Editor’s Note: The ankle-biting is rising to a crescendo. Wait till you see what happens next. The insurers are not just alleging misrepresentation or negligence. They are saying that Countrywide and others knowingly originated bad loans. And as I have explained before on these pages they are finally “getting it.”

Bottom Line: The worse the loan, the higher the profit.  Why? Put pen to paper and figure out how yield spread premiums worked at the level of the securities sale to investors. Whenever you have “asymmetry” of information you have profit derived from predatory practices.

Investors thought they were buying investment grade securities. So the investors expected a low yield for low risk. But the loans were at toxic levels which means they were guaranteed to fail. That is higher than the highest “risk.” And they were priced accordingly — sometimes more than 18%, giving rise to a 12+ point spread in principal computed backwards from the rate.

In the principal received from investors versus the principal funded to borrowers, a 12 point spread comes out to something like a 300% yield spread premium that the investment banks pocketed. So they take $1 million from the investors and only fund $250,000-$300,000 in loans. The rest is gravy.

There is no risk when you know the loan will reset to payments higher than the gross income of the borrower. You know for sure what is going to happen.

Insurance Networking News, February 16, 2010

Sara Lepro

The game of hot potato between lenders and mortgage insurers continues.

The mortgage insurance unit of Old Republic International Corp. is asking a court to back its refusal to pay claims on soured mortgages originated by Countrywide Financial Corp.

In a suit filed Dec. 31 in New York State Supreme Court, Republic Mortgage Insurance Co. said it has discovered more than 1,500 delinquent Countrywide loans with “material misrepresentations … , in some cases by Countrywide or with its knowing participation.”

Republic said that, because Countrywide, now a unit of Bank of America Corp., disputes the insurer’s investigation and its refusal to pay the claims, it is seeking a declaratory judgment that its procedures were consistent with the law and are not a basis for the lender to challenge the rescissions, or policy cancellations.

Old Republic disclosed the suit in a Securities and Exchange Commission filing Feb. 5.

Lawsuits like this one have been on the rise as ever more mortgages default. It is no secret that the housing market boom fostered poorly underwritten mortgages, in which it was common that a borrower’s income was inflated or never documented. Insurers are denying the claims on many loans, asserting they are not liable to pay claims because, they allege, the loans were originated fraudulently.

Moody’s Investors Service Inc. has estimated that in recent quarters private mortgage insurers have rejected about 25% of claims, up from a historical average of about 7%.

In another recent case, Bank of America sued MGIC Investment Corp. over its rescission practices. B of A has also stopped sending new business to the Milwaukee insurer.

What is different about the Republic case is that the insurer is being proactive in seeking validation of its rescission practices.

“Some courts are better than others for insurers, and they wanted to make sure Countrywide didn’t jump them,” said David Goodwin, a partner in the policyholder insurance practice at Covington & Burling LLP in San Francisco. Goodwin is not involved in the Republic case.

Neither Republic nor B of A would discuss the suit. (The lender is trying to get the case moved to arbitration.)

However, Al Zucaro, the chairman and chief executive officer of Old Republic, the Chicago parent of Republic Mortgage Insurance, said that, with the increasing volume of rescissions, it is natural for the number of disagreements between lenders and insurers to rise.

“There’ve always been rescissions in the business,” he said. “They’ve just not in the past been at the same high level as they seem to be currently.”
Fannie Mae and Freddie Mac, which buy most of the loans covered by private mortgage insurers, compound the problem by forcing lenders to buy back a lot of these loans, he said.

“Fannie Mae and Freddie Mac themselves have been rescinding a lot of loans as well,” he said. “So whenever that happens, it creates obvious pressures and stresses in the system.”

Click here to read the complete story at Livinglies's Weblog.

Editor’s Note: The primary reason for foreclosing on the wrong house is that the wrong party (not the creditor) is initiating the foreclosure and therefore lacks sufficient information about the loan, the property or the debtor.

These events are corroboration of stories previously published showing that loans were placed in “pools” even though they never closed and therefore didn’t exist. The mere application of a loan was sufficient for “assignment” of the “loan.” And let’s not forget that the “assignment” typically violates even the terms of the PSA either as to time cut-off or the requirement of recording or recordable form.

Repossession hell: 5 extremely wrongful foreclosures

The Pittsburgh woman whose bank ‘accidentally’ took everything she owned—even her macaw parrot—plus 4 more homeowner horror stories

Home foreclosures: The opposite of the American dream. Photo: Corbis

A Pittsburgh woman is suing the Bank of America after it wrongfully foreclosed on her home, ransacking her possessions, cutting power lines, padlocking her doors, and confiscating her pet parrot. Angela Iannelli, 46—who was away when repo men made off with her beloved blue macaw, Luke—says she’s now “afraid to set foot in her house.” She’s filed a civil suit claiming that bank representatives refused to reveal Luke’s “whereabouts” and told her they “were tired of hearing from her.” (Watch an ABC report about Angela Iannelli’s foreclosed home.) Here, four more victims of erroneous repossession:

They took her wedding dress
Last December, Nilly Mauck, 31, came home to find her décor brutally simplified. Contractors assigned to repossess condo No. 1156 had mistakenly emptied No. 1157, her Las Vegas apartment of two years. Though she’s demanded “$100,000 to $200,000″ in compensation for them taking, well, everything (including her wedding dress), the Realtor has offered only $5,000. Mauck says she’s seeking legal advice and learning “to live with the clothes on her back.”

Wrong house, but thanks for rotten halibut
Dr. Alan Schroit got a “putrid” surprise when he arrived at his Galveston, Texas, vacation home last October. Bank of America (“with which he has neither a relationship nor a mortgage”) had repossessed his home and turned off the utilities, leaving 75 pounds of frozen salmon and halibut (spoils of an Alaskan fishing trip) to rot in the fridge. Schroit, who’d been planning to grill the fish for 30 guests the next night, is suing the bank.

Luckily, he was not in a mood to swim
Kissimmee, Fla., resident Denroy Bell was living in London, England, when a confused Kissimmee bank attempted to foreclose on his Florida home in 2008. The sloppy institution, Citi-Residential, changed the locks and drained the swimming pool. “It was like an army came up and took over the house,” said Esther Goshop, Bell’s neighbor. Unusually gracious, Bell has asked only that Citi-Residential refill his pool and restore his locks.

