“Lost” Note Found and Linda Green Assignments

Virtually none of the nonjudicial or judicial foreclosures can be won by banks without use of legal presumptions that lead the court to assume facts that are plainly untrue.

The bottom line is that the rules of evidence require proof of the transaction chain with no right to rely on legal presumptions. The banks can’t do that. Press hard on this issue and experience shows that at the very least a good settlement is in the offing and even a perfectly good judgment for the homeowner would be rendered.

The bottom line to keep your eye on the ball is that the Trust doesn’t own the note and never did; the same thing applies to nearly all bogus “beneficiaries” and “mortgagees.”

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

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We have all known that the banks, servicers and trustees have been fabricated, back-dating and forging documents. And they continue to do it because they are getting away with it. In all but a few cases Judges uphold bank objections to reveal the transaction chain in which money is actually exchanged.
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So banks are winning cases based upon legal presumptions stemming from the facial “validity” of the documents. By admitting fabricated documents into evidence and applying, without proper objection, legal presumptions that remove the obligation to actually prove their case, the banks win.
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Homeowners are defenseless because even though they and their attorneys know this is a farce, they have no way to prove it except by access to the only entities that actually have records in which the absence of a real transaction that ever took place — including both the origination of the alleged loan and the presumed acquisition of the loan. .
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But there are several circumstances in which one can argue that the legal presumptions should not be applied and in the absence of the required proof, the party seeking foreclosure can be showed to lack standing. Take for example the lost note, later abandoned and the robo-signed assignment executed by a known robo-signer, which is also later abandoned.
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The lost note is intended to be straight forward — a pleading that says the note was lost, that due diligence has been performed, that the present claimant owns or holds the original note and that the note has not been otherwise negotiated.  It is a lie of course. They never had the note because ti was destroyed intentionally. But they also don’t want to be subject to discovery or requirements of proof as to the chain of possession and the chain of transactions that would prove that the present holder actually owns or holds the note.
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So the tactic employed is to “withdraw” the count stating that the note is lost. And there is where the opportunity for the homeowner comes into play. If they have admitted losing the note, they are admitting that the chain might be broken. By simply withdrawing the lost note count without explanation they have failed to explain how it was found, where it was found and why it was lost.
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In other words the possibility that the note has already been negotiated is still present and the possibility exists that the “original” note is not an original but rather a mechanical reproduction — which leaves the question of the banks either admitting they destroyed it (and explaining that in pleadings, proof at trial or both) or admitting that they cannot produce admissible evidence that they actually own the debt, loan, note or mortgage.
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This possibility is raised to a probability once you establish at least “probable cause” to believe that the foreclosing party is relying upon the utterance of false or fraudulent documentation, at which point they are stripped or should be stripped of the benefits of a legal presumptions that the documents upon which they are relying are true.
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Even if they can come up with the actual original “original” note, they have already put on record that they lost it. Now they withdraw Count I without any amendment to the complaint explaining what happened to the note with no certification of possession and no documents attached to the complaint showing endorsement or assignment at the time of the filing of the lawsuit except that the Linda Green “assignment” was supplied and later abandoned after all the publicity about her which is now in the records I have sent to you.

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So you have 2 “abandonments”: the allegation that the note was lost and the assignment executed by a robo-signer. The banks cover this deficiency by still more paper  — in which the banks file a “corrective” assignment that might withstand scrutiny in place of the original fabricated and forged assignment.
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They want the court to assume that since it is merely a “corrective” assignment that it relates back to the original assignment. But there is no legal presumption that covers that. So if they want to relate the assignment produced AFTER suit was filed with the bogus assignment dated BEFORE the lawsuit was filed then they should be required under the rules of evidence to show and when the assignment really related back to the time they of the transaction in which ownership and rights to enforce were transferred.
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The burden is on the banks to show they had standing before suit was filed or foreclosure was initiated. If they can’t prove by testimony and evidence of proof of payment that they had a transaction in which the loan, debt, note or mortgage was acquired by purchase and sale BEFORE the action was commenced, then they are stuck with their “Corrective” assignment which is obviously filed AFTER the foreclosure suit or forced sale was initiated. ( I need not explore here what they mean by :corrective” other than to say that naming it as a “corrective assignment” doesn’t make it relate back to the prior one.)
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So the only operative assignment is a “corrective” assignment that was filed AFTER the lawsuit was filed. We have no explanation of the chain of possession and there should be no presumptions about the chain of possession since it was their own pleadings that raised the issue.

