fla. L. Weekly D239. 

Simply stated, the evidence presented was woefully inadequate to prove standing to foreclose. It was quite apparent from the record that Bayview’s litigation manager did not have the requisite knowledge, nor did he produce documentary evidence, to support the claim.

We thus reverse and direct judgment in favor of the appellant dismissing the foreclosure on the mortgage for failure of the appellee to prove its standing.

Reversed and remanded.

WARNER, J.

CIKLIN and GERBER, JJ., concur.

Chase-WAMU Letter Reveals”Expungement” and “Assignments” of Alleged Mortgages ” Not on the Books and Records of WAMU”

There is an old saying on Wall Street that “Bulls make money, Bears make money but Pigs never do.” The obvious circumstances of Chase claiming ownership to nonexistent loan portfolios contained within WAMU coupled with the admission in this letter to the FDIC, shows just how arrogant Chase felt when they informed the FDIC that they wanted to get paid by the FDIC for expunging documents and fabricating other instruments for “loans” that were not on the books and records of WAMU at the time of their purchase and sale agreement wherein Chase acquired the WAMU estate.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
see Letter from Chase to FDIC: chase-letter-to-fdic-2014
*
Hat tip to Bill Paatalo who reminded me of this letter that surfaced in the dispute over FDIC indemnification of Chase for the takeover of WAMU operations. Chase expressly admits to defects in the chain of title and erroneous mortgage documentation.
*
It has been central to the defense of foreclosures based upon alleged “loans” originated by Washington Mutual (WAMU) that Chase never acquired any loans. It is obvious from the the transaction where Chase agreed to pay around $2 Billion to the estate but received more than that in a tax refund due to the WAMU estate. So the consideration was zero.
*
Yet Chase has persistently asserted claims of ownership and direct or indirect authority to foreclose on loans that were not in the books and records of WAMU at the time of the FDIC sale to Chase.
Along with several others, I have stated the fact that Chase (1) acquired no loans (2) because they were not in the WAMU portfolio and that (3) a check of the WAMU books and records in the bankruptcy court will not show the loans that Chase says it acquired from WAMU. If WAMU didn’t own them then Chase could not have acquired them from WAMU.
*
In order to perpetuate this farce we have alleged that Chase was directly involved in the fabrication and forgery of documents to create the illusion of loans that didn’t exist on WAMU books and records and schedules in the receivership and schedules in bankruptcy.
*
Even a non-lawyer can see the problem for Chase. The letter in the link below clearly shows the lawyers asserting a claim for expenses in expunging records (i.e., destroying them) and fabricating other records which obviously leads to the issue of forging since the document itself was knowingly fabricated at the expense of Chase.
*
Somehow Chase came to the conclusion that having paid for the destruction of documents and having paid for fabricating documents, they were now entitled to call themselves owner of the “Loan portfolio” which according to the schedules never existed.
*
They admit to fabricating documents to create the illusion of a chain of title. Now they want payment from the FDIC to cover the expense of fabrication and forgery. Perhaps more importantly they admit “errors in mortgage documentation occurring prior to September 25,2008.”
  • Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.

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===========================

Email from Bill Paatalo:
Neil,
Have you seen this letter? The collusion between JPMC and the FDIC could not be any more transparent.
Excerpts from letter in italics:

The additional matters giving rise to JPMC’s indemnity rights relate to costs incurred in connection with mortgages held by WMB prior to September 25,2008. These costs have resulted from aspects of-and circumstances related to- WMB mortgages that were not reflected on the books and records of WMB as of September 25, 2008, and include:

[HERE IS A DIRECT ADMISSION THAT THERE IS A SCHEDULE OF LOANS “NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB.” IF NO SCHEDULE EXISTS SHOWING WHAT WAS “ON THE BOOKS AND RECORDS,” THEN WE SHOULD NOW INQUIRE AS TO THE SCHEDULE SHOWING THOSE LOANS NOT REFLECTED ON THE BOOKS AND RECORDS.]

(a) Costs incurred by JPMC associated with individual assignments of WMB mortgages. Where JPMC has initiated foreclosures on properties associated with mortgages that were held by WMB prior to its Receivership, JPMC has performed individual assignments of the associated mortgages/deeds of trust and allonges to comply with a recent appellate-level court decision in Michigan so as avoid potential additional expense and/or liability. In so doing, JPMC has incurred additional recording and legal fees, Limited Power of Attorney costs, as well as quantifiable costs associated with increased staffing to address these issues.

[THIS IS A DIRECT ADMISSION THAT ASSIGNMENTS AND ALLONGES ARE BEING EXECUTED BY JPMC (AS BENEFICIARIES AND MORTGAGEES) FOR WMB LOANS THAT WERE “NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB.”]

(c) Costs incurred by JPMC to expunge records associated with WMB mortgages as a result of errors in mortgage documentation occurring prior to September 25,2008, including erroneously recorded satisfactions of mortgages and associated legal fees and disbursements.

[“EXPUNGING RECORDS ASSOCIATED WITH WMB MORTGAGES AS A RESULT OF ERRORS IN MORTGAGE DOCUMENTATION?” THIS IS A DIRECT ADMISSION THE JPMC HAS DESTROYED RECORDS RELATED TO WMB MORTGAGE FILES.]

(d) Costs incurred by JPMC to correct various defects in the chains of title for WMB mortgages occurring prior to September 25, 2008, including recording and legal services fees.

[WHAT “CHAINS OF TITLE?” JPMC TAKES THE POSITION THAT THESE LOANS WERE NEVER SOLD BY WMB. THIS IS A DIRECT ADMISSION THAT JPMC IS ATTEMPTING TO CORRECT DEFECTS IN THE CHAINS OF TITLE FOR WMB LOANS THAT WERE NOT REFLECTED ON THE BOOKS AND RECORDS OF WMB. THESE “CORRECTIONS” UNIVERSALLY INVOLVE ASSIGNMENTS OF BENEFICIAL INTERESTS FROM THE FDIC, AND/OR BY VIRTUE OF THE PAA.]

At the time of WMB’ s closure, the above liabilities were not reflected on its books and records.

Bill Paatalo
Oregon Private Investigator – PSID#49411

BP Investigative Agency, LLC
P.O. Box 838
Absarokee, MT 59001
Office: (406) 328-4075

MERS/GMAC Note and Mortgage Discharged

If only all courts would entertain the possibility that everything presented to them should be the subject of intense scrutiny, 90%+ of all foreclosures would have been eliminated. Imagine what the country would look like today if the mortgages and fraudulent foreclosures failed.

The Banks say that if the mortgages failed they all would go bust and that there is nothing to backstop the financial system. The rest of us say that illegal mortgage lending and foreclosures was too high a price to pay for a dubious theory of national security.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

I received the email quoted below from David Belanger who, like many others has proven beyond any reasonable doubt that persistence pays off. (BOLD IS EMPHASIS SUPPLIED BY EDITOR)

Besides the obvious the big takeaway for me was what I have been advocating since 2007 — if any company in in the alleged chain of “creditors” has gone out of business, there probably is a bankruptcy involved or an FDIC receivership. Those records are available for inspection. And what those records will show is that the the bankrupt or insolvent entity did not own the debt that arose when you signed documents for the benefit of parties other than the source of funding. It will also show that the bankrupt or insolvent entity did not own the note or mortgage either.

This is instructional for virtually all parties “involved” in a foreclosure but particularly clear in the cases of OneWest, whose entire business plan depended upon fraudulent foreclosures, and Chase Bank who bet heavily on getting away with it and they have, so far. BUT looking at the bankruptcy and receivership filings of IndyMac and WAMU respectively the nature of the fraud was obvious and born out of pure arrogance and apparently a correct perception of invincibility.