Promises, promises …
A jury punished Countrywide Home Loans in January 2009 for failing to notice that it was repossessing and selling the wrong Las Vegas condo back in 2003. Sgt. Gerald Thitchener and his wife, Katrina, absent at the time, were awarded $3.4 million in damages. “[Countrywide] never even said they were sorry,” noted one juror, “[though they did say] it would never happen again.”

Click here to read the complete story at Livinglies's Weblog.

SEE ALSO BOE PAPER ON ABS DISCLOSURE condocmar10

The Bank is also considering making it an eligibility requirement that each issuer provides a summary of the key features of the transaction structure in a standardised format.
This summary would include:
• Clear diagrams of the deal structure.
• Description of which classes of notes hold the voting rights and what proportion of noteholders are required to pass a resolution.
• Description of all the triggers in the transaction and the consequences of them being breached.
• What defines an event of default.
• Diagramatic cash-flow waterfalls, making clear the priority
of payments of principal and interest, including how these
can change in consequence to any trigger breaches.
52 The Bank is also considering making it an eligibility
requirement that cash-flow models be made available that
accurately reflect the legal structure of an asset-backed security.
The Bank believes that for each transaction a cash-flow model
verified by the issuer/arranger should be available publicly.
Currently, it can be unclear as to how a transaction would
behave in different scenarios, including events of default or
other trigger events. The availability of cash-flow models, that
accurately reflect the underlying legal structure of the
transaction, would enable accurate modelling and stress
testing of securities under various assumptions.

Pools That Need Some Sun

By GRETCHEN MORGENSON

LAST week, the Federal Home Loan Bank of San Francisco sued a throng of Wall Street companies that sold the agency $5.4 billion in residential mortgage-backed securities during the height of the mortgage melee. The suit, filed March 15 in state court in California, seeks the return of the $5.4 billion as well as broader financial damages.

The case also provides interesting details on what the Federal Home Loan Bank said were misrepresentations made by those companies about the loans underlying the securities it bought.

It is not surprising, given the complexity of the instruments at the heart of this credit crisis, that it will require court battles for us to learn how so many of these loans could have gone so bad. The recent examiner’s report on the Lehman Brothers failure is a fine example of the in-depth investigation required to get to the bottom of this debacle.

The defendants in the Federal Home Loan Bank case were among the biggest sellers of mortgage-backed securities back in the day; among those named are Deutsche Bank; Bear Stearns; Countrywide Securities, a division of Countrywide Financial; Credit Suisse Securities; and Merrill Lynch. The securities at the heart of the lawsuit were sold from mid-2004 into 2008 — a period that certainly encompasses those giddy, anything-goes years in the home loan business.

None of the banks would comment on the litigation.

In the complaint, the Federal Home Loan Bank recites a list of what it calls untrue or misleading statements about the mortgages in 33 securitization trusts it bought. The alleged inaccuracies involve disclosures of the mortgages’ loan-to-value ratios (a measure of a loan’s size compared with the underlying property’s value), as well as the occupancy status of the properties securing the loans. Mortgages are considered less risky if they are written against primary residences; loans on second homes or investment properties are deemed to be more of a gamble.

Finally, the complaint said, the sellers of the securities made inaccurate claims about how closely the loan originators adhered to their underwriting guidelines. For example, the Federal Home Loan Bank asserts that the companies selling these securities failed to disclose that the originators made frequent exceptions to their own lending standards.

DAVID J. GRAIS, a partner at Grais & Ellsworth, represents the plaintiff. He said the Federal Home Loan Bank is not alleging that the firms intended to mislead investors. Rather, the case is trying to determine if the firms conformed to state laws requiring accurate disclosure to investors.

“Did they or did they not correspond with the real world at the time of the sale of these securities? That is the question,” Mr. Grais said.

Time will tell which side will prevail in this suit. But in the meantime, the accusations illustrate a significant unsolved problem with securitization: a lack of transparency regarding the loans that are bundled into mortgage securities. Until sunlight shines on these loan pools, the securitization market, a hugely important financing mechanism that augments bank lending, will remain frozen and unworkable.

It goes without saying that after swallowing billions in losses in such securities, investors no longer trust what sellers say is inside them. Investors need detailed information about these loans, and that data needs to be publicly available and updated regularly.

“The goose that lays the golden eggs for Wall Street is in the information gaps created by financial innovation,” said Richard Field, managing director at TYI, which develops transparency, trading and risk management information systems. “Naturally, Wall Street opposes closing these gaps.”

But the elimination of such information gaps is necessary, Mr. Field said, if investors are to return to the securitization market and if global regulators can be expected to prevent future crises.

While United States policy makers have done little to resolve this problem, the Bank of England, Britain’s central bank, is forging ahead on it. In a “consultative paper” this month, the central bank argued for significantly increased disclosure in asset-backed securities, including mortgage pools.

The central bank is interested in this debate because it accepts such securities in exchange for providing liquidity to the banking system.

“It is the bank’s view that more comprehensive and consistent information, in a format which is easier to use, is required to allow the effective risk management of securities,” the report stated. One recommendation is to include far more data than available now.

Among the data on its wish list: information on the remaining life, balance and prepayments on a loan; data on the current valuation and loan-to-value ratios on underlying property and collateral; and interest rate details, like the current rate and reset levels. In addition, the central bank said it wants to see loan performance information like the number and value of payments in arrears and details on bankruptcy, default or foreclosure actions.

The Bank of England recommended that investor reports be provided on “at least a monthly basis” and said it was considering making such reports an eligibility requirement for securities it accepts in its transactions.

The American Securitization Forum, the advocacy group for the securitization industry, has been working for two years on disclosure recommendations it sees as necessary to restart this market. But its ideas do not go as far as the Bank of England’s.

A group of United States mortgage investors is also agitating for increased disclosures. In a soon-to-be-published working paper, the Association of Mortgage Investors outlined ways to increase transparency in these instruments.

Among its suggestions: reduce the reliance on credit rating agencies by providing detailed data on loans well before a deal is brought to market, perhaps two weeks in advance. That would allow investors to analyze the loans thoroughly, then decide whether they want to buy in.

THE investors are also urging that loan-level data offered by issuers, underwriters or loan servicers be “accompanied by an auditor attestation” verifying it has been properly aggregated and calculated. In other words, trust but verify.

