MERS: No Agency with Undisclosed Rotating “Principals”

Posted on August 17, 2012 by Neil Garfield

THE WASHINGTON SUPREME COURT DECISION WILL BE USED EXTENSIVELY AT THE EMERYVILLE AND ANAHEIM CLE WORKSHOPS.

The Stunning clarity of the decision rendered by the Washington Supreme Court, sitting En Banc, corroborates the statements I have made on this blog and under oath that they might just as well have put the name “Donald Duck” in as the mortgagee or beneficiary.

The argument, previously successful, has been that even if the entity MERS had nothing to do with financial transaction and even if they didn’t know about the transaction because the “knowledge” was all contained on a database that nobody at MERS checked for authenticity or veracity, the instrument was still valid. This coupled with a “public policy”argument that if the courts were to rule otherwise none of the MERS “mortgages” would be valid thus making the creditor unsecured.

The Washington Supreme court rejected that argument and further added that if such was the result, then it was through no fault of the borrower. SO now we have a situation where the law in the State of Washington is that MERS beneficiary instruments do not establish a perfected lien and therefore there is no opportunity to foreclose using either non-judicial or judicial means. A word of caution here is that this applies right now as law only in that state but that it closely follows the Landmark decision in Kansas Supreme Court. But the decision is extremely persuasive and reinvigorates the fight over whether the loans were secured loans or unsecured — especially powerful in bankruptcy courts.

It should be noted that the Washington Supreme Court has wider application than might appear at first blush. This is because the question was certified not from a state judge but from a federal court. Thus in Federal Courts, the decision might be all the more persuasive that MERS, which never had anything to do with the financial transaction, never handled a dime of the money going in or out of the loan receivable account, and never had any person with personal knowledge who could identify and verify that there was a disclosed principal for whom they were acting should be identified as a non-stakeholder with bare (naked) title recited in a fatally defective instrument.

This does not mean the obligation vanishes. It just means that they can’t foreclose through non-judicial foreclosure and probably can’t foreclose even through judicial means unless they accompany it with a request that the court reconstruct the mortgage — in which case they would need to allege and prove that the disclosed parties were the sources of funds for the origination of the loans, which in most cases, they were not.

The actual parties who were the source of funds either still exist or have been settled or traded out into new investment vehicles. This is why putting intense pressure to move the discovery along is so powerful. You are demanding what they should have had when they started the foreclosure timeline with a defective notice of default signed by a person who had no idea what the loan receivable account looked like or even the identity of the party or entity that had the loan booked as a loan receivable.

You’ll remember that MERS issued a proclamation to everyone that nobody should use its name in foreclosures in 2011. But that doesn’t address the underlying fatal defect of the MERS business model and the instruments that recite MERS as the mortgagee or beneficiary.

Th reasoning behind the rejection of the “Agency” argument is also very important. The court states that “While we have no reason to doubt that the lendersand their assigns control MERS, agency requires a specific principal that is accountable for the acts of its agent. If MERS is an agent, its principals in the two cases before us remain unidentified.12 MERS attempts to sidestep this portion of traditional agency law by pointing to the language in the deeds of trust that describe MERS as “acting solely as a nominee for Lender and Lender’s successors and assigns.” Doc. 131-2, at 2 (Bain deed of trust); Doc. 9-1, at 3 (Selkowitz deed of trust.); e.g., Resp. Br. of MERS at 30 (Bain). But MERS offers no authority for the implicit proposition that the lender’s nomination of MERS as a nominee rises to an agency relationship with successor noteholders.13 MERS fails to identify the entities that control and are accountable for its actions. It has not established that it is an agent for a lawful principal.” Hat tip again to Yves Smith on picking up on that before I did.

