The Fed to sell $20 Billion in Defective Mortgage-Backed Securities

by the LendingLies team

The Federal Reserve announced Wednesday it plans to slowly sell off the pile of Treasury and mortgage-backed securities trash it accumulated during three asset purchase sessions (aka QE 1, 2 and 3), marking an end to a key strategy in response to the financial crisis.  The sale of defective Mortgage-backed securities is the Fed’s “pass the potato” to the next sucker scheme and it will eventually end up badly for someone holding the bag.

 

Fed officials outlined separate paths for shrinking Treasury and mortgage-backed assets in its portfolio.  But WHY would the Fed sell off profitable, if defective, Mortgage Backed Securities?  It is likely because the Fed knows that it is only a matter of time before its racketeering scheme is fully exposed and it is attempting to distance itself before the next housing bubble pops, or the Fed is preparing for the next financial disaster that will require additional quantitative easing.

The Fed said it will sell off its mortgage-backed “assets” more slowly, at a rate of $4 billion a month, with the caps rising by $4 billion every three months until reaching $20 billion a month.  However, who will the buyers be?  Unsuspecting foreign governments, foreign banks or American pension funds?  It will be fascinating to see who is actually misinformed enough to purchase billions of dollars of  nonMortgage-unbacked securities.  It is considered fraud to pawn off securities you know are defective and are not backed by anything- not even an empty paper bag.

The Fed said the moves would begin later this year “once normalization of the level of the federal-funds rate is well under way,” but did not specify a date.  What is “normalization of the level of the federal funds rate” mean anyways?  There is nothing normal or logical about raising interest rates when the job report is poor, the economy sluggish,  inflation is in line, and the average American is barely getting by.

The Fed didn’t specify the final size of the balance sheet but said it would be “appreciably below that seen in recent years but larger than before the financial crisis.” The Fed gave themselves an out and stated they reserved the right to halt the balance sheet sale-off if there is an economic downturn, as well as lower interest rates once more if needed.  It is obvious the Fed is unable to predict economic changes because never in the history of mankind have fiat currencies ended well and never before has a “bank” “purchased” trillions of debt with money it printed out of thin air.

In a separate move, Fed officials also voted to raise its benchmark federal-funds rate Wednesday to a range of between 1% and 1.25%.  A move that will quickly impact America’s working poor and middle class who are barely making ends meet even with record low interest rates.  This decision should negatively impact auto and home loans, and create a new wave of defaults on adjustable-rate mortgages.

Three rounds of asset purchases, known as quantitative easing, swelled the Fed’s portfolio to $4.5 trillion in the years following the financial crisis. Since then, officials have been reinvesting securities as they matured in order to keep the balance sheet level.  It is mind blowing that the Fed purchased trillions of dollars in unsecured debt, but even more mind blowing that there are people/organizations who are willing to purchase this defective debt with the belief that the securities are backed by real estate.

At some point the Fed’s strategy is not going to work.  Then what?

The economy has been on life support since the 2008 financial crisis. The Fed has artificially pumped it up with unprecedented amounts of “stimulus.” This has created enormous distortions and misallocations of capital that need to be flushed.

Meanwhile, with zero and even negative interest rates in many countries, rates are the lowest they’ve been in 5,000 years of recorded human history.  This is uncharted territory. (Interest rates were never lower than 6% in ancient Greece and ranged from 4% to over 12% in ancient Rome.)

The too-big-to-fail banks are even bigger than they were in 2008. They have more derivatives, and they’re much more dangerous.   Allegedly, the Fed has been taking these actions to save the economy.  Right.  The Federal Reserve deliberately creates real estate bubbles to strip wealth, maintain control and make money. The actions of the Fed are in direct conflict with the goals of consumers (low inflation, low interest rates, lending availability).

In reality, the Fed is the primary cause of most of the harmful distortions in the economy.

You can blame the Fed for…

✔ Unlimited Fiat money printing

✔ Artificially low interest rates

✔ The boom/bust cycle

✔ Bailout funds to “fix” their errors

✔ The War on Cash

✔ Asset bubbles and Market Manipulation

Today the Fed raised interest rates and it is expected to further bolster the massive bubbles in real estate, stocks and bond markets.   The US government currently requires over $400 billion from taxpayers just to pay the interest on its debt. Tax receipts now exceed $2 trillion.

Even more dangerous are the social and political implications of the Fed’s actions as economic classes become more divided and wealth and wage disparity continues to broaden.  Remember that EVERYTHING the Federal Reserve does creates larger government, compromised freedom and the overall life quality decreases for EVERYONE but the 1%.

Why The Investors Are Not Screaming “Securities Fraud!”

Everyone is reporting balance sheets with assets that derive their value on one single false premise: that the trusts that issued the original mortgage bonds owned the loans. They didn’t.

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This article is not a substitute for an opinion and advice from competent legal counsel — but the opinion of an attorney who has done no research into securitization and who has not mastered the basics, is no substitute for an opinion of a securitization expert.

Mortgage backed securities were excluded from securities regulation back in 1998 when Congress passed changes in the laws. The problem is that the “certificates” issued were (a) not certificates, (b) not backed by mortgages because the entity that issued the MBS (mortgage bonds) — i.e. the REMIC Trusts — never acquired the mortgage loans and (c) not issued by an actual “entity” in the legal sense [HINT: Trust does not exist in the absence of any property in it]. And so the Real Estate Mortgage Investment Conduit (REMIC) was a conduit for nothing. [HINT: It can only be a “conduit” if something went through it] Hence the MBS were essentially bogus securities subject to regulation and none of the participants in this dance was entitled to preferred tax treatment. Yet the SEC still pretends that bogus certificates masquerading as mortgage backed securities are excluded from regulation.

So people keep asking why the investors are suing and making public claims about bad underwriting when the real problem is that there were no acquisition of loans by the alleged trust because the money from the sale of the mortgage bonds never made it into the trust. And everyone knows it because if the trust had purchased the loans, the Trustee would represent itself as a holder in course rather than a mere holder. Instead you find the “Trustee” hiding behind a facade of multiple “servicers” and “attorneys in fact”. That statement — alleging holder in due course (HDC) — if proven would defeat virtuality any defense by the maker of the instrument even if there was fraud and theft. There would be no such thing as foreclosure defense if the trusts were holders in due course — unless of course the maker’s signature was forged.

So far the investors won’t take any action because they don’t want to — they are getting paid off or replaced with RE-REMIC without anyone admitting that the original mortgage bonds were and remain worthless. THAT is because the managers of those funds are trying to save their jobs and their bonuses. The government is complicit. Everyone with power has been convinced that such an admission — that at the base of all “securitization” chains there wasn’t anything there — would cause Armageddon. THAT scares everyone sh–less. Because it would mean that NONE of the up-road securities and hedge products were worth anything either. Everyone is reporting balance sheets with assets that derive their value on one single false premise: that the trusts that issued the original mortgage bonds owned the loans. They didn’t.

Banks are essentially arguing in court that the legal presumptions attendant to an assignment creates value. Eventually this will collapse because legal presumptions are not meant to replace the true facts with false representations. But it will only happen when we reach a critical mass of trial court decisions that conclude the trusts never owned the loans, which in turn will trigger the question “then who did own the loan” and the answer will eventually be NOBODY because there never was a loan contract — which by definition means that the transaction cannot be called a loan. The homeowner still owes money and the debt is not secured by a mortgage, but it isn’t a loan.

You can’t force the investors into a deal they explicitly rejected in the offering of the mortgage bonds — that the trusts would be ACQUIRING loans not originating them. Yet all of the money from investors who bought the bogus MBS went to the “players” and then to originating loans, not acquiring them.

And you can’t call it a contract between the investors and the borrowers when neither of them knew of the existence of the other. There was no “loan.” Money exchanged hands and there is a liability of the borrower to repay it — to the party who gave them the money or that party’s successor. What we know for sure is that the Trust was never in that chain.

The mortgage secured the performance under the note. But the note was itself part of the fraud in which the “borrower” was prevented from knowing the identity of the lender, the compensation of the parties, and the actual impact on his title. The merger of the debt into the note never happened because the party named on the note was not the party giving the money. Hence the mortgage should never have been released from the closing table much less recorded.

So if the fund managers admit they were duped as I have described, then they can kiss their jobs goodbye. There were plenty of fund managers who DID look into these MBS and concluded they were just BS.

What the Media is Missing About the “Securitization” of “Mortgage” Loans

The Banks called it “The Hustle”. So why is anyone thinking it was anything other than a hustle?

Judges need to reconsider their positions. They need to make the choice between their false perception of a “free house” and a “get of jail free card.”

The plain facts are that those so-called REMIC Trusts do not and never have existed as operating entities. They exist on paper and have no legal significance because they never were in operation. It is not just that the paperwork was fabricated, back-dated and forged. It’s that the presumed transactions never happened. That is why Adam Levitin refers to it as “securitization Fail.”

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

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Pennymac and CW

http://fortune.com/2012/10/02/countrywide-its-baaack/

http://www.nytimes.com/2014/08/24/business/an-unfinished-chapter-at-countrywide.html?_r=0

“High Speed Swim Lane,”<<< another term for “The Hustle” which was run by Rebecca Mairone .

http://www.bloomberg.com/news/articles/2014-07-30/bank-of-america-s-countrywide-ordered-to-pay-1-3-billion

Even investigative journalists are missing the obvious. Either they lack the knowledge to report correctly on the subject or they have been instructed to stay away from Wall Street corruption. The plain facts are that those so-called REMIC Trusts do not and never have existed as operating entities. They exist on paper and have no legal significance because they never were in operation. An empty trust has no legal significance.

It is not just that the paperwork was fabricated, back-dated and forged. It’s that the presumed transactions never happened. That is why Adam Levitin refers to it as “Securitization Fail.” And that is the whole reason for fabrication, forgery, backdating and robo-signing of documents. If the transactions were real, nobody would have needed to go to DOCx, LPS (now “Black Knight”) et al to create the documents that created the illusion of reality.

The questions that have NOT been asked include but certainly are not limited to the following:

1. How could the Big Banks be carrying bad loans on their balance sheet? AND the corollary question is how they could be the seller of those loans. The answer is that they cast themselves  as the seller of loans so they could book “trading profits” on loans where they were not the lender. In doing so they were asserting positions that were diametrically opposed to the positions taken in foreclosure actions — that the “lender” was whoever is on the note and mortgage. So on one hand the TBTF banks are asserting they made the loans, they own the loans and they were losing money as a result of non-payment by the borrowers and the other hand they are having their puppet players assert that they are the lenders who originated or acquired the loan. Which is it? ANSWER: NEITHER! The banks used the money of all investors from a commingled fund undifferentiated by any of the Trust acronyms, and then claimed whatever was convenient. And nobody is talking about this crime. The investors are the ONLY parties with an equitable claim for payment but are not protected by either the false note or false mortgage — both of which were converted to the apparent ownership of dozens of players who participated in this scheme. In the meanwhile the Banks and servicers are eating away at any semblance of recovery for the investors by asserting improper claims for fees, costs and advances.

If you sit down with pencil and paper you can understand that by hiding a 10% APR loan in a 5% APR portfolio they were able to “sell” the loan to the “trust” — on paper without any consideration — and book a false “trading profit” equal to the amount of the loan. Do the Math. The media is either ignoring the truth or don’t understand it.
Those trusts were never active, never got any money from the sale of their “mortgage backed securities”, never had a bank account and never had a financial statement, which on the reporting trusts would have been filed with the SEC. Instead they filed rule 15 forms saying they had nothing further to report.
They are hiding behind the cloak of another part of that rule that says reporting can stop when the number of investors falls below 300. But these trusts never had more than 300 investors at inception or any other time. They only filed on some of the trusts to give the appearance of propriety when in fact the BANKS were taking the entire proceeds of the sale of the mortgage backed securities issued BY THE TRUSTS and pocketing it. Then they used only as much of the Investor money as was necessary to give the appearance of a loan pool that was originated or acquired by the trust when no such transaction ever occurred. In short the were treating the offering of MBS issued by the Trust as though it was offering of the Bank. The “Trust’ was merely a 100% controlled entity of the Bank existing only on paper and not at law.

2. The same logic applies to the sale of the mortgage backed securities. The banks were not buying them, they were selling them. So the entire “loss” myth is merely a continuation of the fraud the Banks perpetrated on the investors and then the borrowers — violating the law and creating the illusion of a lender who was really not the lender.