Confidence in the securitization market has been crushed by the credit mess. Only greater transparency will lure investors back into these securities pools. The sooner that happens, the better.

Click here to read the complete story at Livinglies's Weblog.

The five biggest U.S. commercial banks in the derivatives market — JPMorgan, Goldman Sachs, Bank of America Corp., Citigroup and Wells Fargo & Co. — account for 97 percent of the notional value of derivatives held in the banking industry [$605 trillion], according to the Office of the Comptroller of the Currency.

Goldman Sachs Demands Collateral It Won’t Dish Out

March 15 (Bloomberg) — Goldman Sachs Group Inc. and JPMorgan Chase & Co., two of the biggest traders of over-the- counter derivatives, are exploiting their growing clout in that market to secure cheap funding in addition to billions in revenue from the business.

Both New York-based banks are demanding unequal arrangements with hedge-fund firms, forcing them to post more cash collateral to offset risks on trades while putting up less on their own wagers. At the end of December this imbalance furnished Goldman Sachs with $110 billion, according to a filing. That’s money it can reinvest in higher-yielding assets.

“If you’re seen as a major player and you have a product that people can’t get elsewhere, you have the negotiating power,” said Richard Lindsey, a former director of market regulation at the U.S. Securities and Exchange Commission who ran the prime brokerage unit at Bear Stearns Cos. from 1999 to 2006. “Goldman and a handful of other banks are the places where people can get over-the-counter products today.”

The collapse of American International Group Inc. in 2008 was hastened by the insurer’s inability to meet $20 billion in collateral demands after its credit-default swaps lost value and its credit rating was lowered, Treasury Secretary Timothy F. Geithner, president of the Federal Reserve Bank of New York at the time of the bailout, testified on Jan. 27. Goldman Sachs was among AIG’s biggest counterparties.

AIG Protection

Goldman Sachs Chief Financial Officer David Viniar has said that his firm’s stringent collateral agreements would have helped protect the firm against a default by AIG. Instead, a $182.3 billion taxpayer bailout of AIG ensured that Goldman Sachs and others were repaid in full.

Over the last three years, Goldman Sachs has extracted more collateral from counterparties in the $605 trillion over-the- counter derivatives markets, according to filings with the SEC.

The firm led by Chief Executive Officer Lloyd C. Blankfein collected cash collateral that represented 57 percent of outstanding over-the-counter derivatives assets as of December 2009, while it posted just 16 percent on liabilities, the firm said in a filing this month. That gap has widened from rates of 45 percent versus 18 percent in 2008 and 32 percent versus 19 percent in 2007, company filings show.

“That’s classic collateral arbitrage,” said Brad Hintz, an analyst at Sanford C. Bernstein & Co. in New York who previously worked as treasurer at Morgan Stanley and chief financial officer at Lehman Brothers Holdings Inc. “You always want to enter into something where you’re getting more collateral in than what you’re putting out.”

Using the Cash

The banks get to use the cash collateral, said Robert Claassen, a Palo Alto, California-based partner in the corporate and capital markets practice at law firm Paul, Hastings, Janofsky & Walker LLP.

“They do have to pay interest on it, usually at the fed funds rate, but that’s a low rate,” Claassen said.

Goldman Sachs’s $110 billion net collateral balance in December was almost three times the amount it had attracted from depositors at its regulated bank subsidiaries. The collateral could earn the bank an annual return of $439 million, assuming it’s financed at the current fed funds effective rate of 0.15 percent and that half is reinvested at the same rate and half in two-year Treasury notes yielding 0.948 percent.

“We manage our collateral arrangements as part of our overall risk-management discipline and not as a driver of profits,” said Michael DuVally, a spokesman for Goldman Sachs. He said that Bloomberg’s estimates of the firm’s potential returns on collateral were “flawed” and declined to provide further explanation.

JPMorgan, Citigroup

JPMorgan received cash collateral equal to 57 percent of the fair value of its derivatives receivables after accounting for offsetting positions, according to data contained in the firm’s most recent annual filing. It posted collateral equal to 45 percent of the comparable payables, leaving it with a $37 billion net cash collateral balance, the filing shows.

In 2008 the cash collateral received by JPMorgan made up 47 percent of derivative assets, while the amount posted was 37 percent of liabilities. The percentages were 47 percent and 26 percent in 2007, according to data in company filings.

“JPMorgan now requires more collateral from its counterparties” on derivatives, David Trone, an analyst at Macquarie Group Ltd., wrote in a note to investors following a meeting with Jes Staley, chief executive officer of JPMorgan’s investment bank.

Citigroup Collateral

By contrast, New York-based Citigroup Inc., a bank that’s 27 percent owned by the U.S. government, paid out $11 billion more in collateral on over-the-counter derivatives than it collected at the end of 2009, a company filing shows.

Brian Marchiony, a spokesman for JPMorgan, and Alexander Samuelson, a spokesman for Citigroup, both declined to comment.

The five biggest U.S. commercial banks in the derivatives market — JPMorgan, Goldman Sachs, Bank of America Corp., Citigroup and Wells Fargo & Co. — account for 97 percent of the notional value of derivatives held in the banking industry, according to the Office of the Comptroller of the Currency.

In credit-default swaps, the world’s five biggest dealers are JPMorgan, Goldman Sachs, Morgan Stanley, Frankfurt-based Deutsche Bank AG and London-based Barclays Plc, according to a report by Deutsche Bank Research that cited the European Central Bank and filings with the SEC.

Goldman Sachs

Goldman Sachs and JPMorgan had combined revenue of $29.1 billion from trading derivatives and cash securities in the first nine months of 2009, according to Federal Reserve reports.

The U.S. Congress is considering bills that would require more derivatives deals be processed through clearinghouses, privately owned third parties that guarantee transactions and keep track of collateral and margin. A clearinghouse that includes both banks and hedge funds would erode the banks’ collateral balances, said Kevin McPartland, a senior analyst at research firm Tabb Group in New York.

When contracts are negotiated between two parties, collateral arrangements are determined by the relative credit ratings of the two companies and other factors in the relationship, such as how much trading a fund does with a bank, McPartland said. When trades are cleared, the requirements have “nothing to do with credit so much as the mark-to-market value of your current net position.”