All such bankruptcy proceedings and receivership require schedules of assets right down to the last nickle in bankruptcy. Belanger simply looked at the schedule, knowing he never took the loan, and found without surprise that the bankrupt entity never claimed ownership of the debt, note or mortgage.

The big message here though is not just for those who are being pursued in collection for loans they never asked for nor received. The message here is to look at those schedules to see if your debt, note or mortgage is listed. Lying on those forms is a federal felony punishable by jail. Those forms are the closest you are ever going to get to the truth. Odds are your loan is nowhere to be found — even if you did get a loan.

And the second takeaway is the nonexistence of the “trust.” In most cases it never existed. Your “REMIC Trust” was almost certainly formed under the laws of the State of New York or Delaware that permit common law trusts (i.e., trusts that don’t need to be registered with the state in order to exist). BUT uniform trust laws adopted in virtually all states require for the trust to be considered a “person” it needs to have these elements — (1) trustor (2) trustee (3) trust instrument (PSA) and (4) a “thing” (res in Latin) that is committed to the trust by someone who owns the thing. It is the last element that is wholly absent from nearly all REMIC “Trusts.”

And now, David Belanger’s email:

JUST WANTED TO TELL YOU ALL SOMETHING,  THAT I JUST GOT DONE , FROM MERSCORP!  ON OUR PROPERTY THERE WAS A 2d MORTGAGE ON IT, IT WAS A LINE OF CREDIT THAT WE DID NOT DO, AND WE DID REPORT IT TO THE RIGHT AUTHORITY’S, BACK IN 2006/2007. NOW THE COMPANY WAS GMAC MORTGAGE CORP.

OVER THE YRS, FROM 2006 TILL NOW, IT REMAINED ON PROPERTY, UNTIL JUST LAST WEEK, WHEN I DEMANDED THAT MERS DISCHARGE IT.  AND AFTER THEY FOUND OUT IT WAS NEVER ASSIGNED OUT OF MERS, THEY HAD TO DISCHARGE IT. BECAUSE GMAC MORTGAGE IS DEAD.  NOW THIS GO TO WHAT WE ALL HAVE SAID HERE.

ANY ASSIGNMENT THAT HAS NOT BEEN DONE, OR RECORDED AT REGISTRY OF DEEDS, OUT OF MERS, AND THE MORTGAGE COMPANY IS A DEAD MORTGAGE COMPANY. THEN MERS WILL DISCHARGE IT . I HAVE A COPY OF THE DISCHARGE IN HAND.

AM STILL FIGHTING, BECAUSE OF THIS NEWS,  I HAVE ASK MY ATTORNEY TO NO AVAIL TO DO A QWR ON THE COMPANY THAT RECORDED AN ASSIGNMENT IN 2012, EVEN THOUGH GMAC MORTGAGE CORP WAS IN BK AND AFTER GOING THROUGH ALL BK RECORDS OF EACH ENTITY, THAT HAD TO FILE ALL ASSET OF THERE COMPANY, AND FOUND THAT NO ONE IN GMAC HAD THE MORTGAGE AND NOTE, 3 MONTHS PRIOR TO THE ASSIGNMENT BEING PUT ON MY RECORD.
https://www.kccllc.net/rescap/document/1212020120703000000000033

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW …
www.kccllc.net
Southern District of New York, New York In re: GMAC Mortgage, LLC UNITED STATES BANKRUPTCY COURT Case No. 12-12032 (MG) B6 Summary (Official Form 6 – Summary) (12/07)

THIS IS AGAIN THE REASON, THIS FRAUD TRUST  DOES NOT EXIST, AND I DO HAVE ALL SECRETARY OF STATES, INCLUDING ALL STATING THAT  THIS FRAUD TRUST IN FACT HAS NEVER
BEEN REGISTERED IN ANY STATE. LET ALONG THE STATE OF DELAWARE, THE STATE THEY SAY IT IS REGISTERED IN.  THE SECRETARY OF STATE SAID NO. AND HAS NEVER BEEN A LEGAL OPERATING TRUST, EVER. SIGNED AND NOTARIZED BY THE SECRETARY. THE FRAUD TRUST NAME IS AS FOLLOWS.
GMACM MORTGAGE LOAN TRUST 2006-J1,

OneWest’s Mnuchin: Putting the Fox in Charge of the Henhouse

see http://www.npr.org/2016/11/29/503755613/trumps-potential-treasury-secretary-headed-a-foreclosure-machine

There two ways of looking at this prospective appointment by President-Elect Trump.

One is that this appointment signals the intent to further “expedite” foreclosures instead of digging deeper into the real facts and fraud by Wall Street banks. Such an effort would eliminate the possibility of the US Treasury clawing back huge sums of money for nonexistent bank losses stemming from alleged defaulted loans.

Some may remember that the infamous TARP bailout was first described and approved as covering losses from the loans to residential homeowners. Then it evolved.  The description and approval was to cover losses from failed mortgage bonds. But neither defaults nor bond failures were actual losses of the banks.

They had sold the loans and bore no risk. And they were selling bonds not buying them. Then it evolved again. The description and approval was to cover lost profits on hedge products, insurance and credit default swaps, at which point it became a relief program for “troubled assets” which was code for giving the banks additional profit after already having gouged the US economy.

OneWest benefited from a cozy government relationship, over the objections of Sheila Bair, head of the FDIC. Like Chase, Wells Fargo, Citi, BOA and others OneWest acquired servicing rights but also was allowed to take the position that it owned loans acquired from its takeover of IndyMac, which had been addicted to fees generated from apparent “originations.”

The foreclosures that ensued resulted in a windfall profit to OneWest. Mnuchin was the organizer of OneWest, collecting up several billionaires around the country to create OneWest and do the deal with the FDIC in which it created the illusion of buying loans. But OneWest then got out of the business.

So I am reminded of history when FDR appointed one of the worst insiders to Wall Street schemes as first Chairman of the SEC. That was none other than Joseph Kennedy, the father of JFK. Wall Street cheered, being under the mistaken impression that they were free to create more schemes and defraud more people out of what was left in household and individual wealth.

Instead Joe Kennedy took the job seriously and was instrumental in creating numerous reforms and enforcement proceedings that shook Wall Street to its core — giving them pause before initiating some other fraudulent scheme. Republicans have been chipping away at that legacy for decades.

So the other possibility here is that the appointment of Mnuchin might be a replay of the appointment of Joe Kennedy. Mnuchin is the one guy who understands where the bodies are buried and understands how the latest meltdown was triggered by Wall Street fraud. He might be the right one to tackle this unprecedented problem without bringing down the entire financial system. If so, the TBTF banks might be redesignated as TBTE (Too Big To Exist).

If that dream comes true, then homeowners might get the relief necessary to recalibrate the US economy that is 70% dependent upon consumer spending. And it might just be acknowledged by government that what happened was a double blind fraud: institutional investors and individual homeowners were both victims that were entitled to reparations. And perhaps there will be created a mechanism for putting those two groups of victims together to salvage the “asset values” on their books.

The Chase-WAMU Illusion

In the mortgage world “successor by merger” is simply a living lie that continues as you read this article. Like many other major illusions in our world economy, the Chase-WAMU merger was nothing more than illusion

The reason for the rebellion showing up as votes for Sanders and trump and the impending exit of the UK from the European Union is very simple — every few decades the populace gets a ahead of their elected leaders and yanks their leash so hard that some of them choke.