That is important because it violates the federal law against the practice of table-funded loans. But more importantly, a party who does not loan money to a borrower has no right to be on the note and mortgage. And parties who make claims based upon the note and mortgage are really pursing their own interests and thus perpetrating a fraud upon the court, contrary to the interests of the investors whose money was procured by trick and deceit.

Lately some court have started allowing discovery to pursue this “theory” of the defense. The Banks are screaming. Enforcement of those discovery orders would reveal the true nature of the largest economic crime in human history. And the assumption expressed by many judges in open court that these are things that can be worked out by the parties later is belied by the fact that the Banks are continuing to steal what is left of the investments.

That “assumption” by the court is legislating from the bench and in direct conflict with Federal and State law regarding lending and property.

That assumption by the courts has opened a door to moral hazard that is wreaking havoc already on the West Coast and undoubtedly will soon be seen on the East Coast — total strangers discovering apparent debts owned by consumers in all sorts of loans, sending the “borrower” notices and then pressing for collection or even foreclosure. That is exactly what was revealed in the San Francisco, Osceola and dozens of other studies. Judges need to reconsider their positions. They need to make the choice between their false perception of a “free house” and a “get of jail free card.”

Bank Lawyer’s Seminar: Rescission Changes Everything

QUOTE FROM SEMINAR: “The bottom Line: Until 3 years have elapsed, a mortgage is only as secure as the lender’s proof of compliance with TILA.”

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see tila-right-of-recission-041415

From one of my readers, I received the Power Point Presentation given by a law firm representing the banks. It confirms everything I have been saying. It also offers a glimpse of some of the ways they will try to wiggle out of it. Suffice it to say that in addition to losing far more cases than what has been previously been reported, the banks are now stuck with a problem that they can’t fix, to wit: when they try to “securitize” a pool of new loans they cannot say that the deal is done because the borrower could assert a right to rescind triggering a nightmare of problems for all the parties starting with origination. The appetite for mortgage backed securities is almost certainly going to decline or vanish completely.

Key points from seminar: (You would think I was the presenter!)

  1. Mailing the notice is sufficient to cancel the loan, note and mortgage.
  2. No tender of money or property is required
  3. It is risky for lender to ignore notice of rescission
  4. Rescission is really a borrower’s remorse remedy
  5. Bringing suit immediately is the only way to end the issue — but only if you have absolute proof of the loan and the disclosures conforming to TILA. [Editor’s note: any failure to disclose compensation off the books of the “closing” would probably be evidence of non-disclosure on multiple levels]
  6. AFTER the lender has complied with 1635(b) (termination of security interest), after the lender has returned the canceled note and after the lender has complied with 12 CFR 1026.23(d)(2) (Return of any money or property that has been given to anyone) THEN the borrower must tender [Editor’s Note: This imposes a requirement that will put the trusts in immediate conflict with the investors and the facts. In order to “return” the money to borrower somebody has to pay it. The servicers, the banks sand the trusts don’t have any investment in these loans. They have been getting a free ride for years. They can’t go to the investors for the money and ask them so they can only advance the funds and hope they will get it back or just steal it from investors, which looks eerily like the start of mortgage securitizations]
  7. According to TILA the lien is void upon mailing of the notice.
  8. Banks better do their homework and identify all the loans that are not supported by TILA disclosures. [Editor’s note: My observation is that this is approximately 90%-96% of all alleged mortgage loans. As I said in 2007-2008: In my opinion the vast majority of all loans produced void notes and mortgages or were subject to rescission which results in the same thing — cancellation of the note, cancellation of the encumbrance, and disgorgement of all money paid.]

The CLOUD: No Name, No Docs, No Terms, No Balance Due: MBS Investors Screwed and Taking Borrowers Down With Them

Writing with the flu. Despite symptoms and medication that makes me dizzy, I feel compelled to write about something that is getting traction out there. The more you look at the false claims of securitization the more it stinks. We are dealing with a system that is based on really big lies. I’m sure our leaders of government have a very appealing rationalization why we must pretend the mortgage bonds are real, why we must pretend the mortgages are real, why we must pretend the notes are real, and why we must pretend the debts and defaults are real. But those are lies based on sham transactions. And those lies are based in public policy. And public policy is contrary to law.

My focus is on cases pending in the judicial branch of government. Our system of government was designed to insert the judicial branch into disputes so that fractures in public policy do not cheat citizens out of their basic rights. In this case, the failure of the other two branches of government to include the rights of homeowners is damaging both to the society generally and producing millions of cases of unjust enrichment and displacement of millions of people from their homes in cases, where if all facts were known two facts would be inescapably accepted: (1) mortgages filed as encumbrances against real property were fatally defective and unenforceable and (2) the balance owed on the debt is either impossible to ascertain or zero, with a liability owed to homeowners on the overpayments received in the midst of that opaque cloud we are calling “securitization.”

The trigger for the writing of this article is once again coming from BANK OF NEW YORK MELLON as the “Trustee” of vast numbers of REMIC Trusts. Bill Paatalo, a private investigator, uncovered an officer of BONY who is very frustrated with BOA and others who are telling borrowers that BONY is the owner of their loan. Indeed, suits have been brought in the name of BONY without any reference to the trust; and of course suits have been brought in the name of BONY as Trustee of a REMIC Trust, which represents but does not own the loans (the ownership interest being “conveyed” with the issuance of the mortgage bond to investors who were duped into thinking they were buying high grade investments. BONY and DEUTSCH both say such suits are brought without their authorization and have instructed servicer’s to cease and desist using the name of Deutsch of BONY MELLON in foreclosure suits.

The problem revealed is contained in an email Paatalo posted from an officer of BONY MELLON, who wants BOA to stop telling people that BONY is the owner of their loans. He says BONY doesn’t own the loans and has no right, power or obligation to modify or mitigate damages caused by the borrower failing or stopping payments on the loan they unquestionably received. He says BONY is the Trustee for the loan and denies ownership and further denies the ability or right to modify.

What he doesn’t say is what he means by “Trustee for the loan” and why the “trust” should be considered real as a legal person when there is no financial account or assets held in the name of the Trust. Like Reynaldo Reyes at Deutsch Bank, he is basically saying there are no trust assets, there never was any funding of the trust, and there never was an assignment or purchase of the loan by the trust — for the simple reason that the Trust never had a bank account much less the money to buy loans or anything else.

So Reyes and this newly revealed actor from BONY are saying the same thing. They are Trustees in name only without any duties because no money or assets are in the trust. Which brings us back to the beginning. If the loan was securitized, the Trust would have had a bank account to receive money advanced by investors who were purchasing alleged mortgage bonds that promised that the investor also was an owner of the loans — an undecided percentage interest in the loans.

That money in the Trust account would have been used to fund or purchase the loan to the borrower. And the Trust would have been the mortgagee or beneficiary on the mortgage or deed of trust. There would have been no need for MERS, or originators or any of the countless sham corporations that are now out of business and who supposedly loaned money to borrowers. If it was real, the records would show the Trust paid for the loan and the recorded documents from the loan closing would clearly show the Trust as the lender.

It is really a very simple deal, if it is real. But complexity was introduced by Wall Street, the effect of which was that the lenders didn’t get the loans they were expecting, didn’t get the collateral they thought they were getting and didn’t even get named as lenders despite the fact that it was investor money that was used to make and acquire the loans. Like the borrowers, investors were stepping into a cloud that intentionally obscured the ownership of the loan.

On the one hand, the Banks covered ownership by the issuance and execution of an Assignment and Assumption Agreement, but that was before any loan applications existed, just like the prospectus and sale of the bonds — a process known as selling forward on Wall Street. On the other hand, the bonds were issued in the name of the investment banks, a process called Street Name on Wall Street. On the third hand, the loan documents showed neither the investment banks nor the investors or even the REMIC Trusts. instead they showed some other entity as the lender even though the “lender” had advanced mooney whatsoever — a process later dubbed as “pretender lenders” by me in in my writing and seminars.

By pushing title through pretender lenders and private exchanges that registered title that was never published (like the county recorders’ offices publish recorded deeds, mortgages and liens), the Banks created a Cloud which by definition created clouded title to the property, the loan and created a mortgage document that was recorded despite naming the wrong terms and the wrong payee.

Pushing title away from the investors who advanced the money and toward themselves, the Banks were able to play with the money as if it were their own, and even purchase insurance and credit default swaps payable to the banks, who were clearly the intermediary agents of the investors. And the Banks even got the government to guarantee half the loans even though the underwriting standards were ignored — since the banks had no risk of loss on the loans (they were using investor money and they were getting the right to receive third party payments from the government and private parties). Eventually after the meltdown, the Banks became part of a program where tens of billions of dollars worth of the bogus mortgage bonds owned by the investors were sold to the Federal government (some $50 Billion per month).

Through their creation of the Cloud, the banks were able to take the money of the investors and receive it as their own, concealing the initial theft (skimming) off the top by creating sham proprietary trades. Now they are receiving judgments and deeds from foreclosure auctions based upon their submission of a credit bid that clearly violates the very specific provisions of state statutes that identify who can submit a credit bid rather than cash at the auction. Only the actual owner of the unpaid account receivable has the right to submit a credit bid.

And by the creation of the Cloud judges and lawyers missed the point completely. The result is stripping the investors of value, ownership and right to collect on the loans they advanced. At no time has any Servicer filed a foreclosure in the name of the investors whose money was used to fund the deal. In no case is there any underlying real transaction in which real money was paid and something was received in exchange. The Courts are now the vehicle of public policy and manifest injustice by enforcement of unenforceable mortgages for fabricated notes referring to non existent debts.

The net result is that public policy and government action is contrary to the rule of law.

WHAT IS THE FED BUYING?

CHECK OUT OUR EXTENDED DECEMBER SPECIAL!

What’s the Next Step? Consult with Neil Garfield

For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, Tennessee, Georgia, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

EDITOR’S NOTE:

WHAT IS THE FED BUYING? IF THE LOANS WERE ORIGINATED CONTRARY TO INDUSTRY PRACTICE, IF THE MONEY USED TO FUND THE LOANS CAME FROM INVESTORS, WHAT COULD THE FED BE BUYING FROM THE BANKS WHO ARE ONLY INTERMEDIARIES. AND IF THE FED IS BUYING THESE SECURITIES THEN WHY ARE THEY NOT THE PRINCIPAL NAMED IN FORECLOSURES? ANSWER: THE FEDS BOUGHT NOTHING AND THEY KNOW IT. IT IS MERELY A RUSE TO GIVE THE BANKS MORE MONEY.

AND let’s assume that the Fed is really buying bona fide mortgage backed securities (MBS) issued from a well-funded pool into which investor money was contributed and used to purchase loans. Which loans? Where is the transparency here? Are these actual purchase with schedules of loans attached? Why can’t we see all the loans that are “owned” by investment pools that issued mortgage backed securities.

One more question: If the mortgage bonds were issued to investors in exchange for money, then how the investment bank become the seller? Are the investors joining in on the sale? If so, what happens to the SPV, REMIC, Trust or whatever you want to call the investment pool?

Does the transfer of an invalid note issued without consideration and a mortgage securing the note give anything more to the Fed than the banks which is nothing on top of nothing?

The obvious scenario here is a shell game designed to confuse investors, borrowers, regulators, lawyers and judges. And it is working — except in those cases where we employ the Deny and Discover strategy.