“Once you’re able to use a clearinghouse, presumably everyone’s on a level playing field,” he said.

Dimon, Blankfein

Still, banks may maintain their advantage in parts of the market that aren’t standardized or liquid enough for clearing, McPartland said. JPMorgan CEO Jamie Dimon and Goldman Sachs’s Blankfein both told the Financial Crisis Inquiry Commission in January that they support central clearing for all standardized over-the-counter derivatives.

“The percentage of products that are suitable for central clearing is relatively small in comparison to the entire OTC derivatives market,” McPartland said.

A report this month by the New York-based International Swaps & Derivatives Association found that 84 percent of collateral agreements are bilateral, meaning collateral is exchanged in two directions.

Banks have an advantage in dealing with asset managers because they can require collateral when initiating a trade, sometimes amounting to as much as 20 percent of the notional value, said Craig Stein, a partner at law firm Schulte Roth & Zabel LLP in New York who represents hedge-fund clients.

JPMorgan Collateral

JPMorgan’s filing shows that these initiation amounts provided the firm with about $11 billion of its $37.4 billion net collateral balance at the end of December, down from about $22 billion a year earlier and $17 billion at the end of 2007. Goldman Sachs doesn’t break out that category.

A bank’s net collateral balance doesn’t get included in its capital calculations and has to be held in liquid products because it can change quickly, according to an executive at one of the biggest U.S. banks who declined to be identified because he wasn’t authorized to speak publicly.

Counterparties demanding collateral helped speed the collapse of Bear Stearns and Lehman Brothers, according to a New York Fed report published in January. Those that had posted collateral with Lehman were often in the same position as unsecured creditors when they tried to recover funds from the bankrupt firm, the report said.

“When the collateral is posted to a derivatives dealer like Goldman or any of the others, those funds are not segregated, which means that the dealer bank gets to use them to finance itself,” said Darrell Duffie, a professor of finance at Stanford University in Palo Alto. “That’s all fine until a crisis comes along and counterparties pull back and the money that dealer banks thought they had disappears.”

‘Greater Push Back’

While some hedge-fund firms have pushed for banks to put up more cash after the collapse of Lehman Brothers, Goldman Sachs and other survivors of the credit crisis have benefited from the drop in competition.

“When the crisis started developing, I definitely thought it was going to be an opportunity for our fund clients to make some headway in negotiating, and actually the exact opposite has happened,” said Schulte Roth’s Stein. “Post-financial crisis, I’ve definitely seen a greater push back on their side.”

Hedge-fund firms that don’t have the negotiating power to strike two-way collateral agreements with banks have more to gain from a clearinghouse than those that do, said Stein.

Regulators should encourage banks to post more collateral to their counterparties to lower the impact of a single bank’s failure, according to the January New York Fed report. Pressure from regulators and a move to greater use of clearinghouses may mean the banks’ advantage has peaked.

“Before the financial crisis, collateral was very unevenly demanded and somewhat insufficiently demanded,” Stanford’s Duffie said. A clearinghouse “should reduce the asymmetry and raise the total amount of collateral.”

To contact the reporters on this story: Michael J. Moore in New York at mmoore55@bloomberg.net; Christine Harper in New York at charper@bloomberg.net.

Click here to read the complete story at Livinglies's Weblog.

BofA Title claims

BofA Wants $535M From Title Insurers

Click here to read the complete story at Livinglies's Weblog.

Click here to read the complete story at msnbc.com: Real estate.

Click here to read the complete story at msnbc.com: Real estate.

With the Obama administration and private lenders actively considering mortgage-principal-reduction programs to help financially distressed homeowners, the Internal Revenue Service has issued an advisory to taxpayers who receive — or seek to receive — such assistance if it’s offered.

Editor’s Note: The only thing I would add to this, for the moment, is that any principal reduction is basically an admission that your property is not worth the amount of the mortgage. If you have made demand for damages or relief based upon appraisal fraud or other causes of action in or out of court, the taxpayer can take the position that the debt reduction is also in lieu of payment of damages which often is not taxable. Under this theory — which may or may not apply — you would NOT be limited to your principal residence to claim an exemption. Consulting with a licensed attorney or accountant familiar both with federal and state tax law would be strongly advisable.

The reason I mention state law is that the reduction of principal might be the basis for contesting the assessed valuation of your home for real estate taxes, property insurance etc.

IRS tells homeowners how to get tax relief if a lender forgives part of their debt

Reduction of mortgage principal, usually considered taxable income, is expected to become more prevalent as the Obama administration and banks seek ways to prevent foreclosures.

By Kenneth R. Harney

March 14, 2010

Reporting from Washington

With the Obama administration and private lenders actively considering mortgage-principal-reduction programs to help financially distressed homeowners, the Internal Revenue Service has issued an advisory to taxpayers who receive — or seek to receive — such assistance if it’s offered.

The IRS gets involved in mortgage principal write-downs because the federal tax code generally treats any forgiveness of debt by a creditor in excess of $600 as ordinary taxable income to the recipient.

However, under legislation that took effect in 2007, certain home mortgage debt cancellations — such as through loan modifications, short sales or foreclosures — may be exempted from tax treatment as income.

Sheila C. Bair, chairwoman of the Federal Deposit Insurance Corp., recently confirmed that her agency was working on a new program to expand the use of principal mortgage reductions to keep underwater borrowers out of foreclosure.

Most major banks and mortgage companies have preferred monthly payment reductions and other loan modification techniques over cuts of principal balances, but a handful have made limited use of the concept.

One of the largest servicers of subprime home loans, Ocwen Financial Services of West Palm Beach, Fla., has strongly advocated principal reductions to keep people out of foreclosure, and claimed broad success with them. Ocwen President Ron Faris testified to a congressional subcommittee this month that borrowers with negative equity were as much as twice as likely to re-default after a standard payment-reduction loan modification than those who receive partial forgiveness on their principal debt.

But what are the tax implications when your lender essentially says: OK, we recognize that you’re underwater, maybe you’re thinking about walking away, and we’re going to write off some of what you owe to keep you in the house?

IRS guidance issued March 4 spelled out step by step how financially troubled and underwater borrowers can qualify for tax relief when a lender agrees to lower their debt. Here are the basics, should you be considering a short sale or loan modification involving principal reduction.

