COMBO: CONFUSING FACTS MUST LEAD TO REPORTS WITH CONFLICTING FACTS AND ANALYSIS

Posted on March 16, 2011 by Neil Garfield

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO TITLE AND SECURITIZATION SEARCH, REPORT, ANALYSIS ON LUMINAQ

The Combo Title and Securitization Search, Report and Analysis, is meant to catalog the confusion created by Wall Street  — the manner in which they intentionally obfuscated the facts and how they are continuing a shell game. Since many people have asked if we can make this simpler I choose to answer their inquiries here. The answer is NO, we cannot make it simpler because it would alter our output into a work of fiction. This is particularly true where there is more than one loan on the property each of which was securitized differently or held differently.

The pretender lenders clearly want the judicial system, the legislative branches of government and the executive branch (particularly law enforcement) to focus exclusively on certain documents created for the express purpose of making the transaction LOOK like a simple mortgage transaction. If we allow our impulses toward simplicity to govern our actions we are falling into the trap they have set.

Here is an example of a recent response I wrote to one such customer who was confused after reading the materials from the COMBO:

“What you received can be explained as follows, in brief:

  1. Facts: Documents and transactions of record — that’s the report and the copies of documents. A lawyer can take these facts and exhibits and create pleadings and correspondence based upon them because they are indisputable.
  2. Analysis: Using the facts and documents, you have received a title analysis and a securitization analysis. A lawyer can take this analysis and use it as a guide to focus on those issues that are most promising in your jurisdiction.


Most lawyers have reported to us that these elements are sufficient for them to direct their correspondence, litigation, motions and discovery. Some lawyers need more which might include compliance analysis (TILA and RESPA), loan level accounting, an expert declaration, expert testimony, or strategic advice concerning the use of the litigation support materials we have prepared. In the last 18 months we have seen an upsurge in loan level accounting, an upsurge in TILA and RESPA compliance analysis, and a sharp drop in need for expert declaration, expert testimony or strategic advice.

We are restricted in what services we perform for non-lawyers as it could be construed as the unauthorized practice of law. We cannot give legal advice to you without violating those laws. But we CAN give advice to your lawyer on all aspects of the case.

The materials are always conflicting because that is the nature of securitization as it was practiced by the players. Since their behavior was convoluted and conflicting it is inevitable for us to report that as a fact and include it in our analysis. For example, you might have read in your analysis and on the blog (www.livinglies.wordpress.com) that the loans are CLAIMED as being owned by an asset-backed pool, which may only be a general partnership notwithstanding the use of the word “Trust” or “Trustee.” The issue is further complicated by the fact that the loans claimed lack any trail of documentation transferring the loan documents to anyone. Then the issue is further complicated by the fact that the loan originator is either a non-depository lender or a depository institution, either one acting more as mortgage broker than a lender, hiding the real lender from the borrower. These facts and analysis raise legal issues that may apply to your case but only a lawyer licensed in the jurisdiction in which the property is located could advise you as to what to do with these facts and those analyses or what steps to take. Any decision you make should be based on the advice of such an attorney and not merely on the basis of the reports and analysis.

There are many such examples in which the parties claiming to be lenders or creditors are confronted with facts and documents which contradict their position. Thus the intricate and often contradictory information you see is simply a compilation of the information arranged and analyzed in ways that assist attorneys in choosing their strategies and tactics. We cannot change the facts to make them simple without changing the story. Telling you the name of a “Trust” would mislead you into believing that the “Trust” exists or ever held the loan as an asset. The situation is further complicated by the bailouts, subsequent trading of the mortgage backed securities, insurance payments and other payments by third parties. Application of these facts and local law is the exclusive province of a local licensed attorney.

Regards
Neil

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , | 5 Comments »

The Myth of the Credit Bid – Red-Handed

Posted on September 1, 2010 by Neil Garfield

COMBO TITLE and SECURITIZATION Search, Report, Documents and Comprehensive Analysis

SUBSCRIPTION MEMBERSHIP WITH BENEFITS

Credit Charles Koppa (Poppa Koppa) with putting me onto this. He does GREAT work. poppakoppa@hotmail.com. He’s not lawyer but I trust him more than I do most lawyers to get to the bottom of things. He’s kind like one of those dogs that gets a bite of something and then NEVER lets go as the teeth go in deeper and deeper. I like that approach. The pretenders deserve it.

Credit Dan Edstrom with compiling everyone’s work including my own into securitization commentaries that work the material they way it should be done. Besides doing the Subscriber Members COMBO TITLE and Securitization Analysis, and the component parts, he also does a magnificent job of drilling down even further proving two points: (1) that while the borrower is dealing with a “Notice of Default” the Trust and investors are getting reports specifically stating that the same loan is performing — and they a re getting paid! and (2) that the distribution reports at the pool level are either on-going (Meaning the pool still exists) or they are no longer being sent (meaning the pool has been dissolved).