The only way they reconcile this is by proving that they had an actual transaction resulting in the assignment (the equivalent of a bill of sale) BEFORE the lawsuit. But they have no records listed on their exhibit list showing that they intend to show they actually purchased the loan, debt, note or mortgage before suit was filed. The reason is simple — there was no such transaction. But this time they are not entitled to presumptions since the use of Linda Green’s signature (or some other robo-signor) that was clearly robo-signed has been abandoned and the trustworthiness of the documents are clearly in doubt.

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Under Florida Rules of Evidence on presumptions the proponent must now actually prove an actual transaction without benefit of the legal presumption where the document is at least dubious and does not scream out trustworthiness.

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This could be argued to the Judge as a simple burden of proof problem. The banks must prove their case. The banks have a history in this case of using a fabricated, forged document that they have tacitly admitted by their abandonment of the Linda Green assignment. Therefore they still have a possible case but they must prove the facts of the origination of the loan and the transfers of the loan without benefit of presumptions that those transactions actually took place.

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So you have two problems here that go against the Bank — the failure to explain chain of custody of the lost note and the failure to have an assignment before suit is filed.On both issues there is plenty of case law that says the banks lose in that scenario. But failure to object and I might add failure to educate the judge as to your theory of the case could be fatal.

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So I am suggesting to most lawyers who are not already doing that they file a pretrial memorandum outlining the issues for trial and why you think the court’s ruling’s on evidence should favor of the borrower. There is no real prejudice if the transactions actually took place.

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The only prejudice is that they need to spend a few more minutes showing that the bank, trustee, servicer or whoever paid for the acquisition fo the note and perhaps that the originator actually paid to fund the loan for which the originator is given credit on the note and mortgage.

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If the originator did not fund the loan, that would obviously explain the absence of an actual transaction in which the originator received consideration for the transfer of the loan papers improperly naming the originator as the lender. And it would explain the large fees paid to originator to engage in this pretense despite the Reg Z definition of table funded loans as “predatory per se.”

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Post Mortum on 2010 “Bad” Decision in Florida

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See CitiBank v Delassio 756 F Supp 2d 1361 2010

This case is often cited by servicers and banks to enforce a note and/or mortgage. Lots of people regarded this decision as “bad” because it approved the foreclosure. The natural impulse is to run from this decision and try to cite others that conflict with it. But this decision was correct AND it provides a blueprint for making your defense successful. The Judge correctly analyzed the law and the facts and found that the homeowner had not proven anything or objected to anything that would prevent Citi from proving its prima facie case and had not proven anything or objected to anything that would have supported any of the homeowner’s defenses.

So I thought I would take this case, as I have done before, and examine it for clues on how the same Judge would have decided the case differently. Used properly this might enable the homeowner to cite to this case in support of a motion to dismiss, motion for summary judgment or to attack the prima facie case of the party initiating foreclosure. There are also plenty of clues as to proving an affirmative defense in which the final result will be that the mortgage is void or unenforceable and perhaps the note as well, leaving the debt, which arises by operation of law and is owed to the party who physically gave the borrower the money.