Fed likely to continue MBS purchases to secure housing recovery
http://www.housingwire.com/news/2013/01/30/fed-likely-continue-mbs-purchases-secure-housing-recovery

New Accounting Rules for Banks Could Break Them

The IASB and FASB have been working on accounting rules for the “losses” at the banks. Someone is either in for a surprise or somehow the banks will escape the rules. One thing is certain, that the accounting firms that provide the auditing services and certification of the statements of the mega banks are in bind. If they tell the truth, the bank may fail and the firm itself could be sued because it didn’t spot the problems before and report on them. If they lie, which everyone on Wall Street and maybe even in government wants them to do, they are not living up to the standards of their profession. As the truth is unraveled in courts where more and more borrowers are winning cases, both the bank and accounting firms are going to be caught red-faced.
I still want to know how these banks ended up booking unsold mortgage bonds as assets on their balance sheet. Do they expect us to believe that the investment bank actually advanced money for these bonds? The story being peddled on Wall Street and printed by mainstream media is wrong. When will we stop accepting the word of Wall Street leaders who got us into this mess? Remember these are the same bankers who lied to investors, lied to rating agencies, lied to insurers, lied to the their regulators, lied to the federal government and lied to borrowers. It seems to strain all bounds of reason to actually think that that they are suddenly telling the truth now.
Either investors bought mortgage backed certificates (bogus or not) or they did not. If they did, that money was used to fund mortgage closings downstream and it was used as the personal piggy bank of each investment firm. It follows inevitably to say that the banks were not funding the loans and hence had no risks of default. Yet they claimed the losses anyway.
They used investor money that was supposed to go to funding mortgages to gamble on the quality of the mortgage bonds hoping and making sure they could pull the rug out from under the same people they had sold the certificates. And they made sure that even the best tranche was saddled with making good on the worst tranche so that even those loans would be declared in default for purposes of collecting the insurance that should have gone to the investors, the credit default swap proceeds that should have gone to investors and the taxpayer and Federal reserve bailouts that should have gone to investors.
The creditors, i.e., the actual lenders in the loan transactions, were denied disclosure and payment of money received by their agents on Wall Street who “helped” them buy these bogus mortgage backed certificates. The banks claimed the losses that the investors eventually bore, when they knew they were getting the insurance and bailout money. They should have given the money to  investors and refunded the money that was based upon pure lies. The mortgage assets they carry on their balance sheets are also lies in large measure. You simply cannot convince me or any reasonable person that in the waning days of the mortgage meltdown, when everyone knew this scheme was crashing, that these very smart investment bankers starting buying the mortgage bonds themselves.
In this sense, the investment bankers and the investors must be considered as one entity or at least principal and agent. The money was received, it should have been booked as loss mitigation for the investors and that would have reduced the receivable on the books of the investors. Several investor groups have sued the banks saying as much. And those cases are being settled which means we know that the receivables of the lender-investors has been reduced or eliminated.
Once the receivable is reduced — for any reason relating to payment received in money — the payable must be correspondingly reduced, which means the homeowner doesn’t owe as much as he thinks nor as much as the parties claiming foreclosure. Remember, homeowners didn’t crate this false securitization scheme that covered up a simple PONZI scheme. It was the bankers who did this, seeking windfall. That part of the windfall will now start falling in the homeowners’ direction is simply turnabout is fair play.

This was all passed off as bad judgment — description that is insulting. This was intentional. Wall Street is all about making the money off of other people’s money. And that is exactly what they did. And now they are screwing the investors, screwing the taxpayers, screwing the borrowers and taking the homes too. This goes beyond unfair; it is theft.

New loan loss rules expected early next year
http://www.accountancyage.com/aa/news/2222362/new-loan-loss-rules-expected-early-next-year

Like I said, the loans never made into the “pools”

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Editor’s Comment:

When I first suggested that securitization itself was a lie, my comments were greeted with disbelief and derision. No matter. When I see something I call it the way it is. The loans never left the launch pad, much less flew into a waiting pool of investor money. The whole thing was a scam and AG Biden of Đelaware and Schniedermann of New York are on to it.

The tip of the iceberg is that the note was not delivered to the investors. The gravitas of the situation is that the investors were never intended to get the note, the mortgage or any documentation except a check and a distribution report. The game was on.

First they (the investment banks) took money from the investors on the false pretenses that the bonds were real when anyone with 6 months experience on Wall street could tell you this was not a bond for lots of reasons, the most basic of which was that there was no borrower. The prospectus had no loans because there were no loans made yet. The banks certainly wouldn’ t take the risks posed by this toxic heap of loans, so they were waiting for the investors to get conned. Once they had the money then they figured out how to keep as much of it as possible before even looking for residential home borrowers. 

None of the requirements of the Internal Revenue Code on REMICS were followed, nor were the requirements of the pooling and servicing agreement. The facts are simple: the document trail as written never followed the actual trail of actual transactions in which money exchanged hands. And this was simply because the loan money came from the investors apart from the document trail. The actual transaction between homeowner borrower and investor lender was UNDOCUMENTED. And the actual trail of documents used in foreclosures all contain declarations of fact concerning transactions that never happened. 

The note is “evidence” of the debt, not the debt itself. If the investor lender loaned money to the homeowner borrower and neither one of them signed a single document acknowledging that transaction, there is still an obligation. The money from the investor lender is still a loan and even without documentation it is a loan that must be repaid. That bit of legal conclusion comes from common law. 

So if the note itself refers to a transaction in which ABC Lending loaned the money to the homeowner borrower it is referring to a transaction that does not now nor did it ever exist. That note is evidence of an obligation that does not exist. That note refers to a transaction that never happened. ABC Lending never loaned the homeowner borrower any money. And the terms of repayment intended by the securitization documents were never revealed to the homeowner buyer. Therefore the note with ABC Lending is evidence of a non-existent transaction that mistates the terms of repayment by leaving out the terms by which the investor lender would be repaid.

Thus the note is evidence of nothing and the mortgage securing the terms of the note is equally invalid. So the investors are suing the banks for leaving the lenders in the position of having an unsecured debt wherein even if they had collateral it would be declining in value like a stone dropping to the earth.

And as for why banks who knew better did it this way — follow the money. First they took an undisclosed yield spread premium out of the investor lender money. They squirreled most of that money through Bermuda which ” asserted” jurisdiction of the transaction for tax purposes and then waived the taxes. Then the bankers created false entities and “pools” that had nothing in them. Then the bankers took what was left of the investor lender money and funded loans upon request without any underwriting.

Then the bankers claimed they were losing money on defaults when the loss was that of the investor lenders. To add insult to injury the bankers had used some of the investor lender money to buy insurance, credit default swaps and create other credit enhancements where they — not the investor lender —- were the beneficiary of a payoff based on the default of mortgages or an “event” in which the nonexistent pool had to be marked down in value. When did that markdown occur? Only when the wholly owned wholly controlled subsidiary of the investment banker said so, speaking as the ” master servicer.”

So the truth is that the insurers and counterparties on CDS paid the bankers instead of the investor lenders. The same thing happened with the taxpayer bailout. The claims of bank losses were fake. Everyone lost money except, of course, the bankers.

So who owns the loan? The investor lenders. Who owns the note? Who cares, it was worth less when they started; but if anyone owns it it is most probably the originating “lender” ABC Lending. Who owns the mortgage? There is no mortgage. The mortgage agreement was written and executed by the borrower securing terms of payment that were neither disclosed nor real.

Bank Loan Bundling Investigated by Biden-Schneiderman: Mortgages

By David McLaughlin

New York Attorney General Eric Schneiderman and Delaware’s Beau Biden are investigating banks for failing to package mortgages into bonds as advertised to investors, three months after a group of lenders struck a nationwide $25 billion settlement over foreclosure practices.

The states are pursuing allegations that some home loans weren’t correctly transferred into securitizations, undermining investors’ stakes in the mortgages, according to two people with knowledge of the probes. They’re also concerned about improper foreclosures on homeowners as result, said the people, who declined to be identified because they weren’t authorized to speak publicly. The probes prolong the fallout from the six-year housing bust that’s cost Bank of America Corp., JPMorgan Chase & Co. (JPM) and other lenders more than $72 billion because of poor underwriting and shoddy foreclosures. It may also give ammunition to bondholders suing banks, said Isaac Gradman, an attorney and managing member of IMG Enterprises LLC, a mortgage-backed securities consulting firm.

“The attorneys general could create a lot of problems for the banks and for the trustees and for bondholders,” Gradman said. “I can’t imagine a better securities law claim than to say that you represented that these were mortgage-backed securities when in fact they were backed by nothing.”

Countrywide Faulted

Schneiderman said Bank of America Corp. (BAC)’s Countrywide Financial unit last year made errors in the way it packaged home loans into bonds, while investors have sued trustee banks, saying documentation lapses during mortgage securitizations can impair their ability to recover losses when homeowners default. Schneiderman didn’t sue Bank of America in connection with that criticism.

The Justice Department in January said it formed a group of federal officials and state attorneys general to investigate misconduct in the bundling of mortgage loans into securities. Schneiderman is co-chairman with officials from the Justice Department and the Securities and Exchange Commission.

The next month, five mortgage servicers — Bank of America Corp., Wells Fargo & Co. (WFC), Citigroup Inc. (C), JPMorgan Chase & Co. and Ally Financial Inc. (ALLY) — reached a $25 billion settlement with federal officials and 49 states. The deal pays for mortgage relief for homeowners while settling claims against the servicers over foreclosure abuses. It didn’t resolve all claims, leaving the lenders exposed to further investigations into their mortgage operations by state and federal officials.

Top Issuers

The New York and Delaware probes involve banks that assembled the securities and firms that act as trustees on behalf of investors in the debt, said one of the people and a third person familiar with the matter.

The top issuers of mortgage securities without government backing in 2005 included Bank of America’s Countrywide Financial unit, GMAC, Bear Stearns Cos. and Washington Mutual, according to trade publication Inside MBS & ABS. Total volume for the top 10 issuers was $672 billion. JPMorgan acquired Bear Stearns and Washington Mutual in 2008.

The sale of mortgages into the trusts that pool loans may be void if banks didn’t follow strict requirements for such transfers, Biden said in a lawsuit filed last year over a national mortgage database used by banks. The requirements for transferring documents were “frequently not complied with” and likely led to the failure to properly transfer loans “on a large scale,” Biden said in the complaint.

“Most of this was done under the cover of darkness and anything that shines a light on these practices is going to be good for investors,” Talcott Franklin, an attorney whose firm represents mortgage-bond investors, said about the state probes.

Critical to Investors

Proper document transfers are critical to investors because if there are defects, the trusts, which act on behalf of investors, can’t foreclose on borrowers when they default, leading to losses, said Beth Kaswan, an attorney whose firm, Scott + Scott LLP, represents pension funds that have sued Bank of New York Mellon Corp. (BK) and US Bancorp as bond trustees. The banks are accused of failing in their job to review loan files for missing and incomplete documents and ensure any problems were corrected, according to court filings.

“You have very significant losses in the trusts and very high delinquencies and foreclosures, and when you attempt to foreclose you can’t collect,” Kaswan said.

Laurence Platt, an attorney at K&L Gates LLP in Washington, disagreed that widespread problems exist with document transfers in securitization transactions that have impaired investors’ interests in mortgages.

“There may be loan-level issues but there aren’t massive pattern and practice problems,” he said. “And even when there are potential loan-level issues, you have to look at state law because not all states require the same documents.”

Fixing Defects

Missing documents don’t have to prevent trusts from foreclosing on homes because the paperwork may not be necessary, according to Platt. Defects in the required documents can be fixed in some circumstances, he said. For example, a missing promissory note, in which a borrower commits to repay a loan, may not derail the process because there are laws governing lost notes that allow a lender to proceed with a foreclosure, he said.

A review by federal bank regulators last year found that mortgage servicers “generally had sufficient documentation” to demonstrate authority to foreclose on homes.

Schneiderman said in court papers last year that Countrywide failed to transfer complete loan documentation to trusts. BNY Mellon, the trustee for bondholders, misled investors to believe Countrywide had delivered complete files, the attorney general said.

Hindered Foreclosures

Errors in the transfer of documents “hampered” the ability of the trusts to foreclose and impaired the value of the securities backed by the loans, Schneiderman said.

“The failure to properly transfer possession of complete mortgage files has hindered numerous foreclosure proceedings and resulted in fraudulent activities,” the attorney general said in court documents.

Bank of America faced similar claims from Nevada Attorney General Catherine Cortez Masto, who accused the Charlotte, North Carolina-based lender of conducting foreclosures without authority in its role as mortgage servicer due improper document transfers. In an amended complaint last year, Masto said Countrywide failed to deliver original mortgage notes to the trusts or provided notes with defects.

The lawsuit was settled as part of the national foreclosure settlement, Masto spokeswoman Jennifer Lopez said.

Bank of America spokesman Rick Simon declined to comment about the claims made by states and investors. BNY Mellon performed its duties as defined in the agreements governing the securitizations, spokesman Kevin Heine said.

“We believe that claims against the trustee are based on a misunderstanding of the limited role of the trustee in mortgage securitizations,” he said.

