How “servicer advances” advance the false premise of securitization of loans.

Posted on August 22, 2022 by Neil Garfield

Since the times of ancient Greece and even before that, it has been a commonly used statement that before discussion of an issue each party should precisely define their terms. The obvious conclusion has been that without agreed definitions, it is highly probable that each side is talking about something different and making no point in the debate. Every generation since then has agreed with that premise.

This is exactly what is happening in the world of finance. Wall Street has its own definitions that are never disclosed to the marketplace, consumers, investors, the courts or government regulators.

Each of those entities or people have their own definitions  based upon partial information and mostly blind faith in certain facts that appear to be axiomatically true. even the Federal reserve under the venerated Alan Greenspan made that error.

Wall Street capitalizes on that assymetric information to create a completely illegal place for itself in the economy — that of disguised principal while everyone else thinks they are merely acting in their assigned and proper role as broker.

What I find fascinating is the meaning of securitization of servicing advances. Remember that securitization means, by definition and by law, that an asset or group of assets has been sold for value to multiple investors in exchange for pro rata ownership of those assets. That is the essence of all securitization, including IPOs and existing common stock traded on national or international security exchange services or platforms.

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Analyzing the data published by the firms promoting “securitization,” we see that no “loan” or debt has ever been purchased and sold by a grantor who owned the underlying obligation or a grantee who paid any value. “Securitization” exists — but not for the paper or the money trail (payments and collections). The securities issued are based upon a discretionary unsecured promise to make indefinite payments to buyers of certificates issued by the promisor (securities brokerage firm).
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The terms of payments from securities brokerage firms to investors who purchased certificates have no direct relationship to the terms of payments scheduled from homeowners, who are unaware that the sale of the securities resulting from their signatures greatly exceeds the amount of their transaction, leaving a zero balance due and quite possibly opening the door for a claim for greater compensation as the essential party making the securitization scheme possible. This is discussed at length on my blog.
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The securitization scheme has many subplots. One of them is “servicer advances.” A real servicer advance is one in which the company designated as the servicer receives, processes, accounts, and distributes money to the investors.
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To my knowledge and my proprietary database, there is not one existing scenario that conforms to that description. In plain terms, servicers do not make advances mainly because they do not pay investors — ever. And as I have previously discussed on this blog, they don’t receive payments either.
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So these falsely labeled “servicers” can’t and don’t create data entries reflecting the receipt of payments — but law firms seeking foreclosure argue or imply that they do receive such payments and that their “records” are business records — i.e., records of business conducted by the designated “servicer” who in fact performs no servicing duties.
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The true meaning of a servicer advance under the current schemes of securitization claims is that some of the money paid to investors is labeled as a servicer advance even though the servicer paid nothing and had no duty to pay the investors anything (just like the homeowner had no duty to pay anything because securitization sales had eliminated the debt).
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That duty (to pay investors) was reserved for the promisor, who we will remember is a securities brokerage company that is not a “servicer.” The label “servicer advance” comes from the reports issued (fabricated) by the company designated as “Master Servicer,” showing that some scheduled homeowner payments have not been paid or received. This disregards the obvious premise that there is no payment due.
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The reader should understand that the sole reason investors would be paid regardless of the number or amount of incoming scheduled payments from homeowners is that the securities firm wants to keep selling unregulated securities (certificates). That is the point of the securitization scheme —- to sell securities.
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While incoming payments from homeowners are a partial basis for payments to investors, the promise requires that new securities from new securitization schemes are being sold, producing revenues and the ability to say that certain “tranches” (that contain nothing) are “over-collateralized.”
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The reader should also understand that the fact that homeowners are making payments is the sole factual support — in law and, in fact — that payments are due. In a twisted way, homeowners, through their ignorance of the actual events in which they are key players, are playing an active role in deceiving each other, the government, investors, and the courts.
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The promissory note and mortgage role in this scenario are strictly symbolic. But they do raise the legal presumption that they are valid documents if they are facially valid according to the state statute. Nonetheless, the real reason anyone believes that payments are due when they’re not due is that homeowners make the scheduled payments to anyone who commands them to do so.
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So the fact that the investors received their promised payment from the securities firm that controls the scheme (but does not own anything) is why they call it an “advance. The idea that it came from a “Servicer” is just a fabrication to imply that a third party was involved. But that is enough to raise the facial presumption from the self-serving documentation and claims prepared by the securities firm or on its behalf.