  1. LACK OF JURISDICTION — VOID MORTGAGE AND VOID NOTE: The first issue is that for reasons unknown, the borrower failed to bring up the fact that the “lender” did not legally exist in Florida and further failed to object to the finding that AHMSI and  American Brokers Conduit were “one in the same [sic]”. In fact, I wonder if the case could not still be overturned on the basis of lack of jurisdiction and perhaps even that the mortgage was void, thus depriving the court of both in rem jurisdiction and in personam jurisdiction. Perhaps the homeowner did not authorize investigation into the parties. But had he done so he would have found that American Brokers Conduit (the “lender”) did not exist in law or in fact. Any claim that ABC was the alter ego or Trade Name of AHMSI was not explored in the opinion. And as to AHMSI, what difference does it make if they were supposedly the true lender under Florida law? The note and mortgage were both defective and the disclosures were deficient in failing to identify the actual party, which, as we shall see below, would have changed the view of the case entirely.
  2. POOLING AND SERVICING AGREEMENT: The title of the case involves U.S. Bank “as indenture trustee.” By stating that without explanation the homeowner ought to be able to inquire about the indenture, where it exists, and ask for a copy. That would be the Pooling and Servicing Agreement, which makes all arguments about the irrelevance of the PSA moot. Failure to raise the question of where the trustee derived its powers, where the servicer derived its powers, and where the terms and provisions can be found for the duties of the servicer or trustee essentially waives the issue of securitization (false or not). By raising the issue appropriately the homeowner can then inquire as to whether the trust actually owns the debt or is a holder in due course. The holding by the judge in this case that the Trust was a holder in due course was wrong —but not wrong on the facts and admissions by both sides in this case. Hence the decision was inevitable even though the real facts did not support the conclusion. The accepted facts of the case were contrary to the actual facts.
  3. FDCPA CLAIMS: The homeowner settled with AHMSI regarding fair debt collection practices. This might have been a mistake and might have been the reason that the Judge regarded AHMSI and American Brokers Conduit as the same thing. The settlement probably was worded in a way that prevented the homeowner from raising the authority of ABC to assign anything, much less record a mortgage or transfer a note that it could not have funded because it never existed — at least in Florida. I have several cases where the lender is very concerned about the FDCPA claims and needs a settlement. They obviously know that there is danger in those hills and that should be exploited by borrowers when challenging the debt, note, mortgage or foreclosure.
  4. TILA AND RESPA DISCLOSURES: Amongst the agreed facts, the court found that the borrower closed the loan with ABC, and based upon the only issues raised by the borrower, found that the disclosures were proper, and that any discrepancies worked to the borrower’s advantage and therefore did not constitute a violation of the Truth in Lending Act (TILA) or the Real Estate Settlement Procedures Act (RESPA). Hence there was no right to rescind either under the 3 day rule or the 3 year rule. Despite the fact that the borrower announced rescission within the 3 years, the court properly found against the borrower. Citi by filing the foreclosure suit, was in substantial compliance with the requirement that it timely file a declaratory action regarding the right to rescind. So if the court had found that there was no closing because ABC did not exist and that the disclosures were inadequate because the borrower raised the issues of disclosing the lender (and avoiding the predatory per se finding by Reg Z), then the same Judge who entered this order probably would have said the rescission right was at least in play and might well have decided, as per the express terms of TILA, that the mortgage was nullified by operation of law by the announcement of rescission. [Note: This issue is currently being considered by the U.S. Supreme Court]
  5. RESCISSION: This in turn leads to the question: if ABC didn’t exist and therefore didn’t actually loan any money then who did? The only thing we can agree on, up to a point ( but that is the subject of another article), is that the borrower did get money and that the receipt of the money is presumed, by operation of law to create a debt in which the borrower is the debtor and the source of funds is the creditor. The failure to disclose a table funded loan or worse, a naked nominee or conduit providing funds from investors who didn’t know how their money was being used, is a material violation of the disclosure requirements in TILA. That is why Reg Z underscores the importance of that disclosure by saying that failure to do so constitutes conduct that is “predatory per se.” And you can prove that by citing to this same case. Hence the rescission would have or at least could have been found to have been complete and the mortgage nullified, thus paving the way for the borrower to get alternative financing,  quiet title or other other remedies.
