Banks Trying to Get Bill Through Congress Protecting MERS

Editor’s Comment: It is no small wonder that the banks are scared. After all they created MERS and they control MERS and many of them own MERS. The Washington Supreme Court ruling leaves little doubt that MERS is a sham, leaving even less doubt that an industry is sprouting up for wrongful foreclosure in which trillions of dollars are at stake.

The mortgages that were used for foreclosure are, in my opinion, and in the opinion of a growing number of courts and lawyers and regulatory agencies around the country, State and Federal, were fatally defective and that leads to the conclusion that (1) the foreclosures can be overturned and (2) millions of dollars in damages might be payable to those homeowners who were foreclosed and evicted from homes they legally owned.

But the problem for the megabanks is even worse than that. If the mortgages were defective (deeds of trust in some states), then the money collected by the banks from insurance, credit default swaps, federal bailouts and buyouts and other hedge instruments pose an enormous liability to the large banks that promulgated this scam known as securitization where the last thing they had in mind was securitization. In many cases, the loans were effectively sold multiple times thus creating a liability not only to the borrower that illegally had his home seized but a geometrically higher liability to other financial institutions and governments and investors for selling them toxic waste.

There is a reason that that the bailout is measured at $17 trillion and it isn’t because those are losses caused by defaults in mortgages which appear to total less than 10% of that amount. The total of ALL mortgages during that period that are subject to claims of securitization (false claims, in my opinion) was only $13 trillion. So why was the $17 trillion bailout $4 trillion more than all the mortgages put together, most of which are current on their payments?

The reason is that some bets went well, in which case the banks kept the profits and didn’t tell the investors about it even though it was investor with which money they were betting.

If the loan went sour, or the Master Servicer, in its own interest, declared that the value of the pool had been diminished by a higher than expected default rate, then the insurance contract and credit default contract REQUIRED payment even though most of the loans were intact. Of course we now know that the loans were probably never in the pools anyway.

The bets that ended up in losses were tossed over the fence at the Federal Government and the bets that were “good” ended up with the insurers (AIG, AMBAC) having to pay out more money than they were worth. Enter the Federal Government again to make up the difference where the banks collected 100 cents on the dollar, didn’t tell the investors and declared the loans in default anyway and then proceeded to foreclose.

The banks’ answer to this knotty problem is predictable. Overturn the Washington Supreme Court case and others like it appellate and trial courts around the country by having Congress declare that the MERS transactions were valid. The biggest hurdle they must overcome is not a paperwork problem —- it is a money problem.

In many if not most cases, neither MERS nor the named payee on the note nor the “lender” identified on the note and mortgage had loaned any money at all. Even the banks are saying that the loans are owned by the “Trusts” but it now appears as though the trusts were never funded by either money or loans and that there were no bank accounts or any other accounts for those pools.

That leaves nothing but nominees for unidentified parties in all the blank spaces on the note and mortgage, whose terms were different than the payback provisions promised to the investor lenders. And THAT means that much of the assets carried on the books of the banks are simply worthless and non-existent AND that there is a liability associated with those transactions that is geometrically higher than the false assets that the banks are reporting.

So the question comes down to this: will Congress try to save MERS? (I.e., will they try to save the banks again with a legal bailout?). Will the effort even be constitutional since it deals with property required to be governed under States’ rights under the constitution or are we going to forget the Constitution and save the banks at all costs?

When you cast your ballot in November, remember to look at the candidates you are considering. If they are aligned with the banks, we can expect slashed pension benefits next year along with a whole new round of housing and economic decline.

mers-is-dead-can-be-sued-for-fraud-wa-supreme-court.html

BOA’s Recontrust Thrown Out of Washington State as Substitute Trustee

Editor’s Note: Same caveat as before — this consent ruling, although potentially persuasive to other courts is not evidence of the violations in and of itself, but provides a good pep talk to attorneys out there who are too timid to make statements about the treachery in the acts of the Bank of America, and all others who use the ‘substitution of trustee” as a vehicle to foreclose on properties.

Second caveat: this does not mean that the mortgages are invalid which is a separate subject. Nor does it necessarily mean that Joe Banker (see prior post) has problems when it comes to identifying the creditor and establishing the status of the loan receivable account (primarily because no such account exists, except at the subservicer level which is at best only a partial snapshot of the entire list of transactions concerning each loan subject to claims of securitization.

What it DOES mean is that Recontrust is not doing business in Washington anymore and can’t come back. If it wants to come back, and alternatively one might infer if ANYONE wants to be a substitute trustee or foreclosing trustee, they must meet the following requirements:

1. Maintain physical presence in the State with adequate staffing and knowledgeable people who can actually answer substantive questions about the loan status or so-called default status.

2. The office must be authorized to accept payments to reinstate a mortgage.

3. The office must be authorized in all respects to postpone, reschedule or cancel the foreclosures (this taking out the layers of corporate bureaucracy) which means that someone with real decision-making authority must be physically present in the office during normal business hours.

4. Discloses the contact information for the State office to the borrower.

5. Identifies the actual creditor with a loan receivable that is due and the same information for the authorized servicer for that loan.

6. Provides proof that the “note holder” actually has an enforceable interest. That means they must show and prove the existence of the actual loan receivable and the person or entity to whom the obligation is owed.

7. Applies fees and costs only as allowed by law.

8. Acts in good faith toward the borrower. “For purposes of this Consent Judgment only, it is a breach of good faith to enter into an agreement with a note owner, beneficiary or its agent wherein Defendant agrees to stop or postpone a foreclosure only when approved by the note owner, beneficiary or agent, or to defy solely to a single party when acting as a trustee.” [That is because it is a breach of the statutory duties of the trustee to bind itself contractually to following the orders of the beneficiary only and not include the duties of good faith toward the Trustor].