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The prospectus for each securitization plan reveals the plot to claim “servicer advances” by labeling money not paid by homeowners (whether due or not) as a “servicer advance.” The prospectus shows that a fictional reserve account is created by selling certificates containing the investors’ money.
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The prospectus discloses that investors would receive payments from a reserve pool, which is disclosed as a return of the money the investor paid. But that is exactly the money amount used to claim “servicer advances.” The reserve account may actually exist in some securitization schemes. Still, the “reserve account” is completely controlled by the securities brokerage firm that served as the bookrunner underwriter of the securities (certificates offered for sale).
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And the money proceeds of the sale of derivatives (more unregulated securities traded in the shadow banking marketplace) based on the “servicer advances” go to the investment bank, not the servicer. This is yet another way to reduce any hypothetical (fictional) loan account below a zero balance.
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Since the investors have contractually agreed to that arrangement, the fact that it is not an advance and only a return of capital make no legal difference. So they are converting false declarations of homeowner “defaults” into saleable assets, thus creating the foundation for securitization of false claims of “servicer advances.”
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As you can see from the above explanation, the answers to almost every question dealing with securitization of debt are extremely convoluted. In fact, the vice president of asset management for Deutsche Bank described it as “counterintuitive.” The reason that it is counterintuitive is that it doesn’t make any sense, once you break it down into its component pieces.
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The big stumbling block for everyone is the fact that money appears to have been paid to or paid on behalf of the homeowner. It is therefore assumed as axiomatically true that the money reported to have been paid to the homeowner or paid on behalf of the homeowner must have been alone, if for no other reason than the fact that the homeowner executed a note and mortgage and then started paying.
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 But even that apparent reality is not true in most cases. Nearly all existing transactions that have been labeled as mortgage loan transactions are directly or indirectly the product of supplemental securitization schemes.
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That is to say that most of such transactions consist entirely of reports of payments that never occurred. To the extent that such transactions were presented as paying off a previously classified mortgage loan transaction, such reports were entirely untrue in most cases.
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As long as both transactions resulted from a controlled securitization scheme by a common securities brokerage firm acting as the book runner underwriter of certificates offered for sale to investors, there was no need to transfer any money. Our investigation has revealed the absence of any evidence ingesting that any such money was transferred.  This raises a basic defense for homeowners: lack of consideration and breach of the alleged contract.
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 If the homeowner received, for example, $30,000 from the “refinancing” of the property, but signed a note for $500,000, based upon the false premises of a payoff of the previous “mortgage loan,” the consideration for the note and the mortgage is either completely absent or at least mostly absent.
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 What most people do not understand is that the “refinancing” was just an opportunity to start another controlled securitization scheme with the new set of securities being sold without the retirement of the old securitization scheme or those securities.
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PRACTICE NOTE: The presence of servicer advances described in the prospectus and pooling and servicing agreement provides a foundation for the homeowner’s defense based on standing. Since servicer advances have priority in the liquidation of property, the outcome of foreclosure results in payment to the investment bank rather than the designated creditor. Proper discovery and objections at trial are likely to successfully undermine the most basic element of the claim: legal standing.
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There is a false premise implied in “servicer advances” that leads to false conclusions. The false premise is that the money is owed to the “Master Servicer,” and the debt is that of the investors on whose behalf the advances were presumably made. The fact that there were no such advances remains concealed, and the fact that the investors have absolutely no liability to the recipient of the “servicer advances” is also concealed. But this false premise that is always implied if the subject comes up, is usually sufficient to convince a judge that servicer advances are irrelevant. Upon proper scrutiny and analysis, the subject of servicer advances are highly relevant and even dispositive of the entire claim.

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Can you really call it a loan when the money came from a thief?

Posted on February 6, 2017 by Neil Garfield

The banks were not taking risks. They were making risks and profiting from them. Or another way of looking at it is that with their superior knowledge they were neither taking nor making risks; instead they were creating the illusion of risk when the outcome was virtually certain.

Securitization as practiced by Wall Street and residential “mortgage” loans is not just a void assignment. It is a void loan and an enterprise based completely on steering all “loans” into failure and foreclosure.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Perhaps this summary might help some people understand why bad loans were the object of lending instead of good loans. The end result in the process was always to steer everyone into foreclosure.