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

see FDIC_ Failed Bank Information – WASHINGTON MUTUAL BANK – Receivership Balance Sheet Summary (Unaudited)

see wamu_amended_unsealed_opinion

When Bill Clinton was asked how he balanced the budget and came out with a $5 Trillion surplus when he left office his reply was unusually laconic — “Arithmetic.” And he was right, although it wasn’t just him who had put pencil to paper. Many Republican and Democrats had agreed that with the rising economy, the math looked good and that their job was not to screw it up. THAT was left to the next president.

I’m not endorsing Clinton or Trump nor saying that Democrats or Republicans are better that the other. Indeed BOTH major political parties seem to agree on one egregiously erroneous point — the working man doesn’t matter.

The people who matter are those with advanced degrees and who reach the pinnacle of the economic medal of honor when they are dubbed “innovators.”

The reason for the rebellion showing up as votes for Sanders and Trump and the impending exit of the UK from the European Union is very simple — every few decades the populace gets a ahead of their elected leaders and yanks their leash so hard that some of them choke. To say that the BREXIT vote was surprising is the height of arrogance and stupidity. People round the world are voicing their objection to an establishment that doesn’t give a damn about them and measures success by stock market indexes, money supply and GDP activity that is manipulated at this point that it bare little if any resemblance to the GDP index we had come to rely upon, albeit that index was also arbitrarily and erroneously based on the wrong facts.

The fact that large percentages of the populace of many countries around the world are challenged to put food on the table and a roof over their heads doesn’t matter as long as the economic indices are up. But truth be told even when those indices go down, the attitude is the same — working people don’t matter. They are merely resources like gold, coal and oil from which we draw ever widening gaps between the people who run the society and the economy and those who drive the economy and society with their purchases.

In the mortgage world “successor by merger” is simply a living lie that continues as you read this article. Like many other major illusions in our world economy, the Chase-WAMU merger was nothing more than illusion — just like BOA’s merger with BAC/Countrywide (see Red Oak Merger Corp); Wells Fargo’s merger with Wachovia who had acquired World Savings; OneWest’s acquisition of IndyMac;  CitiMortgage acquisition of ABN AMRO, CPCR-1 Trust;  BOA’s merger with LaSalle; Ditech’s acquisition by multiple entities GMAC, RESCAP, Ally,  Walter investment etc.) when DiTech was dead and the name was the only this being traded, and so much more. All these mergers bear one thing in common — they were cover screen for one simple fact: they had not in one instance acquired any loans but then relied on the illusion of the merger to call themselves “successors by mergers.”

Let’s take the example of WAMU. When they went broke they had less than $3 Billion in assets (see link above). This totally congruent with the $2 billion committed by Chase to acquire the WAMU estate form the FDIC receiver Richard Schoppe (located in Texas) and the US Trustee in bankruptcy — especially when you consider the little known fact that Chase received 1/3 of a tax refund due to WAMU.

That share of the Tax refund was, as you might already have guessed, MORE than the $2 billion committed by Chase. whether Chase ever actually paid the $2 billion is another question.But in any event, pure arithmetic shows that the consideration for the purchase of WAMU by Chase was LESS THAN ZERO, which means we paid Chase to acquire WAMU.

This in turn is completely corroborated by the Purchase and Assumption Agreement between WAMU, the FDIC Receiver, the US Trustee in Bankruptcy and of course Chase. On the first page of that agreement is a express recital that says the consideration for this merger is “-$0-.” But before you look up the “Reading Room on the FDIC FOIA cite, here is one caveat: some time after the original agreement was published on the site, a “different” agreement was posted long after WAMU was dead, the US Trustee had been discharged, and the FDCI receiver was discharged as a receiver. The “new” agreement implies that loans were or may have been acquired but does not state which loans or how much was paid for these loans. The problem with the new agreement of course is that Chase paid nothing and was not entitled to nothing, except the servicing rights on some fo those loans.

The so-called new agreement placed there by nobody knows, also stands in direct contrast of the interview and depositions of Richard Schoppe — that if there were loans to sell the principal amount would have been hundreds of billions of dollars for which Chase need pay nothing. I dare say there are millions of people and companies who would have taken that deal if it was real. But Schoppe states directly that the number of assignments was NONE, zero, zilch.

Schoppe also stated that the total amount of loan originations was just under $1 Trillion. And he said that the loan portfolio might have been, at some time, around 1/3 of the total loans originated. Putting pencil to paper that obviously means that 2/3 of all originated loans were either pre-funded in table funded “loans” or that they were immediately sold into the secondary market for securitization. All evidence points to the fact that WAMU never owned the loans at all — as they were table funded  through multiple layers of conduits none of whom were disclosed as required under the Truth in lending Act.  Because the big asset that WAMU retained were (a) the servicing rights and (b) the right to claim recovery for servicer advances. It could be said that the only way they could perfect their claim for “recovery” of “servicer” “Advances” was by acquiring WAMU since Chase was the Master servicer on nearly all WAMU originations.

The interesting point of legal significance is that Chase emerges as the real party in interest even though it it appeared only as the servicer in the background after subsequent servicers were given “powers” of attorney to prevent the new “servicer” (actually an enforcer) from claiming a recovery  for “servicer” “Advances.,” that are recoverable not from the borrower, not from the investor, and not from the trust but in a foggy chaos in which the property was liquidated.

So the assets of WAMU at the time it went belly up was under $3 Billion which means that after you deduct the brick and mortar locations and the servicing rights Chase still got the deal of a lifetime — but one thing doesn’t add up. If WAMU had less than $3 Billion in assets and 99% of that were conventional bank assets excluding loans, then the “value” of the loan portfolio, using FDIC Schoppe estimates was $3 Million. If the WAMU loan portfolio implied by the a,test antics of Chase was true — then Chase acquired $300 BILLION in loans for $3 MILLION. Even the toxic waste loans were worth more than one tenth of one percent.

Chase continues to assert ownership with impunity on an epic scale of fraud, theft and manipulation of the courts, investors and borrowers. The finding that Chase NOT assumed repurchase obligations in relation to the originated loans goes further to corroborate everything I had written here. There seems to be an oblique reference to attempted changes in the “P&A” Agreement, and the finding that the original deal cannot be changed, but the actual finding of two inconsistent agreements posted on the FDIC site is worth investigating. I can assure the reader that I have found and read both.

And lastly I have already published numerous articles on victories in court (one fo which was mine and Patrick Giunta) for the borrower based upon the exact principles and facts written in this article — where the judge concluded that US Bank had never acquired the loan, that the “servicer” in court testifying through a robo-signer had no power over the loan because their power was  derived from Chase who was named as servicer for a REMIC Trust that never acquired the loan nor any rights to the loan.

The use of powers of attorney were found to be inadequate simply because the party who executed the POA had no rights to the money, the enforcement of the loan nor any collection or foreclosure. If Chase had acquired the loan from WAMU they would have won. Their total reliance on deflective legal presumptions based upon presumed fact that were untrue completely failed.

BOTTOM LINE: CHASE ACQUIRED NO LOANS FROM WAMU. Hence subsequent documents of transfer or powers (Powers of attorney) are void.

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Farce Behind the Force: JPM and WAMU

For further information please call 954-495-9867 or 520-405-1688.

This article is not a substitute for getting the advice I’m an attorney licensed in the jurisdiction in which your property is located.

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see http://www.ritholtz.com/blog/2013/03/jpm-wamu/

The banks are counting on the fact that the claims of securitization are so complex and convoluted that nobody will be able to state a claim with clarity. Foreclosure defense lawyers across the country are seeing constant fabrications, forgeries, uttering false instruments (assignments, Powers of Attorney), and perjury. Nowhere is this more evident than in the case of J.P. Morgan Chase claiming rights in connection with it’s acquisition of certain assets and liabilities of Washington Mutual (WAMU).

At this point J.P. Morgan Chase has taken so many different positions that are inconsistent with each other that you can find a brief or pleading from J.P. Morgan Chase to support virtually any position that you want to take.

