Patricia Rodriguez Tonight on the Neil Garfield Show

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Patricia Rodriguez returns tonight to talk about her Seminar on October 31, 2015.. Patricia is a good lawyer and particularly good at organizing cases. She will be talking about Foreclosure Defense, Rescission, Intakes of Clients, and of course the latest in what is happening on the ground in Southern California. One of her strong points is organization — something that most lawyers are not so great at doing. Her seminar will focus on the bricks and mortar of setting up a case for litigation or modification.

Northern California Workshop, CLE Credits

There is a seminar worth attending for both lawyers and homeowners in Northern California. The presenters are Dan Edstrom, senior forensic analyst for LivingLies, together with Jim Macklin and Attorney Charles Marshall, all veterans of the foreclosure war. I might make an appearance via SKYPE. They will cover as much as possible for a one day seminar.

To register click on this link: Northern California Workshop

Shadow Foreclosures: Over 500,000 Az Homeowners Underwater

Yes, we can help at livinglies, but the numbers are so high that there is no way we have the resources to help everyone. Lawyers, accountants, analysts and others should be seeing this as a major opportunity to do well for themselves and for the owners of these homes by challenging the rights of the those collectors who are taking their money now, or demanding payment or threatening foreclosure. Arizona lawyers have been slow on the uptake here and in so doing are potentially setting themselves up for future malpractice claims for anyone, whether they aid or not, who received advice from the lawyer that was not based upon the realities of the securitization scam.

Call 520-405-1688, where you can get help in documenting the fraud, help in drafting the documents, and help in finding a lawyer. If you are a lawyer involved in foreclosure defense, bankruptcy or family law, you need to to start studying the real facts and the strategies that get traction in court.

We are planning a possible new Arizona seminar for lawyers, paralegals and sophisticated investors or homeowners. But we will only schedule it if we get enough calls to indicate that the workshop will at least pay for itself. It is a full day of information, strategy, role-playing and tactics to use in the court room.

Editor’s Analysis: Despite loosening standards for principal reductions and modifications, the foreclosure activity across the country is increasing or about to increase due to many factors.

The bizarre reason why the titans of Wall Street want these homes underwater combined with the miscalculation of the real number does not bode well for the housing market nor the economy. With median income now reported by the Wall Street Journal at 1995 levels, and the direct correlation between median income and housing prices you only need a good memory or a computer to see the level of housing prices in 1995 — which is currently where we are headed. As the situation gets worse, the foreclosure and housing problem will become a disaster beyond the proportions seen today.

Wall Street NEEDS foreclosures — not modifications, principal write-downs or settlements. The reason is simple. They have already received trillions in bailouts from the Federal Government. All of that was predicated upon the homes going into foreclosure. If the loans turn out to be capable of performing, many of those trillion of dollars ( generally reported at $17 trillion, which is more than the total principal loaned out to all borrowers during the meltdown period), the mega banks could be facing trillions of  dollars in liability as the demands are properly made for payback. The banks should not be allowed to collect the money and the houses too. Neither should they be allowed to collect the bailout money and keep the mortgages.

The “underwater” calculation is far off the mark. If selling expenses and discounts are taken into consideration, the value of homes used in that calculation is at least 10% less than what is used in the underwater calculation, which would increase the number of underwater homes by at least 15% bringing the Arizona total to nearly 600,000 people who know now that they will never see valuation even coming close to the amount owed. The prospect for strategic defaults in Arizona and elsewhere is staggering —- totaling more than 10 million homes  — or nearly twice the number of foreclosures already “completed”, albeit defectively.

As stated in the article below there is, as we have been saying for years, a huge difference between home prices and home values. Home prices can be pushed up or down based upon external factors In this case it was a flood of what looked like cheap money that is now apparent was neither cheap nor even money (because the named lender never made the loan). Home values and home prices should over the long run track each other given no manipulation of the marketplace which is exactly what Wall Street did. Home values, based upon the Case-Schiller index and thousands of other economists are based upon one simple variable — median income. Median income is now at the lowest point since 1995. That means home values are, after selling expenses and discounts, less than 90% of 1995 prices.

