REGULATION C FILING WITH OCC MAY HAVE JUST WHAT YOU ARE LOOKING FOR

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EDITOR’S NOTE: This article corroborates something I have been saying since October, 2007. If you get a chance to do discovery on any of the originating lenders you will see the same thing over and over again for nearly all the loans made 2000-2009: the loans were not booked on the balance sheet, they were instead booked on the income statement.

This seemingly innocuous statement tells the whole story from start to finish. If the originator was the lender, as it said it was at the closing with the homeowner, then it would have shown a loan receivable on its balance sheet, a reserve for default on its balance sheet, and some income items in originating the loan. As is reported below, under Regulation C, the originating lender would also report to the regulator that it had loaned you money. But that isn’t what happened.

In terms of booking the transaction for purposes of reporting in their SEC filings and the regulator filings, they only show the transaction as income and only booked it on their income statement, with no entries on the balance sheet. That means they performed a “service” for which they received a fee. Based on that they might just as well have slipped in the name of the mortgage broker, the title agent, the closing agent on the note and mortgage or Donald Duck. It really doesn’t matter. The fact is that for all purposes OTHER than closing they did not report the transaction as THEIR LOAN. BUT SOMEBODY ELSE DID — SOMEBODY NOT DISCLOSED OR SHOWN ON ANY CLOSING DOCUMENTS.

In my opinion that means something. The Banks who control the narrative have the regulators all flustered about it being just a paperwork problem. But the law says otherwise and common sense says otherwise. And this isn’t rocket science. They lied about the identity of the lender and recorded it in the property records of the country in which the property was located. Remember we are talking about the documents here, not the actual obligation, which I agree exists with or without proper documentation.

False documents that contain false statements about the transaction are subject to various levels of enforcement against the perpetrators under Federal (TILA) and state (deceptive lending practices etc.) law. But that is not what I am talking about here. I’m talking about the fact that if the documents were false, the “best case” scenario for the banks is that they must sue to reform those documents to have them correctly state the lender’s identity and request that the Court issue an order that does in fact change the documents so that a real lender and a real borrower are shown BEFORE any enforcement action can be undertaken. That IS the law in every state as far as I can see.

In the “best case” scenario for the Banks, the order from the Judge would relate back to the date of the funding of the loan. And in that scenario the loan would then be documented by the promissory note — if it contained all required disclosures of the securitization process, which would be a whole addition to the the terms of the note. So that would “cure” the note problem which at the present time is unenforceable. Then in the “best case” scenario for the Banks, the order of the Judge would relate back to the time of closing WITH all the new terms and identification of parties.

That still leaves the mortgage, which is a separate agreement that is recognized as neither the note nor the obligation, but an instrument that is incident to the note. That too would need to be reformed with reference to either the note or the obligation as amended by the Court’s order and that too would need to relate back to the time of the funding. But here is a catch. Recording the mortgage, as amended by court order would take place whenever the court order was entered. AND THAT is why the mortgage could not be enforced against the homeowner for any acts that took place or any “breaches” that took place before the second time the mortgage was recorded with all the court-ordered changes.

The worst case scenario for the Banks is what most jurisdictions already follow: you cannot re-write history to suit you and correct fraud by later disclosure in most instances. THAT would leave the investor/lenders with a bare claim for money loaned without documentation or a secured lien on the property.  Investors have universally steered away from getting involved in foreclosures because it would subject them to claims of predatory lending and fraud. So they have effectively abandoned claims against homeowners in favor of suing the banksters. But the banksters are foreclosing as if they are following the direction of the investors when in fact they are only doing it for themselves. And THAT, my friends, is the whole story.

BY ANONYMOUS

One of the key issues I have been scratching my head about my loan is that Annual Reports filed by First Union in 2002, 2001 brag about the fact they exited the subprime lending market loan, but my loan was definitely subprime because of its adjustable rate features.   Having an accounting degree, I am always seeking to verify, match, etc.  (I get frustrated with attorneys who just believe everyone will be honest in depositions/testimony and never verify) so I sought how to independently verify the lender.

Come to find out that there is a little known item known as Regulation C that exists to assure lenders comply with fair credit reporting.  Banks are required to submit to their regulator, Wachovia’s case (2002) the OCC a data file of ALL loan applications, including amount, dates, application number, refinance, etc and even now if the loan is being sold.  The public data file than can be purchased from the FFEIC redacts the application number and date but leaves enough information so if you know your address, you can see if a loan in your amount, to a white male, with x income, was made for refinance, in your census tract by your lender.