You really need to drill down into these articles and decisions in order to see the fundamental error and illegality of the reporting by the major banks and their actions seeking to enforce defective mortgages despite blatant irregularities at closing and nonexistent transactions where JP Morgan Chase, like other banks, claims to have acquired a particular loan or that a nonexistent or nonperforming trust somehow acquired a loan.

If you look at this article in the link above you will see that JP Morgan Chase has taken multiple inconsistent positions on exactly the same issues. Despite clear language to the contrary, they wish to escape liability for the defective and predatory loan practices directed at unsuspecting homeowners and borrowers; and despite clear language to the contrary, they wish to assert ownership over loans that were already sold into the secondary market and then subjected to claims of securitization that in most cases were false claims.

Josh Rosner wrote an article asking whether the false claims of securitization and violations of the prospectus and PSA would make might dwarf the “Lehman weekend.” The answer is yes. From my perspective it appears that most of the money that went through the banks that were too big to fail, was it illegally and fraudulently collected and then hidden offshore. Many trillions of dollars have been advanced to these Banks that are too big to regulate.

TARP was initially created to prevent massive Bank closings related to losses on mortgage loans. But that didn’t work out because the losses on mortgage loans were not sustained by the mega banks. So they expanded the definition to include mortgage-backed securities. But those losses were not sustained by the mega banks either. So they expanded the definition to include virtually anything in an excuse to pump money into the same banks that had caused the crisis; very few critics were allowed to speak. The critics knew that pumping money into banks that were falsely reporting losses what is going to cause an even greater negative impact on the economy. The economy is driven mostly by consumer spending. This was not rocket science. Countries like Iceland simply reduced household debt and threw the bankers in jail. The result was a robust economic recovery. The cost of reducing the household that would simply accomplished by forcing the banks to absorb the loss that they themselves had created.

The problem we have in our country is that the banks have purchased the government. And those politicians who have not been purchased, Have been scared to death with the prospect a complete failure of government, society and economies. The entire premise of such a crash is completely wrong. While the immediate impact of such a policy inevitably leads to volatility in the securities markets, those movements even out as the outcome becomes clear. More than 7000 Banks and credit unions currently use the exact same backbone four electronic funds transfer and payments; all the banks use the same technology and all of them have access to that technology right now. The fall of the mega banks would simply result in a correction in the marketplace where certain banks have become too large to regulate at had become far too influential with people who call the levers of power in all three branches of government.

The other part of the problem is that we seem to hold those with his enormous wealth in high estimation without regard to their actual character. Most of the people in the mega banks are completely contemptuous of the citizens of our country and the politicians that we have elected. In my opinion, it is urgent that we begin to separate normal commercial depository functions of a bank from the risks taken by investment banking departments. And when those risks turn to wrongful, illegal or criminal behavior the individuals, not just their companies, should be held strictly accountable.

Taking down the mega banks is much simpler than it might appear. The extent of our continuing economic problems is equal to the liability of these banks for damages and to repurchase both loans and alleged mortgage-backed securities that were neither securities nor were they backed by mortgages. If the securities and bank regulators actually performed the due diligence and audits that they were supposed to perform, It would be obvious that the mega banks do not have the assets that they claim to have, and that’s the mega banks have liabilities that are far in excess of what they have reported. In short, the mega banks are insolvent which is exactly why we have the FDIC. An orderly transition of the function of the mega banks to smaller banks that are more susceptible to regulation would end our current crisis and ensure a recovery of our economy.

CA Appelate Decision: Damage Claims Against OneWest Goes to Jury, Summary Judgment reversed

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

Sue Rose is my new administrative assistant. Danielle and Geordan do not work for livinglies or the Garfield firm. If you have placed an order which is unfulfilled please call the above numbers.

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see CA Appeals OrderReversesMSJ

This case allows the jury to hear claims against OneWest for fraud, negligent misrepresentation, concealment, promissory estoppel, negligence, wrongful foreclosure, and violation of CA Business and Professional Code.

Here is an example of the obvious: a Judge takes no risk in denying a motion for summary judgment. It is only when the Judge grants summary judgment that there is a risk of reversal. With the current judicial climate changing in favor of borrowers, [including findings that the mortgage was absolutely void (invalid, non-perfected) where a sham nominee like MERS was used], Judges should take note that they are better off getting in front of the new trend and allow borrowers’ claims to be heard in a fair manner, observing the requirements of due process.

If the Banks collapse because they created 100 million invalid mortgages, that is not a problem for the Judge. And, as I have said many times here, there are 7,000 banks and credit unions that can take up whatever falls out of the mega banks as a result of investors and regulators realizing that the mortgages are void, the assets on bank balance sheets don’t exist or are far overvalued, and the liability section of the bank balance sheet is far understated as a result of damage claims like the one featured in this article.

As noted earlier on these pages, the threshold legal question has been reversed. The question now is what difference does it make if the borrower is in default if the foreclosing party had no right to foreclose?  The previous question that I heard hundreds of times from the Judges themselves was incorrect from the beginning. Their question was what difference does it make if the loan was securitized, as long as the borrower is in default? And that is where the dissenting justice in this case also got it wrong. He is still assuming that these loan transactions were in fact consummated as reflected in the alleged loan documents. The underlying assumption of the dissenting judge is obvious: that the loan contracts were fundamentally valid and whatever defects existed could be corrected before or even during foreclosure. NOT TRUE!

Here in this case is an example of how judges are now perceiving the entire loan transaction instead of just the claim of a default. And the result is that this California appellate court decided to let the case go to trial and allow a jury to hear the claims against OneWest, whose behavior was predatory from the start of when they acquired IndyMac business in 2008-2009.

The appellate court reversed the trial judge who had granted Summary Judgment for OneWest — a little plaything organized over a weekend by some of the richest people in the country. On a net basis they paid nothing and made a ton of money off of loss sharing and guarantee payments from the FDIC and and the GSE’s respectively. They also foreclosed on thousands of homes in cases where they had no interest in the loan and no right to foreclose, collect or do anything else with respect to the loan.

The hidden issue here is whether the Judge, having been reversed, will now allow the homeowner’s attorney to probe deep into the dealings of OneWest during discovery. I suspect that the trial judge will allow more liberal discovery after being reversed. And if that happens you might not never hear about this case again — as it joins the tens of thousands of cases that have been settled under seal of confidentiality. Essentially the strategy of the banks is that if they lose, they can always pay off the homeowner to keep the case from being publicized.

FDIC Employee Quits and Goes Public With Complaint Against Chase, WAMU, Citi and two law firms

For further information and assistance please call 954-495-9867 or 520-405-1688

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See Eric Mains Federal Complaint

see Mains – Table of Contents.petition 2 transfer

On Monday Eric Mains resigned from his employment with the FDIC. He had just filed a lawsuit against Chase, Citi, WAMU-HE2 Trust, Cynthia Riley, LPS, WAMU, and two law firms. Since he felt he had a conflict of interest, he believed the best course of action was to resign effective immediately.

His lawsuit, told from the prospective of a true insider, reveals in astonishing detail the worst of the practices that have resulted in millions of illegal foreclosures. Some of his allegations cast a dark shadow over claims of Chase Bank on its balance sheet, as reported to the public and the SEC and the reporting of both Chase and Citi as to their potential liability for wrongful foreclosures. If he is right, and he proves these allegations, much of what Chase has reported as its financial condition will vanish from its financial statements and the liability side of the balance sheets of both Citi (as Trustee) and Chase (as servicer and “owner’) will increase exponentially. This may well have the effect of bringing both giants into the position of insufficient reserve capital and force the government to take action against both entities. Elizabeth Warren might have been right when she said that Citi should have been broken into pieces. And the same logic might apply to Chase.