Biden, in his complaint over mortgage database MERS, cites a foreclosure by Deutsche Bank AG (DBK) as trustee in which the promissory note wasn’t delivered to the bank as required under an agreement governing the securitization. The office is concerned that such errors led to foreclosures by banks that lacked authority to seize homes, one of the people said.

Renee Calabro, spokeswoman for Frankfurt-based Deutsche Bank, declined to comment.

Investors have raised similar claims against banks. The Oklahoma Police Pension and Retirement System last year sued U.S. Bancorp as trustee for mortgage bonds sold by Bear Stearns. The bank “regularly disregarded” its duty as trustee to review loan files to ensure there were no missing or defective documents transferred to the trusts. The bank’s actions caused millions of dollars in losses on securities “that were not, in fact, legally collateralized by mortgage loans,” according to an amended complaint.

“Bondholders could have serious claims on their hands,” said Gradman. “You’re going to suffer a loss as bondholder if you can’t foreclose, if you can’t liquidate that property and recoup.”

Teri Charest, a spokeswoman for Minneapolis-based U.S. Bancorp (USB), said the bank isn’t liable and doesn’t know if any party is at fault in the structuring or administration of the transactions.

“If there was fault, this unhappy investor is seeking recompense from the wrong party,” she said. “We were not the sponsor, underwriter, custodian, servicer or administrator of this transaction.”

The Reporter Who Saw it Coming

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Editor’s Comment:

By Dean Starkman

Mike Hudson thought he was merely exposing injustice, but he also was unearthing the roots of a global financial meltdown.

Mike Hudson began reporting on the subprime mortgage business in the early 1990s when it was still a marginal, if ethically challenged, business. His work on the “poverty industry” (pawnshops, rent-to-own operators, check-cashing operations) led him to what were then known as “second-lien” mortgages. From his street-level perspective, he could see the abuses and asymmetries of the market in a way that the conventional business press could not. But because it ran mostly in small publications, his reporting was largely ignored. Hudson pursued the story nationally, via a muckraking book, Merchants of Misery (Common Courage Press, 1996); in a 10,000-word expose on Citigroup-as-subprime-factory, which won a Polk award in 2004 for the small alternative magazine Southern Exposure; and in a series on the subprime leader, Ameriquest, co-written as a freelancer, for the Los Angeles Times in 2005. He continued to pursue the subject as it metastasized into the trillion-dollar center of the Financial Crisis of 2008—briefly at The Wall Street Journal and now at the Center for Public Integrity. Hudson, 52, is the son of an ex-Marine and legendary local basketball coach. He started out on rural weeklies, covering championship tomatoes and large fish and such, even produced a cooking column. But as a reporter for The Roanoke Times he turned to muckraking and never looked back. CJR’s Dean Starkman interviewed Hudson in the spring of 2011.

Follow the ex-employees

The great thing about The Roanoke Times was that there was an emphasis on investigation but there was also an emphasis on storytelling and writing. And they would bring in lots of people like Roy Peter Clark and William Zinsser, the On Writing Well guy. The Providence Journal book, the How I Wrote the Story, was a bit of a Bible for me.

As I was doing a series on poverty in Roanoke, one of the local legal aid attorneys was like, “It’s not just the lack of money—it’s also what happens when they try to get out of poverty.” He said basically there are three ways out: they bought a house, so they got some equity; they bought a car so they could get some mobility; or they went back to school to get a better job. And in every case, he had example after example of folks, who because they were doing just that, had actually gotten deeper in poverty, trapped in unbelievable debt.

His clients often dealt with for-profit trade schools, truck driving schools that would close down; medical assistant’s schools that no one hired from; and again and again they’d be three, four, five, eight thousand dollars in debt, and unable to repay it, and then of course prevented from ever again going back to school because they couldn’t get another a student loan. So that got me thinking about what I came to know as the poverty industry.

I applied for an Alicia Patterson Fellowship and proposed doing stories on check-cashing outlets, pawn shops, second-mortgage lenders (they didn’t call themselves subprime in those days). This was ’91. We didn’t have access to the Internet, but I came across a wire story about something called the Boston “second-mortgage scandal,” and got somebody to send me a thick stack of clips. It was really impressive. The Boston Globe and other news organizations were taking on the lenders and the mortgage brokers, and the closing attorneys, and on and on.

I was trying to make the story not just local but national. I had some local cases involving Associates [First Capital Corp., then a unit of Ford Motor Corp.]. Basically, it turned out that Ford Motor Company, the old-line carmaker, was the biggest subprime lender in the country. The evidence was pretty clear that they were doing many of the same kinds of bait-and-switch salesmanship and, in some cases, pure fraud, that we later saw take over the mortgage market. I felt like this was a big story; this is the one! Later, investigations and Congressional hearings corroborated what I was finding in ’94, ’95, and ’96. And it seems so self-evident now, but I learned that finding ex-employees often gives you a window into what’s really going on with a company. The problem has always been finding them and getting them to talk.

I spent the better part of the ‘90s writing about the poverty industry and about predatory lending. As a reporter you don’t want to be defined by one subject. So I was actually working on a book about the history of racial integration in sports, interviewing old Negro-league baseball players. I was really trying to change a little bit of how I was moving forward career-wise. But it’s like the old mafia-movie line: every time I think I’m out, they pull me back in.

Subprime goes mainstream

In the fall of 2002, the Federal Trade Commission announced a big settlement with Citigroup, which had bought Associates, and at first I saw it as a positive development, like they had nailed the big bad actor. I’m doing a 1,000-word freelance thing, but of course as I started to report I started hearing from people who were saying that this settlement is basically giving them absolution, and allowed them to move forward with what was, by Citi standards, a pretty modest settlement. And the other thing that struck me was the media was treating this as though Citigroup was cleaning up this legacy problem, when Citi itself had its own problems. There had been a big magazine story about [Citigroup Chief Sanford I.] “Sandy” Weill. It was like “Sandy’s Comeback.” I saw this and said, ‘Whoa, this is an example of the mainstreaming of subprime.’

I pitched a story about how these settlements weren’t what they seemed, and got turned down a lot of places. Eventually I went to Southern Exposure and called the editor there, Gary Ashwill, and he said, “That’s a great story, we’ll put it on the cover.” And I said, “Well how much space can we have?” and he said, “How much do we need?” That was not something you heard in journalism in those days.

I interviewed 150 people, mostly borrowers, attorneys, experts, industry people, but the stuff that really moves the story are the former employees. Many of them had just gotten fired for complaining internally. They were upset about what had gone on—to some degree about how the company treated them, but usually very upset about how the company had pressured them and their co-workers to mistreat their customers.

As a result of the Citigroup stuff, I got a call from a filmmaker [James Scurlock] who was working on what eventually became Maxed Out, about credit cards and student loans and all that kind of stuff. And he asked if I could go visit, and in some cases revisit, some of the people I had interviewed and he would follow me with a camera. So I did sessions in rural Mississippi, Brooklyn and Queens, and Pittsburg. Again and again you would hear people talk about these bad loans they got. But also about stress. I remember a guy in Brooklyn, not too far from where I live now, who paused and said something along the lines of: ‘You know I’m not proud of this, but I have to say I really considered killing myself.’ Again and again people talked about how bad they felt about having gotten into these situations. It was powerful and eye-opening. They didn’t understand, in many cases, that they’d been taken in by very skillful salesmen who manipulated them into taking out loans that were bad for them.

If one person tells you that story, you say okay, well maybe it’s true, but you don’t know. But you’ve got a woman in San Francisco saying, “I was lied to and here’s how they lied to me,” and then you’ve got a loan officer for the same company in suburban Kansas saying, “This is what we did to people.” And then you have another loan officer in Florida and another borrower in another state. You start to see the pattern.

People always want some great statistic [proving systemic fraud], but it’s really, really hard to do that. And statistics data doesn’t always tell us what happened. If you looked at some of the big numbers during the mortgage boom, it would look like everything was fine because of the fact that they refinanced people over and over again. So essentially a lot of what was happening was very Ponzi-like—pushing down the road the problems and hiding what was going on. But I was not talking to analysts. I was not talking to high-level corporate executives. I was not talking to experts. I was talking to the lowest level people in the industry— loan officers, branch managers. I was talking to borrowers. And I was doing it across the country and doing it in large numbers. And when you actually did the shoe-leather reporting, you came up with a very different picture than the PR spin you were getting at the high level.

One day Rich Lord [who had just published the muckraking book, American Nightmare: Predatory Lending and the Foreclosure of the American Dream, Common Courage Press, 2004) and I went to his house. We were sitting in his study. Rich had spent a lot of time writing about Household [International, parent of Household Finance], and I had spent a lot of time writing about Citigroup. Household had been number one in subprime, and then CitiFinancial/Citigroup was number one. This was in the fall of 2004. We asked, well, who’s next? Rich suggested Ameriquest.

I went back home to Roanoke and got on the PACER—computerized court records—system and started looking up Ameriquest cases, and found lots of borrower suits and ex-employee suits. There was one in particular, which basically said that the guy had been fired because he had complained that Ameriquest business ethics were terrible. I just found the guy in the Kansas City phone book and called him up, and he told me a really compelling story. One of the things that really stuck out is, he said to me, “Have you ever seen the movie Boiler Room [2000, about an unethical pump-and-dump brokerage firm]?”

By the time I had roughly ten former employees, most of them willing to be on the record, I thought: this is a really good story, this is important. In a sense I feel like I helped them become whistleblowers because they had no idea how to blow the whistle or what to do. And Ameriquest at that point was on its way to being the largest subprime lender. So, I started trying to pitch the story. While I had a full-time gig at the Roanoke Times, for me the most important thing was finding the right place to place it.

The Los Angeles Times liked the story and teamed me with Scott Reckard, and we worked through much of the fall of 2004 and early 2005. We had thirty or so former employees, almost all of them basically saying that they had seen improper, illegal, fraudulent practices, some of whom acknowledged that they’d done it themselves: bait-and-switch salesmanship, inflating people’s incomes on their loan applications, and inflating appraisals. Or they were cutting and pasting W2s or faking a tax return. It was called the “art department”—blatant forgery, doctoring the documents. You know, it was pretty eye-opening stuff. One of the best details was that many people said they showed Boiler Room—as a training tape! And the other important thing about the story was that Ameriquest was being held up by politicians, and even by the media, as the gold standard—the company cleaning up the industry, reversing age-old bad practices in this market. To me, theirs was partly a story of the triumph of public relations.

Leaving Roanoke

I’d been in Roanoke almost 20 years as a reporter, and so, what’s the next step? I resigned from the Roanoke Times and for most of 2005 I was freelancing fulltime. I made virtually no money that year, but by working on the Ameriquest story, it helped me move to the next thing. I interviewed with The Wall Street Journal [and was hired to cover the bond market]. Of course I came in pitching mortgage-backed securities as a great story. I could have said it with more urgency in the proposal, but I didn’t want to come off as like an advocate, or half-cocked.

Daily bond market coverage is their bread-and-butter, and it’s something that needs to be done. And I tried to do the best I could on it. But I definitely felt a little bit like a point guard playing small forward. I was doing what I could for the team but I was not playing in a position where my talents and my skills were being used to the highest.

I wanted to do a documentary. I wanted to do a book [which would become The Monster: How a Gang of Predatory Lenders and Wall Street Bankers Fleeced America—and Spawned a Global Crisis, Times Books, 2010]. I felt like I had a lot of information, a lot of stuff that needed to be told, and an understanding that many other reporters didn’t have. And I could see a lot of the writing focused on deadbeat borrowers lying about their income, rather than how things were really happening.

Through my reporting I knew two things: I knew that there were a lot of predatory and fraudulent practices throughout the subprime industry. It wasn’t isolated pockets, it wasn’t rogue lenders, it wasn’t rogue employees. It was really endemic. And I also knew that Wall Street played a big role in this, and that Wall Street was driving or condoning and/or profiting from a lot of these practices. I understood that, basically, the subprime lenders, like Ameriquest and even like Countrywide, were really just creatures of Wall Street. Wall Street loaned these companies money; they then made loans; they off-loaded the loans to Wall Street; Wall Street then sold them [as securities to investors]. And it was just this magic circle of cash flowing. The one thing I didn’t understand was all the fancy financial alchemy—the derivatives, the swaps, that were added on to put them on steroids.