There are so many chairs and shells moving around I know it is difficult to keep them straight. That is exactly the point. The pretender lenders are going to keep them moving as long as they can because they are getting thousands of free houses every week through intimidation, fraud and deception of borrowers, court clerks, and Judges. But there are a few points in time at which the the chairs and shells stop moving or at least slow down. One of them is at the sale on the courthouse steps.

Charles Koppa pointed out the chicanery when he shared an ongoing study with me that showed changes in the bid price just hours before the sale and the resulting windfall to the new “buyer.” With pretenders swarming like flies around you-know-what it is no wonder that they find it easy to slip different entities in and out of the foreclosure process. But here is a simple proposition with far reaching implications regarding tracking the money, tracking the title and tracking the real obligation and the real creditor. ONLY THE CREDITOR CAN MAKE THE CREDIT BID. Anyone else must actually pay money.

Oops. It turns out that virtually no money is exchanging hands at these sales. And the Trustee is accepting a credit bid from an entity that wasn’t even named in the Notice of Default or the Trustee is issuing the deed to an entity that never made the credit bid or any bid at all. THAT TRANSACTION IS VOID ACCORDING TO MY READING OF THE STATUTES, WHETHER YOU ARE IN A JUDICIAL OR NON-JUDICIAL STATE. Maybe in some states it would be considered voidable but either way there is no “clear title” transferred and there is no successor in interest, which means that the homeowner still owns the home after the sale and can file a quiet title action against the originating lender and the party who received the title from the Trustee or Clerk, depending upon the procedure used. There is no defense as far as I can see and there might not even be an attempt at defending. Easier to let one slip by than risk a ruling that says these sales are all void.

But there is the rub. You can kick the can down the road for only so long. It doesn’t change the facts. NONE of the creditors filed foreclosure actions or sales in any of the securitized loan transactions. NONE of the creditors even knew the loan was not performing because they were being told quite the contrary by the very same group that declared the loan in default. ALL of the loans had co-obligors who in fact did pay but were not disclosed to either the borrower or the actual lender (investor). NONE of the notes were assigned at or near the time of the closing of the loans. NONE of the security interests were assigned at or near the time of the loan closing. NONE of the notes or security interests were endorsed or even transmitted to anyone after the loan closed unless the case went into litigation in which case they either “found” or re-created the documentation without admitting what they had done.

NONE OF THE OBLIGATIONS WERE COMPLETELY DESCRIBED IN THE NOTE, MORTGAGE OR DEED OF TRUST. AS PAUL  HARVEY LIKED TO SAY, THE “REST OF THE STORY” WAS IN THE MORTGAGE BOND, PROSPECTUS, PSA, ASSIGNMENT AND ASSUMPTION, INSURANCE CONTRACTS, CREDIT DEFAULT SWAPS, TRANCHE STRUCTURING THAT THE LENDER RECEIVED. As I said at the beginning of this blog, this is all going to come down to two doctrines that are inescapably in favor of the homeowners and borrowers, including the ones who THINK they lost their homes: the single transaction doctrine and the step transaction doctrine. NONE of the actions of the securitization intermediaries would have any business reason to occur without the investment by the lender (investor) and the acceptance of the obligation by the borrower. That makes it ONE transaction between the the investor and the borrower no matter how complicated you WANT to describe it.

THE ONLY THING THAT WAS ACTUALLY MOVED WAS MONEY UNDER QUESTIONABLE CIRCUMSTANCES. A SPREADSHEET WAS USED AND SENT ELECTRONICALLY UPSTREAM TO TRANSMIT THE ALLEGED RECEIVABLES THAT WOULD BE CLAIMED AS PART OF POOLS THAT WERE NEVER OFFICIALLY FORMED. THE TERMS OF THAT TRANSACTION INCLUDED CO-OBLIGORS WITHOUT WHICH THE LENDERS WOULD NOT HAVE ADVANCED THE FUNDS FOR WORTHLESS (AND IN MANY CASES NON-EXISTENT) MORTGAGE BONDS.

THE WAY THEY DID IT WAS SIMPLE: GIVE THE BORROWER MONEY, HAVE THE BORROWER SIGN A NOTE TO A SHAM ENTITY AND GIVE THE LENDER EVIDENCE OF A BOND WHICH HAS ENTIRELY DIFFERENT TERMS FROM THE NOTE. THAT WAY THEY COULD USE PLAUSIBLE DENIABILITY AND PLAUSIBLE EXCUSES FOR NOT SHARING CONFIDENTIAL INFORMATION WITH THE THE ONLY TWO REAL PARTIES TO THE TRANSACTION — THE BORROWER AND THE LENDER.