First, be aware that the federal tax exclusion only applies to mortgage balances on your principal residence — your main home — and not on second homes, rental real estate or business property. The maximum amount of forgiven debt eligible under the law is $2 million for married taxpayers filing jointly and $1 million for single filers.

But there are some potential snares: Your debt reduction can only be for loan amounts that you’ve used to “buy, build or substantially improve your principal residence.” This includes refinancings that increased your total mortgage debt attributable to renovations and capital improvements of your house. But if you used the proceeds for other personal purposes, such as to pay off credit card bills, buy cars or invest in stocks, the mortgage debt attributable to those expenditures is not eligible for tax exclusion.

When your lender forgives all or part of your mortgage balance, the lender is required by law to issue you an IRS Form 1099-C, a “Cancellation of Debt” notice, which is also sent to the IRS. The form shows not only the amount of debt discharged but the estimated fair market value of the house securing the debt as well.

A few other noteworthy features of the IRS rules: If you’ve been foreclosed upon or you do a short sale and lose money in the process, don’t claim a tax loss on your federal filing. The IRS will turn you down. However, if you go to foreclosure and your lender agrees to cancel all or part of the unpaid mortgage balance as part of the deal, then you can file for an exemption from the IRS.

What if your lender reduces the debt on your house but you continue to own the property and live in it? There’s a tax wrinkle in the fine print: The IRS will require you to reduce your “basis” in the house — your “cost” for tax purposes — by the amount of the forgiven debt. But that’s not likely to be a big concern for most homeowners digging their way out.

Finally, if you want to claim the debt-forgiveness exemption, download IRS Form 982 at www.irs.gov and attach it to your return for the year in which the debt was forgiven. And don’t assume that this tax code benefit to homeowners will be around forever. It expires at the end of 2012.

kenharney@earthlink.net.

Distributed by the Washington Post Writers Group

Click here to read the complete story at Livinglies's Weblog.

Judge Buford in Bankruptcy Court has no problem seeing the real issues. Here he is again stating that MERS has no standing and that MERS is confused as to whether it is acting in is own behalf or as agent for the note holder. He further makes it clear that the loan is not secured by the real property where MERS is the “nominee.” Since MERS admits, indeed advertises it will never make a claim to ownership of the note (otherwise nobody would use their service) there is absolutely no basis under law or equity in any court where it should be allowed to foreclose.

But they have done exactly that. So now that we know all those foreclosures were done illegally not for some procedural reason, but because MERS is not a creditor, what does that do to the hundreds of thousands of foreclosure sales that took place using MERS as “nominee” as the base of the chain. The answer, as anyone with knowledge of property law will tell you, is that the foreclosure sale is void, not voidable.

That in turn means that whoever owned it before the “sale” still owns it. Which of course means in most cases that there are hundreds of thousands of people who were homeowners that still own the property that was “foreclosed.” It also means, if the house is empty that they have the right to re-enter it. So you see, it is on this simple fact and basic black letter law that the entire foreclosure mess is proved to be an illusion. There is no mess. There is just a lot of paper that doesn’t mean anything.

If a Judge signed an order setting the sale date (as opposed to lifting the stay) THEN it is highly probable that in order to regain possession of the house you would need to file a quiet title action and quite possibly an action for damages.

Click here to read the complete story at Livinglies's Weblog.

Click here to read the complete story at msnbc.com: Real estate.

These statutes provide numerous regulations and requirements that entities engaging in trust activities should comply with, but the regulations are largely being ignored by the entities engaging in trust activities and both courts and the enforcing agency, the Florida Department of Financial Services,

Editor’s Note: Matt Weidner is onto something here that has been pointed out by many lawyers across the country. His central point is that if you want to call yourself a Trustee in foreclosures then there had better be a trust. If there is a trust the state laws, rules and regulations govern them and the trustees. Most of these laws are being ignored by the pretender lenders with impunity — Judges routinely ignore arguments concerning the authority of the Trust to do business in the state, the right of the Trustee to proceed with foreclosure, and the accountability to both the borrower and the investor, both of whom might be beneficiaries under the Trust. Greenwich Financial filed suit against Countrywide and BOA to underscore the point that the investors are the creditors and that if there is a trust, it is the investor who is the beneficiary. Yet, as Charles Koppa has pointed out numerous times, the prices on the courthouse steps are routinely manipulated against the interests of any beneficiaries.

But the real question in my mind is whether these “trusts” actually meet the definition of that term. for there to be a working trust and an authorized trustee, there must be a trustor (the one who creates the trust), a beneficiary (the one who receives the benefits from the trust) and a “res” which is something of value that is put into the trust and which is owned, rather than passed through the t rust.

The trustor must have some property interest (tangible or intangible) that is being conveyed to the trustee to hold in trust for the beneficiaries. I’ve looked at the pooling and services agreements, prospectuses, assignments and assumption agreement and individual assignments, alleged powers of attorney and the promotional literature of the Special Purpose vehicles that issued mortgage backed securities (bonds) to investors who end up holding a piece of paper called a “certificate.”

In my opinion, there is no trust, even though one is named. In my opinion there is no trustee, even though one is named. Beneficiaries are not named and the res of the trust which supposedly is a pool of loans has been conveyed in percentage slices to the investors who bought the certificates.

There is no Trustor identified in most cases although there have been arguments of the pretender lenders that the investors are the trustors and the beneficiaries. There is also the argument that the pooling and service agreement allocating a “pool” which more often than not initially contains fictitious assets contains a  Trustor somewhere in the document.

In my opinion the party designated as a Trustee is merely a candidate for an agency relationship that might arise if several conditions are met, as defined in the prospectus. The agent has no liability or obligations of any kind until those conditions happen at some time in the future.

And since the res of the trust allegedly includes a pool of loans that was owned by some vaguely defined pool aggregator or “trustee” and since the percentage interests in that pool was conveyed to the investors, it is my opinion that there is no res in the so-called trust (i.e., there is nothing being held in trust). If there is nothing held in trust, then even if the trust technically exists, the trustee has no powers. This is congruent with the REMIC provisions of the Internal Revenue Code that allow the SPVs to be formed as pass through entities in which no tax event occurs and therefore no tax applies.