Don’t use logic and don’t trust anything the banks put on paper. Start with a blank slate — it’s the only way to even start understanding what is happening and what is continuing to happen. The following is what you must keep in mind and returning to for -rereading as you plow through the bank representations. I use names for example only — it’s all the same, with some variations, throughout the 13 banks that were at the center of all this.

  1. The strategic object of the bank plan was to make everyone remote from liability while at the same time being part of multiple transactions — some real and some fictitious. Remote from liability means that the entity won’t be held accountable for its own actions or the actions of other entities that were all part of the scheme.
  2. The goal was simple: take other people’s money and re-characterize it as the banks’ money.
  3. Merrill Lynch approaches institutional investors like pension funds, which are called “stable managed funds.” They have special requirements to undertake the lowest possible risk in every investment. Getting such institutional investors to buy is a signal to the rest of the market that the securities purchased by the stable managed funds must be safe or they wouldn’t have done it.
  4. Merrill Lynch creates a proprietary entity that is neither a subsidiary nor an affiliate because it doesn’t really exist. It is called a REMIC Trust and is portrayed in the prospectus as though it was an independent entity that is under management by a reputable bank acting as Trustee. In order to give the appearance of independence Merrill Lynch hires US Bank to act as Trustee. The Trust is not registered anywhere because it is a common law trust which is only recognized by the laws of the State of New York. US Bank receives a monthly fee for NOT saying that it has no trust duties, and allowing the use of its name in foreclosures.
  5. Merrill Lynch issues a prospectus from the so-called REMIC entity offering the sale of “certificates” to investors who will receive a hybrid “security” that is partly a bond in which interest is due from the Trust to the investor and partly equity (like common stock) in which the owners of the certificates are said to have undivided interests in the assets of the Trust, of which there are none.
  6. The prospectus is a summary of how the securitization will work but it is not subject to SEC regulations because in 1998 an amendment to the securities laws exempted “pass-through” entities from securities regulations is they were backed by mortgage bonds.
  7. Attached to the prospectus is a mortgage loan schedule (MLS). But the body of the prospectus (which few people read) discloses that the MLS is not real and is offered by way of example.
  8. Attached for due diligence review is a copy of the Trust instrument that created the REMIC Trust. It is also called a Pooling and Servicing Agreement to give the illusion that a pool of loans is owned by the Trust and administered by the Trustee, the Master Servicer and other entities who are described as performing different roles.
  9. The PSA does not grant or describe any duties, responsibilities to be performed by US Bank as trustee. Actual control over the Trust assets, if they ever existed, is exercised by the Master Servicer, Merrill Lynch acting through subservicers like Ocwen.
  10. Merrill Lynch procures a triple AAA rating from Moody’s Rating Service, as quasi public entity that grades various securities according to risk assessment. This provides “assurance” to investors that the the REMIC Trust underwritten by Merrill Lynch and sold by a Merrill Lynch affiliate must be safe because Moody’s has always been a reliable rating agency and it is controlled by Federal regulation.
  11. Those institutional investors who actually performed due diligence did not buy the securities.
  12. Most institutional investors were like cattle simply going along with the crowd. And they advanced money for the purported “purchase” of the certificates “issued” by the “REMIC Trust.”
  13. Part of the ratings and part of the investment decision was based upon the fact that the REMIC Trusts would be purchasing loans that had already been seasoned and established as high grade. This was a lie.
  14. For all practical purposes, no REMIC Trust ever bought any loan; and even where the appearance of a purchase was fabricated through documents reflecting a transaction that never occurred, the “purchased” loans were the result of “loan closings” which only happened days before or were fulfilling Agreements in which all such loans were pre-sold — i.e., as early as before even an application for loan had been submitted.
  15. The normal practice required under the securities regulation is that when a company or entity offers securities for sale, the net proceeds of sale go to the issuing entity. This is thought to be axiomatically true on Wall Street. No entity would offer securities that made the entity indebted or owned by others unless they were getting the proceeds of sale of the “securities.”
  16. Merrill Lynch gets the money, sometimes through conduits, that represent proceeds of the sale of the REMIC Trust certificates.
  17. Merrill Lynch does not turn over the proceeds of sale to US Bank as trustee for the Trust. Vague language contained in the PSA reveals that there was an intention to divert or convert the money received from investors to a “dark pool” controlled by Merrill Lynch and not controlled by US Bank or anyone else on behalf of the REMIC Trust.