It is simply inevitable that people will take the hit on their credit and walk away from the homes rather than pay $200,000 for on-existent equity and that is exactly what Wall Street is counting on, forcing through its manipulation of government policy and spinning to the public media. If those homes do not go into foreclosure the mega banks’ scam will reveal itself, the assets on their balance sheet will vanish because they never existed anyway and the banks will fall. Whether they are too big to fail or not, they will fail — unless foreclosures spread out across the land.

by Kristena Hansen,

Roughly 40 percent of all mortgaged homes in Arizona were under water during the second quarter of 2012, the third-highest negative equity rate in the nation, according to a report released Wednesday by CoreLogic Inc.

In raw numbers, that translates to about 521,600 homeowners statewide being under water for the quarter out of roughly 1.31 million total mortgaged homes, the report said.

Arizona’s negative equity rate was much higher than the national average of 22.3 percent (10.8 million homes) of all mortgaged homes that were underwater during the same period. That nationwide figure was also a gradual improvement from the first quarter’s 23.7 percent negative equity (11.4 million homes).


Negative equity, or being under water, refers to homeowners who owe more on their mortgages than their home’s present estimated value. CoreLogic determines negative equity rates by the number of underwater homeowners versus all residential properties in a certain area with an outstanding mortgage.

CoreLogic experts say the improving negative equity landscape nationwide is largely due to the recent rebound in home prices, dwindling sales of lender-owned properties and low inventory of existing homes.

Home prices and home values, however, are distinctly different. Prices represent how much homes actually sell for, while home values are only an estimate and are therefore much harder to determine.

Michael Orr, a real estate expert at Arizona State University, said home value estimates will vary widely depending on who is making the assessment. That makes it tricky to hone in on best practices for calculating negative equity, he said.

Sam Khater, deputy chief economist for CoreLogic, explained how his firm makes its determinations.

New Combo Packages offered with 1/2 Day Workshop Registration

What we NOW know about Loan Securitization & Foreclosure Defense

Presented By

1/2 Day Workshop
Thursday July 26th 9:00 am – 12:00 pm

Reserve your space now to get a $30 early registration discount!

OR Save up to 30% off with special combo packages:

Combo 1:  Workshop + Paralegal/Attorney Workbook.

Workshop Plus Workbook

Retail Price: $648
Member Pricing (30% Discount): $453 – Buy Now!
Non-Member Pricing (20% Discount): $518 – Buy Now!

Combo 2:  Workshop + Foreclosure Defense Forms Library

Workshop Plus Workbook

Retail Price: $548
Member Pricing (30% Discount): $383 – Buy Now!
Non-Member Pricing (20% Discount): $438 – Buy Now!

BEST VALUE Combo 3:  Workshop + Paralegal/Attorney Workbook + Foreclosure Defense Forms Library

Workshop Plus Workbook

Retail Price: $997
Member Pricing (30% Discount): $697 – Buy Now!
Non-Member Pricing (20% Discount): $797 – Buy Now!

Workshop Details

Where: The Windmill Suites-Chandler Fashion Square
3535 W Chandler Blvd
Chandler AZ 85226
Hotel Phone: 480-812-9600
When: Thursday July 26th
Registration: 8:30 am
Seminar: 9:00 am – 12:00 pm
Pre-registration – until June 26th: $179 – Save $30!!
Registration – from July 7th –July 20th: $199
Late-Registration July 20th – July 26th: $249
Audience: Paralegals, Lawyers, legislators, title agents, realtors, homeowners or anyone thinking of buying short sales or re-sales
Arizona 2.5 CLE’s available
including .5 Ethics!
Presented by: Neil F Garfield, MBA JD, Beth Findsen JD, and Darrell Blomberg
Neil Garfield is Licensed in Florida and Beth Findsen is Licensed in Texas and Arizona. Both are members of the Federal Trial Bar.
Workshop Content to include:
  • Preliminary letters and correspondence
  • Putting your best foot forward; evidence
  • Administrative agencies
  • Foreclosure rescue scams
  • Auction issues at foreclosure
  • Civil Procedure
  • Appellate Procedures
  • Title & Title Insurance

Handouts will be distributed electronically when you register and should be brought to the workshop either in printed or electronic format according to your preference.

Participants will also receive special workshop discounts on products and services purchased at the workshop!

For more information contact:  or 520-405-1688

Tickets are limited so reserve your spot online Now!

  • These topics are introductory in nature and are for general information. Information obtained in this workshop should not be used as a substitute for the advice of a competent licensed attorney in the jurisdiction in which you are located.
  • Attorneys in other states will probably be permitted to claim CLE credits from Arizona, check with your state’s bar for more information.