Funny thing, Wachovia did not report any loan in my amount in my census track in 2002.  However, Lehman and Equity One reported such a loan. [editor’s note: with money they had from investor/lenders who remain undisclosed]

Because I know the date of my loan application, date of closing and the loan/application number is on my application, HUD and closing documents, I attempted a FOIA request to with the OCC to identify my lender.

The first response from the OCC was that no such information was collected.  After I wrote them back and supplied them with Regulation C and their own instructions for what/how to transmit data, I was told that I could not have access to the information because it was not ‘public’ and therefore would not be disclosed under Exemption 5 of the FOIA.

My immediate thoughts are how in the world would the OCC or any auditor know that banks were simply not making this shit up?  The bank  could open a fake file under the under any name and as long as they transmitted the false data, the OCC would be none the wiser.  The regulator is not even attempting the kick the tires.

This may be the easiest way to find for a person to find their true lender and hammer a bank for reporting false information to regulators, but the regulators believe they should not have to disclose this information to the applicant.  This is another great example of the regulators not doing their job.

MERS, POOLING AND SERVICING AGREEMENT, ACCOUNTING….GREAT , NOW WHAT?

SUBMITTED BY M SOLIMAN

EDITOR’S NOTE: Soliman brings out some interesting and important issues in his dialogue with Raja.

  • The gist of what he is saying about sales accounting runs to the core of how you disprove the allegations of your opposition. In a nutshell and somewhat oversimplified: If they were the lender then their balance sheet should show it. If they are not the lender then it shows up on their income statement. Now of course companies don’t report individual loans on their financial statements, so you need to force discovery and ask for the ledger entries that were made at the time of the origination of the loan.
  • If you put it another way the accounting and bookkeeping amounts to an admission of the real facts of the case. If they refuse to give you the ledger entries, then you are entitled to a presumption that they would have shown that they were not acting as a lender, holder, or holder in due course. If they show it to you, then it will either show the admission or you should inquire about who prepared the response to your discovery request and go after them on examination at deposition.
  • Once you show that they were not a lender, holder or holder in due course because their own accounting shows they simply booked the transaction as a fee for acting as a conduit, broker or finder, you have accomplished several things: one is that they have no standing, two is that they are not a real party in interest, three is that they lied at closing and all the way up the securitization chain, and four is that you focus the court’s attention on who actually advanced the money for the loan and who stands to suffer a loss, if there is one.
  • But it doesn’t end there. Your discovery net should be thrown out over the investment banking firm that underwrote the mortgage backed security, and anyone else who might have received third party insurance payments or any other payments (credit default swaps, bailout etc.) on account of the failure of the pool in which your loan is claimed to be an “asset.”
  • Remember that it is my opinion that many of these pools don’t actually have the loans that are advertised to be in there. They never completed or perfected the transfer of the obligation and the reason they didn’t was precisely because they wanted to snatch the third party payments away from the investors.
  • But those people were agents of the investors and any payment they received on account of loss through default or write-down should be credited and paid to the investor.
  • Why should you care what the investor received? Because those are payments that should have been booked by the investors as repayment of their investment. In turn, the percentage part of the pool that your loan represents should be credited proportionately by the credit and payment to the investor.
  • Those payments, according to your note should be allocated first to payments due and outstanding (which probably eliminates any default), second to fees outstanding attributable to the borrower (not the investor) and third to the borrower which normally would be done as a credit against principal, which would reduce the amount of principal outstanding and thus reduce the number of people who think they are under water and are not.

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MERS, POOLING AND SERVICING AGREEMENT, ACCOUNTING….GREAT , NOW WHAT?

I am really loving this upon closer inspection Raja! The issues of simple accounting rules violations appear narrow, yet the example you cite here could mean A DIFFERENCE AND SWAY IN ADVANTAGE.

Many more cases can potentially address broader issues of pleading sufficiency with repsect to securities and accounting rules violations prohibiting foreclosures.

Sale accounting is the alternative to debt or financing arrangements which is what the lender seeks to avoid in this economic downturn. Both approaches to accounting are clearly described and determinable by GAAP. In sales accounting there is no foreclsure. In debt for GAAP accounting your entitled to foreclose.