  18. Merrill Lynch embarks on a nationwide and even world wide sales push to sell complex loan products to homeowners seeking financing. Most of the sales, nearly all, were directed at the loans most likely to fail. This was because Merrill Lynch could create the appearance of compliance with the prospectus and the PSA with respect to the quality of the loan.
  19. More importantly by providing investors with 5% return on their money, Merrill Lynch could lend out 50% of the invested money at 10% and still give the investors the 5% they were expecting (unless the loan did NOT go to foreclosure, in which case the entire balance would be due). The balance due, if any, was taken from the dark pool controlled by Merrill Lynch and consisting entirely of money invested by the institutional investors.
  20. Hence the banks were not taking risks. They were making risks and profiting from them. Or another way of looking at it is that with their superior knowledge they were neither taking nor making risks; instead they were creating the illusion of risk when the outcome was virtually certain.
  21. The use of the name “US Bank, as Trustee” keeps does NOT directly subject US Bank to any liability, knowledge, intention, or anything else, as it was and remains a passive rent-a-name operation in which no loans are ever administered in trust because none were purchased by the Trust, which never got the proceeds of sale of securities and was therefore devoid of any assets or business activity at any time.
  22. The only way for the banks to put a seal of legitimacy on what they were doing — stealing money — was by getting official documents from the court systems approving a foreclosure. Hence every effort was made to push all loans to foreclosure under cover of an illusory modification program in which they occasionally granted real modifications that would qualify as a “workout,” which before the false claims fo securitization of loans, was the industry standard norm.
  23. Thus the foreclosure became extraordinarily important to complete the bank plan. By getting a real facially valid court order or forced sale of the property, the loan could be “legitimately” written off as a failed loan.
  24. The Judgment or Order signed by the Judge and the Clerk deed upon sale at foreclosure auction became a document that (1) was presumptively valid and (b) therefore ratified all the preceding illegal acts.
  25. Thus the worse the loan, the less Merrill Lynch had to lend. The difference between the investment and the amount loaned was sometimes as much as three times the principal due in high risk loans that were covered up and mixed in with what appeared to be conforming loans.
  26. Then Merrill Lynch entered into “private agreements” for sale of the same loans to multiple parties under the guise of a risk management vehicles etc. This accounts for why the notional value of the shadow banking market sky-rocketed to 1 quadrillion dollars when all the fiat money in the world was around $70 trillion — or 7% of the monstrous bubble created in shadow banking. And that is why central banks had no choice but to print money — because all the real money had been siphoned out the economy and into the pockets of the banks and their bankers.
  27. TARP was passed to cover the banks  for their losses due to loan defaults. It quickly became apparent that the banks had no losses from loan defaults because they were never using their own money to originate loans, although they had the ability to make it look like that.
  28. Then TARP was changed to cover the banks for their losses in mortgage bonds and the derivative markets. It quickly became apparent that the banks were not buying mortgage bonds, they were selling them, so they had no such losses there either.
  29. Then TARP was changed again to cover losses from toxic investment vehicles, which would be a reference to what I have described above.
  30. And then to top it off, the Banks convinced our central bankers at the Federal Reserve that they would freeze up credit all over the world unless they received even more money which would allow them to make more loans and ease credit. So the FED purchased mortgage bonds from the non-owning banks to the tune of around $3 Trillion thus far — on top of all the other ill-gotten gains amounting roughly to around 50% of all loans ever originated over the last 20 years.
  31. The claim of losses by the banks was false in all the forms that was represented. There was no easing of credit. And banks have been allowed to conduct foreclosures on loans that violated nearly all lending standards especially including lying about who the creditor is in order to keep everyone “remote” from liability for selling loan products whose central attribute was failure.
  32. Since the certificates issued in the name of the so-called REMIC Trusts were not in fact backed by mortgage loans (EVER) the certificates, the issuers, the underwriters, the master servicers, the trustees et al are NOT qualified for exemption under the 1998 law. The SEC is either asleep on this or has been instructed by three successive presidents to leave the banks alone, which accounts for the failure to jail any of the bankers that essentially committed treason by attacking the economic foundation of our society.