They Will Get You on Procedure Everytime

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Madison v. MERS et al

Madison v MERS et al

Editor’s Comment:

The Madison decision from the Arizona Appellate Court is an example of two warnings that I have repeatedly stated on these pages, in my books and in my seminars.  First doing an appeal yourself without getting appropriate advice from competent licensed counsel is most likely to result in failure.  It is a rare layman who understands the Rules of Civil Procedure.  And it is even more rare that a layman understands the Rules of Appellate Procedure.

As a result, the Madison decision will be used as yet more ammunition against homeowners, borrowers, and lawyers to “prove” that their defenses are frivolous when in fact the court of appeals decision states the opposite – even while they rule against the borrower.  On appeal the only thing the appellate court is permitted to review are those items on the record.  This is further restricted by the items that are presented as issues on appeal.  The homeowner, appearing on her own behalf, missed two opportunities to force the pretender lenders into a contested adversary position.

Like many other states, Arizona has section 33-811[c]which mandates waiver of all defenses to a trustee’s sale if the objecting party fails to obtain an injunction before the sale date.  The problem here is that the statute is worded improperly but that issue was never raised.  Obtaining an injunction requires a lawsuit filed against the Trustee and the pretender lenders which results in the issuance of a Temporary Restraining Order and which the homeowner will result in the issuance of a permanent restraining order.

Virtually all non-judicial states have a similar provision.  The obvious problem with this provision which violates due process on its face is that it requires the homeowner to first prove his or her case in court before being allowed to assert and pursue defenses and counterclaims. 

This is precisely the issue addressed in the second edition Attorney’s Workbook regarding the realignment of parties.  In a judicial state all that a homeowner is required to do is deny the allegations of the pretender lender.  This puts the matter at issue and allows the homeowner/borrower to proceed with discovery and all other pre-trial motions.  The Arizona statute relied upon by the appellate court requires the homeowner to utilize a crystal ball to determine the allegations of the pretender lender and then win at a preliminary hearing on the merits of the defenses to a claim that has never been filed. 

The issuance of the TRO in non-judicial states is discretionary and not ministerial or mandatory.  Thus the burden of proof is improperly put on the defending party before the proponent seeking affirmative relief (taking the house) is required to file any pleadings or produce any evidence that could be subject to court scrutiny or challenge by the homeowner. 

As applied, Arizona Revised Statue 33-811 [c] is clearly unconstitutional and violates due process.  The homeowner should simply be permitted to deny the factual allegations contained in the Notice of Default and Notice of Sale.  The appropriate party to bring a lawsuit is not the borrower but either the Trustee or Beneficiary.  Once the borrower has denied the factual allegations, the matter should be converted to a judicial foreclosure which is provided for in Arizona Statutes.  In the absence of the beneficiary starting such a lawsuit, it is the trustee who should file an action in interpleader stating that the Trustee is an uninterested party with no stake in the outcome and alleging that there are two parties each of whom allege an interest in the subject matter of the lawsuit and which are in conflict with each other.  The Trustee, not having the power to conduct hearings (the Trustee is not a special master) has no choice but to take unresolved issues to the court and make its claim for attorney’s fees, costs and expenses to having had to file the interpleader.

Naturally Maidson failed to raise any of these issues. So the appellate court was left with a statue which is “on the books” and which operates to waive all defenses of the homeowner to the Trustee’s sale – in the event the homeowner fails to obtain an injunction before the sale date.  In the Madison case, needless to say, the homeowner failed to obtain and apparently failed to seek an injunction prior to the sale.  Therefore the appellate court was perfectly within its right to simply affirm the trial court’s decision that stated that the homeowner had no right in this instance to assert any defenses.

In such cases of such conflicts of obvious due process the ACLU and other such organizations have occasionally been successful in having an appellate court rule on an issue that was never presented in the trial court and may not even have been presented in the initial briefs of the parties on appeal. 

Hence the outcome of this case, like so many others, was a foregone conclusion simply based on the most simple application of statutory law and the rules of civil procedure as they are currently applied in Arizona. 

Failing to obtain the TRO is therefore the same as admitting all of the allegations of fact contained in the Notice of Default and Notice of Sale and all of the allegations that would have been pled in a judicial foreclosure.  The court affirmed the trial court’s decision to dismiss the homeowner’s lawsuit. 