And the court even went further than that on the issue of modification that I have been pounding on for so long — how can you submit a request for modification with a proposal unless you know the identity of the secured party and the identity of any party or stakeholder who is unsecured? Hoe can anyone settle or modify a claim without knowing the identity of the claimant or the actual status of the claim as affected by payments of co-obligors? “While not before us, we note that this is the nub of this and similar litigation and has caused great concern about possible errors in foreclosures, misrepresentation, and fraud. Under the MERS system, questions of authority and accountability arise, and determining who has authority to negotiate loan modifications and who is accountable for misrepresentation and fraud becomes extraordinarily difficult.”

BUT WAIT! THERE IS MORE! The famed Deutsch bank acting as trustee ruse is also exposed by the court, leaving doubt ( a question of material fact that is in dispute) as to the identity and character of the creditor and the status of the loan. Without those nobody can state with personal knowledge that the principal due is now this figure or that and that the following fees apply. The Supreme Court in the footnotes takes this on too, although it wasn’t argued (but will be in the future I can assure you): “It appears Deutsche Bank is acting as trustee of a trust that contains Bain’s note, along with many others, though the record does not establish what trust this might be.”

The Court also is not shy. It also takes on the notion that the borrower is not entitled to know the identity of the creditor or principal and that the borrower only has a right to know the identity of the servicer. This of course is patently absurd argument. If it were true anyone could assert they were the servicer and you could not look behind that assertion to determine its veracity.

“MERS insists that borrowers need only know the identity of the servicers of their loans. However, there is considerable reason to believe that servicers will not or are not in a position to negotiate loan modifications or respond to similar requests. See generally Diane E. Thompson, Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications, 86 Wash. L. Rev. 755 (2011); Dale A. Whitman, How Negotiability Has Fouled Up the Secondary Mortgage Market, and What To Do About It, 37 Pepp. L. Rev. 737, 757-58 (2010). Lack of transparency causes other problems. See generally U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40 (2011) (noting difficulties in tracing ownership of the note).”

And lastly, about making the rules up as you along, and moving the goal posts around, the Court challenges the argument and rejects the MERS position that the parties are free to contract as they choose despite any statutory language. Specifically the question what is what is the definition of a beneficiary. In Washington as in other states, the definitions of the Act apply to all transactions described and there is no room for anyone to change the law by contract. “Despite its ubiquity, we have found no case—and MERS draws our attention to none—where this common statutory phrase has been read to mean that the parties can alter statutory provisions by contract, as opposed to the act itself suggesting a different definition might be appropriate for a specific statutory provision.”

And again corroborating my work and manuals on the livinglies store. the Court finally addresses for the first time that I am aware, the essential reason why all this is so important. It is the auction itself and the acceptance of the credit bid from a non-creditor. Besides the challenges as to whether the substitution of trustee and instructions to trustee are valid, nobody can claim title suddenly born as a result of a “transfer” or assignment” or other document from MERS, an entity that had specifically claimed any interest in the obligation. The Court concludes that you either have the proof of being the actual creditor to whom the obligation is owed, in which case you can submit a credit bid if it is properly secured, or you must pay cash.

“Other portions of the deed of trust act bolster the conclusion that the legislature meant to define “beneficiary” to mean the actual holder of the promissory note or other debt instrument. In the same 1998 bill that defined “beneficiary” for the first time, the legislature amended RCW 61.24.070 (which had previously forbidden the trustee alone from bidding at a trustee sale) to provide:
(1) The trustee may not bid at the trustee’s sale. Any other person, including the beneficiary, may bid at the trustee’s sale.
(2) The trustee shall, at the request of the beneficiary, credit toward the beneficiary’s bid all or any part of the monetary obligations secured by the deed of trust. If the beneficiary is the purchaser, any amount bid by the beneficiary in excess of the amount so credited shall
18
Bain (Kristin), et al. v. Mortg. Elec. Registration Sys., et al., No. 86206-1
be paid to the trustee in the form of cash, certified check, cashier’s check, money order, or funds received by verified electronic transfer, or any combination thereof. If the purchaser is not the beneficiary, the entire bid shall be paid to the trustee in the form of cash, certified check, cashier’s check, money order, or funds received by verified electronic transfer, or any combination thereof. Laws of 1998, ch. 295, § 9, codified as RCW 61.24.070. As Bain notes, this provision makes little sense if the beneficiary does not hold the note.”

