THE PROMISSORY NOTES FROM BORROWERS ARE SECURITIES

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EDITOR’S NOTE: Since the beginning, my experience on Wall Street, the underwriting of securities and the trading of securities, led me to believe that the documents issued at the closing with the borrower were part of a securities package. The issuer was nominally the borrower, but the real issuer was MERS or the Wall Street investment banking houses that created the securitization scheme. Securitization means by definition, that securities were involved. You don’t to be a finance pro to understand that.  By applying securities laws that already exist, the pieces of the puzzle all fall together.

But I’m not sure I agree completely with Brent about the solution. Yes, I think that being able to purchase the notes at whatever the free market dictates would be a huge step forward toward reality and the rule of law. But I think that we need to include some measures that would enable the Borrower to bring claims against the parties that slandered the title or deceived the borrower in the execution of documents that were not loan closing documents, but actually securities. The fact that the prices were purposely inflated in order to inflate the fees and trading profits that the investment banks took gives rise to a number of causes of action under appropriate securities law.

When speaking with securities lawyers I have repeatedly received the same sort of answer — they agreed with me in theory but the path was too difficult to explore. My answer is another question: do we ignore the reality of the transaction simply because people don’t get it? Let the truth and the facts come out.

Brent’s insight that the loan as part of a pool was a security begs the question of whether the loan ever actually made into the pool. But for purposes of securities litigation, it might be treated that way because now the assumption is that it is as claimed by the parties to securitization. Would the Banks have the nerve to now argue what Borrowers are saying? — That the loans were never really transferred into the pool and therefore the securities aspect doesn’t apply.

That argument would leave the notes and mortgages in limbo. If we accept the argument that the loans never made it into the pool but the loan was treated as though it had made it into the pool, it means that the money was not applied as set forth in the note — payment to the payee on the note. But the payments couldn’t go to the Payee because they didn’t make the loan. 

In fact, the moment that the loan documents were signed by the homeowner, the payee was unknown and so was the mortgagee or beneficiary. Or the note and mortgage were intentionally split, meaning the obligation existed but there was no secured interest existing as an enforceable encumbrance upon the land. The named beneficiary and/or lender were different in most closing than the actual creditor. The named beneficiary was without authority to return the note upon payment because the named payee was not the party to whom the debt was owed in the real world.

by Brent Bertrim
I have read that many believe the only way out of this mortgage mess is principal reduction.  I am skeptical after the Bevilacqua decision.  I believe the solution is allowing homeowners to purchase their own promissory notes at market rates will clear the title.

From the view of a securities expert, I think attorneys are too wrapped up in real estate law to understand much of what you put on your site.  They fail to recognize (other than in belief in your blog) that payments may not be owed because they are unable to ask the most critical question – when did the promissory note become a security?  While inside the pool, it is a security so how can simultaneously it not be during foreclosure?

I would argue that MERS itself by definition and BlueSky Laws in all 50 states made promissory notes securities.  The reason – by definition a security is an investment that can be readily exchanged for value and involves risk.  The entire point of MERS was to make the notes ‘readily’ transferable.  I will bet you $100 that the defense of MERS in the Dallas case will argue that the intent was not to escape recording fees but instead to make the notes ‘readily’ transferable.

Therefore, homeowners should in theory be able to ‘purchase’ their own notes.  This is the only way to overcome the lost/destroyed note issue and something the banks should offer all homeowners because the pretender lender defense is over.

More importantly, when a mortgage is satisfied, the lender has to file the release as well as return the note or provide a lost note affidavit.  How can they do this?

What will be funny if posing the question, is the only reply based on securitization is that you cannot buy your note because we do not know who owns each piece of it.  Therefore even trustee cannot direct servicer to foreclose.

FRAUD: The Significance of the Game Changing FHFA Lawsuits

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FHFA ACCUSES BANKS OF FRAUD: THEY KNEW THEY WERE LYING

“FHFA has refrained from sugar coating the banks’ alleged conduct as mere inadvertence, negligence, or recklessness, as many plaintiffs have done thus far.  Instead, it has come right out and accused certain banks of out-and-out fraud.  In particular, FHFA has levied fraud claims against Countrywide (and BofA as successor-in-interest), Deutsche Bank, J.P. Morgan (including EMC, WaMu and Long Beach), Goldman Sachs, Merrill Lynch (including First Franklin as sponsor), and Morgan Stanley (including Credit Suisse as co-lead underwriter).  Besides showing that FHFA means business, these claims demonstrate that the agency has carefully reviewed the evidence before it and only wielded the sword of fraud against those banks that it felt actually were aware of their misrepresentations.”

It is no stretch to say that Friday, September 2 was the most significant day for mortgage crisis litigation since the onset of the crisis in 2007.  That Friday, the Federal Housing Finance Agency (FHFA), as conservator for Fannie Mae and Freddie Mac, sued almost all of the world’s largest banks in 17 separate lawsuits, covering mortgage backed securities with original principal balances of roughly $200 billion.  Unless you’ve been hiking in the Andes over the last two weeks, you have probably heard about these suits in the mainstream media.  But here at the Subprime Shakeout, I like to dig a bit deeper.  The following is my take on the most interesting aspects of these voluminous complaints (all available here) from a mortgage litigation perspective.

Throwing the Book at U.S. Banks

The first thing that jumps out to me is the tenacity and aggressiveness with which FHFA presents its cases.  In my last post (Number 1 development), I noted that FHFA had just sued UBS over $4.5 billion in MBS.  While I noted that this signaled a shift in Washington’s “too-big-to-fail” attitude towards banks, my biggest question was whether the agency would show the same tenacity in going after major U.S. banks.  Well, it’s safe to say the agency has shown the same tenacity and then some.

FHFA has refrained from sugar coating the banks’ alleged conduct as mere inadvertence, negligence, or recklessness, as many plaintiffs have done thus far.  Instead, it has come right out and accused certain banks of out-and-out fraud.  In particular, FHFA has levied fraud claims against Countrywide (and BofA as successor-in-interest), Deutsche Bank, J.P. Morgan (including EMC, WaMu and Long Beach), Goldman Sachs, Merrill Lynch (including First Franklin as sponsor), and Morgan Stanley (including Credit Suisse as co-lead underwriter).  Besides showing that FHFA means business, these claims demonstrate that the agency has carefully reviewed the evidence before it and only wielded the sword of fraud against those banks that it felt actually were aware of their misrepresentations.

Further, FHFA has essentially used every bit of evidence at its disposal to paint an exhaustive picture of reckless lending and misleading conduct by the banks.  To support its claims, FHFA has drawn from such diverse sources as its own loan reviews, investigations by the SEC, congressional testimony, and the evidence presented in other lawsuits (including the bond insurer suits that were also brought by Quinn Emanuel).  Finally, where appropriate, FHFA has included successor-in-interest claims against banks such as Bank of America (as successor to Countrywide but, interestingly, not to Merrill Lynch) and J.P. Morgan (as successor to Bear Stearns and WaMu), which acquired potential liability based on its acquisition of other lenders or issuers and which have tried and may in the future try to avoid accepting those liabilities.    In short, FHFA has thrown the book at many of the nation’s largest banks.

FHFA has also taken the virtually unprecedented step of issuing a second press release after the filing of its lawsuits, in which it responds to the “media coverage” the suits have garnered.  In particular, FHFA seeks to dispel the notion that the sophistication of the investor has any bearing on the outcome of securities law claims – something that spokespersons for defendant banks have frequently argued in public statements about MBS lawsuits.  I tend to agree that this factor is not something that courts should or will take into account under the express language of the securities laws.

The agency’s press release also responds to suggestions that these suits will destabilize banks and disrupt economic recovery.  To this, FHFA responds, “the long-term stability and resilience of the nation’s financial system depends on investors being able to trust that the securities sold in this country adhere to applicable laws. We cannot overlook compliance with such requirements during periods of economic difficulty as they form the foundation for our nation’s financial system.”  Amen.

This response to the destabilization argument mirrors statements made by Rep. Brad Miller (D-N.C.), both in a letter urging these suits before they were filed and in a conference call praising the suits after their filing.  In particular, Miller has said that failing to pursue these claims would be “tantamount to another bailout” and akin to an “indirect subsidy” to the banking industry.  I agree with these statements – of paramount importance in restarting the U.S. housing market is restoring investor confidence, and this means respecting contract rights and the rule of law.   If investors are stuck with a bill for which they did not bargain, they will be reluctant to invest in U.S. housing securities in the future, increasing the costs of homeownership for prospective homeowners and/or taxpayers.