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Bondholders Clash With Ocwen Over Bad Servicing

Posted on January 28, 2015 by Neil Garfield

For Further information please call 954-495-9867 or 520-405-1688

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see http://dealbook.nytimes.com/2015/01/26/ocwen-and-bondholders-clash-over-mortgage-services/?_r=0

And if you are in the mood to drill into Ocwen’s Business, see http://www.sec.gov/Archives/edgar/data/1513161/000119312513024292/d474092dex991.htm

Every once in a while you get a peek at what is really happening behind the scenes. The view from here is startling sometimes even to me. Here we have theater of the absurd. Ocwen is accusing the bondholders of forcing Ocwen to foreclose rather than modify or settle claims regarding the bogus mortgages and the bondholders are accusing Ocwen of bad servicing practices.

Absurdity #1: Bondholders don’t have any say about when or how the mortgages or notes are enforced and don’t know whether the debts followed the notes or mortgages. So Ocwen’s claim is blatantly false in its attempt to point the finger elsewhere. But this is done with probable tacit agreement of all parties concerned.

Absurdity #2: The bond holders still have not figured out or they are ignoring the fact that the loans never made it into the trusts and thus their position as bondholders has nothing whatever to do with the loans.

Absurdity #3: This may have been leaked intentionally to give support to the illusion that the notes and mortgages were valid, not bogus. It’s the Kansas City shuffle — look right while everything falls left.

Absurdity #4: Ocwen is not the Master Servicer — ever. The Master Servicer is the underwriter or some entity controlled by the underwriter of the mortgage bonds. It is the underwriter/Master Servicer who calls the shots, not Ocwen, and the bondholders know that. So why are they accusing Ocwen of something?

Absurdity #5: Ocwen’s position as servicer is governed by the trust document — pooling and servicing agreement for a trust that never actually purchased or received or accepted delivery of the debt, note or mortgage. Thus Ocwen’s authority is derived from an instrument that has no relevance to the loans. If the loans never made it into the trusts, then the PSA has no bearing on the alleged loans. Hence Ocwen is a volunteer with at best apparent authority but no real authority. This is why you are seeing courts order disgorgement of all money paid by the borrower — i.e., forcing the servicer to pay all money received from borrower back to the borrower.

Absurdity #6: The Emperor (the investors) has no clothes. [see one of earliest pieces 7 years ago). Like the old fable, the investors are sitting out there buck naked.  Their claim is against the underwriter who never funded the trust in the IPO offering of the mortgage bonds. Other than that they have nothing in the way of a claim, much less a secured claim, in the loans made to the borrowers — even though it was their money that funded the origination and/or acquisition of loans. Since the federal and state disclosure laws were violated as a pattern of conduct, the loans were predatory per se (REG Z), even though the investors neither knew about the loans nor consented to them. Their best claim is against the underwriters/master servicers; but they probably have a partial claim against the borrowers for unjust enrichment, but it would not be a secured claim that could be foreclosed.

Filed under: foreclosure | Tagged: , , , , , , | 40 Comments »

Prommis Holdings LLC Files for Bankruptcy Protection

Posted on March 21, 2013 by Neil Garfield

I have not followed Prommis Holdings closely but I can recall that some people have sent in reports that Prommis was the named creditor in some foreclosure proceedings. The reason I am posting this is because the bankruptcy filings including the statement of affairs will probably give some important clues to the real money story on those mortgages where Prommis was involved. I’m sure you will not find the loan receivables account that are mysteriously absent from virtually all such filings and FDIC resolutions.

And remember that when the petition for bankruptcy is filed it must include a look-back period during which any assignments or transfers must be disclosed. So there is a very narrow window in which the petitioner could even claim ownership of the loan with or without any fabricated evidence.

US Trustees in bankruptcy are making a mistake when they do not pay attention to alleged assignments executed AFTER the petition was filed and sometimes AFTER the plan is confirmed or the company is liquidated. Such an assignment would indicate that either the petitioner lied about its assets or was committing fraud in executing the assignment — particularly without the US Trustee’s consent and joinder.

The Courts are making the same mistake if they accept such an assignment that does not have US Trustees consent and joinder, besides the usual mistake of not recognizing that the petitioner never had a stake in the loan to begin with. The same logic applies to receivership created by court order, the FDIC or any other “estate” created.

That would indicate, as I have been saying all along, that the origination and transfer paperwork is nothing more than paper and tells the story of fictitious transactions, to wit: that someone “bought” the loan. Upon examination of the money trail and demanding wire transfer receipts or canceled checks it is doubtful that you find any consideration paid for any transfer and in most cases you won’t find any consideration for even the origination of the loan.