Thus this court has now left open the possibility of challenging wrongful foreclosures both in equity and at law for damages (slander of title etc.) It would be hard to believe that Washington State Attorneys won’t pounce on this opportunity to do some good for their clients and themselves.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , | 21 Comments »

Another Kind of Dual Tracking: Loan Origination Fraud

Posted on August 10, 2012 by Neil Garfield

NOTE: Dual tracking and loan origination fraud by the banks will be a prime topic explained in detail by Neil Garfield, Dan Edstrom and Jim Macklin at the upcoming seminars.

At the Sign Up for Full Day Seminar in Emeryville (San Francisco), a specialist from Nevada will present the issues in mediation and forcing the true decision makers and owners of the loan to step forward. We will also present this important material in the Anaheim seminars. One is for homeowners Sign up for 1/2 day Homeowners Seminar and the other is a CLE seminar for lawyers, paralegals and other real estate professionals Sign Up for Full Day Seminar in Anaheim. Participants will get discounts on the purchase of our forms library and workbooks. Call 520-405-1688 for details.

People ask me why I don’t write an ordinary book for layman instead of the manuals we sell. Well, I have written two and dumped them in the trash because they were just the kind of rehash you keep seeing new authors expounding upon the dead Norse that has already been expounded.

My book would therefore really be very short. It would start with the plain and simple and ingenious process that lies at the heart of the securitization fraud.

It is called dual tracking. And the reason for this name is that Wall Street didn’t name it. Wall Street would have named it something like synthetic collateralized real estate closings deriving their value from the dual process of lending of money to a homeowner or buyer and the parallel process of signing closing documents for trading. That sounds better than dual tracking doesn’t it? Because it doesn’t tell anyone what they were doing.

 

What we are left with is a chain of documents without value and a chain of money without documents. The third phenomenon arises from Wall Street’s ignoring its promises to depositors (investor-lenders) and promises made to homeowners who are buyers or refinancing existing homes they own.

Imagine that I loaned you $100. You would owe it to me even if we never wrote one word on paper. Now if I forged a note signed by you, or had it robo-signed, you would still owe me the $100. If I tried to use the forged instrument in a legal proceeding I would be subject to contempt of court, fraud charges and sanctions but you would still owe me the $100.  And THAT is the reason why most pro se litigants are losing. The lawyers are making the same mistake.

Back to dual tracking. Now let’s imagine that I did loan you the $100 but I did it by writing a Check using my bank as the intermediary. Nothing has changed, right? You have the check, you cashed it and you owe me the $100. Simple as that. But here is where lawyers, judges and policy makers are missing the genius of invention by Wall Street.

When I write a check on my bank to you, my bank and your bank are intermediaries. We depend upon the normal relationship of a customer and his bank. I expect my bank to pay your bank and I expect and you expect that your bank will pay you the money. And if that is what happens, then you still owe the $100.
Even if you deposit the check, which adds another bank intermediary to the story, nobody considers the banks to be anything other than providing services to you and me for access to the extensive grid that makes it possible to move money from me to you. Here again is where lawyers, judges and Policy makers get lost.
The presence of the banks is factually irrelevant because I could have lent a single crisp $100 bill to you without any banks being involved. Doing it by checks puts the nation’s payment processing grid to work — which makes it essential that you and I trust that the banks will do as we have instructed, which, after all, is governed by our contracts with our respective banks. It would never occur to either of us that the banks would make any claim to or about our private loan. And on the books and records of the intermediary banks there would be no loan receivable because such an entry would only be in my books and records. The loan receivable is mine because I loaned the money. It’s common sense.

In savings or investment accounts I maintain at the bank, the bank becomes both an intermediary holding my money safely and a borrower to the extent that the bank has agreed to pay me interest for leaving the money in the bank. Thus if my check to you was drawn on a money market account the amount withdrawn would only be the amount written on my check ($100). If the bank took part of the $100 and then forwarded to to your bank you would justifiably say the debt has been reduced because you didn’t get $100, you got less.