  6. PREDATORY LOANS: It is unclear what exactly went on at the trial level  with regards to an obviously “trick” loan that fails to disclose its hidden terms in a way that the borrower would any possibility of understanding. The only thing the borrower knew or understood is that he was getting a low interest loan. No reasonable person would sign a loan in which they understood that the interest rate was only good for one month. If you want to win on this point ,though, you need more than the testimony of the borrower. You  need a mortgage broker or other professional that would testify that the loan was unworkable from the start, doomed to failure and was illegally funded from investor funds, and illegally sold to the borrower under false pretenses. THAT is how you prove unclean hands which would prevent enforcement of the mortgage.
  7. UCC: There is an interesting juxtaposition in the “Legal Analysis” of the opinion. The court finds that the Trust was a holder in due course. And this case can be cited for the elements of being a holder in due course. I would encourage foreclosure defense lawyers to do so because you can start out by saying in this case in which the Federal District Court found against the borrower, the elements of the status of holder in due course are summarized. If you go down to the end of the first paragraph in the legal analysis the quote about payment opens the door for your attack against the holder in due course status. Did the Trust prove or show that it PAID for the note and mortgage without knowledge of borrower’s defenses, without knowledge that it was already in default, and in good faith, and did the Trust get delivery (which according to the pleadings, they did not because the note was initially “lost”). Hence the same court that stated that the trust was an HIDC finds that PAYMENT “goes to the heart of the agreement”. If the trust cannot show it paid anything, then two questions arise, to wit: why not? and why did the endorser or assignor of the “loan” transfer or purport to transfer the loan documents to the trust without receiving any payment? If you follow that logic down the line you will corroborate your argument that ABC gave no money to the borrower and that was why ABC never received any money for the transfer of the paper, which now is visible as being entirely worthless, fraudulent and false.
  8. ENDORSEMENT OR ASSIGNMENT IN SECURITIZATION SCHEME: The court correctly states that under the UCC a transferee of negotiable paper can get the right to enforce the paper either by endorsement or assignment. Because the issue was apparently not raised, the court failed to address the issue of whether the enforcement could succeed at trial (as opposed to the pleading stage) if the identity of the creditor is not disclosed. The question at trial or deposition should be, if the witness is from the servicer entity, and assuming the current servicer entity had anything to do with processing payments from the borrower and to the creditor, “who did you pay?” What the court failed to deal with (presumably because the homeowner did not bring it up) is that the party claiming rights (the trustee for the trust) must show that the loan actually went into the trust because it was paid for and properly delivered. If no objection is raised, then the court can correctly presume that those elements are present. If a proper objection is made then the Plaintiff should be required and often is required now to prove the elements of a holder in due course. In cases where my team has been directly involved in litigation the opposing lawyer tried to wriggle out of this problem by declaring that the trust is not a holder in due course and that therefore they had no requirement to prove those elements. They are essentially hoping that the court won’t know the difference between a holder and holder in due course. A mere holder must establish that it has the rights to enforce on behalf of a party who actually owns the debt by identifying that party and identifying the instrument by which the “holder” was given authority to enforce. In the case of a trust that is impossible because by all accounts the trust is the final resting stop of the claims of securitization of loans. So you end up with an empty trust, in which neither the servicer nor the trustee have any legal rights to do anything with the debt created by the borrower when he accepted the money at “closing.” He still owes a debt, and if the opposition would comply with discovery requests we would know the identity of the party to whom he owes the debt. But one thing is for certain, he cannot ALSO owe a second debt created by signature on a note and mortgage made out in favor of a party who loaned him any money. The key to this is emphasizing that a holder must prove the loan in its claimed chain. But the loan will probably be presumed to exist within the chain if the borrower fails to object and raise the issues.
  9. DELIVERY: There is considerable confusion in the case as to the issue of delivery apparently because neither party made an issue about it. The court concludes that Citi got delivery of the loan documents (versus the lost note account that was later abandoned) but fails to show how that delivery constitutes delivery to the trust when the PSA obviously contains strict provisions as to delivery and New York law governing the trust requires any transaction outside the authority stated in the trust to be void.
  10. ECONOMIC WASTE: This decision stands for the proposition that economic waste is a proper affirmative defense, but unless you actually prove it with reliable, credible testimony about facts and documents, merely alleging an affirmative defense and hoping that somehow the opposition will stumble into an admission, is not a very good strategy.