Think of it this way: if you were the investor who advanced money to the underwriter (investment bank) who then sent the investor’s funds down to a closing agent to pay for the loan, whose name would you want to be on the note and mortgage? Who is the creditor? YOU! But that isn’t what happened and there is nothing the banks can do and no amount of paperwork can cover up the fact that there was consideration transferred exactly once in the origination and transfer of the loans — when the investors put up the money which the investment bank acting as intermediary sent to the closing agent.

The fact that the closing documents and transfer documents do not show the investors as the creditors is incompatible with the realities of the money trail. Thus the documents were fabricated and any signature procured by the parties from the alleged borrower was procured by fraud and deceit — causing an immediate cloud on title.

At the end of the day, the intermediaries must answer one simple question: why didn’t you put the investors’ name or the trust name on the note and mortgage or a “valid” assignment when the loan was made and within the 90 day window prescribed by the REMIC statutes of the Internal Revenue Code and the Pooling and Servicing Agreement? Nobody would want or allow someone else’s name on the note or mortgage that they funded. So why did it happen? The answer must be that the intermediaries were all breaching every conceivable duty to the investors and the borrowers in their quest for higher profits by claiming the loans to be owned by the intermediaries, most of whom were not even handling the money as a conduit.

By creating the illusion of ownership, these intermediaries diverted insurance mitigation payments from investors and diverted credit default swap mitigation payments from the investors. These intermediaries owe the investors AND the borrowers the money they took as undisclosed compensation that was unjustly diverted, with the risk of loss being left solely on the investors and the borrowers.

That is an account payable to the investor which means that the accounts receivables they have are off-set and should be off-set by actual payment of those fees. If they fail to get that money it is not any fault of the borrower. The off-set to the receivables from the borrowers caused by the receivables from the intermediaries for loss mitigation payments reduces the balance due from the borrower by simple arithmetic. No “forgiveness” is necessary. And THAT is why it is so important to focus almost exclusively on the actual trail of money — who paid what to whom and when and how much.

And all of that means that the notice of default, notice of sale, foreclosure lawsuit, and demand for payments are all wrong. This is not just a technical issue — it runs to the heart of the false securitization scheme that covered over the PONZI scheme cooked up on Wall Street. The consensus on this has been skewed by the failure of the Justice department to act; but Holder explained that saying that it was a conscious decision not to prosecute because of the damaging effects on the economy if the country’s main banks were all found guilty of criminal fraud.

You can’t do anything about the Holder’s decision to prosecute but that doesn’t mean that the facts, strategy and logic presented here cannot be used to gain traction. Just keep your eye on the ball and start with the money trail and show what documents SHOULD have been produced and what they SHOULD have said and then compare it with what WAS produced and you’ll have defeated the foreclosure. This is done through discovery and the presumptions that arise when a party refuses to comply. They are not going to admit anytime soon that what I have said in this article is true. But the Judges are not stupid. If you show a clear path to the Judge that supports your discovery demands, coupled with your denial of all essential elements of the foreclosure, and you persist relentlessly, you are going to get traction.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , | 70 Comments »

DELAWARE TO MERS: NOT IN OUR STATE!

Posted on October 28, 2011 by Neil Garfield

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Delaware sues MERS, claims mortgage deception

Posted on Stop Foreclosure Fraud

Posted on27 October 2011.

Delaware sues MERS, claims mortgage deceptionSome saw this coming in the last few weeks. Now all HELL is about to Break Loose.

This is one of the States I mentioned MERS has to watch…why? Because the “Co.” originated here & under Laws of Delaware…following? [see below].

Also look at the date this TM patent below was signed 3-4 years after MERS’ 1999 date via VP W. Hultman’s secretary Kathy McKnight [PDF link to depo pages 29-39].

New York…next!

Delaware Online-

Delaware joined what is becoming a growing legal battle against the mortgage industry today, charging in a Chancery Court suit that consumers facing foreclosure were purposely misled and deceived by the company that supposedly kept track of their loans’ ownership.

By operating a shadowy and frequently inaccurate private database that obscured the mortgages’ true owners, Merscorp made it difficult for hundreds of Delaware homeowners to fight foreclosure actions in court or negotiate new terms on their loans, the suit filed by the Attorney General’s Office said.