You can find my recent analysis of Rep. Miller’s initial letter to FHFA here under Challenge No. 3.  The letter, which was sent in response to the proposed BofA/BoNY settlement of Countrywide put-back claims, appears to have had some influence.

Are Securities Claims the New Put-Backs?

The second thing that jumps out to me about these suits is that FHFA has entirely eschewed put-backs, or contractual claims, in favor of securities law, blue sky law, and tort claims.  This continues a trend that began with the FHLB lawsuits and continued through the recent filing by AIG of its $10 billion lawsuit against BofA/Countrywide of plaintiffs focusing on securities law claims when available.  Why are plaintiffs such as FHFA increasingly turning to securities law claims when put-backs would seem to benefit from more concrete evidence of liability?

One reason may be the procedural hurdles that investors face when pursuing rep and warranty put-backs or repurchases.  In general, they must have 25% of the voting rights for each deal on which they want to take action.  If they don’t have those rights on their own, they must band together with other bondholders to reach critical mass.  They must then petition the Trustee to take action.  If the Trustee refuses to help, the investor may then present repurchase demands on individual loans to the originator or issuer, but must provide that party with sufficient time to cure the defect or repurchase each loan before taking action.  Only if the investor overcomes these steps and the breaching party fails to cure or repurchase will the investor finally have standing to sue.

All of those steps notwithstanding, I have long argued that put-back claims are strong and valuable because once you overcome the initial procedural hurdles, it is a fairly straightforward task to prove whether an individual loan met or breached the proper underwriting guidelines and representations.  Recent statistical sampling rulings have also provided investors with a shortcut to establishing liability – instead of having to go loan-by-loan to prove that each challenged loan breached reps and warranties, investors may now use a statistically significant sample to establish the breach rate in an entire pool.

So, what led FHFA to abandon the put-back route in favor of filing securities law claims?  For one, the agency may not have 25% of the voting rights in all or even a majority of the deals in which it holds an interest.  And due to the unique status of the agency as conservator and the complex politics surrounding these lawsuits, it may not have wanted to band together with private investors to pursue its claims.

Another reason may be that the FHFA has had trouble obtaining loan files, as has been the case for many investors.  These files are usually necessary before even starting down the procedural path outlined above, and servicers have thus far been reluctant to turn these files over to investors.  But this is even less likely to be the limiting factor for FHFA.  With subpoena power that extends above and beyond that of the ordinary investor, the government agency may go directly to the servicers and demand these critical documents.  This they’ve already done, having sent 64 subpoenas to various market participants over a year ago.  While it’s not clear how much cooperation FHFA has received in this regard, the numerous references in its complaints to loan level reviews suggest that the agency has obtained a large number of loan files.  In fact, FHFA has stated that these lawsuits were the product of the subpoenas, so they must have uncovered a fair amount of valuable information.

Thus, the most likely reason for this shift in strategy is the advantage offered by the federal securities laws in terms of the available remedies.  With the put-back remedy, monetary damages are not available.  Instead, most Pooling and Servicing Agreements (PSAs) stipulate that the sole remedy for an incurable breach of reps and warranties is the repurchase or substitution of that defective loan.  Thus, any money shelled out by offending banks would flow into the Trust waterfall, to be divided amongst the bondholders based on seniority, rather than directly into the coffers of FHFA (and taxpayers).  Further, a plaintiff can only receive this remedy on the portion of loans it proves to be defective.  Thus, it cannot recover its losses on defaulted loans for which no defect can be shown.

In contrast, the securities law remedy provides the opportunity for a much broader recovery – and one that goes exclusively to the plaintiff (thus removing any potential freerider problems).  Should FHFA be able to prove that there was a material misrepresentation in a particular oral statement, offering document, or registration statement issued in connection with a Trust, it may be able to recover all of its losses on securities from that Trust.  Since a misrepresentation as to one Trust was likely repeated as to all of an issuers’ MBS offerings, that one misrepresentation can entitle FHFA to recover all of its losses on all certificates issued by that particular issuer.

The defendant may, however, reduce those damages by the amount of any loss that it can prove was caused by some factor other than its misrepresentation, but the burden of proof for this loss causation defense is on the defendant.  It is much more difficult for the defendant to prove that a loss was caused by some factor apart from its misrepresentation than to argue that the plaintiff hasn’t adequately proved causation, as it can with most tort claims.

Finally, any recovery is paid directly to the bondholder and not into the credit waterfall, meaning that it is not shared with other investors and not impacted by the class of certificate held by that bondholder.  This aspect alone makes these claims far more attractive for the party funding the litigation.  Though FHFA has not said exactly how much of the $200 billion in original principal balance of these notes it is seeking in its suits, one broker-dealer’s analysis has reached a best case scenario for FHFA of $60 billion flowing directly into its pockets.

There are other reasons, of course, that FHFA may have chosen this strategy.  Though the remedy appears to be the most important factor, securities law claims are also attractive because they may not require the plaintiff to present an in-depth review of loan-level information.  Such evidence would certainly bolster FHFA’s claims of misrepresentations with respect to loan-level representations in the offering materials (for example, as to LTV, owner occupancy or underwriting guidelines), but other claims may not require such proof.  For example, FHFA may be able to make out its claim that the ratings provided in the prospectus were misrepresented simply by showing that the issuer provided rating agencies with false data or did not provide rating agencies with its due diligence reports showing problems with the loans.  One state law judge has already bought this argument in an early securities law suit by the FHLB of Pittsburgh.  Being able to make out these claims without loan-level data reduces the plaintiff’s burden significantly.

Finally, keep in mind that simply because FHFA did not allege put-back claims does not foreclose it from doing so down the road.  Much as Ambac amended its complaint to include fraud claims against JP Morgan and EMC, FHFA could amend its claims later to include causes of action for contractual breach.  FHFA’s initial complaints were apparently filed at this time to ensure that they fell within the shorter statute of limitations for securities law and tort claims.  Contractual claims tend to have a longer statute of limitations and can be brought down the road without fear of them being time-barred (see interesting Subprime Shakeout guest post on statute of limitations concerns.

Predictions

Since everyone is eager to hear how all this will play out, I will leave you with a few predictions.  First, as I’ve predicted in the past, the involvement of the U.S. Government in mortgage litigation will certainly embolden other private litigants to file suit, both by providing political cover and by providing plaintiffs with a roadmap to recovery.  It also may spark shareholder suits based on the drop in stock prices suffered by many of these banks after statements in the media downplaying their mortgage exposure.

Second, as to these particular suits, many of the defendants likely will seek to escape the harsh glare of the litigation spotlight by settling quickly, especially if they have relatively little at stake (the one exception may be GE, which has stated that it will vigorously oppose the suit, though this may be little more than posturing).  The FHFA, in turn, is likely also eager to get some of these suits settled quickly, both so that it can show that the suits have merit with benchmark settlements and also so that it does not have to fight legal battles on 18 fronts simultaneously.  It will likely be willing to offer defendants a substantial discount against potential damages if they come to the table in short order.

Meanwhile, the banks with larger liability and a more precarious capital situation will be forced to fight these suits and hope to win some early battles to reduce the cost of settlement.  Due to the plaintiff-friendly nature of these claims, I doubt many will succeed in winning motions to dismiss that dispose entirely of any case, but they may obtain favorable evidentiary rulings or dismissals on successor-in-interest claims.  Still, they may not be able to settle quickly because the price tag, even with a substantial discount, will be too high.

On the other hand, trial on these cases would be a publicity nightmare for the big banks, not to mention putting them at risk a massive financial wallop from the jury (fraud claims carry with them the potential for punitive damages).  Thus, these cases will likely end up settling at some point down the road.  Whether that’s one year or four years from now is hard to say, but from what I’ve seen in mortgage litigation, I’d err on the side of assuming a longer time horizon for the largest banks with the most at stake.

Article taken from The Subprime Shakeout – www.subprimeshakeout.com
URL to article: the-government-giveth-and-it-taketh-away-the-significance-of-the-game-changing-fhfa-lawsuits.html

GUILTY! Taylor Bean & Whitaker Chairman

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EDITOR’S NOTE: So now the question is what about the real big boys at BOA, Chase, Citi et al? Anyone with a TB&W originated mortgage probably has their defense to foreclosure already set out for them.

Leader of Big Mortgage Lender Guilty of $2.9 Billion Fraud

By BEN PROTESS

The founder of what was once one of the nation’s largest mortgage lenders was convicted of fraud on Tuesday for masterminding a scheme that cheated investors and the government out of billions of dollars. It is one of the few successful prosecutions to come out of the financial crisis.