So back to Weidner’s point, if the trust is real, it isn’t following the laws governing their creation and use, OR, to my point, the trust isn’t real anyway. It is for these reasons, among others, that you MUST identify the investors, get in touch with them, compare notes and get an accounting from them. If the Courts ever force the pretender lenders to disclose the identity of these creditors and allow you to pursue interaction with them, then, and only then, will the alleged default be validated, the demand on the note verified, and the possibility of financial double jeopardy eliminated.

CHAPTER 650 & 660 FLORIDA STATUTES AND FORECLOSURE IN FLORIDA
Florida Statutes Chapters 658 which regulates Banks and Trust Companies and can be found at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0658/titl0658.htm&StatuteYear=2009&Title=-%3E2009-%3EChapter%20658 and chapter 660, the section of Florida Statutes which specifically regulates trust business in Florida and which can be found at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0660/titl0660.htm&StatuteYear=2009&Title=-%3E2009-%3EChapter%20660 are two important consumer protection statutes that are being widely ignored by regulators and courts across the state.

The definition of trust activities provided in statute is very broad and specifically includes many of the activities national banks and foreign corporations engage in related to mortgage foreclosure activities. An analysis of foreclosure cases filed in counties across the state will reveal that a recognizable percentage of the cases are filed “as trustee” for some other party or entity.http://www.myfloridacfo.com/are ignoring the laws and the application of these laws to entities that are violating them. These statutes provide numerous regulations and requirements that entities engaging in trust activities should comply with, but the regulations are largely being ignored by the entities engaging in trust activities and both courts and the enforcing agency, the Florida Department of Financial Services,

Homeowners who are subject to foreclosure and foreclosure defense attorneys are encouraged to carefully review the cited statutes and consider the application of the statutes to each individual case. Lenders who are engaging in trust activities but who are not properly licensed or registered to do business in the state should be prevented from prevailing in foreclosure actions on equitable grounds based on their failure to comply with these important consumer protection and state interest laws.

Click here to read the complete story at Livinglies's Weblog.

“(T)he differences between the values ascribed to these properties and the prices at which the properties were sold in foreclosure are significantly greater than the declines in house prices in the same geographical areas over the same periods,”

Editor’s Comment: BINGO! Use this complaint for both discovery and as a pleading guide. Send me a copy of al pleadings when you get them. There a bank that gets it. They are manipulating the home values on the back end the same as they did on the front end. First they lied to borrower (debtor) and investor (creditor) about the value of the property when the loan was funded and then they lied about the value when the house was sold in foreclosure. Charles Koppa is close to publishing a study that shows that the price of most homes sold on the courthouse steps is dropped the morning of the sale to a price far below the fair market value of even the most distressed property.

‘About That $19 Billion …’

By DAVE TARTRE

SAN FRANCISCO (CN) – The Federal Home Loan Bank of San Francisco demands $19 billion from major banks and investment houses it accuses of lying about the quality of the subprime mortgage-backed securities they created and sold. The FHLB sued Deutsche Bank, Credit Suisse, JPMorgan Stanley, UBS, Banc of America, Countrywide Financial and others in two Superior Court complaints.
The FHLB claims the lending giants, including now-defunct Bear Stearns, Greenwich Capital Markets, RBS Securities and others failed to disclose material facts about the mortgages, such as how much equity the borrowers had in their homes, and that the omissions and misrepresentation led to much greater rates of foreclosures than promised.
The firms used exaggerated property appraisals so the loan-to-value ratios of the mortgage loans in the securities’ collateral pools understated the risks, according to the complaint.
“(T)he differences between the values ascribed to these properties and the prices at which the properties were sold in foreclosure are significantly greater than the declines in house prices in the same geographical areas over the same periods,” the FHLB says.
In addition, the number of borrowers who actually lived in the houses was lower than the defendants represented, and the borrowers’ credit scores were lower too, the FHLB says.
The lending giants did not tell the FHLB that their loan “originators were making frequent … exceptions to underwriting guidelines when no compensating factor was present,” and the originators systematically failed to detect or prevent borrower fraud, according to the complaints.
According to one complaint, “the Defendants sold or issued to the Bank 98 certificates in 80 securitization trusts backed by residential mortgage loans. The Bank paid more than $13.7 billion for those certificates. When they offered and then sold these certificates to the Bank, the defendants made numerous statements to the bank about the certificates and the credit quality of the mortgage loans that backed them. On information and belief many of those statements were untrue. Moreover, on information and belief the defendants omitted to state many material facts that were necessary in order to make their statements not misleading.”
The other complaint states: “the defendants sold or issued to the bank 36 certificates in 33 securitization trusts backed by residential mortgage loans. The bank paid more than $5.4 billion for those certificates. When they offered and then sold these certificates to the bank, the defendants made numerous statements to the bank about the certificates and the credit quality of the mortgage loans that backed them. On information and belief, many of those statements were untrue.”
The FHLB would like its $19.1 billion back. Its lead counsel is Robert Goodin with Goodin, MacBride, Squeri, Day & Lamprey. 

Click here to read the complete story at Livinglies's Weblog.

Don’t be so fast to leave your home just because you are “behind”. Those payments might not be due at all or if they are, they are probably not owed to the people you are paying.

We are very pleased with the responses from our devoted readers, many of whom are direct contributors to this site. The insights, forms and analysis from the many soldiers — lawyers and laymen alike has made this site the premier resource for assisting distressed homeowners in gaining relief — sometimes total relief — from Mortgages based upon false appraisals, using predatory lending practices and withholding vital information from borrowers at the closing table.

How many borrowers would have signed on the dotted line if they had known that they were signing a ticket for unprecedented and unjustified fees and profits earned by unknown parties — sometimes as much as the mortgage itself?

How many investors would have put up the money if they had known that only some of it was being used to fund mortgage transactions and that the rest was being kept as fees, profits and reserves to pay them out of their own money?

The victims here are all homeowners and all consumers and all investors and all  taxpayers. The companies seeking to foreclose never owned the mortgage, note or obligation. They have no right to your property or the proceeds of sale to your property. Use this blogsite as your resource to educate yourself. Consult with local counsel start with the listing of “Lawyers that Get It”. Get a forensic review NOT just a “TILA loan audit” and challenge EVERYTHING!

Click here to read the complete story at Livinglies's Weblog.