He has also penned the phrase “wild goose Chase” referring to discovery of the true creditors and processing of applications for modification of loans. And he has opened the door for RICO actions against the banks and individuals who did the bidding of the banks as well as the individuals who directed those actions.

His Indiana lawsuit is filed in federal court. He alleges that

1. WAMU was not the actual lender in his own loan
2. That the loan was part of an illegal scheme from the start
3. That his loan was subject to claims of securitization but that those claims were false
4. That the REMIC Trust was never funded and therefore never had the capacity to originate or buy loans
5. That the intermediaries never followed the law or the documents for securitization of his loan
6. That the REMIC Trust never did purchase his loan
7. That Citi was therefore “trustee” for an unfunded trust
8. That Chase never purchased the loans from WAMU
9. That Chase could not have been the legal servicer over the loan because the loan was not in the trust
10. That Chase has filed conflicting claims as to ownership of the loans
11. That the affidavit of Robert Schoppe, whom Mains worked for, as to ownership of the loans was false when it states that Chase owned the loans
12. That the use of WAMU’s name on the loan documents was a false representation
13. That his loan may have been pledged several times by various parties
14. That multiple payments from multiple parties were likely received by Chase and others on account of the Mains “loan” but were never accounted for to the investors whose money was being used as though it was the Banks themselves who were funding originations and a acquisitions of loans
15. That the industry practice was to reap multiple payments on the same loan — and the foreclose as though there was balance due when in fact the balance claimed was entirely incorrect
16. That the investors were defrauded and that foreclosure was part of the fraudulent scheme
17. That Mains name and identity was used without his consent to justify numerous illegal transactions in which the banks repeated huge profits
18. That neither WAMU nor Chase had any rights to collect money from Mains
19. That Citi had no right to enforce a loan it did not own and had no authority to represent the owner(s) of the loan
20. That the modification procedures adopted by the Banks were used intentionally to force the borrower into the illusions a default
21. That Sheila Bair, Chairman of the FDIC, said that Chase and other banks used HAMP modifications as “a kind of predatory lending program.”
22. That Mains stopped making payments when he discovered that there was no known or identified creditor.
23. The despite stopping payments, his loan balance went down, according to statements sent to him.
24. That Chase has routinely violated the terms of consent judgments and settlements with respect to the processing of payments and the filing of foreclosures.
25. That the affidavits filed by persons purportedly representing Chase were neither true nor based upon personal knowledge
26. That the note and mortgage are void from the start.
27. That Mains has found “incontrovertible evidence of fraud, forgery and possibly backdating as well.” (referring to Chase)
28. That the law firms suborned perjury and intentionally made misrepresentations to the Court
29. That Cynthia Riley “is one overwhelmingly productive and multi-talented bank officer. Apparently she was even capable of endorsing hundreds of loan documents a day, and in Mains’ case, even after she was no longer employed by Washington Mutual Bank. [Mains cites to deposition of Riley in JPM Morgan Chase v Orazco Case no 29997 CA, 11th Judicial Circuit, Florida.
30 That Cynthia Riley was laid off in November 2006 and never again employed as a note review examiner by WAMU nor at JP Morgan Chase.
30. That LPS (now Black Knight) owns and operates LPS Desktop Software, which was used to create false documents to be executed by LPS employees for recording in the Offices of the Indiana County recorder.
31. That the false documents in the mains case were created by LPS employee Jodi Sobotta and signed by her with no authority to do so.
32. Neither the notary nor the LPS employee had any real documents nor knowledge when they signed and notarized the documents used against Mains.
33. Chase and its lawyer pursued the foreclosure with full knowledge that the assignment was fraudulent and forged.
34. That LPS was established as an intermediary to provide “plausible deniability” to Chase and others who used LPS.
35. That the law firms also represented LPS in a blatant conflict of interest and with knowledge of LPS fraud and forgery.

Some Quotes form the Complaint:

“Mains perspective on this case is a rather unique one, as Main is an employee of the FDIC (hereinafter, FDIC) who worked in the Dallas field office of the FDIC in the Division of Resolutions and Receiverships (hereinafter DRR), said division which was the one responsible for closing WAMU and acting as its receiver. Mains worked with one Robert Schoppe in his division, whom the defendant Chase Bank often cites to when pulling out an affidavit Robert signed. This affidavit states that Chase Bank had purchased “certain assets and liabilities” of WAMU in the purchase transaction from the FDIC as receiver for WAMU in 2008. Chase Bank uses this affidavit ad museum to convince the court system in foreclosure cases that this affidavit somehow proves that Chase Bank purchased “every conceivable asset” of WAMU, so it must have standing in all cases involving homeowner loans originated through WAMU, or to put it simply that this proves Chase became a holder with rights to enforce or a holder in due course of the loan as defined by the Uniform Commercial Code. Antithetically, when it wants to sue the FDIC for a billion dollars… due to mounting expenses from the WAMU purchase transaction, it complains that the purchase agreement it signed didn’t really entail the purchase of “every asset and liability” of WAMU… Chase Bank claims this when it is to their advantage in a lawsuit to do so.

Mains worked as team leader in the DRR Dallas field office

[The] violation of REMIC trust rules occurred because the entities involved, for reasons of control, speed of transaction, and to hide what they were actually doing with the investors money

Unfortunately for the investors, many of the banks involved in the securitization process (like Wahoo) failed to perform the securitizations properly, hence as mentioned above, the securitizations were botched and ineffective as to passing ownership of the notes or underlying collateral. The loans purchased were not purchased THROUGH the REMIC. … The REMIC trust entity must be the one actually purchasing the mortgages directly.

This violation of REMIC trust rules occurred because the entities involved, for reasons of control, speed of transaction, and to hide what they were actually doing with the investors funds once received, held the investor funds in the “lender” banks owned subsidiary accounts, instead of funding the REMIC trusts with the money so that the trust could then purchase the loan from the “lender”, making it an actual buy and sell transaction.”

OneWest — One Step Up from Donald Duck

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

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Well at least OneWest legally exists and it didn’t originate any loans even though it sometimes tries to give that appearance. But it is clear that this company was literally formed over a weekend to takeover IndyMac business. In so doing it made a number of dubious deals in which it was not to be liable for the shoddy, fabricated documents, and unlawful practices of IndyMac which claimed ownership of loans that were already sold into the secondary market and then subjected to conflicting claims of ownership. It looks like the return on investment was infinite.

OneWest Bank Targeted By Insurer Over $335M In MBS Losses

Law360, New York (August 13, 2012, 9:41 PM ET) — Assured Guaranty Municipal Corp. fired off a suit against OneWest Bank FSB in California on Thursday, claiming the company’s shoddy loan servicing was to blame for some of the $335 million it has shelled out in insurance claims related to mortgage-backed securities.

The lawsuit in Los Angeles court says that since OneWest took over IndyMac Bank FSB’s role as servicer of mortgage loans underlying residential MBS, the loans have experienced delinquencies and defaults at a severe and unexpected rate. That in turn has forced Assured to…

The question is whose loss was this, and why did the insurance company pay it off? The bigger question is that if the loss was paid off, why wasn’t allocated to the underlying assets whose decline in value was the basis of the loss claim?

OneWest Bank Can’t Shake HAMP Loan Class Action

Law360, New York (October 23, 2012, 3:11 PM ET) — OneWest Bank FSB on Monday failed to escape an Illinois class action accusing it of bungling a mortgage loan modification application by unreasonably delaying its response and imposing late fees for payments that were not actually late.