After more than a day of deliberations, a federal jury in Virginia found Lee B. Farkas, the former chairman of Taylor, Bean & Whitaker, guilty on 14 counts of securities, bank and wire fraud and conspiracy to commit fraud. Mr. Farkas, 58, faces decades in prison for his role in the $2.9 billion plot, which prosecutors say was one of the largest and longest bank fraud schemes in American history and led to the 2009 collapse of Colonial Bank.

“There’s no question that it is very momentous and a very significant case,” said Lanny Breuer, the assistant attorney general for the criminal division of the Justice Department.

The 10-day trial was a rare win for federal prosecutors in the aftermath of the financial mess. The Justice Department has yet to bring charges against an executive who ran a major Wall Street firm leading up to the disaster. An earlier case against hedge fund managers at Bear Stearns ended in acquittal. Prosecutors dropped their investigation into Angelo R. Mozilo, the former chief of Countrywide Financial, which nearly collapsed under the weight of souring subprime home loans.

Six other Taylor, Bean & Whitaker executives — including its former chief executive and former treasurer — have already pleaded guilty. Some agreed to testify against Mr. Farkas at his trial.

Mr. Farkas took the stand during the trial to defend his actions and deny any wrongdoing. A lawyer for Mr. Farkas did not respond to a request for comment.

The scheme began in 2002, prosecutors say, when Taylor, Bean & Whitaker executives moved to hide the firm’s losses, secretly overdrawing its Colonial Bank accounts, at times by more than $100 million. To cover up the actions, prosecutors said that the lender sold Colonial about $1.5 billion in “worthless” and “fake” mortgages, some of which had already been bought by other institutional investors. The government, in turn, guaranteed those fraudulent home loans.

In a related plot, Mr. Farkas and other executives created a separate mortgage lending operation, called Ocala Funding. The subsidiary sold commercial paper to big financial firms, including Deutsche Bank and BNP Paribas. When Taylor, Bean & Whitaker collapsed, the banks were unable to get all of their money back.

During the course of the fraud, prosecutors said, Mr. Farkas pocketed some $20 million, which he used to buy a private jet, several homes and a collection of vintage cars.  “His shockingly brazen scheme poured fuel on the fire of the financial crisis,” Mr. Breuer said.

With the credit crisis in full swing, Mr. Farkas and other Taylor, Bean & Whitaker executives persuaded Colonial to apply for $570 million in federal bailout funds through the Troubled Asset Relief Program, or TARP.

The Treasury Department approved the rescue funds, on the condition that Colonial was able to raise $300 million in private money. The Taylor, Bean & Whitaker executives falsely led the bank into thinking it had investors lined up. Ultimately, the government did not give any money to Colonial.

Shortly thereafter, in August 2009, Colonial filed for bankruptcy, the same time that Taylor, Bean & Whitaker failed.

“Today’s verdict ensures that Farkas will pay for his crime — an unprecedented scheme to defraud regulators during the height of the financial crisis and to steal over $550 million from the American taxpayers through TARP,” Christy Romero, the acting special inspector general for the TARP program, said in a statement.

SEC JUST NOW SEEKING KEY INFORMATION ON MELTDOWN

THANK YOU ALLAN AGAIN!!!

Editor’s Note: Allan is right about his frustration with a government that is so slow on the draw. Yet if history teaches us anything it is that government, especially our govenment, tends tomove very slowly except for “emergency” situations, when most of the actions are flawed.

It would be a good idea to contact the SEC, ask for their form and give them as much information a you can. Remember, every homeowner involved with a securitized mortgage was a “CDO Player.” Hearing from you will balance the scales a little. The SEC will soon take notice that homeowners were sold  security the same way that pension funds were sold securities at the other end of the securitization chain. THAT is where the scheme unravels. And smart securities class action lawyers will finally see that there is more money in this unravelling than anything they have ever worked on in their lives.  

Business
SEC JUST NOW SEEKING KEY INFORMATION ON MELTDOWN

by Jake Bernstein and Jesse Eisinger, ProPublica
– December 16, 2009 3:30 pm EST

This story is part of an ongoing investigation with NPR’s Planet Money [1].

Former SEC chairman Christopher Cox, right. (Chip Somodevilla/Getty Images)
Former SEC chairman Christopher Cox, right. (Chip Somodevilla/Getty Images)

Almost three years since banks started taking losses that led to the worst financial crisis since the Great Depression, the Securities and Exchange Commission is still asking basic questions about what happened.

Were you there?

If you were involved in the CDO business during the end days of the boom, please contact us.

 

(917) 512-0258 cdos@propublica.org [2]

The SEC is conducting an information-gathering sweep of the key players in the market for collateralized debt obligations, the bundles of mortgage securities whose sudden collapse in price was at the center of the meltdown of the global banking system.

In a letter dated Oct. 22, the SEC sent what amounts to a questionnaire to a number of collateral managers, the middlemen between the investment banks that created the complex financial products and the investors who bought them.

Collateralized debt obligations are made up of dozens if not hundreds of securities, which in turn are backed by underlying loans, such as mortgages. Investment banks underwrite the structures and recruit their investors. Collateral managers, brought in by the investment banks but paid by fees from the assets, select the securities and manage the structures on behalf of the investors. CDO managers have a fiduciary duty to manage the investments fairly for investors.

Since 2005, $1.3 trillion worth of CDOs have been issued, with a record $521 billion in 2006, according to the securities industry lobbying group SIFMA. The collapse in value of mortgage CDOs triggered the 2008 financial collapse.

ProPublica and NPR have confirmed that the SEC letter was sent to several managers, although the distribution list was likely industrywide. At the height of the boom in 2006, only 28 managers controlled about half of all CDOs, according to Standard and Poor’s.

Banks began disclosing the first big losses on CDOs in early 2007. The infamous Bear Stearns hedge funds ran into problems [3] beginning that summer. By that August, the credit markets began seizing up. Merrill Lynch and Citigroup were among the hardest hit by losses on bad investments in mortgage-based securities and CDOs.

The SEC’s letter focuses on information regarding “trading, allocation and valuations and advisers’ disclosure,” though it also asks for other details on how the managers ran their businesses. The letter requests information on CDOs issued since Jan. 1, 2006.

The letter asks collateral managers for information about what investments they made on their own behalf and how they valued these investments. Securities experts say the letter indicates that the agency is still gathering basic information about the CDO market, despite its centrality to the banking crisis.

“One wonders why this letter, especially given the general nature of it, is just now being sent. And why wasn’t it sent several years ago, as the CDO market was exploding?” says Lynn Turner, who was the SEC’s chief accountant in the late 1990s. “It makes it look like the SEC is several years behind the markets.”

Even Wall Street executives and securities lawyers who were involved in the CDO business at its height have privately expressed surprise that the SEC was only now contacting them for such rudimentary information.

The SEC declined to comment on the letter. As a policy, a spokesman said, the agency doesn’t comment on its regulatory actions. The SEC has jurisdiction over CDO managers,and enforces rules against securities manipulation, among other violations. The letter does not use the words “inquiry” or “investigation.”

Interviews with market participants and former regulators point to several areas that the SEC might be investigating. Some managers had their own in-house investment funds and may have taken positions that were in conflict with those of the investors in the structures that they managed. In some cases, their hedge funds may have bet against the very slices of the securities they were managing on behalf of the investors in the structure.

Underwriting investment banks often had influence over the investment choices some CDO managers made, giving rise to another possible conflict of interest. The agency may be looking at whether that influence was proper or not.

“The possibility for conflicts and self-dealing is huge,” says Turner, the former SEC chief accountant.

To date, the agency has little to show for its probes into the causes of the crisis that engulfed global financial markets just over a year ago. In June 2007, Christopher Cox, then the SEC chairman, testified before Congress that the agency had “about 12 investigations” [4] under way concerning CDOs and collateralized loan obligations and similar products. A little more than a year later, Cox told Congress that the number of investigations into the financial industry, including the subprime mortgage origination business, had ballooned to over 50 separate inquiries. [5]

There could be multiple reasons why investigations are proceeding slowly. Such cases are complex and require enormous resources and expertise. Regulators also face the hurdle of proving intent to defraud.

Under Cox’s stewardship, the SEC fell into disarray [6], and it was harshly criticized by Congress and its own inspector general, particularly for its failure to catch [7] the Ponzi scheme of Bernie Madoff. The turnover of the new administration, which ushered in new leadership at the much-criticized agency, has also likely slowed efforts. In recent months, under new Chairman Mary Schapiro, the SEC has made insider-trading inquiries a high priority.