Banks Attempting to Fight MERS Decision With Public Relations

What’s the Next Step? Consult with Neil Garfield

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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, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

Editor’s Analysis: The banks are threatening to slow down lending because of the Oregon MERS decision. They want to be fear in the hearts of realtors and sellers alike who will no doubt be recruited to join in lobbying efforts to change the law in Oregon to allow MERS in the chain of title. People who live in Oregon should be VERY vigilant to see that such a provision doesn’t get tacked onto to some innocuous bill that has nothing to do with MERS, foreclosures, mortgages or even real property.

Here is the problem for the banks: The reality is that that under real property law in every state you must record transfers of interest in real property if you want to be able to protect yourself against subsequent buyers or lenders who nothing about prior off-record dealings. Recording is what stabilizes the market. Where the recording rules are followed then there is notice to the world of who has what stake in any particular piece of property. A buyer or lender can buy or lend without worrying if they are really getting title or a perfected lien.

MERS is an intentional parallel universe in which transfer are NOT recorded and someone can pop up later claiming to be the new owner, beneficiary, trustee or whatever. It creates uncertainty in the marketplace which is bad for business generally and no doubt is going to spawn thousands of lawsuits on title insurance and title claims because MERS by its own admission never handles a dime, never gets the origination documents, and never does anything except maintain a relatively unsecured technology platform in which the members make, change, alter or amend data relating back to the so-called origination of the loan.

They attempt to cure this fatal defect with signed affidavits and other documents fabricated only when there is litigation executed by unauthorized people, robosignors, surrogate signors without corporate resolutions that the bank would require from borrowers but don’t want applied to themselves. The robo-signed, fabricated or fraudulent documents become part of the record but on close reading say nothing, which means that under case law in all the states the filings would be considered “wild” which means that it is out of the chain of title.

But the problem lies even deeper than that. MERS is the nominal trustee on the deed of trust or the nominal mortgagee on a mortgage. It disclaims any interest in the obligation, note or mortgage, saying that it is there to “facilitate” the transfer, sale or securitization of loans and other forms of credit — a function easily performed for a statutorily required fee by the statutorily authorized recording office in each county in which each property is located.

If you drill down a little deeper, you will find that MERS, as nominee is named as nominee for an apparently disclosed principal identified as the “lender.” But the “lender” loans nothing in most of these transactions, as the wire transfer receipt and wire transfer instructions will show.

So what you REALLY have is a nominee for  a nominee for an undisclosed principal, whom we all know should be the investors or their REMIC, but isn’t because the investment banks took the ownership diverting the paperwork and the money away from the investors, leaving them, and the borrowers, holding an empty bad or perhaps better said “a holographic image of an empty paper bag.”

These are table funded loans (predatory per se as per TILA and Reg Z) on steroids. While the banks are temporarily claiming ownership, they are trading selling and hedging and insuring the loans in packages making a fortune while the investors are left with fatally defective, unenforceable claims against he borrowers (see the various complaints filed by investors against the investment banks).

The flow of money from insurance — promised to investors and hedge products promised to investors never materializes because the banks kept the loans as though they owned them and then sold them at a premium to pools that were never funded with the investors’ money. Their money went to the banks as well which the banks used as their own money to make all those trades.

So the Oregon Supreme Court is scheduled to hear a case called Niday vs. GMAC Mortgage because the lower appellate court said that in order to collect or foreclose on a debt, the debt must be owed to you and not someone else. This is also the law in all states —  only an actual creditor who is owed money from the borrower can submit a “credit bid”in lieu of cash assuming the debt is owed in connection with the financing of the property.