The kicker in this case is that the appellate court went on to overrule the trial court for having declared Madison a vexatious litigant and further restricting her ability to file future lawsuits.  This was not only a violation of due process it was a demonstration of court bias and I invite attorneys who are committed to the movement to assist Madison in attacking the bias of the trail judge and getting the decision of the trial judge vacated thus rendering the appellate decision moot. 

It is plainly outrageous for any judge to declare that a litigant is vexatious or frivolous when they clearly have never been heard on the merits of any of their claims or defenses.  The retired judge who heard this case should be prevented from hearing any further cases involving foreclosures or related evictions or any other such cases. 

Without beating a dead horse the section of the opinion entitled “background” clearly shows that Madison failed to deny the essential elements of the foreclosure and therefore all of the obvious issues regarding the identity of the creditor, the status of the loan, the nature of the actual transaction, the substitution of beneficiary, the substitution of trustee, and all the other claims and defenses were deemed admitted by both the trial court and the appellate court.  If the case can be reopened on the basis of the bias of the judge and the bias can be shown to have predated the decision that was appealed and if that results in vacating the entire order the homeowner might have had an opportunity to obtain the injunction and assert the claims and defenses, and attack the statute as it is applied.

 This is the reason why I reluctantly agreed to start a national law firm to assist homeowners and borrowers and their lawyers.  I have been doing nothing but writing, educating, and consulting for 5 years only to see the work and analysis performed by me or my team to be presented improperly and after which most defenses and claims were waived.  In the all of the attorneys recruited will be required to follow appropriate professional standards in the research and advocacy of the positions of clients who sign up for representation. 

There is no guarantee of any result when you hire any attorney or any professional.  The only guarantee is that they will apply their best efforts on your behalf.  The is a operating under a business model which requires a 50-state rollout to oppose all of the foreclosure mills who currently act in concert with each other.  Their opposition will now be an organized and consistent challenge to the fraudulent proffers of false, forged and fabricated facts and evidence in and out of court.  As I have stated before, we are only halfway through this mighty contest.  Until now we have been taking all the punches.  Now it is our turn.





Zillow Raises Estimate Again: 16 Million Homes Underwater

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Editor’s Comment:

This is why I am re-starting my seminar tours. The information out there is disinformation and in this case sellers don’t realize how badly they have been screwed until they are walking toward the closing table. The “underwater” phenomenon represents a vast market inventory shadow that is not being counted by anyone — which is why my estimates of market activity and prices are so much lower than what you hear from everyone else. So far I have been right every year.

Zillow is at least making an effort. It is sharpening the definition of “underwater.” We have been saying for years that the number of homes “underwater” is both rising and vastly underestimated. The reason I knew was that just by putting pencil to paper and using all the factors that measure the amount of money one might get as proceeds from the sale of a home, the average PROCEEDS from the sale of residential property was substantially below the average VALUES that were being used. Zillow has now entered the world of reality by adding all the relevant mortgages and not just the last one allocated to that property.

Once upon a time when you sold a house you received a check for the proceeds of the sale. It was always lower than what you expected because of expenses and charges that you incurred and after you deducted the expenses that didn’t appear on the HUD 1 Settlement Statement (money that you spent preparing the house for sale).

Now the situation is different. Instead of getting a check, many if not most homeowners must bring a check if they want to sell their home. Most homeowners, in other words, must pay money out of their pocket if they want to sell their home. In some cases, the bank will allow a short-sale where they will accept a payoff less than the amount they say is owed, but even then, the hapless homeowner will still be unable to recover his down payment, all the money he put into the house in furnishings and improvements, and all the principal payments made on a house that was intentionally overvalued, using inflated appraisals that would  leave the homeowner screwed.  

When they start looking at “Seller’s Proceeds” from the standpoint of a real HUD 1 settlement sttements, the figure will be even lower than the current Zillow estimate. The disconnect between “prices”, “home values” and “proceeds” has never been greater. The question of whether or not a home is underwater is determined by proceeds of sale — without regard to price or value. Being underwater means to answer a question: “How much money will the seller need to spend in order to sell the property with free and clear title.”