It’s clear that people inside a company, one or two or three people, could commit fraud and get away with it, on occasion, despite the best efforts of a company. But I don’t think it can happen in a widespread way when a company has basic compliance systems in place. The best way to connect the dots from the sleazy practices on the ground to people at high levels was to say, okay, they did have these compliance people in place; they had fraud investigators, loan underwriters, and compliance officers. Did they do their jobs? And if they did, what happened to them?

In late 2010, at the Center for Public Integrity, I got a tip about a whistleblower case involving someone who worked at a high level at Countrywide. This is Eileen Foster, who had been an executive vice president, the top fraud investigator at Countrywide. She was claiming before OSHA that she was fired for reporting widespread fraud, but also for trying to protect other whistleblowers within the company who were also reporting fraud at the branch level and at the regional level, all over the country. The interesting thing is that no one in the government had ever contacted her! [This became “Countrywide Protected Fraudsters by Silencing Whistleblowers, say Former Employees,” September 22 and 23, 2011, one of CPI’s best-read stories of the year; 60 Minutes followed with its own interview of Foster, in a segment called, “Prosecuting Wall Street,” December 14, 2011.] It was very exciting. We worked really hard to do follow-up stories. I did about eight stories afterward, many about General Electric, a big player in the subprime world. We found eight former mortgage unit employees who had tried to warn about abuses and whom management had shunted aside.

I just feel like there needs to be more investigative reporting in the mix, and especially more investigative reporting—of problems that are going on now, rather than post-mortems or tick-tocks about financial disasters or crashes or bankruptcies that have already happened.

And that’s hard to do. It takes a real commitment from a news organization, and it can be a high-wire thing because you’re working on these stories for a long time, and market players you’re writing about yell and scream and do some real pushback. But there needs to be more of the sort of early warning journalism. It’s part of the big tent, what a newspaper is.

How Did H & R Block Get into the Subprime Mortgage Business?

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Tax Preparer Slammed with $24 Million in Fines on Toxic Mortgages

Editor’s Comment:  You really have to think about some of these stories and what they mean. 

1. Where is the synergy in a merger between Option One and H&R Block? The answers that they were both performing services for fees and neither one was ever a banker, lender or even investor sourcing the funds that were used to lure borrowers into deals that were so convoluted that even Alan Greenspan admits he didn’t understand them.

2. The charge is that they didn’t reveal that they could not buy back all the bad mortgages — meaning they did buy back some of them. which ones? And were some of those mortgages foreclosed in the name of a stranger to the transaction? WORSE YET — how many satisfactions of mortgages were executed by Ocwen, which was not the creditor, never the lender, and never the successor to any creditor. Follow the money trail. The only trail that exists is the trail leading from the investor’s banks accounts into the escrow agent’s trust account with instructions to refund any excess to parties who were complete strangers to the transaction disclosed to the borrower. The intermediary account in which the investor money was deposited was used to pay pornographic fees and profits to the investment banker and close affiliates as “participants” in a scheme of ” securitization” that never took place.

3. Under what terms were the loans purchased? Was it the note, the mortgage or the obligation? There are differences between all three.

4. Since they didn’t have the money to buy back the loans it might be inferred that they never had that money. In other words, they appeared on the “closing papers” as lender when in fact they never had the money to loan and they merely had performed a fee for service — I.e., acting as though they were the lender when they were not.

5. Who was the lender? If the money came from investors, then we know how to identify the creditor. but if we assume that the loan might have been paid or purchased by Option One, then isn’t the lender’s obligation paid? let’s see those actual repurchase transactions.

6. If that isn’t right then Option One must be correctly identified as the lender on the note and mortgage even though they never loaned any money and may or may not have purchased the entire loan, just the receivable, the right to sell the property — but how does anyone purchase the right to submit a credit bid at the foreclosure auction when everyone knows they were not the creditor?

7. How could any of these entities have any loans on their books when they were never the source of funds and why are they being allowed to claim losses obviously fell on the investors who put up the money on toxic mortgages believing them to be triple A rated. 

8. Why would anyone underwrite a bad deal unless they knew they would not lose any money? These mortgages were bad mortgages that under normal circumstances would never have been  offered by any bank loaning its own money or the it’s depositors. 

9. The terms of the deal MUST have been that nobody except the investors loses money on this deal and the kickers is that the investors appear to have waived their right to foreclose. 

10. So the thieves who cooked up this deal get paid for creating it and then end up with the house because the befuddled borrower doesn’t realise that either the debts are paid (at least the one secured by the mortgage) or that the debt has been paid down under terms of the loan (see PSA et al) that were never disclosed to the borrower — contrary to TILA.

11. The Courts must understand that there is a difference between paying a debt and buying the debt. The Courts must require any “assignment” to be tested b discovery where the money trail can be examined. What they will discover is that there is no money trail and that the assignment was a sham.  

12. And if the origination documents show the wrong creditor and fail disclose the true fees and profits of all parties identified with the transaction, the documents — note, mortgage and settlement statements are fatally defective and cannot create a perfected lien without overturning centuries of common law, statutory law and regulations governing the banking and lending industries.

H&R Block Unit Pays $28.2M to Settle SEC Claims Regarding Sale of Subprime Mortgages

By Kansas City Business Journal

H&R Block Inc. subsidiary Option One Mortgage Corp. agreed to pay $28.2 million to settle Securities and Exchange Commission    charges that it had misled investors, federal officials announced Tuesday.

The SEC alleged that Option One promised to repurchase or replace residential mortgage-backed securities it sold in 2007 that breached representations and warranties. The subsidiary did not disclose that its financial situation had degraded such that it could not fulfill its repurchase promises.

Robert Khuzami, director of the SEC’s Division of Enforcement, said in a release that Option One’s subprime mortgage business was hit hard by the collapse of the housing market.

“The company nonetheless concealed from investors that its perilous finances created risk that it would not be able to fulfill its duties to repurchase or replace faulty mortgages in its (residential mortgage-backed securities) portfolios,” Khuzami said in the release.

The SEC said Option One was one of the nation’s largest subprime mortgage lenders, with originations of $40 billion in its 2006 fiscal year. When the housing market began to decline in 2006, the unit was faced with falling revenue and hundreds of millions of dollars’ worth of margin calls from creditors.

Parent company H&R Block (NYSE: HRB) provided financing for Option One to meet margin calls and repurchase obligations, but Block was not obligated to do so. Option One did not disclose this reliance to investors.

Option One, now Sand Canyon Corp., did not admit or deny the allegations. It agreed to pay disgorgement of $14.25 million, prejudgment interest of nearly $4 million and a penalty of $10 million.

Kansas City-based H&R Block reported that it still had $430.19 million of mortgage loans on its books from Option One as of Jan. 31. That’s down 16.2 percent from the same period the previous year.

DELAWARE TO MERS: NOT IN OUR STATE!

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Delaware sues MERS, claims mortgage deception

Posted on Stop Foreclosure Fraud

Posted on27 October 2011.

Delaware sues MERS, claims mortgage deceptionSome saw this coming in the last few weeks. Now all HELL is about to Break Loose.

This is one of the States I mentioned MERS has to watch…why? Because the “Co.” originated here & under Laws of Delaware…following? [see below].

Also look at the date this TM patent below was signed 3-4 years after MERS’ 1999 date via VP W. Hultman’s secretary Kathy McKnight [PDF link to depo pages 29-39].

New York…next!

Delaware Online-

Delaware joined what is becoming a growing legal battle against the mortgage industry today, charging in a Chancery Court suit that consumers facing foreclosure were purposely misled and deceived by the company that supposedly kept track of their loans’ ownership.

By operating a shadowy and frequently inaccurate private database that obscured the mortgages’ true owners, Merscorp made it difficult for hundreds of Delaware homeowners to fight foreclosure actions in court or negotiate new terms on their loans, the suit filed by the Attorney General’s Office said.

[DELAWARE ONLINE]

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CAL. AG DROPS OUT OF TALKS WITH BANKS: AMNESTY OFF THE TABLE

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EDITOR’S NOTE: California has approximately a 1/3 share of all foreclosures. So Harris’ decision to drop out of the talks is a huge blow to the mega banks who were banking (pardon the pun) on using it to get immunity from prosecution. The answer is no, you will be held accountable for what you did, just like anyone else. As I have stated before when the other AG’s dropped out of the talks (Arizona, Nevada et al), this growing trend is getting real traction as those in politics have discovered an important nuance in the minds of voters: they may have differing opinions on what should be done about foreclosures but they all hate these monolithic banks who are siphoning off the lifeblood of our society. And there is nothing like hate to drive voting.

This is a process, not an event. We are at the end of the 4th inning in a 9-inning game that may go into overtime. The effects of the mortgage mess created by the banks are being felt at the dinner table of just about every citizen in the country. The politics here is creating a huge paradox and irony — the largest source of campaign donations has turned into a pariah with whom association will be as deadly at the polls as organized crime.

The fact that so many attorneys general of so many states are putting distance between themselves and the banks means a lot. It means that the banks are in serious danger of indictment and conviction on criminal charges for fraud, forgery, perjury and potentially many other crimes.

IDENTITY THEFT: One crime that is being investigated, which I have long felt was a major element of the securitization scam for the “securitization that never happened” is the theft of identities. By signing onto what appeared to be mortgage documents, borrowers were in fact becoming issuers or pawns in the issuance of fraudulent securities to investors. Those with high credit scores were especially valued for the “cover” they provided in the upper tranches of the CDO’s that were “sold” to investors. An 800 credit score could be used to get a AAA  rating from the rating agencies who were themselves paid off to provide additional cover.

But it all comes down to the use of people’s identities as “borrowers” when in fact there was no “Lending” going on. What was going on was “pretend lending” that had all the outward manifestations of a loan but none of the substance. Yes money exchanged hands, but the real parties never met and never signed papers with each other. In my opinion, the proof of identity theft will put the borrowers in a superior position to that of the investors in suits against the investment bankers.

NO UNDERWRITING=NO LOAN: There was no underwriting committee, there was no underwriting, there was no review of the appraisal, there was no confirmation of the borrower’s income and there was no decision about the risk and viability of the so-called loan, because it wasn’t about that. The risk was already eliminated when they sold the bogus mortgage bonds to investors and thus saddled pension funds with the entire risk of loss on empty “mortgage backed pools.” So if the loan wasn’t paid, the players at ground level had no risk. Their only incentive was to get the signature of the borrower. That is what they were paid for — not to produce quality loans, but to produce signatures.

Little did we know, the more loans that defaulted, the more money the banks made — but they were able to mask the gains with apparent losses as an excuse to extract emergency money from the US Treasury using taxpayer dollars without accounting for the “loss” or what they did with the money. Meanwhile the gains were safely parked off shore in “off-balance sheet” transaction accounts.

The question that has not yet been asked, but will be asked as prosecutors and civil litigators drill down into these deals is who controls that off-shore money? My math is telling me that some $2.6 trillion was siphoned off (second level — hidden — yield spread premium) the investors money before the balance was used to fund “loans.”

When all is said and done, those loans will be seen for what they really were — part of the issuance of unregistered fraudulent securities. And you’ll see that the investors didn’t get any more paperwork than the borrowers did as to what was really going on. The banks want us to focus on the the paperwork when in fact it is the actual transactions involving money that we should be following. The paperwork is a ruse. It is faked.

NOTE TO LAW ENFORCEMENT: FOLLOW THE MONEY. IT WILL LEAD YOU TO THE TRUTH AND THE PERPETRATORS. YOUR EFFORTS WILL BE REWARDED.

California AG Harris Exits Multistate Talks
in News > Mortgage Servicing
by MortgageOrb.com on Monday 03 October 2011
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The multistate attorneys general group working toward a foreclosure settlement with the nation’s biggest banks suffered a blow Friday, when California’s Kamala Harris announced her departure from negotiations.

Harris notified Iowa Attorney General Tom Miller and U.S. Associate Attorney General Thomas Perrelli of her decision in a letter that was obtained and published by the New York Times Friday. According to the letter, Harris is exiting the talks because she opposes the broad scope of the settlement terms under discussion.

“Last week, I went to Washington, D.C., in hopes of moving our discussions forward,” Harris wrote. “But it became clear to me that California was being asked for a broader release of claims than we can accept and to excuse conduct that has not been adequately investigated.”

“[T]his not the deal California homeowners have been waiting for,” Harris adds one line later.

Harris, who earlier this year launched a mortgage fraud task force, says she will continue investigating mortgage practices – including banks’ bubble-era securitization activities – independent of the multistate group.