But if the bank loaned you $50 and you never received $100, you would agree that the debt is $50. In that case the bank would show on it’s books and records a loan receivable from you for $50. They would have you sign closing documents naming the bank as payee because the bank was the lender.
Sometimes banks intermediate loans just like they intermediate deposits. So in our example I might give the bank $100 with explicit instructions on what kinds of loans and what degree of risk was acceptable to me. If they loaned you money out of my account with the bank then the loan receivable would be on my books, not the books and records of the banks. And the documents you would sign for the loan would disclose that you are receiving the loan from me and that the bank was acting as an authorized representative for me. It’s all very logical and certain.
Now imagine that I wrote the check to XYZ investment bank for deposit. At that point they are still just an intermediary in the role of accepting deposits and not in processing transactions. They are awaiting further instructions from me as to what to do with the money I sent them. If the money was deposited into savings account, I sent them the money because they promised me interest of 5%.
As things get more sophisticated, I might deposit my money into an account to make loans to you and others like you for the same 5% interest or perhaps a little more in interest. But if they loaned you the money at 10%. as the depositor I understand that banks make money loaning out money on deposit. But I was expecting interest of 5% not 10% which is obviously a much riskier loan than I had agreed with the investment bank.

Why did the bank not follow my instructions and our agreement? The fact is they should have but they didn’t. Since I was loaning $100 and expecting 5% interest, I was expecting a $5 payment per year in interest. I expected the bank to get me a borrower whose credit rating was unassailable and safe or not to make the loan at all.

The bank violated my agreement, my trust and my instructions when they chose to insert themselves as a principal in the transaction. Both you and the banks became co-obligors. The bank would owe me money for whatever they took out contrary to contract and you would owe me money for the loan. The amount they took out of my account was much more than what you had actually borrowed.
The Bank’s obligation was to pay me back my principal with 5% interest. But they wanted more fees than customary so they found a less credit worthy borrower and loaned him the money. That borrower is you in many cases. And you agreed to the 10% interest because you knew you had bad credit.

 

But only on Wall Street would they take the extra interest charged to you using my money on deposit. They took it for themselves because they didn’t want to explain to me why they had funded a loan that violated the limits on risk that were expressed in my agreement with the bank. They lied to me and told me they had loaned $100 to you at 5%.  In fact they had only loaned $50 at 10%. By doing that they created a liability for the Bank which still owed me $100 even though they only loaned $50.

But wait. If the bank loaned the money out at 10% then the interest was being paid at $10 per year instead of five, right? Wrong! In order to get what I wanted, which was $5 per year, they only had to lend out $50 at 10%, which yields $5 per year. But I don’t know they did this because they reported that my money was being used as instructed when in fact they stopped being intermediaries and started being borrowers from me because now they had loaned you only $50 and they had taken $50 more from me. Remember I gave them $100, not $50.

If they were being truthful they would have said they couldn’t find a good borrower so they found one who wasn’t so highly rated. they should have given me the choice of whether or not to engage in that loan and I would have said no because I was interested in the safety of my money not the aggressive possibility of growth. And if they made the 10% loan anyway they would have reported to me at the end of the month in my end of month statement, that I had $50 still on deposit tom them in addition to the $50 I loaned you despite my instructions. So my statement would have two line items: one would be the loan receivable to me and the other would be the $50 they didn’t loan out which would be shown as cash on deposit with them, whom I trusted to keep my money safe.

But imagine now that they didn’t issue that report and instead issued a report that $100 had been removed to make loans to you and others, from which they had taken” customary fees”. Oops that would be a lie. They were using the other $50 for themselves, having sold your $50 loan to my account for $100, netting them as much in fees as had actually been used for my loan to you.