Forgetting the whole issue of title corruption caused by the use of MERS which further affects prices, values and proceeds, the amount of money required from the seller in order to sell his/her home is nothing short of sticker shock and the fact remains that a majority of the people affected do not know what has happened to their wealth. They do not understand the extent to which they suffered damage by Wall Street schemes. And of course they don’t know that there is something they can do about it — like any rational businessman instead of the deadbeat bottom-feeders  portrayed by bank mythology.

Once all factors (other than MERS) are taken into consideration, the Zillow numbers will change again to more than 20 million homes and will probably reach 25 million homes that are really underwater, most of which are hopeless because values and prices will never get enough lift, even with inflation, to make up the difference between what they must pay as sellers to get out of the deal and what they can get from buyers who are willing to buy the home. Add the MERS’ factors in, now that title questions we raised 4 years ago are being considered, and it is possible that many homes cannot ever be sold at any price. Where the levels of “securitization” are limited to only 1, then perhaps it is possible to sell the property but not without spending more money to clear title. 

Nearly 16M Homes Are Now Underwater


Zillow just reported that their data shows nearly 16 million homes in this country are now in a negative equity position where the house is worth less than the mortgages on the home. This number is dramatically higher than the approximate 11 million reported by other entities. Why the huge difference? Zillow professes to take into consideration ALL loans on the property not just the most recent loan (purchase or refinance).

The key findings in the study:

▪       Nearly one-third (31.4 percent) of U.S. homeowners with mortgages – or 15.7 million – were underwater on their mortgage.

▪       A slower pace of foreclosures after the robo-signing issues of 2010 contributed to slower progress in working down negative equity. Foreclosures cause homes to come out of negative equity when a bank or third party takes ownership.

▪       Nine in 10 homeowners continue to make their mortgage and home loan payments on time, with just 10.1 percent of underwater homeowners more than 90 days delinquent.

▪       Nearly 40 percent of underwater homeowners, or 12.4 percent of all homeowners with a mortgage, owe between 1 and 20 percent more than their home is worth.

▪       An additional 21 percent of underwater homeowners, or 6.6 percent of all homeowners with a mortgage, owe between 21 and 40 percent more than their home is worth.

▪       About 2.4 million, or 4.7 percent of all homeowners with mortgages owe more than double what their home is worth.

How can negative equity impact the housing market? In the report, Zillow Chief Economist Stan Humphries explains:

“Not only does negative equity tie many to their homes, by making homeowners unable to move when they may want to, but if economic growth slows and unemployment rises, more homeowners will be unable to make timely mortgage payments, increasing delinquency rates and eventually foreclosures.”

Case Shiller: House Prices fall to new post-bubble lows in March NSA

by CalculatedRisk

S&P/Case-Shiller released the monthly Home Price Indices for March (a 3 month average of January, February and March).

This release includes prices for 20 individual cities, two composite indices (for 10 cities and 20 cities) and the National index.

Note: Case-Shiller reports NSA, I use the SA data.

From S&P: Pace of Decline in Home Prices Moderates as the First Quarter of 2012 Ends, According to the S&P/Case-Shiller Home Price Indices

Data through March 2012, released today by S&P Indices for its S&P/CaseShiller Home Price Indices … showed that all three headline composites ended the first quarter of 2012 at new post-crisis lows. The national composite fell by 2.0% in the first quarter of 2012 and was down 1.9% versus the first quarter of 2011. The 10- and 20-City Composites posted respective annual returns of -2.8% and -2.6% in March 2012. Month-over-month, their changes were minimal; average home prices in the 10-City Composite fell by 0.1% compared to February and the 20-City remained basically unchanged in March over February. However, with these latest data, all three composites still posted their lowest levels since the housing crisis began in mid-2006.

“While there has been improvement in some regions, housing prices have not turned,” says David M. Blitzer, Chairman of the Index Committee at S&P Indices. “This month’s report saw all three composites and five cities hit new lows. However, with last month’s report nine cities hit new lows. Further, about half as many cities, seven, experienced falling prices this month compared to 16 last time.”

Case-Shiller House Prices Indices

Click on graph for larger image.

The first graph shows the nominal seasonally adjusted Composite 10 and Composite 20 indices (the Composite 20 was started in January 2000).

The Composite 10 index is off 34.1% from the peak, and up 0.2% in March (SA). The Composite 10 is at a new post bubble low Not Seasonally Adjusted.

The Composite 20 index is off 33.8% from the peak, and up 0.2% (SA) from March. The Composite 20 is also at a new post-bubble low NSA.