Huh? You read that correctly. Because Speaker Pelosi cannot find enough votes to pass the deeply unpopular ObamaCare bill in a constitutional way, she is hoping you and other Americans won’t notice, or won’t care, whether she passes ObamaCare in an unconstitutional and blatantly corrupt way.

Her latest plan is called the “Slaughter Rule”, which would allow the House to vote on a different bill and “deem” the Senate’s ObamaCare bill as being “passed” at the same time as the other bill is passed, without having an actual up and down vote on the ObamaCare bill.

Said Pelosi in an interview: “It’s more insider and process-oriented than most people want to know….but I like it, because people don’t have to vote on the Senate bill.”

Pelosi may like “deeming” laws passed, but passing laws without voting on them is blatantly unconstitutional. As former federal judge Michael McConnell wrote in the Wall Street Journal, “It may be clever, but it is not constitutional. To become law…the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.”

Speaker Pelosi and President Obama are counting on you, your friends, and your family not to notice or care that they are doing this. That’s why together, we must get the truth out and tell everyone that we know about what they are trying to do.

This is just one more example of the bribery and corruption that has been used to try and pass ObamaCare, like the Cornhusker Kickback and the Louisiana Purchase. If they are willing to corrupt our constitutional system right before our eyes to pass Obamacare, why should we have any confidence that they won’t corrupt your healthcare when nobody is paying attention?

Housing Market Sure to Double-Dip: Whitney

The US housing market will face another retreat while mortgage-backed securities and Treasurys are likely to go through a “material” correction, Meredith Whitney, CEO of Meredith Whitney Advisory Group, told CNBC Tuesday.

“The housing market surely will double dip,” Whitney told “Worldwide Exchange.”

Government programs to support housing have been “murky” and when the modifications caused by them come to an end, a lot of supply may come to the market and that’s when the real-estate market is likely to go down, she explained.

Hopes that an improvement in liquidity and continuing investment from China in US assets will prop up mortgage-backed securities (MBS) and Treasurys are exaggerated, Whitney also said.

“The asset classes of MBS and Treasurys are priced for a material correction in my opinion,” she said. “The only buyers of agency MBS are the Fed and banks so you see how precarious that market is.”

“If the Fed pulls back, that’s a really big deal… because there’s no substitute buyer.”

Banks Model Is Broken

The Federal Reserve can’t make banks start lending again because the business model financial institutions used before the crisis is broken, Whitney also said.

“I don’t think there’s much the Fed can do to get banks to start lending again. That’s a structural problem, the model is broken,” Whitney told “Worldwide Exchange.”

Before the financial crisis erupted in 2007 banks were able to offer customers low-priced mortgages because they were making money on securitizing these mortgages and selling them on, she explained.

But now that the securitization market is effectively closed, the prices of mortgages for consumers have not risen to compensate banks for that loss of revenue, so banks have been playing defense for the past two years, Whitney added.

The Federal Open Market Committee holds a meeting later Tuesday to decide on monetary policy. Fed officials have been saying that interest rates are likely to remain low for an “extended” period of time.

Whitney said she will be watching for anything regarding the Fed’s stance on buying mortgage-backed securities in the statement after the meeting.

“The Fed has been supporting the housing market, a third of the Fed’s balance sheet is tied to mortgages,” she said.

“The banks aren’t issuing anything (in terms of mortgages) to hold, they’re issuing everything to dump on” Fannie Mae, Freddie Mac and Ginnie Mae, Whitney added.

Much of the profit banks made last year was due to their performance in capital markets and this is “unreplicable” this year, Whitney also warned.

“I think that people that expect an earnings handoff to a normalized scenario are going to be disappointed,” she said.

“Normal will not be what it has been over the last 20 years and there’s disappointment baked into that.”

URL: http://www.cnbc.com/id/35887306/

Click here to read the complete story at msnbc.com: Real estate.

Click here to read the complete story at msnbc.com: Real estate.

FORENSIC ANALYSIS WORKSHOP SOLD OUT!!

Click here to read the complete story at Livinglies's Weblog.

Since I am making the point repeatedly in emails and calls I thought I might bring it up on the blog.I have changed one of my suggested strategies and I no longer recommend the immediate introduction of the term “pretender lender.”

THERE IS A DIFFERENCE BETWEEN THE USE OF THE WORDS “CREDITOR” AND “LENDER”.

THERE IS A DIFFERENCE BETWEEN THE USE OF THE WORDS “LENDER, “SERVICER”, “REAL PARTY IN INTEREST” ETC. AND “NON-BANK.”

Here’s the deal. If you use the word “lender” you are already conveying the sense that this is a legitimate loan, that your opposition is a party “in interest” who has advanced funds to the homeowner borrower, and that you are trying to dance your away around the inevitable. Anything you say after that is an attempt to regain ground you already lost. So object when they use the wrong terms and don’t fall into the trap of using the wrong terms yourselves.

It is far more accurate to refer to your opposition as a non-bank participant in the securitization scheme.

It is often the case that the parties seeking foreclosures are NOT banks or any kind of financial institutions. But even if the opposition says they represent “Wells Fargo” you should remind the court that Wells Fargo is acting in a non-bank capacity — they neither advanced funds nor processed the loan.

Then when you say you are seeking the identity of the creditor, the court won’t be confused. And by pounding on your opposition with the correct statement that they are a non-creditor seeking to enforce the mortgage without any interest in the note, it becomes clearer to the court as well.

Words make a difference. If you want to use the term “pretender lender” bring it up AFTER you have properly introduced the subject. This is a CHANGE FROM PRIOR SUGGESTIONS I HAVE MADE. Experience reported to me from lawyers and pro se litigants in court indicates that the words “pretender lender” are cute and might make a point, but not until you are fairly sure that you have the judge on your side or at least wavering.

Click here to read the complete story at Livinglies's Weblog.

Submitted by BMcDonald

Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.

I’ve been fighting OneWest Bank since August of last year here in Colorado. In Colorado they have nonjudicial foreclosures and the laws as so totally banker-biased it’s insane. All the bank has to do is go to the public trustee with a note from an attorney who “certifies” that the bank is the owner of the loan. What they don’t tell you is the bank has to go before a judge and get an order for sale in a 120 hearing. Most only find out about it at the last minute and don’t even show up because the only issue discussed is whether a default has occurred or not.