So the Banks and servicers are getting the story out through the media wherever they can that these rulings are misguided and will have terrible consequences on the marketplace when in fact the reverse is true. What the banks and servicers are doing is introducing a level of uncertainty that has never been seen before in the American marketplace. Their response to attempts to curb their illicit practices has been to threaten the marketplace with a freeze on lending. In other words, they are trying to bully us into letting them get away with it. Will you let them?

controversial-mers-decision-breaks-oregons-chain-nonjudicial-foreclosures

JAMIE DIMON: WHEN DID HE KNOW THAT JPM WAS STICKING IT TO CUSTOMERS AND MAKING A PROFIT?

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary SEE LIVINGLIES LITIGATION SUPPORT AT LUMINAQ.COM

SEE jpm-makes-2-billion-while-investors-lose-500-million

EDITOR’S NOTE: If the press can ask the questions leading right up to the top of the megabanks, why can’t the government? You have to remember that these people practically invented the term “due diligence” and before the securitization scam, it was very challenging to get a deal through where all the i’s were not dotted. The point here is not whether Jamie Dimon belongs in jail. The point is that the securitization scam was intentional and there are civil remedies for everyone who was hurt by it.

JPM set up an investment that they knew at the highest levels was going to fail, didn’t tell their investor (of course) because they were going to  make a lot of money BECAUSE the investor was going to lose money. This is what was done to investors in mortgage-backed bonds and what was done to homeowners who put up their house for an “investment” that was already doomed. Facts like these help make the case for appraisal fraud and other deceptive lending practices. And it shows how the megabanks were pulling the strings through remote vehicles and then defending with plausible deniability.

My answer is that their denial is not plausible and not even possible. Nobody accidentally makes $2 billion on a client’s loss of $500 million. We’re not talking the lottery here. We are talking high finance where the controls and command centers are limited to a few rooms with very few people in those rooms.

Investing in the Dark

NY Times Editorial

So what did Jamie Dimon know and when did he know it?

New documents unsealed recently in a class-action lawsuit against JPMorgan Chase — some of which name Mr. Dimon, the chief executive — paint yet another picture of a bank profiting while its clients suffer. At issue is a precrash investment vehicle, named Sigma, in which the bank had invested $500 million in assets from pension funds and other clients, nearly all of which the clients say was lost when the investment tanked in 2008.

The clients were blindsided because they believed that Sigma was a safe way to invest. JPMorgan was not taken by surprise. As Louise Story reported in The Times on Monday, court documents show that warnings by top bank officials about Sigma and similar investments went all the way up to Mr. Dimon’s office.

The gist of the warnings was not how to protect clients, but how the ailing Sigma presented the bank with what one e-mail described as “very big moneymaking opportunities as the market deteriorates.”

When Sigma did indeed collapse, JPMorgan collected nearly $1.9 billion, according to the suit, a figure the bank disputes, without providing any alternative figure.

It is possible that JPMorgan did nothing wrong legally — and that is precisely the problem. It clearly stinks to withhold information that may well have caused clients to change their minds — in effect, for the bank to treat clients’ money with less care than it treats its own. As long as banks operate that way, there is no restoring trust in the financial system, or, by extension, in the political system that props it up.

But is it illegal? JPMorgan has said that the unit of the bank that handled the clients’ investments in Sigma was not, by law, allowed to confer with the unit of the bank that benefited from Sigma’s demise. That may be true, but as Ms. Story pointed out, in this case, the information rose to executives who oversee the entire company and were in a position to intervene. That they did not is a failure to do the right thing, even if the court decides that the bank did not break the law.

In the meantime, efforts to write new rules to try to curb such conflicts is hamstrung by a Republican backlash against the Dodd-Frank financial reform law that was passed last year. There is proposed legislation to repeal provisions of the law, and the agencies that have to implement the law are in danger of not getting enough money to do the job. As the pension funds in the class-action suit against JPMorgan can certainly attest, only the banks will benefit from business as usual.