Case-Shiller House Prices Indices

The second graph shows the Year over year change in both indices.

The Composite 10 SA is down 2.8% compared to March 2011.

The Composite 20 SA is down 2.6% compared to March 2011. This was a smaller year-over-year decline for both indexes than in February.

The third graph shows the price declines from the peak for each city included in S&P/Case-Shiller indices.

Case-Shiller Price Declines

Prices increased (SA) in 15 of the 20 Case-Shiller cities in March seasonally adjusted (12 cities increased NSA). Prices in Las Vegas are off 61.5% from the peak, and prices in Dallas only off 6.7% from the peak.

The NSA indexes are at new post-bubble lows – and the NSA indexes will continue to decline in March (this report was for the three months ending in February). I’ll have more on prices later

LivingLies Offers Scholarships To New Seminar


What we NOW know about

Loan Securitization And Foreclosure Defense

Presented By


During my national tour 2008-2009 and my local intensive workshops I learned a lot about what people need, about what people want and about what people can do.  In the two years since my last workshop (an intensive 2-day workshop on procedure and evidence) I found many competent professionals and laymen who could benefit from the workshops but could not afford to pay for them.

In a radical departure from prior pricing models, we have slashed the prices of the workshops to a fraction of what was previously charged.  this is despite the fact that we have sharpened our resources, presentations, tactics and strategies.

This of course will result in fewer amenities being offered as part of the workshop since the hotels tend to charge fees that result in tuition costs that are out of reach for many people whom we wish to invite.

As a pilot measure, we have accepted the suggestion that we make an official policy of what was previously an unofficial policy.  We are offering up to 7 scholarships to those who are qualified and unable to afford the cost of tuition.  The decision on these scholarships is within our sole discretion.

We have done our part in reducing the cost of the vital information presented in these workshops.  I have done my part in providing free information on the LivingLies blog for nearly 5 years.  Anyone who applies for a scholarship should do so with the utmost good faith and an offer to pay what they can.  If you are interested and you think you qualify for a scholarship please write to us at: and put into the subject line: Scholarship

Management reserves the right to increase the number of scholarships depending upon the number of registered and pre-paid participants.






First 2011 Workshop: January 29 LA CA 50 Seat Maximum Register NOW!!!


OKAY: Dan Edstrom whom many of you know as our Senior Securitization Analyst and Jon Lindemen, Esq. who has established one of the largest anti-foreclosure mills in the country led a very successful workshop in Sacramento. Answering demand, here is the link for the next one. I’ll be Skyping in and there will be plenty of materials. The price is low and the quality is high. Dan’s chart has gone viral on the internet and has been used in various media including top rated shows (Elliot Spitzer) and others.

CNBC video is on Dan’s website here:

Eliot Spitzer video here:

Just for a HUGE laugh check out this explanation of Quantitative Easing:

The first great workshop of 2011 for attorneys who need the latest in quantum data research for litigation in the mortgage/foreclosure arena. Come join us in beautiful Los Angeles in Southern California for a workshop that will showcase years of meticulous fact-finding and verification of the securitization process as it relates to the mortgage loan industry and its’ possible effects on issues like: Title, Trust, Conveyance, Assignments, TILA, RESPA, Servicing Duties, and much more! Sign up soon…seats are very limited. California MCLE’s are being applied for in a retro-active capacity.


Workshop Agenda
8:30–9:15 Introduction [Martin Andelman]

9:15–10:00 The Securitization Process [Jim Macklin]

10:00–10:15 Morning Break

10:15–11:00 Prospectus, Pooling/Servicing and Trust Agreements [Jim Macklin]

11:00–11:45 Discovery [Jon B. Lindeman, Jr.]

11:45 to 1:00 Lunch

1:00–1:45 The Great Flood: Proprietary Currency, Appraisals and Ratings [Neil Garfield]

1:45–2:30 Application of Law and Motion Practice [Holly Burgess]

2:30–2:45 Afternoon Break

2:45–3:30 Obligee, Obligor, Life Goes On: Credit Enhancements in Action [Daniel Edstrom]

3:30–4:15 The Man Who Wasn’t There or the Invisible Trust [Daniel Edstrom]

4:15–5:00 Closing Q&A

**  Schedule subject to change without notice **


In the homeowner’s war, the battlefield is taking shape, A prime area of engagement is whether the securitization process represents a series of independent transactions (lender’s position) or that all the transactions should be aggregated (BORROWER’S POSITION) and treated as a single transaction.