Back to dual tracking. Now imagine that the XYZ investment bank had to go looking for borrowers with higher credit risks in order to take that extra $50 out of my $100 investment. They find you. And they want you to sign the usual and customary paperwork associated with a loan, which of course is made payable to me, right? After all I was the lender, the source of funds and the creditor. But the XYZ investment bank when they took my $100 promised to pay me back $100 even though they were only lending out half. Just like any other deposit, where the bank will give you your money when it is due to you as a demand deposit, CD or in this case a loan to you.

Back to dual tracking. They couldn’t put my name on the loan documents because that would lead the borrower straight to me.  We would find out together that they loaned only half of the money I deposited with the bank and that the bank took the rest as “fees” and trading profits.

Enter the straw man also known as the nominee. The XYZ bank hires a mortgage broker who hires a loan originator who lies to you and tells you they are lending you the money. since you expected a $50 loan and you received the $50 loan neither you nor I was the wiser. We couldn’t compare notes or accounts because neither of us knew the identity of the other and I didn’t even know the transaction had occurred and that the terms of the transaction were so different from what I had agreed as a lender, should be the terms.

So you are asked to sign papers to some company called First Freedom Easy Mortgages, who your mortgage broker has told you is the lender. But we know now that First Freedom Easy Mortgage was not the lender. It was a hired actor in a play. You signed loan documents including a promissory note to a payee with whom you absolutely had no financial transaction and you still owe me the money. You owe me the money because it came from me, regardless of what paper you signed to anyone else. And you don’t owe the money to someone else just because you signed paperwork, but never received any money from them.

First freedom Easy Mortgage was a creature created by the banks, not me. They did that because they wanted to “borrow” the loan, claim it as their own, and sell it multiple times to multiple investors. This was all orchestrated by XYZ investment bank who not only sold and resold the loan as if it was their own, but they also bought insurance. They told me it was insured but they failed to tell me that they were the beneficiary who would receive the proceeds of the insurance — not as my agents, my depository institution, but for themselves.

When your loan went into default, according to the paperwork First Freedom Easy Mortgage was the payee on the note. And the only documents of your loan transaction are between you and First Freedom Easy Mortgage so that is the only thing that people look at and believe. But you still owe me $50 because the $50 you received was my $50.

Back to dual tracking. We have the money transaction in which I loaned you $50. And we have another $50 loan transaction that is fully documented but where no money was received by you. That was cover for the extra money the bank took for itself without using it to lend money and make interest income for me. According to the paperwork you owe $50 to First Freedom Easy Mortgage because that is what the documents say AND you still owe me my $50. So you owe twice the amount you borrowed. You know what we call that? Usury. It’s a crime.

If the signed documents have no value because no value was exchanged between those parties, then that mortgage is securing the faithful performance of the terms of a note in which there was no value (no loan was received by you from the documented transaction. So we are left with a document trail (securitization) with no value and in which all conventions and provisions were routinely ignored AND a money trail which leaves no documents at all (no footprints in the sand). That is dual tracking.

And that is why in discovery you need to press hard on the actual financial transactions to force them to show the actual flow of money. AND THAT is why they will most likely settle with you if it looks like you are getting too close for comfort.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , | 269 Comments »

Deliberate Destruction Of Documents: Securitization Evolved into a Myth

Posted on September 29, 2010 by Neil Garfield

SERVICES YOU NEED

“Then guy then laughed nervously and said, “Well, if you’re right, we’re ****ed. We never transferred the paper. No one in the industry transferred the paper.”

Editor’s Note: It is very rewarding to see the work of Karl Denninger and others who are taking  my work and not only moving it along, but advancing on it. LUMINAQ is now offering not only the title and securitization searches but actual accounting records showing that the loans were reported to the creditor as performing at the same time they were being declared in default, along with payment to the creditor. Is it a default if the creditor received payment? Obviously not. And THAT is why I keep saying that the non-payment by the borrower is NOT the same thing as a default. It is the non-receipt by the creditor of an expected payment that is a default.