July, 2007: Livinglies describes and predicts the meltdown

History shows that the descriptions and predictions in this piece I wrote 1 1/2 years ago were unfortunately on target. What I didn’t realize at the time, was that many if not most of the money was at that time going for “refi’s” that homeowners did not solicit or want. There was a knock on the door in some reverse red lined neighborhood, and some nice looking person introduced themselves as a Representative of First National Bank on the Corner.

As a new bank in the neighborhood (created by some investment banker on Wall Street, but of course that wasn’t disclosed) they had a brand new program just for that neighborhood. The house was paid for and had been in the house for generations. Six months later these victims found that the papers they signed, the assurances they received of another refi that would remove the reverse amortization, adjustable features, were all fraudulent and now they were facing foreclosure and eviction. These scenarios played out millions of times over and have created the New American Tragedy. 

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7-13-07 Amazing. Where is the outrage? Here is how this works. In effect a tacit conspiracy between builders of new construction housing in tract developments, mortgage brokers, and investment bankers are turning ordinary people into sub prime borrowers, canceling out a lifetime of gains and rewards that normal people have worked for according to the rules.

The syndicate lures people first into trusting them and then into making purchase and investment decisions that are nothing short of catastrophic and the syndicate knows it will be catastrophic — but not for members of the syndicate. A buyer/borrower is lured into a home too much for their finances — only they don’t get to find that out until long after the the purchase/investment decision is made. The appearance is that these people had all the time in the world to figure all this out and get the right advice, and so it is their own fault if they get into a financial mess.

The reality is far different than the appearance, but political views, policies and perceptions are based upon the appearance rather than the reality.

The pitch is “no problem” — we will give it to you for less money per month than you pay now. Of course when they get to closing they find out that the TOTAL carrying costs on the new house are higher than what they were paying but they are too excited to give that much thought.

Of course the homes are all new homes that give the buyer fewer “amenities” than ever before thus requiring the new buyer to spend more money than he/she ever spent before on furnishings for their house, some of which, like window treatments, are mandated by the rules of the association that the developer wrote.

So after the buyer is totally broke and already behind the 8 ball, suddenly the thing he and the little woman had pushed under the rug, raises its ugly head —- the partially reversible, adjustable, no “fee” mortgage loan payments just went through the roof far beyond any ability they have to pay it, and now even beyond the ability to take it out of savings, that are now completely gone. In fact, these buyers are now maxxed out on their credit cards as well and falling behind on those payments.

Thus people deplete everything they have, run their credit rating into the ground, and are now red meat for the predators who started all this — the tacit syndicate composed of developers, mortgage “brokers”, and investment bankers. They never lose money. The people who lose money are the little people (the bread of the sandwich). On one end is the borrower/buyer and on the other is quite possibly the same person who has purchased the mortgaged -backed securities his broker touted to him. The appearance of wealth is what propels the buyer/borrowers and investors who buy the securities.

The lack of risk and accountability is what propels the syndicate. The government does nothing because under the Peter principale if you can get one of these cycles going, you will be long gone and in some other elective office when the shit hits the fan. In fact, a clever politician will tell you that when he was in power, the economy was much better — and when his opponent came in, everything went to hell in a hand basket.

So now the poor schlep is out of money, and can’t keep his home. No problem.

The mortgagee will refinance and make things easier on you, but there is the matter of certain fees, an even deeper reverse amortization that effectively transfers ownership of your home to the lender, and oh yes, your credit rating dropped by 200 points so your interest rate instead of “adjusting 2% is now up 5%. Before long, the second round starts, and the buyer/borrower has to sell the home with most of the furnishings etc he/she bought at a price that is a fraction of what they paid, to people, who have real money — because these perks on not so available on resales as they are on new construction.