For reasons explained more fully below, it is our opinion that the transactions should be aggregated into a single transaction under the three tests used by the courts to determine whether a tax event should be considered to have occurred.

Given the fraudulent and deceptive practices used before and at closing, plus the TILA and other violations, the single transaction would create only one possibility for a holder in due course out of all the “holders” in the chain — the investor who actually put up the money that was used to fund the loan.

We predict that there will be instances where the investor actually did know what was going on at the loan origination and loan closing stage and participated because of the temporary boost to the manager’s performance rating in a pension fund, hedge fund or other entity. Certainly these were all, by definition, “qualified investors” who by definition are presumed to have knowledge sophistication and access to information that the borrower did not have and could not have and which the parties intentionally concealed. Thus it is possible that investors, even if they were found, might not be able to sustain their burden of showing their clean hands. If so, they might be doubly challenging for anyone to locate and tie to a particular transaction — the information for which is within the sole care, custody and control of the participants in the chain of securitization.

However, due to pre-selling and fulfilling the requirements of the tranches AFTER investment, it is entirely possible that one investor actually put up the money that was loaned and eventually given to the Seller in a specific purchase transaction or a specific borrower in a specific refi, while another investor received delivery of a certificate of asset backed securities that were unrelated to the trail of money downstream to a particular transaction.

All other parties may have been “holders” but not holders in due course under the UCC, Article 3, since the bad behavior including fraud in the inducement and fraud the execution etc. travels with the instrument unless the holder can prove they were innocent and had no knowledge. Since these parties were in many ways so interrelated, intertwined, and co-owned or operated through common service agents, it is difficult to conceive how they would meet this challenge.

Under the binding commitment test, we look at whether there was a binding commitment to enter into a later agreement. This is determined by looking at the agreements of the parties in “privity” and by the conduct of the parties and their obvious intent. Clearly the intent of the mortgage broker was to initiate the mortgage application with the intent that it would be accepted by an originating lender, knowing that the loan was either pre-sold, or would be sold on the application terms, or would be sold after the loan documents themselves.

The very existence of “selling forward” presumes securitization and the existence of one or more investors at the other end of the chain, who probably were not told that they were buying loans that did not yet exist. In fact, it appears at least in some cases, that these investors were mislead in much the same way as the borrowers were down line. Many report, and some lawsuits filed by State and County authorities assert that ABS certificates were sold under the guise of securities that were ultra-short term, could not fluctuate in value and could be liquidated at par at weekly auction. See New York State Attorney General Andrew Cuomo and related suits.

Even where the loans were completed, the description of them was at variance with reality but the intent to convey and pledge an interest in the mortgage and note is clear from the behavior of the parties.
Dropping the underwriting and appraisal standards in order to satisfy the insatiable appetite of Wall Street for paper, regardless of how worthless it was, is also a clear indication that there was a commitment intended to be fulfilled. The behavior of the “lender” in creating high risk loans and masquerading them otherwise surely indicates that the “lender” did not perceive itself at risk, thus implying a continuing transaction in the chain wherein a third party would receive the risk.

The payment of 2.5% premium over the total amount of the mortgage, instead of the usual practice of discounting loans, together with the accounting treatment where these transactions were kept “off balance sheet” is a clear indication that they were providing a service in chain that was leading upward to investment bankers and investors.

Under the end result test the case gets even easier. The investor put up the money and the borrower signed the documents. Under the investor deal, it was backed by the borrowers’ signatures and under the loan documents, it was based on money that came from the investor.

Under the interdependence test the argument is complete. There would be no reason for any of the actions of any of the parties in the chain but for the investor purchasing securities with money that would be used for the loan. Nor would there have been any loan without the money from the investor. Had the investor funds not been the source, the underwriting, appraisal and closing standards would have complied with industry regulations and expectations.


The step transaction doctrine is a rule of substance over form that treats a series of formally separate but related steps as a single transaction if the steps are in substance integrated, interdependent, and focused toward a particular result. Penrod v. Commissioner, 88 T.C. 1415, 1428 (1987). Because the Tax Court has applied the step transaction doctrine even where it did not find a sham transaction, this doctrine should be considered in addition to the economic substance argument discussed above. See Packard v. Commissioner, 85 T.C. 397 (1985).