Judge Sharon Johnson Coleman rejected OneWest’s argument that lead plaintiff Stacey Fletcher lacked standing, finding that her complaint alleged sufficient injury from OneWest’s allegedly unreasonable delay in responding to her request for a modified loan under the Home Affordable Modification Program.

Fletcher further accuses OneWest of reporting her to…

It seems like OneWest was too busy  making claims for loss sharing and insurance and guarantees to actually pursue modifications.

OneWest, Soros Accused Of Mortgage Scam In FCA Suit

Law360, New York (October 16, 2012, 9:47 PM ET) — A Florida resident hit OneWest Bank and billionaire majority shareholder George Soros with a False Claims Act lawsuit Monday, saying that through their connections to President Barack Obama, they had finagled a loss-sharing deal with the government that allowed them to scam homeowners and taxpayers.

James Beekman, who originally took out his mortgage with IndyMac Federal Bank, says when Soros and OneWest took over the fallen bank, they entered into a loss-sharing agreement with the Federal Deposit Insurance Corp. Under the deal, OneWest would shoulder the…

Disclosure. Patrick Giunta and I represent Beekman. No further comment

Loan Info Confidential

By Michael Lipkin

Law360, San Diego (November 10, 2014, 6:13 PM ET) — OneWest Bank NA is trying to stop Lehman Brothers Holding Inc. from accessing confidential information about Lehman-owned loans it used to service, alleging in New York federal court that Lehman is trying to blame OneWest for its own bad investments.
In a complaint filed Friday, OneWest claims Lehman is trying to access regulated information about 27 mortgages OneWest used to service, including confidential data about borrowers that OneWest alleges Lehman doesn’t have a right to access. The loans were eventually liquidated after poor performance, and the service agreements governing them have already expired, according to the complaint.

“This action seeks to end defendants’ misguided campaign to try to force OneWest to provide them with confidential information to which the defendants are no longer entitled,” the bank said. “Doing so could subject OneWest to potential regulatory and civil liability for failing to protect private borrower information.”

Aurora Commercial Corp., formerly Lehman Brothers Bank FSB, is also named as a defendant.

Lehman allegedly bought the loans as part of a pool from IndyMac Bank FSB between 2006 and 2007, with IndyMac retaining the right to service the loans. After IndyMac was shut down by the Office of Thrift Supervision in 2008, OneWest bought the servicing rights from the Federal Deposit Insurance Corp. The deal expressly said OneWest was not liable for previous servicing conduct, according to the complaint.

For the full article see www.law360.com

Innovative Lawsuits Test the Credibility of Securitized Loans

For further information or assistance please call 954-495-9867 or 520-405-1688.

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see http://dealbook.nytimes.com/2014/11/27/u-s-backed-mortgages-put-to-test-in-a-lawsuit/

If you ever saw the movie “The Firm” from the book by John Grisham, you know the ending. The whole system was rigged but what finally produced a result was mail fraud, which is generally off the radar screen for any lawyer combating powerful opponents. The lesson for the perpetrators of crimes, predatory loans and so forth is that they can’t cover everything. There are too many ways that they faked the deals from top to bottom. Mail fraud might be one of them. And as you will see, talking to the borrower might be another. One lawsuit against US Bank shows that anyone who really does their homework might be able to take down Goliath with just such an innocuous provision.

A word of caution here  — these strategies are predicated in part on the assumption that the entire loan process was fraudulent, where there were dozens of undisclosed entities taking undisclosed fees from a large pool of investor money used in part to fund mortgage that were not tied to any documents signed at closing. The documents that were signed had no connection to the actual lender and the entity identified as the lender was a pretender paid to act as though it was loaning money. The reason I mention this is not to hammer down on the reality of those mortgages, but to suggest that a judge who still thinks that the borrower is a deadbeat trying to get out of legitimate loan, is likely to find problems with “innovative strategies.” But it is also true that there are a variety of things that bother many judges more and more about these loans and the foreclosures.

The article in the New York Times by Peter Eavis goes into some detail, but the essence is in this quote:

Not engaging with borrowers who have missed payments may not seem like the strongest grounds for litigation against a bank. Yet that is the basis for an innovative lawsuit against U.S. Bank, a division of U.S. Bancorp, one of the largest banks in the country. The legal action could mean fresh legal problems for other big mortgage banks, as well. It is the latest threat to emerge from a barrage of cases that have forced big banks to pay tens of billions of dollars in recent months.

The lawsuit focuses on a popular type of government-guaranteed mortgage that in fact requires that banks take distinct steps — like trying to arrange a meeting — when borrowers stop paying.

The lawsuit is being brought by Advocates for Basic Legal Equality, a legal aid group. In a twist, the group is suing U.S. Bank in federal court in Ohio on behalf of the United States government, using the False Claims Act. This legislation, which dates to the Civil War, allows private citizens and groups to pursue legal action against companies and other entities for receiving payments from the government on false grounds.

The more you drill down on the existing laws, rules and regulations the more violations you will find. And when it comes to foreclosing, anyone watching this nightmare unfold must get to to wondering about why all of these deals went to foreclosure instead of workouts. The answer is that the foreclosure judgment and the foreclosure sale is part of a massive cover-up of massive fraud. And for the most part, the government has decided to (a) not prosecute real claims for real damages and real crimes and (b) not provide individual homeowners with information already obtained about their homes, their mortgages and their foreclosures that would shut the process down if known. The latter is what most irks Elizabeth Warren who now officially speaks for the average American and who seeks a level playing field in the Senate of the U.S. Congress.

People like Senator Warren, Sheila Bair, former FDIC chief, and others who have been outspoken about the out right fraud — i.e., nonexistence of the loans being used as a basis for foreclosure — keep getting stepped on, but the recent “promotion” of Warren is at least somewhat encouraging in that it shows that the leadership of the Democratic party recognizes they can no longer ignore her or the issues she speaks about. She speaks at gathering that attract voters from across the political spectrum and she is proving what I said years ago a constantly ever since — if you want to win by a landslide, run against the banks  and the people they own in our government.

DUAL Tracking: The Game of “Chicken”

In their quest for a windfall they have given the homeowners a path to justice — one where the notice of default, notice of sale, notice of acceleration notice of right to reinstate and redemption rights are all screwed up (i.e., wrong and invalid). With 80%+ of the losses already paid, the loans could have been modified down to nothing or nearly nothing compared with the original balance showed on the note, whether the note was fabricated or not. The problem is not whether the remedy exists. The problem is whether the lawyers and litigants have the guts to pursue it.” Neil Garfield, www.Livinglies.me

OneWest was formed over a weekend by several wealthy investors who paid virtually nothing for billions of dollars in what were claimed as “portfolio” loans owned by IndyMac which went bankrupt and into FDIC receivership in September, 2008. The agreement specified that the FDIC would pay 80% of the losses incurred on the loans. The first problem is that it said it would pay OneWest the 80%.

The second problem is that One West maintained their claim for the full amount against homeowners even though they had already submitted the claims and collected — many times more than once, from our analysis. That payment was not subject to repayment, subrogation or anything else that we can find, so the “creditor” or “agent” of the creditor has been paid on that account, but the balance has not been reduced.

In their quest for a windfall they have given the homeowners a path to justice — one where the notice of default, notice of sale, notice of acceleration notice of right to reinstate and redemption rights are all screwed up (i.e., wrong and invalid). With 80%+ of the losses already paid, the loans could have been modified down to nothing or nearly nothing compared with the original balance showed on the note, whether the note was fabricated or not.

The real problem is that most lawyers are not presenting their cases with the confidence of knowing that whatever the position of their opposition, it is probably a misstatement of the truth — the opposing lawyers in most cases don’t even know that they are making false statements and representations. Practically every foreclosure trial or hearing begins with the words “This is a simple foreclosure, your honor.” Nothing could be further from the truth.