9. They cannot act as both trustee and beneficiary. [Implication: if the Trustee that is substituted is owned or controlled, contractually or otherwise, by the beneficiary they may not serve as Trustee.]

10. Trustees cannot only refer to defaults in fact, not as reported. What this means in terms the degree of due diligence required is yet to be determined.

see WA-Recontrust Consent Decree

Sen. Cantwell demands DOJ investigate foreclosure fraud before a settlement

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By Matt Browner Hamlin, http://www.americablog.com

Senator Maria Cantwell (D-WA) issued a blistering letter calling on the Department of Justice to investigate big banks for fraudulent foreclosure practices before agreeing to any settlement deal which would grant them immunity for these practices. In her letter to Attorney General Eric Holder, Cantwell writes:

I am concerned that recently reported settlement proposals will effectively absolve these financial institutions of substantial civil and criminal liability in one of the largest alleged fraud schemes during the financial crisis. Specifically, I am concerned that the proposed settlement includes a release from liability that may be far too sweeping, does not adequately compensate victims, does not require enough of banks to reform the system that led to the crisis in the first place, and is being made before all the facts are known and without the backing of a full inquiry into the size and scope of the alleged fraud.

Without a thorough investigation, it is impossible to truly estimate just how pervasive the defects in the foreclosure and securitization process are. Continued reports of wrongful foreclosures, forged documents, and an inability of servicers and banks to prove chain of title and the legal right to foreclosure, raises the very alarming possibility that these defects were endemic to the mortgage servicing industry across the country. The sheer magnitude of the potential fallout from these defects demands that we undertake a full investigation to uncover the true scope of wrongdoing before providing blanket immunity to the perpetrators.

I am also concerned that reports of a settlement in the range of $20 billion, as recently reported, may not adequately compensate the victims of the foreclosure crisis. As a result of the pump-and-dump scheme perpetrated by the nation’s largest banks that inflated – and burst – the housing bubble, an estimated 14 million Americans are underwater, owing $700 billion more on their homes than those homes are worth. A $20 billion settlement is woefully inadequate to compensate the wrongfully evicted or homeowners struggling to stay in their homes. Much more should be required of banks to provide meaningful help underwater homeowners and compensate foreclosure fraud victims.

Boom goes the dynamite.

Washington is an important state in the context of the foreclosure crisis and the ongoing settlement talks between AGs and banks. Washington’s Republican Attorney General Rob McKenna is running for governor and has long been viewed as being a potential get for people trying to stop a bad deal. McKenna’s Democratic opponent in the gubernatorial race is Congressman Jay Inslee. Inslee has made stopping a bad settlement a major campaign issue and is collecting signatures on a petition against the rumored deal. Inslee is trying to wedge McKenna – either by making him look like a tool of the banksters or forcing him to do the right thing and help his constituents who were defrauded of their homes by the banks. It looks like Cantwell is aiding Inslee in that squeeze play, but the politics are really secondary to the potential outcome. Simultaneously, we are seeing another major politician standing up to the banks and demanding a halt to the consideration of a bad settlement deal. This is a very good thing.

CLASS ACTION FORM: HAMP and UNJUST ENRICHMENT

class_action_against_boa1_kahlo HAMP

Editor’s Note: Excellent Pleading on HAMP, TARP and related matters. They also bring up unjust enrichment which might also be applicable to the receipt and non-disclosure of third party payments.

Good facts on illicit “modification” practices and the reasons why the modifications usually don’t become permanent.

KAMIE KAHLO and DANIEL KAHLO, on
behalf of themselves and all others similarly
situated,
Plaintiffs,
v.
BANK OF AMERICA, N.A. and BAC

HOME LOANS SERVICING, LP,
Defendants

HAGENS BERMAN SOBOL SHAPIRO LLP
By: s/ Steve W. Berman
Steve W. Berman, WSBA #12536
Ari Y. Brown, WSBA #29570
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101
(206) 623-7292
steve@hbsslaw.com
ari@hbsslaw.com

TELL ME YOUR MORTGAGE NIGHTMARE STORIES

I WANT YOUR STORIES!!!
HERE IS WHAT I JUST RECEIVED FROM A LAWYER I KNOW —
This one who I have been corresponding with sent me an e-mail describing the events of her “closing” where she was told by the Countrywide loan officer that her dad’s life estate did not need to go on the mortgage, and the “closing” took place at a little table in a Barnes & Noble bookstore with a line of people waiting to “close” in a frantic fashion.
 
Jesus! Assembly-line closings in bookstores, forged signatures on loan documents, etc. all obviously railroaded through to get the “bundle” together for resale to Bear Stearns or whoever. This is beyond ugly.
I had a conversation with guy in California yesterday who had been forcibly evicted by the Sheriff after a “non-judicial” sale resulting from a mortgage financing that had more holes in it than the board in back of the paper target at the firing range.
I spoke to another fellow who did everything right in the State of Washington, made his payments, stayed in touch with the lender, and yet his house was also sold at “non-judicial sale” and he is about to evicted after his mortgage broker stole $5,000 from the closing (claiming the lender wanted a credit card paid off), after the lender took $7,000 from him to reinstate his mortgage, and after he sought relief in all the right ways from State and Federal Courts.  
I WANT YOUR STORIES WHICH YOU CAN EITHER PUT IN THE COMMENT SECTION BELOW OR EMAIL TO ME.
HELP ME SHINE A BRIGHT LIGHT ON THE RED-LINING THE TILA VIOLATIONS, THE HARD CORE PREDATORY PRACTICES OF LENDERS WHO HAVE UNDERMINED THEIR BORROWERS AND THE INNOCENT NEIGHBORS OF THESE BORROWERS. TELL ME YOUR NIGHTMARES.
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