“I am committed to doing as thorough an investigation as is needed – and to taking the time that is necessary – to set the stage for achieving appropriate accountability for misconduct,” she wrote.

Harris also told Miller and Perrelli that she intends to advocate for legislation and regulations that increase transparency in the mortgage markets and “eliminate incentives to disregard borrowers’ rights in foreclosure.”

Harris’ departure is considered significant given the high number of distressed loans in California. In August, approximately one in every 226 housing units in the state had a foreclosure filing of some kind, according to RealtyTrac data.

MERS: A FAILED ATTEMPT AT BYPASSING STATE AND FEDERAL AUTHORITY

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

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

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

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

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

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

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

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

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

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

from STOP FORECLOSURE FRAUD…………….

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

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

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

Open Market-

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

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

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

[OPEN MARKET]

After The Storm – Foreclosure Fraud & Robo-Signing Continues by Nye Lavalle

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EDITOR’S NOTE: THE ONLY THING MISSING IS THE LARGEST QUESTION OF ALL: WERE THE MORTGAGE LIENS EVER PERFECTED? DO THEY EXIST?

I also contest the issue of whether the banks were ever intending to do things right. I know from interviews I conducted that several lawyers who were assigned the task of drafting papers and procedures for securitization simply quit, citing illegality and even criminality of these acts. I believe the intention was always to defraud the investors, defraud the borrowers and take the principal as fees. This diverges from past corruption where fees were excessive or where the investment was bad. Here, the intent, in my opinion, was to create a bad investment and use leverage on the banks name and reputation to sell something that didn’t exist.

The proof is in the pudding. Analyzing these pols and the securitization scheme set forth in the PSAs, it is quite clear that the worse the loan, the worse the mortgage bond, the more Wall Street made. The higher the certainty of a loss to the investor, the higher the probability of the borrower being defaulted, the higher the profits and fees. Just do the math. If the investors wanted a 5% return, they wanted $50,000 per year as interest on their money if they invested $1 million. Wall Street delivered the $50,000 by making high risk loans averaging 10% instead of 5%. The result was that they could take $500,000 and fund a 10% loan, and take $500,000 and put it in their own pockets.

The Banks are still leveraging on their prior reputation for risk aversion and sticking by the rules of underwriting. And people are still buying the myth that the banks were just out to make loans. They were not. They were out to make profits, stealing the investors money, stealing the borrowers down payment and other money, stealing the houses and leaving both sides with nothing. Why won’t people use the age-old instruction: “look to the result to determine the intent?”

SEE NYE LAVALLE 62650988-After-the-Storm-Final

“In the best-­‐case scenario, concerns about mortgage documentation irregularities may prove overblown. In this view, which has been embraced by the financial industry, a handful of employees failed to follow procedures in signing foreclosure-­related affidavits, but the facts underlying the affidavits are demonstrably accurate.

Foreclosures could proceed as soon as the invalid affidavits are replaced with properly executed paperwork.

The worst-­‐case scenario is considerably grimmer.

In this view, which has been articulated by academics and homeowner advocates, the ‘robosigning’ of affidavits served to cover up the fact that loan servicers cannot demonstrate the facts required to conduct a lawful foreclosure. In essence, banks may be unable to prove that they own the mortgage loans they claim to own.

The risk stems from the possibility that the rapid growth of mortgage securitization outpaced the ability of the legal and financial system to track mortgage loan ownership.”

After The Storm – Foreclosure Fraud & Robo-Signing Continues by Nye Lavalle

Foreclosure
Fraud
&
Robo-­Signing
Continues…

A Year Ago, A Storm of Allegations And Reports Highlighting Robo-­Signing And Foreclosure Fraud Swept Across America Causing Major Banks To Halt Foreclosures Nationwide While Congressional, State, And Federal Investigations Were Launched. A Year Later, While Investigations Are Still Ongoing, Regulators Have Failed To Correct The Underlying Issues Behind Foreclosure Fraud And Robo-­Signing. The Overwhelming Evidence Presented In This Paper Is That Not Only Were American Homeowners And Borrowers Defrauded In The World’s Greatest Financial Scam, But American’s Wealth And Security Were Placed At Risk. To Date, There Has Been Only One Criminal Conviction Of An Executive Of A Major Mortgage Company And Other Criminal Convictions Have Been Halted. Still, As Shown In This Paper, Foreclosure Fraud And Robo-­Signing Continue While Some Courts Address The Issue And Others Ignore The Ramifications Of This Massive Fraud. What Is Now Known Is That These Scams Were Not Unique, But Industry-­Wide. The Mortgage-­Backed Securities Turned Out To Be Non-­Mortgage & Note Backed Empty Trusts. To Conceal This Massive Ponzi Scheme Perpetuated Against Americans, The Nation’s Mortgage Industry Continues To Manufacture, Fabricate, & Destroy Evidence, Despite The Inherent Risks And Ramifications Since Over 90% of Borrowers Don’t Challenge Their Foreclosures.

“Keep your fingers crossed but I think we will price this just before the market falls off a cliff,” a Deutsche Bank manager wrote in February 2007

Internal emails indicate Deutsche Bank knew they were bankrolling toxic mortgages by Ameriquest and others

Internal emails indicate Deutsche Bank knew they were bankrolling toxic mortgages by Ameriquest and others

iWatch

In 2007, the report says, Deutsche Bank rushed to sell off mortgage-backed investments amid worries that the market for subprime loans was deteriorating.

“Keep your fingers crossed but I think we will price this just before the market falls off a cliff,” a Deutsche Bank manager wrote in February 2007 about a deal stocked with securities created from raw material produced by Ameriquest and other subprime lenders.

Deutsche Bank Analyst: Overpay For Our Assets, Or You’ll Regret It

By Zachary Roth – February 12, 2009, 3:49PM

For a while now, it’s seemed like Wall Street’s message to government has been: We screwed up. But if you don’t rescue us on our terms, you’re all gonna be in trouble.

But you don’t usually see that expressed quite as clearly as it was in a research memo sent out yesterday by a senior Deutsche Bank analyst, and obtained by TPMmuckraker.

In the memo — one of Deutsche’s daily “Economic Notes” sent out to the firm’s clients, and to some members of the press — Joseph LaVorgna, the bank’s chief US economist, essentially, appears to warn that if the government doesn’t pay high prices for the toxic assets on the books of Deutsche and other big firms, there will be massive consequences for the US economy.

Writes LaVorgna:

One main stumbling block to the purchasing of troubled assets has been pricing, specifically how does the government price a diverse set of assets in a way that does not put the taxpayer on the hook. However, this should not be the standard by which we judge the efficacy of the plan, because a more prolonged deterioration in the
economy will result in a higher terminal unemployment rate and a greater deterioration of the tax base. As such, the decline in tax revenues will crimp many of the essential services provided by the government. Ultimately, the taxpayer will pay one way or another, either through greatly diminished job prospects and/or significantly higher taxes down the line to pay for the massive debt issuance required to fund current and prospective fiscal spending initiatives.

We think the government should do the following: estimate the highest price it can pay for the various toxic assets residing on financial institution balance sheets which would still return the principal to taxpayers.

One leading economist described the memo to TPMmuckraker as a “ransom note” to the US government. And David Kotok of Cumberland Advisors, who writes such research memos for his own clients, acknowledged that the memo, like all such communications, could be interpreted as an attempt to influence policy-makers.

Still, seeing the memo as a threat to the government to drive the softest of bargains wouldn’t be entirely fair. Kotok that cautioned that the effects of a single analyst’s memo are limited: “Joe LaVorgna doesn’t have enough clout to hold the US government hostage.”

LaVorgna himself was blunt: “I don’t write editorials,” he told TPMmuckraker.

At the very least, the memo can be seen as a frank statement of position from the chief economist of a major bank: if the government doesn’t cave and buy up all the banks’ toxic assets at inflated prices, the country will suffer.

Nice fix we’ve got ourselves into.


Budgetary Cracks Crawling Across the Continent and Abroad

EDITORIAL NOTE: IT DOESN’T HAVE TO BE THIS WAY

These budgetary cracks throughout our system were caused primarily by one thing — the Wall Street securitization scheme that was fake from the start. The result was the illusion of growing towns — with growth that could be sustained — growing population — when the population wasn’t growing — and governments losing money by starting projects to accommodate the projections of new demographics while at the same time headed off a revenue cliff because tax revenues were about to plummet. Add to that the direct losses to pension systems and operating accounts of state and local governments from the purchase of worthless mortgage bonds and you have the prescription for disaster that is playing out before our eyes.

IT DOESN’T HAVE TO BE THIS WAY: County and City Attorneys could be charging Wall Street players with crimes and civil damages. That is where the money is — that is where THEIR MONEY is sitting. The banks are not lending because they are already in play  planning to use the money on their next BIG TRADE. The reason is simple — by deregulating the finance industry we have turned the country into a place where paper is fabricated, forged, created, sold and traded and not much else happens compared to a few decades ago. Nearly 50% of what they are counting as our gross domestic product is euphemistically referred to as “financial services”.

Financial service to whom? With unemployment at dangerously high levels and small business start-ups (and expansion) at an all time low, where is the upsurge in employment going to come from? Where is the spending going to come from? Nowhere. But Wall Street will continue “trading” paper as though it were wroth something until the referees get back on the court — people who understand the game and can call foul. Right now we need the whistle blowing about every 2 seconds. Maybe we could get that down to once per month — but not until we, the people, commit to taking charge like our constitution says.
LLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLL

Broke Town, U.S.A.

By ROGER LOWENSTEIN

Vallejo, a city about 25 miles north of San Francisco, offers a sneak preview of what could be the latest version of economic disaster. When the foreclosure wave hit, local tax revenue evaporated. The city managers couldn’t make their budget and eliminated financing for the local museum, the symphony and the senior center. The city begged the public-employee unions for pay cuts — all to no avail. In May 2008, Vallejo filed for bankruptcy. The filing drew little national attention; most people were too busy watching banks fail to worry about cities. But while the banks have largely recovered, Vallejo is still in bankruptcy. The police force has shrunk from 153 officers to 92. Calls for any but the most serious crimes go unanswered. Residents who complain about prostitutes or vandals are told to fill out a form. Three of the city’s firehouses were closed. Last summer, a fire ravaged a house in one of the city’s better neighborhoods; one of the firetrucks came from another town, 15 miles away. Is this America’s future?

Cities across America are facing dire financial distress. Meredith Whitney, a banking analyst turned independent adviser who correctly predicted the banking meltdown, has issued an Armageddon-like prediction of mass municipal defaults. Others — notably Newt Gingrich — have suggested that state governments as well as cities should be allowed to file for bankruptcy. Congress held a hearing to examine the idea.

These forecasts of apocalypse have touched a nerve. Americans, still reeling from the devastating impact of the mortgage debacle, are fearful that the next economic disaster is only a matter of time. To anyone reading the headlines of budget deficits and staggering pension liabilities, it takes little imagination to conclude that the next big one will be government itself. The problems of cities are everywhere. The city council of Harrisburg, the capital of Pennsylvania, has enlisted a big New York law firm to explore bankruptcy as a means of restructuring a crushing debt. Central Falls, R.I., is in receivership. Hamtramck, Mich., a small city within Detroit’s borders, says it could run out of money next month. Hamtramck has only 90 employees, yet it is saddled with the pensions and health care obligations of 252 retirees. Detroit itself is at risk. Large deficits will mean closing about half of the city’s schools and will push high-school class sizes to 60 students.

These and other struggling locales do not begin to approach Whitney’s forecast of hundreds of billions in municipal defaults this year. (It would take defaults by 40 cities with as much debt as Detroit to reach even $100 billion.) Some industry experts accuse Whitney of exaggerating the crisis and of worsening the cities’ problems by frightening away investors. Whitney’s theory is that states, whose finances are also in desperate shape, will cut off local aid to preserve their own budgets; cities that have been subsisting on government transfers would become fiscal orphans and, in a financial sense, unworkable. She has not elaborated on her thesis beyond a few well-chosen television appearances. (She declined to talk to me.) But in the two months following Whitney’s warning, investors unloaded about $25 billion in shares of mutual funds that invest in municipal bonds. The selling spree sent the prices of these munis, typically among the most reliable investments, into a free fall.