Patrick Giunta, Esq. is co-counsel on several cases we are litigating in South Florida. One of them is a qui tam action against OneWest for false claims to the government. He has again brought to my attention the case decided in California (where almost everyone says it is hopeless) in which the homeowner stuck to their guns instead of accepting various offers of settlement. The reason we bring it to your attention again is that it demonstrates the fact that if you know you are right and you have the Judge on your side just for the raw elements of pleading or discovery, the confidence of the opposition is shattered even if they put on a good show of appearing otherwise.

My article from September 13, 2013 explains the scenario from the California case. Our current case goes even further alleging that OneWest intentionally misrepresented losses to the FDIC and the Federal Home Loan Housing Agency (and probably other private and public institutions) in order to collect multiple times on nonexistent losses. But it also dove-tails with the California case because they were steering homeowners into “modification” programs by the old trick “You have to be 90 days behind before you can be considered for modification.”

And by the way that trick phrase is not only untrue (designed to keep the modification “in house”) but also potentially criminal and illegal, because for one thing HAMP does not require delinquency in loans for modification. It gets worse. Most of the loans submitted for modification were in fact subject to claims of securitization and the authority of OneWest is questionable at best. The 90 day delinquency trick is wrong. It also constitutes the unauthorized practice of law. If a lawyer says it or anyone from his or her office under instructions from the lawyer, it might be grounds for a bar grievance. Practicing law without a license is an actual felony in many states subject to imprisonment, fine or both.

Virtually all servicers have trained their employees on how to say that without it appearing to be advice — but the homeowner hears it just the way the servicer wants them to hear it — I must go into default if I want the modification. THUS THE DEFAULT IS PROCURED INTENTIONALLY BY THE SERVICER WHICH IS INTENTIONAL INTERFERENCE WITH THE CONTRACT, IF IT EXISTS, BETWEEN THE BORROWER AND THE TRUST.That is an intentional tort enabling the Plaintiff Homeowner to allege damages far beyond economic damages and to even ask for punitive damages, exemplary damages or treble damages under statutory authority, sometimes including the cost of attorneys fees and costs.

The problem is that no modification is offered even if the homeowner makes trial payments on an “approved” modification. Worse yet, those payments are also frequently missed when the servicer or “creditor” issues a statement, report or notice. Or the modification actually raises the payments and makes it more impossible for the loan to work — which brings the servicer to the point they want: foreclosure to collect or keep the money they received on that loan, directly or indirectly, and which they never reported to the court, the borrower or anyone else.

The OneWest situation is only symptomatic of the rest of the “industry.” Virtually all servicers play the same games. These intermediaries and their co-venturers are collecting over and over again from loss sharing agreements, insurance, credit default swaps, and guarantees and other hedges, over and over again. They report it to nobody. And neither the Justice department or even our new CFPB seem to have any interest in the one factor that would bring down the number of foreclosures to nearly zero — giving credit where credit is due.

Practice Hint: For the bold and creative I would argue that that the entire profit earned from using the name of the homeowner to sell bonds,and profit from loss sharing and loss mitigation techniques should be disgorged to the borrower, whose note specifies how the payments are to be applied. One lawyer in Phoenix refers to this as my most obnoxious theory. I bet. It would disgorge all the money the banks made by declaring non existent losses.

If the “creditor” has received money directly or through payment to their agent, then the balance of the receivable is reduced — and in the simplest bookkeeping class we know that the corresponding payable from the borrower is also lost. The intermediaries could get to keep their ill-gotten claims on multiple reports of the same nonexistent loss, with a correction of the principal balance due from the borrower.

Instead they would rather get hit for a seven figure verdict or a six figure settlement when one out of a thousand gets up the nerve to really challenge them. The numbers all balance out in favor of Wall Street — as long as Wall Street keeps winning the game of “chicken.”

http://livinglies.me/2013/09/13/victory-for-homeowners-received-title-and-7-figure-monetary-damages-for-wrongful-foreclosure/

For further information please call 520-405-1688 or 954-494-6000. Consults available to homeowners’ attorneys, to wit: homeowners can attend only if they have a licensed attorney on the conference call. Workbooks on General Foreclosure Litigation, Evidence and Expert Witnesses are also available.

Damages Rising: Wrongful Foreclosure Costs Wells Fargo $3.2 Million

Damage awards for wrongful foreclosure are rising across the country. In New Mexico a judge issued a $3.2 million judgment (including $2.7 million in punitive damages) against Wells Fargo for foreclosing on a man’s home after his death even though he had an insurance policy through the bank that paid the remaining balance on his mortgage. The balance “owed” on the mortgage was $125,000. Despite the fact that the bank knew about the insurance (because it was purchased through the bank) Wells Fargo continued to pursue foreclosure, ignoring the claim for insurance. It is because of cases like this that people are asking “why would they do that?”

The answer is what I’ve been saying for years.  Where a loan is subject to claims of securitization, and the investment banks lied to insurers, investors, guarantors and other co-obligors, they most likely have been paid many times for the same loan and never gave credit to the investors. By not crediting the investors they created the illusion of a higher balance that was due on the loan. They also created the illusion of a default that probably never occurred. But by pursuing foreclosure and foreclosure sale, they compounded the illusion and avoided claims for refund and repayment received from third parties and created claims for recovery of servicer advances. In many foreclosures that I have  reviewed, payments received from the FDIC under loss-sharing were never taken into account. Thus the bank collects money repeatedly for a loss it never incurred.

This case is another example of why I insist on following the money. By following the money trail you will discover that the documents upon which the foreclosure relies referred to  fictitious transactions. The documents are worthless, but nevertheless accepted in court unless a proper objection is made based upon preserving issues for trial and appeal by proper pleading and discovery.

Lawyers should take note of this profit opportunity. Most homeowners are looking for attorneys to take cases on contingency. Typical contingency fee is 40%. If these lawyers were on a typical contingency fee arrangement, their payday would have been around $1.2 million.

I should add that for every one of these judgments that are reported, I hear about dozens of confidential settlements that are of similar nature, to wit: clear title on the house, damages and attorneys fees.

Wells Fargo Ordered to Pay $3.2 Million for “Shocking” Foreclosure

JP Morgan Sues FDIC for WAMU Cash Over Disputed Mortgage Bonds

EDITOR’S NOTE: The dots are starting to get connected. Here JP Morgan who said they were the successor for everything that was WAMU turns out to be arguing that this didn’t actually happen and that some money is still left in the WAMU “estate.” The issue that is not raised is what else is in the WAMU estate? I content that there are numerous loans or claims to loans that were never transferred to anyone successfully and I think the FDIC and JPM both know that. Chase is trying to limit its exposure for bad bonds while at the same time claiming ownership or servicing rights for the underlying mortgages.

Which brings me to a central procedural point: if these cases are to be properly litigated such that the truth of the transaction(s) comes out, then it cannot be done on the rocket docket of foreclosures. It should be assigned to regular civil litigation or even better complex litigation because the issues cannot be addressed in the 5-10 minutes that are allowed on the rocket docket.

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  • JPMorgan (JPM) has sued the Federal Deposit Insurance Corp. for a portion of the $2.7B remaining in the FDIC receivership that liquidated Washington Mutual following the sale of its branches and deposits to JPMorgan for $1.88B during the financial crisis in 2008.
  • The lawsuit is the latest development in the dispute between JPMorgan and the FDIC over who should assume Washington Mutual’s legal liabilities, such as those related to the sale of problematic mortgage bonds.
  • Meanwhile, JPMorgan has been sued by the State of Mississippi for alleged misconduct while going after credit-card users for missed payments. The bank’s sins include pursuing consumers for money they didn’t owe, Mississippi said.
  • The state is the second to sue JPMorgan over the issue, the other being California, while 15 others are examining the matter. JPM is already in early settlement talks with 14 of them.