Of course it is has been a while since the original buyer/borrower has called that broker who touted and pressed him into selling some conservative investment and buying these mortgage backed securities — but that broker has since quit the business and now works for his uncle selling aluminum siding or has moved onto another city and another brokerage house. They finally determine that the securities they bought and that were so good have been “down-graded” from a “BUY” to a “SELL” at any price — because the mortgages that backed those securities were comprised mostly of mortgages just like the one that got you into trouble in the first place.

All the exits are now closed and the the good hard-working people who played by the rules and were deceived by their trust in people who were out to take them down now find themselves near the poverty line when before this they were up and coming. It is the American Tragedy of the early 21st century. It will continue until as a society we insist on the REAL facts, and people in whom we repose our confidence are accountable for their actions.

When those people act in their own interests and contrary to the public interest they should lose their license to work, just like any doctor, lawyer, accountant, engineer or other licensed profession. Instead, there is a wink and and and the game goes on. It isn’t market forces that are driving this pattern, it is raw political power and greed disproportionately distributed, maintained and enforced by the government that was formed to protect people from exactly this sort of thing.

Something new, Something Blue, something Old: Go after them no matter what

From FAQ new entry:

> Comment:
> I meant to ask this question in my post…
>
> Our refinance in May 06 paid off the previous mortgage. I did not receive my original note back from my previous lender. I believe a lender is liable for any assigned loan, and I have read articles on lender liability in a refinance, My question is, if a lender does not send original note back to borrower, is that contract in affect still open to rescind? even though someone has paid that amount on my behalf? But if the lender does not take the required steps in paying off this loan in a refinance why would they not be responsible? Is the lender with whom we have refinanced liable for paying a loan that has discrepancies in the paperwork, or when the bank they paid off did not follow through in their returning the original note to borrower? What documentation is exchanged between banks when a loan is paid off?
> Can this lender be responsible for this paid off amount as part of my law suit, thus leaving us not in debt for the amount that was paid by them? There are many complicated issues with this case. This has made it hard for the attorneys. I have sent a link to your site to my attorney. Thank you.
>

ANSWER: A very interesting question. Let me re-phrase it slightly. Up till now we have been concentrating in this blog on current mortgages that are in default, delinquency, the process of sale or the process of eviction. There are two major other classifications that need to be addressed:

1. Homes that are encumbered by mortgages where predatory lending, TILA violations, RESPA violations, HOEPA violations, RICO violations, fraud, usury, appraisal fraud and/or other issues are present like affordability and failure to employ reasonable underwriting standards, BUT where the the homeowner is not in default, has payments current, etc. They know they were screwed, but they have the income to pay for it. What about them?
2. Homes that were sold and where the 1sts Mortgage holder was paid off and the second mortgage holder was paid off etc.

In both cases the same issues apply as to any home that is in distress. You can and should challenge the validity of the authority of the mortgage servicer, the note and the mortgage in both cases. You should ask to see a copy of the note and in the case where it was “paid off”, you should have received the note marked “canceled” and signed by an AUTHORIZED person. It is doubtful that very many people actually received their canceled note in the closing of the sale of their home and doubtful that your current mortgage lender has physical possession or ownership of the note or its underlying obligation to pay. Therefore it is probable that the people you dealt with when you sold your house or the people you are currently dealing with lack authority or didn’t have the authority to cancel the note and deliver it.

So what I am saying is that people who are not in financial distress but either had or recently paid off one of these loans have nothing to lose by going after them. In the case of property where the mortgage(s) was paid off, I would demand a refund unless they can produce proof that they were entitled to the money. In the case where you just have a mortgage that you think they were predatory etc., demand a rescission (get an audit first), demand damages, refunds, rebates, treble damages etc.

> Date: Wed, 17 Sep 2008 18:22:43 +0000
> To: ngarfield@msn.com
> From: donotreply@wordpress.com
> Subject: [Livinglies’s Weblog] Comment: “Foreclosure Offense: Quiet Title and Rescission (TILA and otherwise)”
>

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