So far, there have been few indictments or civil complaints. In a sign of how long these cases can take, the mortgage company New Century Financial Corporation disclosed in March 2007 that it was the subject of an SEC investigation [8] into possible insider stock sales and accounting irregularities. It wasn’t until last week — Dec. 7 — that the SEC filed a formal complaint against former executives of the company. The government’s highest-profile prosecution involving the financial collapse – the case against two managers of the Bear Stearns hedge fund for alleged securities and wire fraud – failed to gain a conviction when a jury decided [9] that the men were simply bad businessmen rather than criminals.

Were you involved in the CDO business in the latter stages of the boom? We want to talk to you. E-mail us at CDOS@propublica.org [10] or call us at               (917) 512-0258         (917) 512-0258.

Write to Jesse Eisinger at Jesse.Eisinger@propublica.org [11].

Write to Jake Bernstein at Jake.Bernstein@propublica.org [12].

Want to know more? Follow ProPublica on Facebook [13] and Twitter [14], and get ProPublica headlines delivered by e-mail every day [15].

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

FINALLY somebody’s paying George Santayana heed. “Those who cannot learn from history are doomed to repeat it.” My bet’s on repeating it, given how our political system works like a pendulum. How many bubbles did we experience in the last 10 years? What happens to regulation and resolve when there is a political changeover?

ALLAN
B e M o v e d @ A O L . c o m

Michigan, Ohio, Texas Lawyers Wanted: We Know You’re Out There

The business case for taking, handling and litigating residential “mortgage” cases has been proven over and over again. Unfortunately most lawyers are ignoring this opportunity.

The latest estimates are that it will take 6-12 years to clean up this mess and I think that is very conservative. My analysis shows that it will take the better part of 30 years, and even then there will be cases that are still outstanding. One case, just filed, involves a mere $500,000 mortgage but alleges more than $27 million in damages (which could end up north of $81 million), credibly, the proximate cause of which was the eggregious, tortious behavior of loan originators and investment banks who gave the impression that normal underwriting standards and procedures were in place. The complaint alleges breach of Federal Statutes, State Statutes and common law including identity theft, slander of title, and fraudulent or negligent appraisal.

Lawyers who were starving are getting to understand that monthly payments from the client will cover them until the contingency fee kicks in and that there are clear ways to collect damage judgments. Some lawyers we know have $50,000 per month or more coming in from clients.

Let me spell it out for you. Most analysts agree with my estimate from 2 years ago: $13 trillion in erroneous, fraudulent paper was floated producing some $25 trillion in profits that was sequestered off shore. There appears to be some 60 million loans affected by this massive scheme. If your contingency fee is only 20% that means that around $5 trillion in contingency fees is sitting out there waiting to be pocketed. If every lawyer in America took these cases, they would each have around 40-50 cases involving title claims, securities claims defenses. But we all know that only a fraction of the 1 million lawyers are even doing trial practice. The short story is that for every lawyer there are hundreds if not thousands of cases that can be handled each averaging fees in excess of $100,000 per case.

We know there are lawyers out there some of whom are taking a few but not many of these cases. Livinglies takes in requests for services at the rate of 15-20 per day. And THAT is without any promotion. We don’t do any promotion because we have an insufficient number of lawyers to refer these prospective clients. WAKE UP LAWYERS! We have referrals for you and we require NO COMPENSATION for the referral and no co-counsel fee.

Send your resume:

eFAX: 772-594-6244

eMail: ngarfield@msn.com


How to Negotiate a Modification

See how-to-negotiate-a-short-sale

See Michael Moore — Modifications

See Template-Lawsuit-STOP-foreclosure-TILA-Mortgage-Fraud-predatory-lending-Set-Aside-Illegal-Trustee-Sale-Civil-Rico-Etc Includes QUIET TITLE and MOST FEDERAL STATUTES — CALIFORNIA COMPLAINT

See how-to-buy-a-foreclosed-house-its-a-business-its-an-opportunity-its-a-risk

My statements here relate to general information and not legal advice. Generally we are of the opinion that the loan modification programs are a farce. First they end up in foreclosure in 6-7 months — more than 50-60% of the time. Then you have the problem that you signed new papers that will at least attempt to waive the rights and defenses you have now. A trial program is a trial program — it is not permanent. It is usually a smokescreen for the “lenders” (actually pretender lenders) to appear to comply with the federal mandate and thus collect the bonus from the Federal government for entering into a modification agreement. And let’s not forget that the entities with whom you would enter into this “new” agreement probably have no rights, ownership or authority over your mortgage — they are only pretending. Their game plan is that they have nothing to lose and everything to gain because they never advanced any money on the funding of your mortgage.

So the very first thing you want to do is ask for proof of real documents that can be reviewed by a forensic analyst which will demonstrate they have the power to change the terms, and assuming they can’t produce that, their agreement that any deal you enter into with them will be taken to court in a Quiet Title Action in which they will allow you to get a judgment that says you own the house free and clear except for whatever the new deal is with the new lender. The New Lender is necessary because the REAL Lender is quite gone and possibly unidentifiable.

Any failure to agree to such terms is a clear signal you are wasting your time and they are jockeying you into default, which is the only way they collect insurance on your mortgage through the credit default swaps purchased on the pool containing your mortgage. They actually make money if you default because they were allowed to buy insurance many times over on the same debt. So on your $300,000 mortgage they might actually receive (no joke) $9 million if you default. That means they have far more incentive to trick you into default than to REALLY modify your mortgage terms. and THAT means you need to be careful about what they are REALLY doing — a modification or deception. If it’s deception don’t fall into self deception and wish it weren’t so. Go after them with whatever you can. The law is on your side as to title, terms and predatory and fraudulent loan practices.

Your strategy is simple: (1) present a credible threat and (2) demonstrate that you have knowledgeable people (forensic analyst, expert witness, lawyer).

Your tactics are equally simple: (1) Present an expert declaration or affidavit that raises issues of fact regarding the representations of counsel or the pleadings of your opposition, (2) Pursue expedited discovery (ask for things that they should have had before they started the foreclosure process — a full accounting from the real creditor/lender, documentation showing chain of title/possession, documentation regarding the money that exchanged hands from the bond investor all the way down the securitization chain to the homeowner) and (3) ask for an evidentiary hearing on the factual issues.

It would probably be a good idea if you went through a local licensed attorney who really knows this stuff — like a graduate of Max Gardner’s seminars or a graduate of the Garfield Continuum. This attorney can create some credible threats like the fact that youa re claiming, under TILA, your right to undisclosed fees on your mortgage, including the SECOND yield spread premium paid in the securitization chain when the pool aggregator sold the “assets” to the SPV pool that sold bonds to investors — investors who were the the sole source of cash advanced to make this nightmare come true. Picking the right lawyer is critical. Anyone who has not studied securitization, anyone who has not been working hard in the area of foreclosure defense AND offense, should not be used because they simply don’t know enough to achieve a satisfactory result.

My rule of thumb is that I don’t like any modification unless it has the following attributes:

1. Forgiveness of all late fees, late payments etc. No tacking on fees, payments, interest or anything else to the end of the loan.
2. Removal of all negative comments from your credit rating.
3. Reduction of the principal due on your obligation in the form of a new note or an amendment executed by all relevant parties. The amount of the reduction should be no less than 30%, probably no more than 75% and should average across the board something like 40%-60%. So if your mortgage was $300,000 your reduction should be between $90,000 (leaving you with a $210,000 obligation) and $225,000 (leaving you with a $75,000 obligation).
a. How do you know what to ask for? First step is on the appraisal. Had you known that the appraisal used in your deal was unsustainable, you probably would have taken a different attitude toward the deal and would have insisted on other terms. Assuming you had a zero-down mortgage loan(s) [i.e., including 1st and 2nd mortgage] then you probably, on average have spent some $15,000-$20,000 in household improvements that cannot be recouped, but which were also spent based upon the apparent value of the house.
b. So you look at the current appraisal and let’s say in your community the actual sales prices of homes closest to you are down by 50% from what they were in 2007 or when you went to the “closing” on your loan.
(1) Write down the purchase price of your home or the original appraisal when you closed the “loan.”
(2) Deduct the Decline in Appraised Value, which in our example is a decline of 50%. If you had a zero down payment loan, this would translate as the original amount of the note minus the 50% $150,000-$160,000) reduction in value. This leaves $140,000-$150,000.
(3) Deduct the $15,000-$20,000 you spent on household improvements. This leaves $120,000 to $135,000.
(4) Deduct your attorney’s fees which will probably be around $15,000, hopefully on contingency at least in part. This leaves $105,000 to $120,000.
(5) Deduct any other related expenses such as the cost of a forensic audit (which INCLUDES TILA, RESPA, Securities, Title, Appraisal, Chain of Possession, and other factors like fabrication and forgery) that should cost around $2500, and any expense incurred retaining an expert to prepare and execute an expert declaration or expert affidavit that should cost around $1000-$1500. [Caution a declaration from someone who has no idea what is in the document, or who has very little exposure to discovery, depositions, court testimony etc. could be less than worthless. Your credibility will be diminished unless you pick the right forensic analyst and the right expert]. This leaves a balance of $101,000 to $116,000.
(6) If you did make a down payment or cash payments for “non-standard” options then you should deduct that too. So if you made a 20% down payment ($60,000, in our example) that would be a deduction too so you can recover that loss which resulted from the false appraisal and false presentation of the appraisal by the “lender” who was paid undisclosed fees to lie to you. In our example here I am going to assume you have a zero down payment. But if we used the example in this paragraph there would be an additional $60,000 deduction that could reduce your initial demand for modification to a principal reduction of $40,000.
(7) So your opening demand should be a note with a principal balance of $101,000 with a settlement probably no higher than $150,000. I would recommend a 15 year fixed rate mortgage because you will be done with it a lot sooner and convert you from debt to wealth. But a mortgage of up to 40 years is acceptable in order to keep your payments to a minimum if that is a critical issue.
4. Interest rate of 3%-4% FIXED.
5. Judge’s execution of final judgment ratifying the deal and quieting title against he world except for you as the owner of the property and the new lender who might have a new note and a new mortgage or who might just walk away completely when you present these terms. There are tens of thousands of homes in a grey area where they have not made a payment in years, the “lender” has not foreclosed, or the “lender” initiated foreclosure and then abandoned it. These people should be filing quiet title actions of their own and finish the job of getting the home free and clear from an encumbrance procured by fraud.

If you want to “up the stakes” then add the damages and rebates recoverable for TILA violations for predatory lending, undisclosed fees etc. That will ordinarily take you into negative territory where the “lender” owes you money and not vica versa. In that case your lawyer woudl write a demand letter for damages instead of an offer of modification. The other thing here is the typical demand for your current financial information. My position would be that this modification or settlement is not based upon NEED but rather, it is based upon LENDER LIABILITY. And if they are asking for proof of your financial condition on a SISA (stated income, stated asset) or NINJA (No Income, No Job, NO Assets) loan then the mere request for financial information is a request for modification. That triggers your unconditional right to ask “who are you and why are you the entity that is attempting to modify or settle this claim?”

By the way the “rule of thumb” came from the old common law doctrine that one could beat his wife and children with a stick no greater in diameter than the size of your thumb. In this case don’t let my use of the “rule of thumb” restrain you from using a bigger stick.

Neil F. Garfield, Esq.
ngarfield@msn.com

Housing Bubble: How We All Got Screwed

  • And now, because nobody stepped in before the flood began, a new industry is born — bigger than personal injury lawsuits — it the flood of claims under TILA, RESPA, RICO, Securities laws, common law fraud and state and federal laws concerning false and deceptive business practices. People will be rescinding or simply voiding their mortgage transaction through rescission remedies provided under statutory law and common law. They will be seeking and getting damages, treble damages, exemplary damages, punitive damages. Lawyers will be happy. Anyone who says the worst is behind us is, to say the least, overly optimistic.

The bottom line is pressure, greed, arrogance, power, and recklessness. In the excellent article that follows, you can pick out the trail of fraud and deception, self-deception and how “everyone” was on board with the mortgage meltdown and how everyone knew it would bust.

By false and deceptive representations, by improper relationships with rating “agencies” (actually private companies out to make a buck just like everyone else in the process) and by creation of complex instruments wherein the buyer relied on the integrity of the firms involved in the issuance of derivative securities, demand for these high yielding “no-risk” AAA rated securities was insatiable. Wall Street was awash in money and put the screws on everyone down the line including the borrower who would buy real estate that was as falsely appraised in value as the security that provided the the money to fund the loan.

What started as an innovative way to increase liquidity and disperse risk ended up being institutionalized theft. As the success of derivative securities (measured by sales and demand from investors) rose, so did the pressure on lenders to increase their “output” of loans, no matter how ridiculous. In fact, the more ridiculous, the better — because the the lower the grade of the borrower, the higher the interest rate.

By parsing and packaging loans together, mortgage aggregators were able to report that a loan which started out at 1%, negative amortization, adjustable rate, with resets every 3 months, was actually a 12% loan or more. This allowed the CDO manager to “secure” the top tranche in an SPV with “income” left over for the lower the tranches. It all looked so good on paper.

The pressure was on — lenders threw out all their underwriting standards, while they and mortgage brokers, appraisers, and others conspired to simply get that signature on the loan documents, the devil be damned if he/she paid anything on the loan.  Get rid of the escrow for taxes and insurance and “qualify” the borrower based upon the very first teaser rate and PRESTO! a guy with an income of $30,000 can get a mortgage loan of $1 million, with negative amortization and adjustments to his payments. Using the same tactics as the time-share sales people of times past, they assure the borrower that his lack of understanding of how he could get a mortgage so big is understandable, but that the world of finance, rising home prices that will continue to rise, and the integrity of the lender, the mortgage broker, the appraiser and underwriting department is something he can rely on. 

The more they ran out of people to make loans to the lower the standards for lending. Nobody cared because they knew they were just middlemen taking their cut out of the pie created by the investment of some money manager in asset backed securities that were neither backed nor had assets.  The fall would be taken by the investors in CDOs issued by SPVs, and holders of credit default swaps and synthetic derivatives that were too complicated for anyone to understand without the assistance of a computer powerful enough to run our defense department. 

Then the developer’s ran out of product, as prices skyrocketed and people were lining “free money” loans. So the lender’s threw construction loan money at the developers — and sent THOSE loans upstream to be securitized. Developer’s filed for hundreds of thousands of permits, completing the picture of a market that was in a permanent spiral upward. The illusion that there was not enough housing drowned out the little voices of older, wiser people, who asked “where is all this demand coming from and why had we not noticed it before?”

Cities, counties, states all revised their budgets based upon increased revenues and increased demands on their infrastructure. Now they are committed to projects, some of them started, without any prospect of being able to fund their completion. Local governments are looking to the Federal government to make up the shortfall — for good reason.

Those in the Federal government who had anything to do with legislating or regulating lending and securitization were receiving “perks” which sometimes were as simple as getting a mortgage loan under market and sometimes involved much more than that. Congress made sure they played their part with REMIC legislation ostensibly to prevent double taxation of “revenue” that was in actuality mostly smoke and mirrors. But in so doing, Congress institutionalized the process of fraud, deception and crisis.

And of course there was the Federal Reserve, which had opened its loan window to investment bankers, accepting as collateral the face value of virtually worthless securities. The window is not open to ordinary people who got screwed, or their cities, counties and states. It is only open to the people who caused the mess to begin with.

The fact that the foreclosure “race” was on and could only end in disaster was of little concern to the Federal Reserve in accepting those securities at face value. Only two outcomes were possible — either the house would be acquired by the lender (95% of the cases) and then left to rot, be vandalized and robbed of everything of value right down to windows, doors, wiring and plumbing — or the “inventory” of homes would be shifted from seller’s to “lenders” — with big question on who the “lender” actually is anymore. It certainly is not anyone who was present at closing.

In many cases the houses are subject to the first scenario as there are organized crime groups making a business out of stripping unoccupied dwellings. The COST of either demolishing the house or renovating the house back to salable condition with warranties exceeds the “value” of the land and any existing structure on it. Thus the value of this investment is either already less than zero or headed there. Thus the value of the securities accepted by the Fed at their window is negative. The holders of those securities are upside down just like the borrowers but the investment bankers and banks have the Fed. Everyone else has nothing. 

And now, because nobody stepped in before the flood began, a new industry is born — bigger than personal injury lawsuits — it the flood of claims under TILA, RESPA, RICO, Securities laws, common law fraud and state and federal laws concerning false and deceptive business practices. People will be rescinding or simply voiding their mortgage transaction through rescission remedies provided under statutory law and common law. They will be seeking and getting damages, treble damages, exemplary damages, punitive damages. Lawyers will be happy. Anyone who says the worst is behind us is, to say the least, overly optimistic.