So they wait until nobody is looking, for that moment that appears clerical (ministerial) in nature and then they slip in new entities again, thus cheating the lender (again), but leaving the homeowner with legal title. The homeowner walks from the deal thinking it is over. But in truth, it is only just beginning. Now we enter the NEXT chapter of the mortgage meltdown.

Filed under: bubble, CASES, CORRUPTION, Eviction, evidence, expert witness, Fannie MAe, foreclosure, foreclosure mill, GTC | Honor, HERS, investment banking, Investor, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, trustee | Tagged: , , , , , , , , | 11 Comments »

Securitization Search: Why You Need the PSA

Posted on August 18, 2010 by Neil Garfield

Quoted from April Charney — I’m not sure of the source. She is right on every point.PSA= Pooling and Servicing Agreement

EDITOR’S NOTE: Glad to see that April is doing what the rest of us are doing — going deeper and deeper. There are two things you need — the loan specific title search with analysis and the securitization search, report and analysis. One tracks the chain of title the other tracks the chain of money. You must track both in order to avoid the “proffers” and bogus representations of opposing counsel. The only thing I would add is that the Prospectus, Assignment and Assumption Agreement, Distribution reports and “re-stated” agreements tell a long tale as well.

The search for the securitization documents is not as simple as you might think. The claim of some “Trustee” for a “pool” is never backed up by documents showing the full chain of title of the loan, because the receivables were assigned, not the loan. More than one pool can often be found claiming “ownership” of a loan that meets MOST of the characteristics of your loan, but not all of them. It is these inconsistencies that enable you to chip away at the credibility of the pretender lenders.

COMBO TITLE and SECURITIZATION Search, Report, Documents and Comprehensive Analysis

You must realize that while the original PSA is a good starting point, it isn’t the ending point. That is because of the the dissolution of hundreds if not thousands of these special purpose vehicles which was easy because they were never officially formed in the first place. You must realize that the point of fact is that there is a “claim” that the loan is in a “pool” which may or may not have ever existed, but that the the documentary trail shows it was never really assigned tot he pool. So the money trail leads us to those people who have an actual interest in the loan — only after you can make the point that ALL transactions by or relating to the “pool” must be accounted for and allocated to individual loans.

My opinion, is that the the money people, if they can be found, have an interest that can imposed by equity and not by law. Everyone else is simply out to line their own pockets without ever having invested a dime in the loan transaction.

FROM APRIL CHARNEY—–

“You have to get the PSA and the mortgage loan purchase agreement and the hearsay bogus electronic list of loans before the court. You have to educate your judge about the lack of credibility or effect of the lifeless list of loans as the Uniform Electronic Transactions Act specifically exempts Residential Mortgage-Backed Securities from its application. Also, you have to get your judge to understand that the plaintiff has given up the power to accept the transfer of a note in default and under the conditions presented to the court (out of time, no delivery receipts, etc). Without the PSA you cannot do this.

Additionally the PSA becomes rich when you look at § 1-302 (b) which says that the obligations of good faith, diligence, reasonableness and care prescribed by the code may not be disclaimed by agreement, but may be enhanced or modified by an agreement which determine the standards by which the performance of the obligations of good faith, diligence reasonableness and care are to be measured. These agreed to standards of good faith, etc. are enforceable under the UCC if the standards are “not manifestly unreasonable.”

The PSA also has impact on when or what acts have to occur under the UCC because § 1-302 (c) allows parties to vary the “effect of other provisions” of the UCC by agreement.

Through the PSA, it is clear that the plaintiff cannot take an interest of any kind in the loan by way of an “A to D” assignment of a mortgage and certainly cannot take an interest in the note in this fashion.

Without the PSA and the limitations set up in it “by agreement of the parties”, there is no avoiding the mortgage following the note and where the UCC gives over the power to enforce the note, so goes the power to foreclose on the mortgage.

So, arguing that the Trustee could only sue on the note and not foreclose is not correct analysis without the PSA.
Likewise, you will not defeat the equitable interest “effective as of” assignment arguments without the PSA and the layering of the laws that control these securities (true sales required) and REMIC (no defaulted or nonconforming loans and must be timely bankruptcy remote transfers) and NY trust law and UCC law (as to no ultra vires acts allowed by trustee and no unaffixed allonges, etc.).

The PSA is part of the admissible evidence that the court MUST have under the exacting provisions of the summary judgment rule if the court is to accept any plaintiff affidavit or assignment.

If you have been successful in your cases thus far without the PSA, then you have far to go with your litigation model. It is not just you that has “the more considerable task of proving that New York law applies to this trust and that the PSA does not allow the plaintiff to be a “nonholder in possession with the rights of a holder.””

Filed under: bubble, CORRUPTION, evidence, foreclosure, foreclosure mill, GTC | Honor, investment banking, Investor, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, trustee | Tagged: , , , , | 25 Comments »

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