[DELAWARE ONLINE]

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Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 75 Comments »

REMIC EVASION of TAXES AND FRAUD

Posted on July 6, 2010 by Neil Garfield

I like this post from a reader in Colorado. Besides knowing what he is talking about, he raises some good issues. For example the original issue discount. Normally it is the fee for the underwriter. But this is a cover for a fee on steroids. They took money from the investor and then “bought” (without any paperwork conveying legal title) a bunch of loans that would produce the receivable income that the investor was looking for.

So let’s look at receivable income for a second and you’ll understand where the real money was made and why I call it an undisclosed tier 2 Yield Spread Premium due back to the borrower, or apportionable between the borrower and the investor. Receivable income consists or a complex maze designed to keep prying eyes from understanding what theya re looking at. But it isn’t really that hard if you take a few hours (or months) to really analyze it.

Under some twisted theory, most foreclosures are proceeding under the assumption that the receivable issue doesn’t matter. The fact that the principal balance of most loans were, if properly accounted for, paid off 10 times over, seems not to matter to Judges or even lawyers. “You borrowed the money didn’t you. How can you expect to get away with this?” A loaded question if I ever heard one. The borrower was a vehicle for the commission of a simple common law and statutory fraud. They lied to him and now they are trying to steal his house — the same way they lied to the investor and stole all the money.

  1. Receivable income is the income the investor expects. So for example if the deal is 7% and the investor puts up $1 million the investor is expecting $70,000 per year in receivable income PLUS of course the principal investment (which we all know never happened).

  2. Receivable income from loans is nominal — i.e., in name only. So if you have a $500,000 loan to a borrower who has an income of $12,000 per year, and the interest rate is stated as 16%, then the nominal receivable income is $80,000 per year, which everyone knows is a lie.

  3. The Yield Spread premium is achieved exactly that way. The investment banker takes $1,000,000 from an investor and then buys a mortgage with a nominal income of $80,000 which would be enough to pay the investor the annual receivable income the investor expects, plus fees for servicing the loan. So in our little example here, the investment banker only had to commit $500,000 to the borrower even though he took $1 million from the investor. His yield spread premium fee is therefore the same amount as the loan itself.  Would the investor have parted with the money if the investor was told the truth? Certainly not. Would the borrower sign up for a deal where he was sure to be thrown out on the street? Certainly not. In legal lingo, we call that fraud. And it never could have happened without defrauding BOTH the investor and the borrower.

  4. Then you have the actual receivable income which is the sum of all payments made on the pool, reduced by fees for servicing and other forms of chicanery. As more and more people default, the ACTUAL receivables go down, but the servicing fees stay the same or even increase, since the servicer is entitled to a higher fee for servicing a non-performing loan. You might ask where the servicer gets its money if the borrower isn’t paying. The answer is that the servicer is getting paid out of the proceeds of payments made by OTHER borrowers. In the end most of the ACTUAL income was eaten up by these service fees from the various securitization participants.

  5. Then you have a “credit event.” In these nutty deals a credit event is declared by investment banker who then makes a claim against insurance or counter-parties in credit default swaps, or buys (through the Master Servicer) the good loans (for repackaging and sale). The beauty of this is that upon declaration of a decrease in value of the pool, the underwriter gets to collect money on a bet that the underwriter would, acting in its own self interest, declare a write down of the pool and collect the money. Where did the money come from to pay for all these credit enhancements, insurance, credit default swaps, etc? ANSWER: From the original transaction wherein the investor put up $1 million and the investment banker only funded $500,000 (i.e., the undisclosed tier 2 yield spread premium).

  6. Under the terms of the securitization documents it might appear that the investor is entitled to be paid from third party payments. Both equitably, since the investors put up the money and legally, since that was the deal, they should have been paid. But they were not. So the third party payments are another expected receivable that materialized but was not paid to the creditor of the mortgage loan by the agents for the creditor. In other words, his bookkeepers stole the money.

Very good info on the securitization structure and thought provoking for sure. Could you explain the significance of the Original Issue Discount reporting for REMICs and how it applies to securitization?

It seems to me that the REMIC exemptions were to evade billions in taxes for the gain on sale of the loans to the static pool which never actually happened per the requirements for true sales. Such reporting was handled in the yearly publication 938 from the IRS. A review of this reporting history reveals some very interesting aspects that raise some questions.