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The housing bubble, in four chapters
How homeowners, speculators and Wall Street rode a wave of easy money
By Alec Klein and Zachary A. Goldfarb
The Washington Post
updated 2:10 a.m. MT, Sun., June. 15, 2008

The black-tie party at Washington’s swank Mayflower Hotel seemed a fitting celebration of the biggest American housing boom since the 1950s: filet mignon and lobster, a champagne room and hundreds of mortgage brokers, real estate agents and their customers gyrating to a Latin band.

On that winter night in 2005, the company hosting the gala honored itself with an ice sculpture of its logo. Pinnacle Financial had grown from a single office to a national behemoth generating $6.5 billion in mortgages that year. The $100,000-plus party celebrated the booming division that made loans largely to Hispanic immigrants with little savings. The company even booked rooms for those who imbibed too much.

Kevin Connelly, a loan officer who attended the affair, now marvels at those gilded times. At his Pinnacle office in Virginia, colleagues were filling the parking lot with BMWs and at least one Lotus sports car. In its hiring frenzy, the mortgage company turned a busboy into a loan officer whose income zoomed to six figures in a matter of months.

“It was the peak. It was the embodiment of business success,” Connelly said. “We underestimated the bubble, even though deep down, we knew it couldn’t last forever.”

Indeed, Pinnacle’s party would soon end, along with the nation’s housing euphoria. The company has all but disappeared, along with dozens of other mortgage firms, tens of thousands of jobs on Wall Street and the dreams of about 1 million proud new homeowners who lost their houses.

The aftershocks of the housing market’s collapse still rumble through the economy, with unemployment rising, companies struggling to obtain financing and the stock market more than 10 percent below its peak last fall. The Federal Reserve has taken unprecedented action to stave off a recession, slashing interest rates and intervening to save a storied Wall Street investment bank. Congress and federal agencies have launched investigations into what happened: wrongdoing by mortgage brokers, lax lending standards by banks, failures by watchdogs.

Seen in the best possible light, the housing bubble that began inflating in the mid-1990s was “a great national experiment,” as one prominent economist put it — a way to harness the inventiveness of the capitalist system to give low-income families, minorities and immigrants a chance to own their homes. But it also is a classic story of boom, excess and bust, of homeowners, speculators and Wall Street dealmakers happy to ride the wave of easy money even though many knew a crash was inevitable.

Chapter I: ‘A lot of potential’
For David E. Zimmer, the story of the bubble began in 1986 in a high-rise office overlooking Lake Erie.

An aggressive, clean-cut 25-year-old, armed with an MBA from the University of Notre Dame, Zimmer spent his hours attached to a phone at his small desk, one of a handful of young salesmen in the Cleveland office of the First Boston investment bank.

No one took lunch — lunch was for the weak, and the weak didn’t survive. Zimmer gabbed all day with his clients, mostly mid-size banks in the Midwest, persuading them to buy a new kind of financial product. Every once in a while, he’d hop a small plane or drive his Oldsmobile Omega out for a visit, armed with charts and reports. The products, investments based on bundles of residential mortgages, were so new he had to explain them carefully to the bankers.

“There was a lot of education going on,” Zimmer said. “I realized, as a lot of people did, this was a brand new segment of the market that had a lot of potential, but I had no idea how big this would get.”

Zimmer joined the business as enormous changes were taking hold in the mortgage industry. Since World War II, community banks, also called thrifts or savings and loans, had profited by taking savings deposits, paying their customers interest and then lending the money at a slightly higher rate for 30 years to people who wanted to buy homes. The system had increased homeownership from less than 45 percent of all U.S. households in 1940 to nearly 65 percent by the mid-’60s, helped by government programs such as G.I. loans.

In 1970, when demand for mortgage money threatened to outstrip supply, the government hit on a new idea for getting more money to borrowers: Buy the 30-year, fixed-rate mortgages from the thrifts, guarantee them against defaults, and pool thousands of the mortgages to be sold as a bond to investors, who would get a stream of payments from the homeowners. In turn, the thrifts would get immediate cash to lend to more home buyers.

Wall Street, which would broker the deals and collect fees, saw the pools of mortgages as a new opportunity for profit. But the business did not get big until the 1980s. That was when the mortgage finance chief at the Salomon Brothers investment bank, Lewis Ranieri — a Brooklyn-born college dropout who started in the company’s mailroom — and his competitor, Laurence Fink of First Boston, came up with a new idea with a mouthful of a name: the collateralized mortgage obligation, or CMO. The CMO sliced a pool of mortgages into sections, called “tranches,” that would be sold separately to investors. Each tranche paid a different interest rate and had a different maturity date.

 

Investors flocked to the new, more flexible products. By the time Zimmer joined First Boston, $126 billion in CMOs and other mortgage-backed securities were being sold annually. “Growth is really poised to take off,” Zimmer thought.

After a few years at First Boston, Zimmer eventually ended up at Prudential Securities on the tip of Manhattan near the World Trade Center, selling increasingly exotic securities based not only on mortgages but also credit card payments and automobile loans.

As Wall Street’s securities grew more complex and lucrative, so did the mathematics behind them. Zimmer would walk over to Prudential’s huge “deal room.” The room was filled with quantitative researchers — “quants” — a motley crew of math wonks, computer scientists, PhDs and electrical engineers, many of them immigrants from China, Russia and India. The quants built new mathematical models to price the securities, determining, for example, what borrowers would do if interest rates moved a certain way.

The industry, which came to be known as structured finance, grew steadily. Zimmer grew with it. He got married, raised two kids and climbed to the level of senior vice president, a top salesman at Prudential.

Zimmer’s clients through the 1990s were mutual funds, pension funds and other big investors who dealt in big numbers: sometimes hundreds of millions of dollars. He’d get up at 4:30 a.m., be out of the house by 5, catch the 5:30 train from Princeton, N.J., be locked to his desk for 10 hours, devouring carbs — pizza, lasagna — and consumed by stress, but thinking nonetheless, “It was so much fun.”

 

Chapter II: ‘Extraordinary’ boom
April 14, 2000. A rough day on Wall Street. The technology-laden Nasdaq stock index, which had more than doubled from January 1999 to March 2000, falls 356 points. Within a few days, it will have dropped by a third.

Although the business of structured finance grew during the 1990s, Internet companies drew the sexiest action on the Street. When that bubble popped, average Americans who had invested in the high-flying stocks saw their savings evaporate. Consumer and business spending began to dry up.

Then came the 2001 terrorist attacks, which brought down the twin towers, shut down the stock market for four days and plunged the economy into recession.

The government’s efforts to counter the pain of that bust soon pumped air into the next bubble: housing. The Bush administration pushed two big tax cuts, and the Federal Reserve, led by Alan Greenspan, slashed interest rates to spur lending and spending.

Low rates kicked the housing market into high gear. Construction of new homes jumped 6 percent in 2002, and prices climbed. By that November, Greenspan noted the trend, telling a private meeting of Fed officials that “our extraordinary housing boom . . . financed by very large increases in mortgage debt, cannot continue indefinitely into the future,” according to a transcript.

The Fed nonetheless kept to its goal of encouraging lending and in June 2003 slashed its key rate to its lowest level ever — 1 percent — and let it sit there for a year. “Lower interest rates will stimulate demand for anything you want to borrow — housing included,” said Fed scholar John Taylor, an economics professor at Stanford University.

The average rate on a 30-year-fixed mortgage fell to 5.8 percent in 2003, the lowest since at least the 1960s. Greenspan boasted to Congress that “the Federal Reserve’s commitment to foster sustainable growth” was helping to fuel the economy, and he noted that homeownership was growing.

There was something very new about this particular housing boom. Much of it was driven by loans made to a new category of borrowers — those with little savings, modest income or checkered credit histories. Such people did not qualify for the best interest rates; the riskiest of these borrowers were known as “subprime.” With interest rates falling nationwide, most subprime loans gave borrowers a low “teaser” rate for the first two or three years, with the monthly payments ballooning after that.

Because subprime borrowers were assumed to be higher credit risks, lenders charged them higher interest rates. That meant that investors who bought securities based on pools of subprime mortgages would enjoy higher returns.

 

Credit-rating companies, which investors relied on to gauge the risk of default, gave many of the securities high grades. So Wall Street had no shortage of customers for subprime products, including pension funds and investors in places such as Asia and the Middle East, where wealth had blossomed over the past decade. Government-chartered mortgage companies Fannie Mae andFreddie Mac, encouraged by the Bush administration to expand homeownership, also bought more pools of subprime loans.

One member of the Fed watched the developments with increasing trepidation: Edward Gramlich, a former University of Michigan economist who had been nominated to the central bank by President Bill Clinton. Gramlich would later call subprime lending “a great national experiment” in expanding homeownership.