I guess the lesson here is whatever you think is true isn’t. Whatever you think is impossible, is the rule. In EVERY CASE that I have reviewed, seen reviewed or reported to me the basic facts are the same: Except for a few loans from the 2001-2003 era, NONE of them were actually securitized, and from what I can see and what title experts are reporting under promise of anonymity, none of these loans are actually secured by the property. The lien wasn’t just subject to the old “failure to perfect the lien” doctrines, they were never secured to begin with.

The liability of the borrower inured directly to the benefit of an unnamed principal that was in turn the undisclosed agent of another unnamed principal, which was the account representative of undisclosed lenders who received a bond, not the note signed by the borrower. The parties named on the mortgage or deed of trust had nothing to do with the finances, payments or accounting for the amount advanced by the lender nor the proceeds of payments receivable by the lender. The lenders received promises to pay from people OTHER than the homeowner.

The note was payable to a party who did not loan the money and never touched the money and who is not due any money now. The same is true for the parties named as mortgagees, beneficiaries or lenders in the mortgage or deed of trust. And they were all different parties. So the obligation was payable to the lender, the note was payable to a disinterested intermediary, and the mortgage or deed of trust was in favor of still another disinterested party. There is no law I know of that would allow a disinterested party named in an encumbrance to foreclose or enforce a debt that is not due to THAT party. The encumbrance is a myth.

As the article below corroborates many statements  made on this blog — the FACTS are that that notwithstanding the contents of the securitization documentation, nothing ever happened. Nothing was transferred legally, equitably or any other way — the obligation was left undisturbed and exists only by operation of law to the party who advanced the funds. The note is NOT evidence of the obligation because it is a misrepresentation of the party to whom the obligation is owed. The mortgage or deed of trust, which is neither an obligation nor a note that could be used as evidence of the obligation, is incident to an obligation that does not exist — the one described on the note.

If I signed a warranty deed and mortgage conveying and encumbering your home, properly witnessed, notarized and recorded, it would look right but it wouldn’t be true. If I signed a letter stating that I had the original document in my hands, as it was duly recorded in the county records, the letter would be true statement of a false fact. The documentation that shows on ABS.net, Bloomberg and other services showing loan specific data in alleged “pools” and “tranches” of loans is exactly like the letter — a self-serving statement that is documenting a fact that is untrue, to wit: that the loan was assigned into the pool and securitized into tranches and then sold off as mortgage bonds.

THE ASSIGNMENT NEVER TOOK PLACE. THERE WAS NO ENDORSEMENT, TRANSFER OR EVEN TRANSMITTAL OF THOSE DOCUMENTS AND OBVIOUSLY NO RECORDING OF THESE NONEXISTENT DOCUMENTS, WITHOUT WHICH THE POOL’S CLAIM TO THE LOAN IS SIMPLY FALSE. IT ISN’T JUST VOID OR VOIDABLE, IT IS A LIE.

The unavoidable conclusion is that the loans are unsecured, a QUIET TITLE action would remove the appearance of the false encumbrance, and the homes that have already been “sold” pursuant to “foreclosure” in both non-judicial and judicial states are subject to wrongful foreclosure actions, as are the homes that are currently in some stage of the foreclosure process.

As for the unsecured obligations, they are owed — subject to offset and counterclaims — under TILA, RESPA, Consumer Fraud laws and common law fraud. If there is anything left after deduction for compensatory damages and punitive damages or treble damages, then the borrower still owes it to whoever is really the party who lost money on the transactions, assuming they have not already mitigated their damages by receipt of insurance, federal bailout, or counter-party contract payments.

See, I Told You So (Deliberate Destruction Of Documents)
The Market Ticker ® – Commentary on The Capital Markets
Posted 2010-09-27 08:35
by Karl Denninger
in Housing
See, I Told You So (Deliberate Destruction Of Documents)

Yves over at Naked Capitalism has dug up confirmation of what I’ve been saying now for more than two years and have had on “background” and could not “out” the sources of – the practice of not complying with both MBS securitization offering circulars and black-letter state law was both pervasive and intentional.