Its when you mix the two you r going to have problems. Big problems.

Pleading sufficiency is (by this layperson) the need for addressing a subject matter in light of the incurable defects in proper jurisdiction. The subject can be convoluted and difficult, I realize that.

Where the matter is heard should allow ample time to amend as a plaintiff. This is given to the fact the lender can move quicklly and seek dismissal.

The question is how far must a consumer plaintiff reach to allege that serverity of the claims, based on adverse event information, as in foreclosure.

This is significant in order to establish that the lender or a lender defendants’ alleged failure to disclose information. Therein will the court find the claim to be sufficently material.

In possession hearings the civil courts have granted the plaintiffs summary judgment and in actions brought against the consumer. The courts are often times granting the defendants’ motion to dismiss, finding that these complaints fail to adequately suffice or address the judicial fundamental element of materiality.

I can tell you the accounting rules omissions from the commencement of the loan origination through a foreclosure is one continual material breach. Counsel is lost to go to court without pleading this fact.

The next question is will the pleading adequately allege the significance of the vast number of consumer homeowner complaints. One would think yes considering the lower court level is so backlogged and a t a time when budget cuts require one less day of operations.

These lower courts however are hearing post foreclosure matters of possession. there is the further possibility that the higher Court in deciding matters while failing to see any scienter. Its what my law cohorts often refer to as accountability for their actions. That is what the “Fill in the Dots” letter tells me at first glance.

I believe it’s only in a rare case or two that a securities matter is heard in the Ninth Circuit. Recently however, there the conclusion was in fact that scienter allegations raised by the opposition were sufficient based on plaintiff’s allegations that the “high level executives …would know the company was being sued in a product liability action,” and in line with the many, customer complaints (I assume that were communicated to the company’s directors…)

The FASB is where the counterproductive rule changes always seem to take place and where lobbyist and other pro life and pro bank enthusiasts seem to spend their days. No need to fret however as gain on sale accounting is specific and requires the lender to have SOLD your loan in order to securitize it as part of a larger bulk pool.

The document I am reading, submitted by Raja tells me something is very concerning to the “lender parties” that they believe is downstream and headed their way. I’ll try and analyze each line item for you as to what it says and what they really are trying to do. I think for now though its value is for determining the letter as an admission of “we screwed up!”

M.Soliman

TRUE SALE and ASSIGNMENTS: The Nature of REMIC

From “Anonymous”

Editor’s Post: It’s always a pleasure to read something where someone actually knows what they are talking about. The following post was picked up from the comments. The key points that are relevant to the Qualified Written Request and Discovery are

1. In the shuffling of paperwork, where was a “true sale” of the pool , a portion of the pool or any of the alleged loan obligations?

2. This material doesn’t come from someone’s head. It comes from established rules from the Financial Accounting Standards Board, statutes and administrative rules.

3. If the “loan” doesn’t show up on the balance sheet of the entity making a claim it is an admission that they are not a creditor. This takes some digging. Individual loans are a rarely shown on any balance sheet. They are shown on the worksheets or the equivalent of the bookkeeping department and the accountant who prepared the financial statements. Deposing the accountant for the company in question might get you the information you need and make the other side pretty nervous that you are zeroing in on their game. Deposing the Treasurer or CFO might get you even more. In many cases these entities NEVER booked any loans. They ONLY showed fees on their income statement which means that they admit they only provided a service (to whom?) in passing the “loan” through as a conduit.

4. Timing of the “assignments.” Besides the obvious fabrications that have been discussed in these pages, if you actually demand and get the enabling documents you will find, most of the time, that the requirements have NOT been met for acceptance of the assignment. The author points out that there is usually a 90-day rule, after which the the assignment is by definition not accepted. But there are other requirements as well, especially the one that says that the assignment must be recorded or in recordable form, which generally speaking it is not.