If muni bonds were to default (causing investors permanent harm, as distinct from the temporary discomfort of price fluctuations), ordinary Americans would lose big. Munis are bonds issued by state and local governments, as well as agencies like hospitals, with the interest going to bondholders tax-free. Their relative safety, plus the tax break, has made them a favorite among individual investors, who own about two-thirds of the total, either directly or via mutual funds.

But what if the burden of municipal woes falls elsewhere than on bondholders? Yes, cities and states have creditors. They also have citizens who rely on their services and who pay the taxes, and they have public employees who are dependent on stable public-sector jobs and often-ample benefits. Whitney isn’t wrong about a crisis in local government; the crisis is here. The question is, will it be articulated in terms of bond defaults or larger kindergarten classes — or no kindergarten classes at all? The efforts in Wisconsin and elsewhere to squash organized labor suggest that politicians are no longer so willing to protect public employees. Teachers and nurses are likely to suffer well in advance of investors.

The United States has nearly $3 trillion in municipal bonds outstanding. Though some are backed by specific projects like airports and toll roads, most are general-obligation bonds; local taxes are used to pay the interest on those bonds before other expenses. Unlike a corporation, whose revenue can disappear, cities do not go away — or at least, most of them don’t. Detroit is in trouble because of its shrinking population, as are any number of towns in the former steel region of Western Pennsylvania. Many former industrial cities are burdened with governments that are out of proportion to their shrunken tax bases. Local budgets were stretched even before the recession; now, diminished tax receipts have threatened their ability to balance budgets. Bondholders in those municipalities have reason to sweat.

For areas with a stable economy, however, solvency is largely a matter of political will. Historically, far fewer than 1 percent of municipal bonds fail, and most that do tend to be issued for quasi public projects rather than cities. Typical is a monorail that links Las Vegas casinos — and that defaulted for lack of riders. In 2008, a record 166 issues defaulted, but the great majority were Florida land developments; essentially, builders used the tax code to finance sewers and water lines and then walked away when the mortgage bubble burst. The issues were small; defaults in 2008 totaled $8.5 billion. Last year, defaults fell to $2.8 billion.

Chastened by their failure to foresee the mortgage bust, the credit agencies have downgraded munis as the cities’ troubles have accelerated. But the agencies that evaluate muni bonds are paid to worry about bondholders, not about kindergartners or local fire departments; consequently, they are not alarmed. Moody’s says it expects defaults to rise in 2011. But the agencies do not predict a default epidemic. “Munis are not like subprime bonds,” Eric Friedland, a managing director at Fitch Ratings, said.

Government entities do seem less exposed to the sort of chain-reaction panic that undid banks. Lehman Brothers needed financing every day; when confidence disappeared, Lehman disappeared, too. Cities are generally not dependent on short-term financing. (A sizable exception involves some $80 billion in variable credit lines expiring over the next six months — which could force some governments to scramble.)

Another factor that tilts against default is that states and cities carry much less debt relative to the size of their economies than do troubled national governments like those of Greece or Spain (or the United States, for that matter). And muni debts generally come due in a steady stream — not all at once. Robert Kurtter, a managing director at Moody’s, says, “State and local governments really don’t have a crushing debt problem.”

Which is not to say they don’t have a problem. For most of the past decade, local government was a growth business. Avid consumption and the real estate boom spurred an abundance of sales- and property-tax receipts; with dollars flowing in, governments got used to spending more and borrowing more. Then, in the recession, tax revenues dried up, while demands for services kept rising. For the last few years, both cities and states have faced severe, recurring budget gaps.

As part of the 2009 stimulus package, Washington gave the states $150 billion. The states became dependent on a higher level of federal aid — 35 percent of their budgets, compared with about 25 percent before. But the stimulus is ending, and the states will have to cut.

Determining who will suffer from budget cuts is a political and a legal calculation. The cities’ problem is that annual spending is greater than revenue; that imbalance does not entitle them to walk away from bond payments. Moreover, states and cities devote less than 10 percent of their revenue to annual debt service. In other words, they have ways of balancing budgets without defaulting. Lately, governments have been taking a chain saw to ordinary spending. The cuts sometimes reflect a retreat from what was once conceived as the essential mission of government. Education is being hit hard. Arizona is seeking a federal waiver to remove 280,000 adults from Medicaid rolls. Massachusetts is stripping out funds for homeless shelters. New Jersey has canceled a commuter-rail tunnel under the Hudson River. If the government doesn’t build a rail tunnel, who will?

States are also cutting aid to cities — much as Whitney forecast — aggravating the loss of local tax revenues. Camden, N.J., which has one of the highest crime rates in the country, has dismissed nearly half its police force. Michigan cities have seen aid diminish by $4 billion. In San Diego, where the city has cut other spending to pay for spiraling pension costs, residents have formed 56 “maintenance assessment districts” to take care of parks and patch up sidewalks. When the city failed to pass a hospitality tax, local hotels banded together and agreed to charge a 2 percent visitors’ fee. Scott Lewis, who writes about politics for the Web site Voice of San Diego, says, “I think the city is dissolving.”

In Wisconsin, Scott Walker, the new governor, declared that the state was “broke.” He does not mean that Madison intends to default on its obligations to debt holders; he means that public employees will have to increase contributions toward their benefits in an amount equal to 7 percent of their pay. For some employees, the cuts will mean real hardship. Public institutions like schools are also likely to suffer. Though elected officials prefer not to mention it, taxpayers will also have to ante up. Illinois sharply raised its income tax; Arizona voted for a sales-tax increase. Both of those states had markedly low tax rates to begin with, but Illinois’s case should be troubling to bondholders. Even after raising taxes, the state is planning to borrow about $12 billion to cover pensions and past-due bills — pushing both benefit costs and current expenses into the future.

The deficit problems have, at times, seemed to blend with the issue of pensions into a single, giant mess. As E. J. McMahon of the Manhattan Institute observes, “This is a conflating of different things.” States and cities have to put money aside to pay for future pensions, and the portion of that obligation that is “unfunded” represents a huge liability — from $1 trillion to $3.5 trillion, depending on your assumptions about future pension-fund investment returns. This underfunding won’t be felt in a big bang but as a continuous burden for years to come.

Nonetheless, because governments are required to make catch-up payments to those funds, the pension problem is worsening the current budget squeeze. In some cities, the pressure is suffocating. In Miami, according to Fitch, the pension-fund obligation eats up 25 percent of the city budget. In Philadelphia, which has neglected to make payments, the pension fund could be exhausted as early as 2015, says Joshua Rauh of the Kellogg School at Northwestern. Rob Dubow, the city’s finance director, insists that “we’ll make contributions to make sure that doesn’t happen.” The city has budgeted a huge $460 million contribution next year. “The real story” of the pension debacle, Dubow says, “is that it will leave less money for police and fire and sanitation.”

For a long while, government budget-cutting obeyed a distinctive political calculus: pensions were considered untouchable, so jobs were eliminated instead. Now, governments are going after pensions. Many states have taken the easy step of reducing benefits for new employees. Benefits for existing workers were considered inviolable. But some, like New Mexico and Mississippi, are dunning employees for higher contributions, and Wisconsin may follow. Minnesota and Colorado have watered down pension cost-of-living increases; both have been sued.

Whether such efforts will significantly ease the states’ burdens may depend on the courts. In Illinois, where the pension underfunding is among the most egregious, the state constitution says that “benefits shall not be diminished.” This language has long been interpreted to mean that when a public employee is promised a pension that increases with each year of service, the rate of accrual can never be changed. Sidley Austin, a law firm in Chicago hired by a pro-business civic group, has circulated a memo arguing that the clause refers only to benefits already earned — not to the rate of accrual in the future. That interpretation, if acted on by the Legislature, would shatter previous notions of pension protections. Sidley also makes the even-more-explosive argument that if Illinois’s pension funds dried up, the state could not be forced to contribute more. Let pensioners go hungry.

That is unlikely. Even in Illinois, pensions will be paid. Failure to do so would embroil the government in court for years. That may be the hope of ideologues, who envision that the courts — or possibly even a bankruptcy filing — could be used to alter employee contracts. In the 1930s, progressives persuaded Congress to let cities declare bankruptcy to escape the clutches of creditors. Now, conservatives want Congress to authorize states to file for bankruptcy. “Some people on the right see it as a chance to whack the public unions,” says David Skeel, a law professor at the University of Pennsylvania who has written in favor of state bankruptcy. It’s not hard to fathom why Gingrich, who as speaker of the House in the 1990s briefly shut down the U.S. government, would favor default by the states.

But the fantasy of using bankruptcy to suspend government runs up against a hard truth: even in bankruptcy, cities and states don’t disappear — nor do their obligations. Orange County, Calif., which entered bankruptcy in the mid-1990s after its treasurer ran up massive losses in derivatives, ultimately paid every cent it owed. “Among the reasons so few [cities] choose to go this option is, it’s not clear what they gain,” Kurtter of Moody’s says.

Another reason is that cities are creatures of their states, which fear a negative impact on their own credit. Connecticut prevented Bridgeport from declaring bankruptcy in the ’90s, and Michigan is stopping Hamtramck now. In Pennsylvania, about 20 municipalities are operating under a program to nurse insolvent cities back to health. The program has helped Pittsburgh, despite its woefully underfunded pension plan, to slowly improve its credit.

Harrisburg is a different story. A former mayor wanted to create a destination city with a series of ambitious projects, including a Wild West museum. He also approved an expensive plan to refurbish an incinerator so that it could become a moneymaker — a project that has buried Harrisburg under a mountain of debt. There are other Harrisburgs, cities undone by foolhardy projects, but these cases are particular, not systemic.

Vallejo, which ran out of money when the economy imploded, is more representative. A blue-collar city of 110,000, it had been hurting since a naval base closed in the 1990s. In 2007, the Wal-Mart left town. Then, with the recession, property taxes crashed from $29 million to $20 million. Vallejo cut back on street repairs and vehicle maintenance and reduced its staff by a third. The city sought pay cuts from the police and fire unions, whose members’ pay and benefits accounted for about 80 percent of the budget; the unions offered to defer pay raises. The council considered, but rejected, the idea of putting a tax increase to a referendum. Rob Stout, the outgoing finance director, who noted that the police chief is retiring on a $200,000 pension, says the general attitude was one of resistance to footing the bill.

Vallejo was a failure of political will. It is also an example of why bankruptcies for cities don’t work. All the constituencies who might have hoped to avoid hardship are being walloped anyway. Labor costs are being cut (though not pensions) and holders of $54 million in city bonds will suffer losses — how much won’t be known for years. Even Marc Levinson, a partner with Orrick, Herrington & Sutcliffe, which represents the city, calls the bankruptcy a waste of money and time. “It’s better to cut a deal than go through the pain we have in Vallejo,” he says. Pain is coming regardless. In some cities, bondholders will be burned. But America’s failing governments may be one of those crises whose full impact is not registered in the muni market, or in any market. Until voters can agree on what government services they want and will pay for, it is possible that bondholders will bank the profits while taxpayers, employees and citizens share the losses.

Roger Lowenstein (elrogl@gmail.com) is a contributing writer and the author of “While America Aged” and, most recently, “The End of Wall Street.”

Editor: Vera Titunik (v.titunik-MagGroup@nytimes.com)

MORTGAGE BACKED SECURITIES: LEGAL COUNTERFEITING

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EDITOR’S NOTE: If you want to get the FEEL of what just happened in our world of finance and the ensuing effects on our economy, you might be better off reading a book like “Moneymakers: The Wicked Lives and Surprising Adventures of Three Notorious Counterfeiters” (Penguin, $27.95), Ben Tarnoff. It might come as some surprise that proprietary issuance of currency was all the rage in this country and was used not only legally and illegally, but as an instrument of warfare. Ben Franklin and others saw the “moral hazard” of allowing for paper money because the paper had no intrinsic value — unlike the universal perception of gold or silver.

Eventually in 1862 the U.S. Government made government issued currency “legal tender” but there were so many loopholes that while it had an effect, it has yet to take hold 150 years later.

Banks issued their own Banknotes in early U.S. History and lately, for the past 20 years, they have returned to the same practice calling them derivatives, mortgages backed securities and other exotic names. The Bank Notes, as observed by many during that period had no value except that they supposedly DERIVED their value from the gold that the bank had on deposit. They were not the first “derivatives” but they were the most important up to that point in history.

