You must remember the judiciary moves slowly is assimilating new facts or patterns in the marketplace. In order to break through a Judge’s preconception of the mortgage origination process, you need to have something that is clear in is presentation of facts, and obvious in its impact.
The reasons for having analysis performed by an independent third party is that it transforms empty argument into a question of fact. Anything that leads to a questions of fact gives you leverage in and out of court. In court, it allows you to credibly raise the issues so that discovery and an evidentiary hearing will allow your claims to be heard on the merits. No “audit” or analysis is PROOF or EVIDENCE unto itself. What it should do is give you something to hold in your had while talking to the Court, and which clearly contests the “facts” that the pretender lender is trying to have the Court assume (which is why objections, motion practice, discovery and evidentiary hearings are so important).
Lots of mistakes are being made on both sides of the mortgage crisis. Brad, in hosting this new forensic analysis workshop, seeks to help analysts avoid the usual pitfalls, recognize the issues that an expert or lawyer or homeowner may be required to present, and work toward providing the litigation support required to achieve a successful result.
There are a number of good workshops out there that can help forensic auditors, lawyers, experts and even lay people understand how to proceed when they wish to challenge some company that claims to be your lender or servicer. Max Gardner’s boot-camps are very good venues for understanding securitized loans, applying law and procedure to the challenge and coming out with good results. April Charney, who is giving a workshop soon in California is adding non-judicial states to the scope of her workshops for the first time. And Brad Keiser, who has been doing the survey workshops with me for a year and a half is now offering an important, even essential, workshop that drills down on forensic analysis of mortgages and foreclosure proceedings.
Brad, being a former banker himself with one of the nations largest banks, has performed virtually all of the research I use in connection with TILA, RESPA etc. A long-time friend, he has worked with me to bring LivingLies from two dimensional blog postings to three dimensional live presentations.
The output is what is important in any analysis of your mortgage or foreclosure situation. It doesn’t matter what work a company says they will do, even if they completed their engagement. The question is whether it is useful in producing an actual result. That is where the intersection of what is working in court and what is not comes into play. The issue here is knowing what you have, planning your strategy, and choosing the right procedures, lawyers, experts etc. in achieving a well-defined goal. Brad and I have carefully analyzed the forensic process and found a number of things that rise to the level of prime importance:
- Finding out whether there are patent violations of existing federal and state lending laws that can be identified for further action by the homeowner or their attorney. This among other things involves an examination of the Annual Percentage rate disclosed on the Good faith estimate, the timing of the good faith estimate, the presence of the traditional (but illegal) yield spread premium), affordability and other factors including discrepancies between the GFE and the HUD settlement statement. A key component of this part of the analysis often overlooked by “TILA Auditors” is an examination of the settlement transaction where the alleged loan was closed revealing discrepancies between the beneficiaries of the mortgage, the note, the title insurance, the mortgage insurance etc. and the use of “nominees” instead of naming the real parties in interest, which is evidence of a table-funded loan.
- Revealing the latent violations of lending laws and regulations caused by securitization of loans. Here is where the second and much larger yield spread premium appears and must be estimated by your expert or analyst using tables prepared by an expert. In addition. it reveals discrepancies in signatures, dates and parties in connection with fabricated or forged assignments used to justify the foreclosure by a party not named as lender or beneficiary.
- Determining whether there are refunds or rebates due back to the homeowner/borrower either from the original named lender or some other party in a securitization chain.
- Discovering facts that show a pattern of deceptive or predatory lending.
- Researching the loan to determine the record title chain, the probable securitization of your loan, and providing you with the right questions to ask as tot he identity of the creditor and demanding an accounting from the creditor, as opposed to simply a servicer that serves as a buffer between the debtor (homeowner) and the creditor (Investor owning mortgage backed securities).
- Providing adequate information and forms to the lawyer or client on sending out a Qualified Written Request, Debt Validation Letter or Demand Letter.
- Highlighting the most significant issues in your loan for the expert to use in preparing a declaration or the lawyer to use in filing a lawsuit, a petition for temporary injunction, or a bankruptcy petition.
As I have repeatedly stated on these pages, a TILA Audit is a start but it usually won’t produce the result of a modified loan that is acceptable tot he homeowner or the nullification of the obligation, note or mortgage.
Before securitization of mortgage loans, the process of examining loan transactions was fairly straight forward and fairly simple. With securitization the analysis requires a much higher level of sophistication that enables the lawyer or homeowner to present or proffer evidence of wrong-doing or improper procedures accounting or disclosure on the part of the securitization chain that produced your loan from the investment in mortgage backed bonds by investors.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: affordability, April Charney, audit, brad keiser, damages, deceptive lending, demand letter, Discrepancies, DVL, evidence, facts, forensic analysis, independent third party, latent violations, MAX GARDNER, patent violations, predatory lending, programming, QWR, refunds, REPA, TILA | 2 Comments »