In 2003, Gramlich invited a Chicago housing advocate for a private lunch in his Washington office. Bruce Gottschall, a 30-year industry veteran, took the opportunity to pull out a map of Chicago, showing the Fed governor which communities had been exposed to large numbers of subprime loans. Homes were going into foreclosure. Gottschall said the Fed governor already “seemed to know some of the underlying problems.”

 

Chapter III: ‘Half-truths’ and lies
The young woman who walked into Pinnacle’s Vienna office in 2004 said her boyfriend wanted to buy a house near Annapolis. He hoped to get a special kind of loan for which he didn’t have to report his income, assets or employment. Mortgage broker Connelly handed the woman a pile of paperwork.

On the day of the settlement, she arrived alone. Her boyfriend was on a business trip, she said, but she had his power of attorney. Informed that for this kind of loan he would have to sign in person, she broke into tears: Her boyfriend actually had been serving a jail term.

Not a problem. Almost anyone could borrow hundreds of thousands of dollars for a house in those wild days. Connelly agreed to send the paperwork to the courthouse where the boyfriend had a hearing. As it happened, he was freed that day. Still, Connelly said, “that was one of mine that goes down in the annals of the strange.”

Strange was becoming increasingly common: loans that required no documentation of a borrower’s income. No proof of employment. No money down. “I was truly amazed that we were able to place these loans,” Connelly said.

It was a world removed from his start in the business, in 1979, when the University of Maryland graduate joined the Springfield office of a savings and loan. For most of his 25 years in the industry, home buyers provided reams of paperwork documenting their employment, savings and income. He’d fill out the forms and send away carbon copies for approval, which could take 60 days.

Connelly was now brokering loans for Orlando-based Pinnacle or for subprime specialists such as New Century Financial that went to borrowers with poor credit history or other financial limitations. Connelly said he secured many loans for restaurant workers, including one for $500,000 for a McDonald’s employee who earned about $35,000 a year.

Lenders saw subprime loans as a safe bet. Home prices were soaring. Borrowers didn’t have to worry about their payments ballooning — they could sell their homes at any time, often at a hefty profit. Jeffrey Vratanina, one of Pinnacle’s co-founders, said Wall Street wanted to buy more and more of the mortgages, regardless of their risk, to pool them and then sell them to investors. “Quite candidly, it all boils down to one word: greed,” he said.

In the Washington area, the housing boom coincided with a surge in the immigrant population, especially Latinos in places such as Prince William County. For many of them, subprime and other unconventional loans were the only way to attain the American dream of owning a home. Pinnacle’s customers included construction workers, house cleaners and World Bankemployees, who “saw an opportunity to get into a house without putting much money on the table — to save money to buy furniture to decorate the house,” said Mariano Claudio, who in his late 20s was helping run Pinnacle’s emerging-markets division, which was dedicated to immigrants.

Pinnacle ran ads on Spanish-language television and radio, set up booths at festivals and sponsored soccer matches at George Mason University. Brokers would hold raffles for gift cards or digital music players to collect names, addresses and phone numbers. It was “a great way to assemble a database of potential clients,” Connelly said.

He said his commission and fees depended on how much work he did on the loan, a common industry practice that often led to higher charges for subprime borrowers. Connelly said he carefully reviewed fees with his customers. “The way it’s justified morally and ethically is [that] the deal requires more work for a first-time home buyer or one with inferior financial history,” Connelly said. “It’s a balancing act of morals and ethics — and the need to make a living.”

Some brokers ignored the balance. Connelly began to hear about loan officers who charged low-income borrowers fees of as much as 5 percent of the loan or got a kickback by tacking extra percentage points to the interest rate on a mortgage. “Many borrowers are overwhelmed by the sheer volume of paperwork, disclosures, etc., and they’re just not equipped to fully understand,” he said. “There were half-truths and downright lies and severe omissions.”

A mortgage lender could hire practically anybody. “It’s not rocket science,” Connelly would tell new hires, such as the busboy who quickly traded in his Toyota Tercel (value: $1,000) for a Mazda Miata sports car (value: $25,000). Pinnacle was running out of office space, forcing some loan officers to work on window ledges or out of their cars.

Then came the party at the Mayflower at the end of 2005, a celebration hosted by the emerging-markets division. In June 2003, the division had originated $500,000 in loans. By the end of 2005, it was doing $500 million with hundreds of brokers across the country.

“It built to a head,” Connelly said of the times. “You could point to the Christmas party as the pinnacle.”

Chapter IV: Warning sign
Jan. 31, 2006. Greenspan, widely celebrated for steering the economy through multiple shocks for more than 18 years, steps down from his post as Fed chairman.

Greenspan puzzled over one piece of data a Fed employee showed him in his final weeks. A trade publication reported that subprime mortgages had ballooned to 20 percent of all loans, triple the level of a few years earlier.

“I looked at the numbers . . . and said, ‘Where did they get these numbers from?’ ” Greenspan recalled in a recent interview. He was skeptical that such loans had grown in a short period “to such gargantuan proportions.”

 

Greenspan said he did not recall whether he mentioned the dramatic growth in subprime loans to his successor, Ben S. Bernanke.

Bernanke, a reserved Princeton University economist unaccustomed to the national spotlight, came in to the job wanting to reduce the role of the Fed chairman as an outsized personality the way Greenspan had been. Two weeks into the job, Bernanke testified before Congress that it was a “positive” that the nation’s homeownership rate had reached nearly 70 percent, in part because of subprime loans.

“If the housing market does slow down,” Bernanke said, “we’ll want to see how strong the subprime mortgage market is and whether or not we’ll see any problems in that market.”

Staff writers David Cho and Neil Irwin and staff researchers Richard Drezen and Rena Kirsch contributed to this report.

 

Foreclosure Defense: Basic Law Can be a Winner for Borrower

Most lawyers and borrowers take it for granted that they know what a “lender” is. They take it for granted that they know that this was a “mortgage” transaction. They take it for granted that the transaction was legal but for the legal challenges you wish to mount to ward off foreclosure, sale or eviction. But what if the so-called lender had not dotted its own “i’s” and crossed its own “t’s.” For example, what if the “lender” had not registered with the secretary of state in the state in which your property was located (and perhaps in your home state if that is different). Well, that would mean that the entire transaction could be void and any claims you have against the lender et al cannot, (i.e., may not) be defended by the “lender” or anyone else claiming through the “lender.”

Consider our latest update to Garfield’s Glossary and think about its possible ramifications in YOUR case:

LENDER:

READ THIS: A lender is not just the entity that actually “appeared” at closing. The true lender for the mortgage meltdown period is usually some larger investment banking firm or large bank that used a small “front” organization that essentially acted as a mortgage broker and mortgage aggregator before selling or assigning the mortgage before even the first payment was due. If that is the case, there were undisclosed parties to the “loan” transaction and undisclosed fees paid, all of which are TILA violations.

ATTORNEYS AND BORROWERS TAKE NOTE: DON’T TAKE THE BASICS FOR GRANTED. EXAMPLE: WASHINGTON MUTUAL IS REPORTED TO HAVE NOT QUALIFIED TO DO BUSINESS IN THE STATE OF CALIFORNIA AND MAY HAVE REPEATED THAT MISTAKE IN OTHER STATES AS WELL.

If they were not authorized to do business a the time of the transaction, it means that they had not registered with the secretary of state and paid their fees as a state corporation or other entity, or as a foreign corporation or other entity. In ALL states we have researched, the law is the same: The mortgage (or any other) transaction is unenforceable and the claims against the party transacting business without qualification MAY NOT BE DEFENDED. A simply quiet title action might end the entire affair.

Likewise, the true lender might be the investment banker, the investor in a securitized asset backed security or the entity that was created by the investment banker in which bonds or shares of asset backed securities were sold.

The “lender” would thus be defined by “substance over form” and probably doesn’t qualify under the laws of the state in which the mortgage loan was originated, does not qualify as a securities transaction under the laws of the state in which the mortgage loan was originated, and probably doesn’t qualify as a lender under the banking and finance laws of the state in which the mortgage loan was originated.  

In all of these cases the transaction is void or voidable. The lender may also have avoided “intangible taxes” in states like Florida, subjecting itself to multiple counts of criminal and civil liability, interest and penalties in addition to the taxes due. 

Mortgage Meltdown: Rules of Engagement

Mortgage Meltdown: Smoke and Mirrors Bailout

It is obvious that the “snooty” U.S. bankers, as the Europeans are openly referring to them, still think the world is stupid. The message is out. A massive fraud has ben perpetrated by creation of complex derivative securities that looked better than they were, were rated better than they were (bought and paid for ratings), the creation of funny money, and the apparent loosening of credit that was fictitious, as the many people who are now distressed borrowers can attest. 