5. The sale, according to the paperwork, is to the underwriter, not the “Trust” (SPV). So you have a right to challenge the assertion that the “Trustee” is a Trustee, that the “Trust” is a trust and that there is anything in the trust. But I would add that the PRACTICE here was the selling forward of the mortgage backed security which means they were selling something they didn’t have. So the LEGAL title to the paper MIGHT not inure to the benefit of the holder of the mortgage backed bond; but it is equally true that they already “promised” the investor that they WOULD own the “loans”, and the investor is the only one who advanced money (and thus the only one meeting the definition of creditor). Hence there MUST be an equitable right by MBS holders to make a claim — the question being against whom — the homeowner, the investment banker or someone else? Your point in Court should NOT be to try to cover this abstractly with the Judge but only to have an expert witness that would make the assertion backing up your allegations. Your strategy is simply to say that according to the information you have there is a question of fact before the court as to what entity, if any, has this loan on their balance sheet? That is a question for discovery. And once that entity has been identified then you would want to discover the claims of third parties who could or would make a claim on that “asset.”

6. The author’s statement that the investor does not show the loan on its balance sheet is therefore both right and wrong. The investor bought a bond that is payable by an entity that issued the bond. That entity is not the homeowner and therefore it could be argued that the homeowner, who was not party to that transaction, does not have any obligation to the investor and that therefore the entry on the balance sheet of the pension fund investor would not account for the “loan.” BUT, the bond contains a conveyance of a percentage interest in a pool (which as we have seen might not exist), which purportedly includes “loans” of which the Homeowner’s deal was one. Thus effectively the ONLY party who could make an accounting entry for the loan in compliance with generally accepted accounting practices, is the investor. It comes down to the most basic of double entry bookkeeping practice. A debit from cash and a credit to receivables.

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The “true sale” concept was the focus of FASB 166 and 167. Once the market crisis hit, intervention to support the SPVs rendered any “true sale” negated because there can be no intervention under a true sale.

Also, Mike H. is right regarding REMICs and ninety-day rule. A REMIC is a static fund and no mortgages can be added after 90 days (very limited exception). Many assignments are long after the 90 days and some are not even effectuated to the cutoff date (or 90 day rule) of the REMIC. Even if effectuated, and due to the dissolution of REMIC (violation of “true sale” by intervention), assignments are not valid. The problem is that if the loan is in default, it is no longer a pass-through security held by any trust. It has been removed.

As a result, assignments presented by foreclosure attorneys in court is probably not the LAST assignment. As discussed, collection rights are sold after the swap is paid.

Although courts view assignment and sale as the same thing for collection rights. It is not the same thing. In the process of securitization the mortgage loans are SOLD to security underwriters (we never see this sale in the chain), and the cash flows passed-through are assigned. The security underwriter still has the loan on their books (even if concealed by off-balance sheet conduit). Once in default, the loan is charged-off, and is no longer an asset, and the assignment of cash flows is also extinguished..

Again, the Federal Reserve, in Interim Opinion for TILA Amendment, has emphasized that the creditor is the one who must account for the loan on their balance sheet. It is not investors that have beneficial interests in REMICS, Pass-throughs, or any other security. Question is – who now is accounting for collection rights on it’s balance sheet. Who was accounting for rights at time of foreclosure initiation. How much did they pay for those rights??

There seems to be much confusion regarding the word “investor.” For beneficial interest in securities one may be called an “investor”. But this investor does not account for mortgage loan on its books. In terms of mortgage loan ownership, “investor” may also be used instead of “creditor.” But this investor accounts for mortgage loan (or collection rights) on its books – that is the investor you want to know.

Any last assignment recorded is likely NOT the actual last assignment executed. Foreclosure attorneys ignore this because they reason that the default derivatives attach the current owner/investor to the original trust. This is false – as derivatives are not certificates and not securities – and not part of the trust. The default loan is gone from the trust – gone from banks books – and in the hands of some “investor” who saw profit potential in the collection rights to the default loan. This what the government not only concealed, but also promoted to help the banks “clear” their off/on balance sheets of “toxic assets.”

Finally, Neil is right about sentiment in courts. Going in and asking for a “free house” will harm you. Sentiment in country in not on our side due to media propaganda. I have a long time friend in a prestigious private equity firm. Sentiment is that if anyone gets a principal reduction it is unfair because everyone should then get a principal reduction. People not affected by foreclosure fraud just do not get it. It is always all about “me” – even if they have not been harmed. I do not know how we are going to change this thinking – but if we do not – we will continue to get no help from government and lose in courts. Need a big case, with a judge that grants and enforces full discovery, in order to change the sentiment.

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