Here are the years 2007, 2008 and 2009:

2009 reported in 2010
http://www.irs.gov/pub/irs-pdf/p938.pdf

2008? is missing and reverts to the 2009 file?? Don’t believe me. try it.
http://www.irs.gov/pub/irs-prior/p938–2009.pdf

2007 reported in 2008
http://www.irs.gov/pub/irs-prior/p938–2007.pdf

A review of 2007 shows reporting of numerous securitization trusts owned by varying entities, 08 is obviously missing and concealed, and 2009 shows that most reporting is now by Fannie/Freddie/Ginnie, JP Morgan, CIti, BofA and a few new entities like the Jeffries trusts etc.

Would this be simply reporting that no discount is now being applied and all the losses or discount is credited to the GSEs and big banks, or does it mean the trusts no longer exist and the ones not paid with swaps are being resecuritized?

Some of the tell tale signs of some issues with the REMIC status especially in the WAMU loans is a 10.3 Billion dollar tax claim by the IRS in the BK. It is further that the balance of the entire loan portfolio of WAMU transferred to JPM for zero consideration. A total of 191 Billion of loans transferred proven by an FDIC accounting should be enough to challenge legal standing in any event.

I believe that all of the securitized loans were charged back to WAMU’s balance sheet prior to the sale of the assets and transferred to JPM along with the derivative contracts for each and every one of them. [EDITOR’S NOTE: PRECISELY CORRECT]

The derivatives seem to be accounted for in a separate mention in the balance sheet implying that the zeroing of the loans is a separate act from the derivatives. Add to that the IRS claim which can be attributed to the gain on sale clawback from the voiding of the REMIC status and things seem to fit.

I would agree the free house claim is a tough river to row but the unjust enrichment by allowing 191 billion in loans to be collected with no Article III standing not only should trump that but additionally forever strip them of standing to ever enforce the contract.

The collection is Federal Racketeering at the highest level, money laundering and antitrust. Where are the tobacco litigators that want to handle this issue for the homeowners? How about an attorney with political aspirations that would surely gain support for saving millions of homes for this one simple case?

Documents and more info on the FDIC litigation fund extended to JPM to fight consumers can be found here:

http://www.wamuloanfraud.com

You can also find my open letter to Sheila Bair asking her to personally respond to my request here:

http://4closurefraud.org/2010/06/09/an-open-letter-to-sheila-bair-of-the-federal-deposit-insurance-corporation-fdic-re-foreclosures/

Any insight into the REMIC and Pub. 938 info is certainly appreciated

Filed under: bubble, CASES, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure, foreclosure mill, foreign relations, GTC | Honor, HERS, investment banking, Investor, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, trustee | Tagged: , , , , , , , , , , , , , , , | 3 Comments »

Intricate Cloaks for Securitized Transaction – Wells Fargo and Thornburg

Posted on March 15, 2010 by Neil Garfield

Editor’s Note: Here is where the foreclosure or mortgage analysts get separated — the ones who understand the process of securitization and the ones who don’t. I received this from a pro se litigant in a case where Wells Fargo identified itself as the creditor/lender (as usual, not true). In fact Wells denied that the loan was securitized. In some corner of a document the homeowner noticed a reference that looked like it had something to do with securitization. It did. And after some research on the internet came up with a little known entity (Thornburg) that served in multiple capacities, possibly even as unregistered and unlicensed underwriter of securities, although it is impossible to know for sure.

The recitals in this document, the date of it, and the order in which it was signed relative to other events and other documents is what makes this document important. It is doubtful that any of the parties were properly identified or even had any authroity to execute the document and even if it was executed with the proper “formalities” it the document actually changed anything.

What it reveals is another desperate attempt to cover tracks in the sand.

RECONSTITUTED SERVICING AGREEMENT see Thornburg-Wells fargo Reconstituted Service Agreement

THIS RECONSTITUTED SERVICING AGREEMENT (this “Agreement”), entered
into as of the 1st day of August, 2006, by and among THORNBURG MORTGAGE HOME LOANS, INC., a Delaware corporation (“Thornburg” or the “Seller”), WELLS FARGO BANK, N.A., as servicer (the “Servicer”) and THORNBURG MORTGAGE SECURITIES TRUST 2006-5 (the “Trust”), and acknowledged by WELLS FARGO BANK, N.A., as master servicer (the “Master Servicer”), recites and provides as follows:

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , | 31 Comments »

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