One of my colleagues had a long conversation with the CEO of a major subprime lender that was later acquired by a larger bank that was a major residential mortgage player. This buddy went through his explanation of why he thought mortgage trusts were in trouble if more people wised up to how they had messed up with making sure they got the note. The former CEO was initially resistant, arguing that they had gotten opinions from top law firms. My contact was very familiar with those opinions, and told him how qualified they were, and did not cover the little problem of not complying with the terms of the pooling and servicing agreement. He also rebutted other objections of the CEO. Then guy then laughed nervously and said, “Well, if you’re right, we’re ****ed. We never transferred the paper. No one in the industry transferred the paper.”

WE NEVER TRANSFERRED THE PAPER. NO ONE IN THE INDUSTRY TRANSFERRED THE PAPER.

Got it folks?

This was not an accident and the dog didn’t eat anyone’s homework.

THE MAJOR BANKS AND LENDERS ALL INTENTIONALLY FAILED TO COMPLY WITH BOTH THEIR OWN OFFERING DOCUMENTS AND BLACK-LETTER STATE LAW.

Even better – in 2009 The Florida Banker’s Association ADMITTED that they have been intentionally destroying the original “wet ink” signatures and documents:

The reason “many firms file lost note counts as a standard alternative pleading in the complaint” is because the physical document was deliberately eliminated to avoid confusion immediately upon its conversion to an electronic file. See State Street Bank and Trust Company v. Lord, 851 So. 2d 790 (Fla. 4th DCA 2003). Electronic storage is almost universally acknowledged as safer, more efficient and less expensive than maintaining the originals in hard copy, which bears the concomitant costs of physical indexing, archiving and maintaining security. It is a standard in the industry and becoming the benchmark of modern efficiency across the spectrum of commerce—including the court system.

I don’t care what’s a “standard” if it does not comport with the law!

This is like saying that “dealing crack is a standard in the gang industry, therefore, we can sell it even though Federal Law says that we should go to prison for doing so.”

Incidentally, for those who will chime in that “electronic copies are just as good”, no they’re not. They’re not secured, they’re not cryptographically signed and verified by the originator, and they are trivially easy to tamper with.

I’d accept that an electronic copy is ok provided that the original is scanned, encoded, and digitally signed by the consumer at the point of origination, and that consumer then takes the original and a copy of the electronic document with him, with all of this being disclosed and approved by the consumer. If I PGP-sign a document or file it is extremely difficult to tamper with it in a way that cannot be detected. But without that sort of signature and encoding in the presence of the consumer, along with the consumer being the one that gets the paper copy, it is essentially impossible to prove that the document was not tampered with. “Wet signatures” and originals are required for exactly this reason – it makes tampering dangerous as it can usually be detected quite easily.

This is massive, pernicious and OUTRAGEOUS fraud folks.

*
It is fraud upon the county governments who were deprived of their recording and transfer fees (e.g. “doc stamps.”)

*
It is fraud upon all of the MBS buyers, who purchased these securities with a representation and warranty that these notes WERE transferred and properly endorsed.

*
And it is fraud upon the courts when the “lost note” affidavits are filed asserting that the documents were LOST, when in fact THEY WERE INTENTIONALLY DESTROYED.

If you hold private-label MBS wake the hell up and get your lawsuits going, because these big banks that put this stuff together will not survive this and the only way you get anything back is to be first in line.

Folks, this is not small potatoes or something we can overlook.

We are talking about intentional, pernicious, industry-wide fraud perpetrated upon the public, upon the government, upon homeowners and upon investors to the tune of trillions of dollars.

We MUST NOT tolerate this.

Each and every institution involved must be held to criminal account for their willful and intentional acts in this regard.

Bail these people out? Hell no. They deserve a speedy and public trial, to be immediately followed by the proper sanction imposed for intentional acts taken to destroy this nation and it’s financial stability. This is terrorism, exactly as Bin Laden intended (destruction of our economy) and should be met with an identical punishment.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , | 20 Comments »

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