In characterizing the appropriate tax treatment of the end result, the doctrine combines steps; however it does not create new steps, or recharacterize the actual transactions into hypothetical ones. Greene v. United States, 13 F.3d 577, 583 (2nd Cir. 1994); Esmark v. Commissioner, 90 T.C. 171, 195-200 (1988), aff’d per curiam, 886 F.2d 1318 (7th Cir. 1989).

Some lease stripping transactions may lend themselves to being collapsed. If so, the question is whether the transitory steps added anything of substance or were nothing more than intermediate devices used to enable the subsidiary corporation to acquire the lease property stripped of its future income, leaving the remaining rental expense and depreciation deductions to be used to offset other income. See Helvering v. Alabama Asphaltic Limestone Co., 315 U.S. 179, 184-185 (1942).

Courts have developed three tests to determine when separate steps should be integrated. The most limited is the “binding commitment” test. If, when the first transaction was entered into, there was a binding commitment to undertake the later transaction, the transactions are aggregated. Commissioner v. Gordon, 391 U.S. 83 (1968); Penrod, 88 T.C. at 1429. If, however, there was a moment in the series of transactions during which the parties were not under a binding obligation, the steps cannot be integrated using the binding commitment test, regardless of the parties’ intent.

Under the “end result” test, if a series of formally separate steps are prearranged parts of a single transaction intended from the outset to achieve the final result, the transactions are combined. Penrod, 88 T.C. at 1429. This test relies on the parties’ intent at the time of the transactions, which can be derived from the actions surrounding the transactions. For example, a short time interval suggests the intervening transactions were transitory and tax-motivated. A short time interval, however, is not dispositive.

A third test is the “interdependence” test, which considers whether the steps are so interdependent that the legal relations created by one transaction would have been fruitless without completing the series of transactions. Greene, 13 F.3d at 584; Penrod, 88 T.C. at 1430. One way to show interdependence is to show that certain steps would not have been taken in the absence of the other steps. Steps generally have independent significance if they were undertaken for valid business reasons.

In this transaction, the nature of B and C’s involvement may support the conclusion that steps involving B and C should be eliminated from the transaction. In this event, D could be required to recognize the accelerated income arising from the purported sale of the rent stream to the bank. Therefore, through the consolidated return, E would recognize the income, and thereby match the income with the deductions.

The “step transaction doctrine,” under which “interrelated yet formally distinct steps in an integrated transaction may not be considered independently of the overall transaction,” forms a vital part of our tax law.

The scope of this extra-statutory “doctrine” in particular cases can be quite uncertain; nevertheless, the parameters of its application in some transactional forms have become well-accepted and, in those cases, some certainty has been attained by taxpayers and the Internal Revenue Service (“IRS”) regarding which individual steps of a “larger” transaction would and would not be granted independent significance for tax purposes. In Revenue Ruling 2001-46 (October 15, 2001), however, the IRS arguably changed its approach to analyzing one common form of corporate asset acquisition, described below, under the step transaction doctrine.

An acquiring corporation (“X”) wishing to effect an acquisition of the assets of a widely-held target corporation (“T”) may form a wholly owned subsidiary (“Y”). Pursuant to an overall “plan,” Y will merge into T, with the shareholders of T tendering their T stock in exchange for cash, stock, or securities of X (or some combination thereof), following which T will merge into X.

Under longstanding guidance from the IRS, the “transitory steps” of the formation of Y and its merger into T were ignored; these transactions in which X became, at least momentarily, the sole shareholder of T were treated as an acquisition of T stock by X directly from the shareholders of T. By contrast, in analyzing the consequences of that “direct acquisition” of stock, the subsequent “upstream” merger of T into X was treated as a separate transaction, rather than as part of an overall “plan.”

The effect of this analysis was to permit, in those cases in which the portion of the consideration received by the shareholders of T which did not consist of stock in X was sufficiently preponderant, treatment of the acquisition as a “qualified stock purchase” and the making by X of an election under section 338 of the Internal Revenue Code (“Code”) to “step-up” the basis of T’s assets to X’s acquisition cost.

In Rev. Rul. 2001-46, however, the IRS held that all the steps described above, including the merger of T into X, would be treated as a single transaction, which could then be treated a statutory merger of T into X, if, under the circumstances, an actual merger of T into X would have qualified as a nontaxable reorganization under Code section 368(a)(1)(A).

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