The remedial action proposed is illusory just as the original loans and securitized CDOs were illusory. And the blessing they get from government and rating agencies is just a continuation of the cold, hard, calculating attempt to distract foreign government, local governments and investors all over the world from making a run on banks, investment bankers and clamoring for heads to roll.  

The current plan calls for a division of “qualified” borrowers into classes. The classes that are covered are people who (a) don’t need the help or (b) certain people who are not in default but who would otherwise qualify for a loan now. This leaves the vast majority hanging in the wind — millions of homeowners, millions of renters and tens of millions of people affected by the fraudulent issuance of CDO’s under false pretenses and misleading disclosure. That means government investment funds for cities, states and nations are in peril as well as managed funds and individual investors. 

Even the people who are in the class of “can pay no matter what” are in more peril than they think because of this debacle. They face risks of job loss, massive historical inflation, devaluation of the dollar, loss of pensions, loss of purchasing power from social security and governmental programs, investment losses from lower corporate earnings, decreased purchasing power from dividends denominated in U.S. dollars, higher taxes arising from decreasing revenues received by state and local government, medical emergencies where they find out that the coverage they thought they had is not as broad as they were told, increased sales taxes, and business, investment and property losses from storms aggravated by global climate change, where the insurance companies have either already pulled out or have inserted exceptions that will allow them to either reject claims or settle for pennies on the dollar. 

And then you have the renters who are not even included. They are being tossed out of homes where they are current in their payments but the house is foreclosed. Rents are rising and the number of homeless people and the economic status of homeless people is likely to change demographically in ways that will stun the American citizen.

Completely ignored is the issue of lender liability, securities fraud liability, and a host of anti-trust, FCC, and other violations entitling plaintiffs to recover not only compensatory damages but punitive, treble or exemplary damages. As stated by many central bankers around the world, everyone has a dog in this catastrophe. 

Here are the basic rules of engagement that should apply:

 

  1. All classes or borrowers and homeowners should be included, except those who can’t afford to maintain the property. This will take the heat off everyone even if there are reduced interest payments or deferred payments by extensions of maturity dates. 
  2. Any and every plan should allow for at least 7-10 years for correction of problems that were created.
  3. Disgorgement of profits and equity by investment bankers and other parties who sold the CDOs should be part of every plan relating to every class of investor and borrower.
  4. Focus not only on those who are subject to ARM resets in 2008, but also on those who have already been reset one or more times. A tiered approach would salvage consumer purchasing power and lead to a softer landing for the recession we all know will happen.
  5. Start with the premise that anyone who can afford to maintain this home, even without paying anything on the mortgage in the first phase, should be allowed to do so at least for a short while. 
  6. Focus on plans that allow some return to investors in the CDOs, even if those are reduced from what was expected. 
  7. Remedial federal, state and local legislation requiring cooperation of all parties is protected against the ex post facto prohibition in the constitution under public policy, extreme hardship, and protection of the security of the public from economic disaster and social unrest arising from the dislocation of millions of people from their homes. Change the bankruptcy laws where necessary to protect borrowers from the obvious abuse of power that was leveraged against them. Cap credit card rates, and start reducing them. At the moment they are robbing the economy of vital consumer spending dollars that would benefit the economy as a whole. 
  8. Allow developers, lenders, mortgage service providers etc to participate and get protection but reduce fees for mortgage service.
  9. Prosecute high profile offenders  under securities laws, fair trade laws, truth in lending laws, etc.  Real estate brokers and mortgage brokers who steered people into teaser rate mortgages when they otherwise qualified for better, more secure loans should be required to disgorge their fees. Investment bankers who are a the source of yield spread premiums should finance the disgorgement.
  10. Apply disgorgement of fees and excess profits and damages to both borrowers and investors.
  11. Establish a moratorium on all tenant evictions where the tenant is less than two months in arrears. 
  12. Establish short term rent control to allow people to get on their feet, provided the landlord is not taking an actual loss. 
  13. Cease issuance of extra currency and liquidity into the marketplace as soon as practicable. Every dollar issued, every bond sold represents a potential to come back as five dollars worth of inflation on the U.S. economy. 
  14. Establish a specialized division of the SEC to analyze exotic securities and establish whether the disclosure tends to mislead an investor. Post comments on easily navigated websites so investors can assess the risk they are taking.
  15. Prohibit any credit scoring, bond rating, securities rating where there is any connection, funds transferred, or other relationship between the entity issuing the rating and the issuer of the securities, making the loan, borrowing money or buying anything. 

It’s Not Just Enron

Enron is just one of a long series of scams starting back in the 1960’s with changes in the rules that prompted Abromoff to Write Unaccountable Accounting. The essence of the scam is simple: put the risk on some unsuspecting schmuck and take all the money. It is the middlemen — the accounting firms, the law firms, the rating agencies, the investment bankers, and yes, the banks that clean up. They never take the loss. It is the small investor and the fund manager desperate to show short-term performance that support the scam. There are several segments of the economy that are empty shells — business plans composed of smoke and mirrors. Whether it is Boston Market which gave the money to the franchisors to pay for the franchise, or Enron or WorldCom who posted huge profits in tight margin industries, or the late spate of derivative securities many of which by their very name imply high sophistication to mask their low-down fraudulent nature.Some Chinese workers get paid a total of ten bucks to make a stick of furniture. The Chinese company that employs them gets 50 bucks. The Chinese manufacturer, sells the furniture to a jobber for $75. The jobber sells the piece to an American Distributor for $100. The Distributor sells the piece to a retail furniture outlet for $150. The retail store sells the piece to a customer for $800 with no money down and no payments until 2012. The customer signs — and here is where the real fun begins — his signed document is sold by the retailer to XYZ factoring, Inc. for $425. The factoring company sells the debt to an investment banker for $500. The investment banker packages an income fund and sells it through retail brokerage to Joe Schmuck (investor) on the street for $600, as a derivative security (collateralized debt obligation, which sounds very safe), with a return of 12%. The truth is no money exchanged hands until Joe Schmuck ponied up the $600. Then it is sent down the line and everyone gets paid. But the companies are allowed under current accounting rules to report the “sale”, the income from the sale and later the write-down when some of the paper goes bad — and they do this without the first dollar put up by either the consumer who “purchased” the furniture or the investor who will purchase the CDO security. And then these “middleware” companies report higher earnings and more people buy their securities and on it goes. The frenzy continues and prices increase because nobody dares to get out, and people fool themselves into thinking they are rich from this paper trail — until it collapses, which is exactly what is about to happen in our boom and bust economy.Joe Schmuck is the one who actually bought the furniture and doesn’t even know it much less use it. Nobody cares whether the customer who received the furniture ever pays because they are not at risk (Joe Schmuck has all the risk), and nobody cares if Joe Schmuck loses all his money a couple of years later when the pyramid collapses, because he bought pursuant to an incomprehensible prospectus that is mind-numbing even to experienced securities attorneys. The disclosures are all in there, couched in language that probably nobody understands including the author who plagiarized it from another prospectus which itself was created from cutting and pasting the work of others who cared all about form and nothing about substance. Whether it is “mortgage-backed securities” or anything else if you create free money people are going to chase it and take it. Lots of people made a lot of money on this scheme and variations of it. They are all based on hiding risk, and skirting the intent of disclosure requirements. They all produce ridiculous sums of revenue and income for middlemen in exchange for merely showing up. None of the middlemen provide value added. That is the weakness of our economy and the culture behind it is what is pulling down our quality of goods and services, our expectations and even our hopes and dreams.The reason why costs have gone down and prices have gone up is not just that the companies we see and know are making more money, which they are, but because, we have institutionalized it into a feeding frenzy that invited more middlemen in to share in the bounty. The more people in the chain, the more complex it appears and the thus the more legitimate it appears (or at least, there is considerable doubt arising from the confusing array of transactions, that anyone can prove that anyone did anything wrong).The net result is that consumers and investors get screwed. Consumers are lured by “free stuff” (like houses) and investors are lured by too good to be true returns. Nobody else puts up any money. And if the Consumer actually pays part or all of the price of the furniture, then there is even more money to split up with transaction, handling and customers service fees attached. It all comes down to a simple code of marketing in the investment banking world. If you are selling, make it complicated — then you can call it whatever you want and price it anyway you sell it. If you are buying make it simple and pay only when you understand what you are paying for.  

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