Read more at Seeking Alpha:
http://seekingalpha.com/currents/post/1470511?source=ipadportfolioapp_email

BAD FAITH: Shack Decision Unravels the Chase-Wamu Mystery -At least in Part

Shack Blasts Chase, Fannie Mae for Bad Faith on Wamu Merger

It is obvious that documents were produced for Shack to issue these rulings. The affidavits to which he refers should be obtained in their entirety. There is lots to take away from this decision, but most important, is that Chase never acquired the loans from WAMU. The loans originated or acquired by WAMU were already sold to investors, trusts and Fannie or Freddie. The issue with Fannie and Freddie of course is that they were merely fronting for “private label” securitizations hiding behind the veil of the GSE’s who were mere guarantors and not lenders. I’d like to see any agreement and transactional documents showing the alleged purchase by Fannie, but it is presumed in the Shack Order and Findings.

It is also obvious that the finding that Chase was not the owner of the debt at any time came from an admission from both a Fannie Mae representative in an affidavit from an alleged Fannie Mae representative. We should direct discovery in Chase cases to that person in Fannie Mae who says they acquired the subject debt and that Chase merely received the servicing rights in the Chase-WAMU merger.

Note that Fannie Mae is considered by Shack to have acted in bad faith, and that Fannie was less than forthcoming in its description of itself stating that they might be the owner or they might be the trustee (pursuant to the Master Trustee Agreement published in 2007) for a securitized trust. Note also that Fannie at no time was chartered as a lender. Thus it could not originate any loans and never did so. The vagueness with which Fannie Mae addresses the issue of ownership shows that the hiding and non-disclosure in bankruptcy courts and state courts continues across the country.

The admission from Fannie that they “might” be the Master trustee for allegedly securitized assets (debts arising out of fictitious transactions on paper that looked like mortgage loans) is both alarming and encouraging. The rush to foreclosure is partially explained by this chaotic pile of fraudulent paper trails.

When you take into account the non stop servicer advances, you can see what the parties are hiding — that the real creditor on those debts, has been paid all the interest they were expecting, that the principal is being paid in settlements with pennies on the dollar, and that the default alleged in notices from servicers and informing the borrower of the right to reinstate were defective, to wit: that the amount stated as required to cure the alleged default was and remains incorrect. The amount should have been reduced by third party payments including but not limited to the servicer advances which were not loans, and thus could only be characterized as PAYMENT, which is the ultimate defense against a lawsuit or any enforcement mechanism designed to collect a debt.

The dirty little secret is that they diverted title and money from the investors and converted what could have been a secured loan into an unsecured loan. The advances and payments by third parties satisfied the debt that arose when the borrower took the loan. They in turn MIGHT have claims for contribution or unjust enrichment but they are most certainly not protected by a pledge of collateral either as mortgage or assignment of rents or anything else.

Note that it could not have acquired loans except with money from what were represented as securitized trusts with Fannie as master Trustee. Therefore there are no circumstances under which Fannie or Freddie could be owners of the the debt with rights to enforce except upon the only event in which money is paid by Fannie for the loan — a guarantee payment AFTER FORECLOSURE) that is the only transaction permitted under its charter. This point was missed by Shack or ignored by him, because he had bigger fish to fry — the lawyers for Chase itself with a copy of the order to be served upon Jamie Dimon, the head of Chase.
The fact is that with the WAMU bankruptcy, seizure by OTS and appointment of FDIC, there were no assignments, agreements of sale or even a permission slip under which Chase could or did acquire loans from WAMU. But that didn’t stop Chase from claiming exactly that in tens of thousands of foreclosures.
In cases where Chase is allegedly at the root of title through the merger with WAMU, it would be appropriate to site to the Shack case, get the case documents, get a Title and Securitization report (see www.livingliesstore.com) and lawyers should look into a motion for summary judgment, or a motion for involuntary dismissal with prejudice. Even where Chase might allege that it is filing the foreclosure as a representative of Fannie or Freddie, the basis for that allegation needs to be in their pleading or it is not an ULTIMATE fact upon which relief could be granted. Discovery should be aimed at getting the documents upon which Chase allegedly relies in showing that it has the authority to represent Fannie — and don’t stop there. The truth is that nearly all the so-called Fannie and Freddie loans were veils for the private label securitization in which the money was diverted from the trust, as was the title, leaving Fannie and Freddie as well as the investors and the buyers holding nothing.

In cases where the statute of limitations has already run, the dismissal of the foreclosure action, is barred in most cases from ever being brought again by anyone. But the dismissal against Chase should be with prejudice in all events because it isn’t the creditor and therefore does not satisfy the statutory requirements in Florida, and I presume all other states, to submit a credit bid at auction in lieu of cash.
The Judges are beginning to understand that by applying basic contract law, they can clear their dockets. It is up to us to help them. The offer of a loan was met with acceptance by the borrower but the loan never occurred. The transfers also had offer and acceptance but again no money because the investors’ money was used (outside the trust) directly to fund the origination or acquisition of the loan. This was part of a larger scheme to defraud to investors whose money was to have been deposited into the trust and then used to fund origination or acquisition of the he loans within 90 days (the cutoff).

The investment bank fraudulently induced (see complaints filed by investors, insurers, government guarantee entities etc.) the investors to give them money for an investment into a controlled trust when in fact they diverted the money for their own purposes, taking outsized fees for themselves as the toxic loans materialized to “support” the alleged investment into loans. That is the “mismanagement” part of investors’ allegations — diversion of money into a PONZI scheme.

The investment bank fraudulently diverted title to the loans to strawman entities or were — sometimes even by name (see American Brokers Conduit) — mere conduits for undisclosed third party lenders. The argument that the parties managed to hide this from the borrower long enough for the statute of limitations to run out on TILA claims is an affront to the court system and to the statutory scheme enacted by Congress to protect borrowers from predatory lenders and “steal” deals where huge fees were taken, rather than earned, without disclosure to the Borrower.

So the first element of fraud alleged by investors is diversion of the the money. The second is diversion of the paperwork that would have protected the investors at least to some extent. In this scheme title to the loan papers was intentionally diverted from the owners of the the debt, thus rendering the so-called mortgage documents unenforceable — all alleged by investors, insurers and other co-obligors who have discovered to their chagrin that each of them paid the investment bank 100 cents on the the dollar on each loan multiple times.

And yet borrowers continue to seek modifications, which means they are not looking for free houses. Even knowing they are dealing with criminals the borrowers are willing to start paying these thieves if the terms can be adjusted to give them the benefit of the bargain that was intended at origination of the purchase money mortgage or refinancing or second mortgage or HELOC.

That leaves the servicers and their lawyers being the only ones who want Foreclosures because they want a free house and/or they want the foreclosure to recapture Servicer advances to the creditors — advances that vastly reduce the amount owed and which cure the alleged borrower default. That has now become a foreclosure folly in which the servicers and their lawyers are the only parties who want it. The investors don’t care because they are getting settlements for the fraud of the investment banks for creating unenforceable loan documents (that are frequently enforced anyway because of judicial ignorance) and diversion of investor money.

In the end, the “clean hands” that Shack talks about are clearly absent from both Servicer and government sponsored entities and as judge Shack states in his decision, wrongdoers should not be permitted to profitf or their wrongdoing. If that means a windfall to the borrower, so be it. It can be likened to the old usury laws and the current usury laws where the principal of the debt is wiped out and the fraudster is hit with a judgment for three times the principal, three times the interest or both.

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