In a 1996 article Alan Greenspan articulated the free market view that the value of those bank notes or proprietary currency would be resolved in a free market as people found out which banks were issuing more bank notes than they could support. In fact, he predicted that proprietary currency would take over as a the principal currency stock of the world — hardly a difficult prediction since it had already happened by the time he wrote that article.

Now for every monetary unit of value issued by any government in the world, the private sector has issued 12 units. In other words the proprietary currency volume is 12 times as big as the fiat currency — fueled largely by the use of derivatives that derived their value from credit instruments, most of which were loans that were supposedly backed by notes and mortgages and which now are like rare earths when it comes to producing one in the flesh.

In 1998, Congress passed and Clinton signed into law the death knell of the American economy. The law specifically excluded this proprietary currency from regulation of ANY sort from government. In short, they created a sovereign country out of the oligopoly that controlled Wall Street and hence the world of finance. Counterfeiters are usually put in jail. But certain types of counterfeiters have prospered as this article and the book it reviews shows clearly.

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Early America, Ripe for Counterfeiters

By NANCY F. KOEHN

NY Times

“THERE is properly no history; only biography,” Ralph Waldo Emerson wrote in 1841. In “Moneymakers: The Wicked Lives and Surprising Adventures of Three Notorious Counterfeiters” (Penguin, $27.95), Ben Tarnoff lends ample credence to that notion. He shows how three con men were able to thrive in America’s early days because of a weak central government, an often-chaotic banking system, a turbulent economy and an entrepreneurial populace.

Few countries, Mr. Tarnoff writes, “have had as rich a counterfeiting history as America.” Creating fake currency, he states, “gave enterprising Americans from the colonial era onward a chance to get rich quick: to fulfill the promise of the American dream by making money, literally.”

Mr. Tarnoff, who graduated from Harvard in 2007 and has worked at Lapham’s Quarterly, focuses on the lives of three counterfeiters who lived in the 18th and 19th centuries. Taken together, he writes, these three biographies “tell the story of a country coming of age — from a patchwork of largely self-governing colonies to a loosely assembled union of states and, finally, to a single nation under firm federal control.”

The first subject of this rollicking good read is Owen Sullivan, an Irish immigrant who was born around 1720 and originally was a silversmith in Boston. In the seven years he was a counterfeiter, he built a loosely organized team called the Dover Money Club.

Like his partners, Sullivan was behind bars several times in the course of his career. Until his final arrest, however, these encounters with the law were small detours on an entrepreneurial journey in pre-industrial crime. When he was hanged in New York City in 1756, he claimed to have forged more than £25,000 worth of colonial money.

Sullivan capitalized on a number of prevailing conditions in the colonies: the collective thirst for liquidity to fuel a growing economy, the often unruly nature of the financial system, and scanty law enforcement.

Underlying these factors was a deep, abiding ambivalence about paper money. Many early Americans, like Benjamin Franklin, recognized the pressing need for paper money as a medium of exchange and a store of value in a world where specie like that made of gold and silver was in short supply.

At the same time, paper money made the economy more mercurial. Unlike precious metals that could be bought and sold as commodities, paper money had no intrinsic value; it could become worthless overnight. Paper money had other dangers, including a greater vulnerability to inflation. Cognizant of all this, the delegates to the Constitutional Convention in 1787 voted against giving the federal government explicit authority to print paper notes, coming down squarely “on the side of a hard currency under national control.”

But the demand for a ready medium of exchange and a recognized measure of value in the burgeoning American economy continued to outstrip the meager supply of precious metals in circulation.

By the early 1800s, paper money in the form of individual bank notes had returned in force. And with it came enterprising counterfeiters like David Lewis (1788-1820), who worked the rural counties of southwestern Pennsylvania forging notes and stirring up populist rage against financial elites.

Lewis became something of a popular hero, known for audacious jailbreaks and sporadic generosity toward strangers. Mr. Tarnoff argues that in the financial panic of 1819, crime acquired a certain status. “Not only was it a way for the dispossessed to make a living, but compared with the perfectly legal frauds perpetuated by the nation’s banks, lawbreaking seemed honest.” Lewis was apprehended for the last time after being shot in the arm and leg. He died from these injuries in a jail in central Pennsylvania.

Finally, Mr. Tarnoff recounts the story of Samuel Upham (1819-1885), a Philadelphia shopkeeper who, in 1862, began printing $5 Confederate notes, which he sold as “mementos of the Rebellion” for a cent each. Along the bottom of each note, he included a strip with the following lettering: “Fac-Simile Confederate Note — Sold Wholesale and Retail by S. C. Upham, 403 Chestnut Street, Philadelphia.”

Backed by heavy newspaper advertising, Upham’s souvenir notes became best sellers, and at some point he must have known that they were no longer being viewed as facsimiles, Mr. Tarnoff says. Borne by Union soldiers, they found their way into the Confederate money supply as counterfeits, and helped fuel rampant inflation and monetary disruption.

As the war progressed, Confederate authorities became convinced that Upham and others were part of a Union campaign to wage economic war on the South. There is no historical evidence that Abraham Lincoln or his administration was involved in such tactics.

But Upham and other moneymakers did play a de facto role in the Union war effort. As Lincoln and his Treasury head, Salmon Chase, understood all too well, the military prospects of either side owed much to the reliability of their respective money supplies. Without a stable, trustworthy form of liquidity, neither combatant could continue to wage war while sustaining its citizens.

Responding to this imperative, Congress in 1862 passed a law that, for the first time since the Revolutionary War, made money printed by the federal government legal tender. A year later, legislation set up federally chartered banks that printed a uniform national currency — making counterfeiting more difficult, though not impossible.

Mr. Tarnoff is an engaging writer who has a fine eye for detail and the relevance of larger, historical forces. But the book ignores a larger question, raised by its description of early American capitalism as an “evolving confidence game” that oscillated “between manic exuberance and total collapse”: Is there something in the speculative nature of the American character and the nation’s economic beginnings that continues to produce people like Bernard Madoff, as well as excessive volatility in the system itself?

Though this and similar questions are unanswered, they do not tarnish the power of the stories that Mr. Tarnoff so delightfully uses to teach us history.

TITLE COMPANIES AND AGENTS BRACE FOR WORST YEAR OF THEIR EXISTENCE

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

We all know the expression about the light at the end of the tunnel being an oncoming train. Title agents and title carriers are in the middle of a tunnel intersecting with other tunnels each with a light of an oncoming train. In a word, they don’t have nearly enough money to pay off all the claims since they issued multiple policies on the same crap. These title policies, overall, may total as much as $15 trillion or more.

They insured the homeowner, the “lender”, the aggregator of mortgage loans (who didn’t have them), the trust for the pool, the third party beneficiaries (investors) of the pool etc. “How do I owe thee, let me count the ways.” Their agents closed most of the 60 million transactions that were registered on MERS and many others as well.

Any title examiner who now looks at the title record, especially in view of the IBANEZ Massachusetts Supreme Court Decision, see also ibanez-decision-analyzed, cannot issue a commitment letter much less a policy without adding exceptions to the schedule that includes virtually all transactions relating to the mythical securitization infrastructure whose documents provided the blueprint for action, copied from the REMIC statute, part of the Internal Revenue Code. The fact that these parties never followed the blueprint or the law is almost besides the point.

These title companies were suckered in by the same tactics used with the rating agencies and reputation of the megabanks. The problem is that it is the job of the title company to know, regardless if someone is lying. And it stretches any reasonable belief system to think that these closing agents doing about 1 closing every 20-30 minutes, did not know that the money they were getting as escrow agent or closing agent wasn’t coming from the party disclosed as lender. So besides the “Should have known” criteria it is obvious that the title agents and presumably the title examiners, and therefor the title companies had ACTUAL knowledge of the fraud.

For over three years I have been saying that this boils down to a simple title problem and that a lawsuit to quiet title is the ultimate answer to the issue. The title record is completely corrupted with wild deeds. Just because they have title insurance doesn’t mean the title is good — quite the contrary it just means the title companies are liable for whatever happens after that. And so it is possible that the agents in the mythical securitization chain have another bonanza on their hands — getting paid yet again, for the fifth time, on the same transactions.

Meanwhile none of these payments get credited to the investor who is the creditor and lender, thus the obligation is not reduced by the payments, thus the borrower is held to owe more money than the lender actually lost.

Now the question is what do they do about people who want title policies on “new transactions.” If they issue the exception then they are admitting that the original policy was wrong, whether they wrote it or not. If they don’t, they are out of business because most homes are effected by this monstrous corruption of our title system.

FROM THE COMMENT SECTION:

see title-insurance-view-from-the-other-side

I will let you read the following journals to decide what you think about this mega Title Insurance Industry….

http://www.alta.org/publications/titlenews/10/2010.cfm

Here is another group that is critical of this former group…

http://www.nailta.org/
http://www.scribd.com/doc/44994600/NAILTA-White-Paper-on-MERS-H-R-6460

INVESTORS AND BORROWERS COULD SHARE COMMON INTERESTS AND SOLVE THE PROBLEM

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GET RID OF THE MIDDLEMEN

NOTE TO INVESTORS AND BORROWERS: IF YOU ARE SERIOUS ABOUT RESOLVING THE MORTGAGE CRISIS AND YOU WANT TO DO SOMETHING ABOUT IT WRITE TO ME AT neilfranklingarfield@gmail.com.

EDITOR’S NOTE: For those of you who have followed the blog from the beginning in 2007, you know that I have pounded on the idea that investors ans borrowers had a common interest and that if they got rid of the middlemen, they could work things out. It’s not that anyone would get a windfall, but everyone with a real interest in the property and the loan would be treated as fairly as possible. The method I suggested was equity sharing wherein the principal is corrected back down to 80% of current fair market value, the resulting balance is amortized over 30 years, with a reasonable rate that could be adjusted every seven years or so. For the investor, they would have a bottom established, and they would keep their claims against the investment bankers, and they would get a share in any increase in equity that could be split 50-50 for the investor or some other acceptable number.

So far I have received nothing but silence, but now someone from the real estate industry is proposing something that is close to what I have been saying and it appeared in the New York Times which means that a lot of people have seen it. See article below. So I decided to try this experiment.

If you are an investor who would wants to pursue this further, then write to me and tell me so at

neilfranklingarfield@gmail.com

If you are a borrower who would like to explore this option then write to me and tell me so at

neilfranklingarfield@gmail.com

Let’s see what happens.

By ALEX PERRIELLO

THREE years after the mortgage crisis began, there are still 11 million to 15 million homeowners who owe more than their home is worth, meaning that about 25 percent of all mortgage holders are underwater. As a result, foreclosures continue to mount; many homeowners can’t make their payments and are tempted to simply walk away from their debt. Meanwhile, the lenders and investors who own the loans are unwilling to work out a deal if, as is usually the case, it means losing money.

Fortunately, there is a solution. Rather than be at odds, homeowners and investors should partner in long-term equity-sharing arrangements.

Here’s how it would work. Let’s say a homeowner purchased a house in 2004 for $300,000 with no money down, and the property is now worth $150,000 — a 50 percent drop in value.

In an equity-sharing arrangement, the lender would write a new loan for $150,000, retire the original $300,000 loan and, to make up for that loss, take a 50 percent deeded ownership interest in the property. The homeowner would also agree to split 50 percent of the net proceeds of any future sale of the property with the lender. The new arrangement would also include a buyout provision, so that if the homeowner ever wanted to take over the lender’s share, he would simply pay the lender a predetermined amount of cash.

Such a plan would be relatively easy to put in place, assuming the lender held the loan in its own portfolio. In most cases, however, lenders immediately sold their loans to investors and merely performed loan-servicing duties like collecting monthly payments and sending statements.

In those instances, the lender would have already made its money when the loan was originated, the proceeds from the new loan and the 50 percent deeded interest in the property would go to the investor, not the lender. The investor would also benefit from any future sale or when the homeowner exercised the buyout provision.

Equity-sharing would be a boon for everyone involved. Homeowners could stay in their houses and preserve their credit (assuming they stay current on the new loan). The neighborhood would avoid a foreclosure, which can depress property values. And the lender or investor could participate in the upside potential when the house eventually sells. Best of all, it wouldn’t cost taxpayers a dime.

A major reason the mortgage mess has gone on so long is that homeowners, lenders and investors assume their interests are at odds. An equity-sharing arrangement would bring all three onto the same side — and help solve America’s foreclosure crisis.

Alex Perriello is the president and chief executive of a real estate franchise organization.

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

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