I discovered however that if you raise the question of whether the foreclosing party is a true party in interest or not, the court has to hear that as well. I raised that issue and demanded the bank produce the original documents and endorsements or assignements. The judge only ordered them to produce originals, which they did.

Long story short, I managed to hold them off for seven months after hiring an attorney. I found a bankruptcy case from CA in 2008 in which IndyMac produced original documents and ended up having to admit they didn’t own them. I had a letter from OneWest that only stated they purchased servicing rights. I had admissions from the bank’s attorney that there were no endorsements. And at the last minute I discovered the FDIC issued a press release in response to a YouTube video that went viral over the sweetheart deal OneWest did with the FDIC. The FDIC stated in their press release that OneWest only owned 7% of the loans they service. I presented all this to the judge but he ended up ignoring it all and gave OneWest an order to sell my home, which they did on the 4th.

About a week before the sale I went directly to the FDIC and filed a FOIA request for any and all records indicating ownership rights and servicing rights related to my loans and gave them my loan numbers. I managed to get the info in about 6 days. I got PROOF from the FDIC that OneWest did not own my loan. Fredie Mac did. And the info came directly from OneWest systems. And just last Friday I got a letter from IndyMac Mortgage services, obviously in compliance with the FOIA request that Freddie Mac owned the loan. So I now have a confession from OneWest themselves that they have been lying all along! I have a motion in to have the sale set aside and once that’s done I’m going to sue the hell out of them and their attorneys in Federal court.

So I found a wonderful little back door to the proof most of us need. If the FDIC is involved, you can do a FOIA request for the info. I don’t know if it applies to all banks since they are all involved in the FDIC. You all should try it to see.

Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.

Click here to read the complete story at Livinglies's Weblog.

Editor’s Note: Most of what we have seen reported indicates that although TILA is clear in is legislative expression that NO TENDER is required for the rescission remedy under TILA, Judges don’t like it. It seems they feel that Big Bad Borrowers are taking advantage of Bambi Banks. Yet here is a case where the Judge DID apply the law as written.

TILA was written with teeth, but Judges are reluctant to apply it. Yet on its face TILA possesses the strongest remedy against predatory loan practices in existence. It allows the borrower to declare a rescission which requires the alleged lender to (a) step forward (which they don’t want to do) (b) file a satisfaction of mortgage and (c) negotiate return of the money, less of course any claims for damages that the borrower has claimed and can prove.

This comes back to the issue of the real creditor, the pretender lender etc. In the current environment, there is nobody around who actually has the authority to satisfy a mortgage. But TILA addresses that too. It says that by operation of law the security instrument is void not voidable. Thus the mortgage or deed of trust no longer applies because it is void even if it was properly recorded. In turn, this means the debt, if any, has been converted from secured to unsecured.

The bargaining power of the borrower cannot be overstated if this provision of TILA is applied. By eliminating the secured aspect of the mortgage, the loan is easily stripped down to fair market value less damages, attorneys fees, interest paid, etc. We can only hope that we see more application of law as written and less hip-shooting from the bench creating uncertainty and complexity where the law could not be more clear.

Defendant U.S. Bank, N.A., as Trustee for the LXS2007-4N Trust (“U.S. Bank”), seeks dismissal under Federal Rule of Civil Procedure 12(b)(6) of a complaint filed by plaintiff
homeowner Henry Botelho. Specifically, U.S. Bank claims that Botelho cannot state a claim for rescission of his mortgage loan under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., unless he alleges a present ability to tender the loan proceeds. As discussed in
further detail in the Order, such an allegation is not necessary for Botelho’s case to survive the pleading stage.
Accordingly, U.S. Bank’s motion is denied.
Hat tip to Boot Camp Grad Carmen Dellutri http://www.ca11.uscourts.gov/opinions/ops/
200814991.pdf

Click here to read the complete story at Livinglies's Weblog.

Click here to read the complete story at msnbc.com: Real estate.

Upon finding that a portion of those payments should be applied to the subject loan, the declaration of default would be invalid because it would either be wrong inasmuch that the third party payments would at least be prepayments of future monthly payments, or wrong because the third party payments reflected an inaccurate accounting of the principal due.

OK let’s be clear that I don’t know bankruptcy well enough to even have an opinion, but I do have an idea and I would like this post forwarded to bankruptcy attorneys to get their reaction.

Here is the proposition: A Petitioner files for bankruptcy where one of the issues is a securitized loan. My idea is that the schedules NOT show the any of the known parties as creditors, because they are not. Especially if you have an expert opinion that describes the creditors as being unnamed but readily identifiable investors if the servicer will respond properly to the Qualified Written Request.

Upon reflection I don’t see why we would name the pretender lenders as creditors at all. I would leave them off the list of creditors (on any new cases filed) because they are not creditors. Maybe file amended schedules removing them. I would disclose the non-judicial foreclosure attempt wherever you can do that of course. Show the house as an asset with undetermined value. Wouldn’t that force them into being proactive? They would have to say “Hey! We are creditors secured by this property.” That would force the burden of proof onto them even as to standing, wouldn’t it?

Can someone who is not a creditor on the schedules file a proof of claim? What happens if you deny the claim and deny they are creditors? Do THEY have to file the adversary? Your position would be that you have this Expert Declaration that identifies the creditors, at least by description, and these would-be foreclosers don’t meet the description. So you disclosed the fact that they were claiming a default but you deny they are even creditors, much less secured.

It would seem that this would force them into proving to a bankruptcy court that they actually have authority which in turn would require them to produce all the documents granting them that authority. It also seems to me that they would have to come up with a full accounting for all payments from all parties, including from credit default swaps, insurance and Federal bailouts.

In the course of the proceedings, your allegation would be that they did in fact receive third party payments as has been widely reported by the press. They would probably answer something like those payments are irrelevant.

Your response to their assertion is to ask the court, who decides whether third party payments are relevant or not — the court or the creditor? The court would most likely order them to disclose all such third party payments along with documentation thereon so that the court could determine whether the payments should be applied to the pools in which the subject mortgage loan is Located” (assuming the assignments are valid), and then in turn determine what percentage of the payment should be allocated to the subject loan.

Upon finding that a portion of those payments should be applied to the subject loan, the declaration of default would be invalid because it would either be wrong inasmuch that the third party payments would at least be prepayments of future monthly payments, or wrong because the third party payments reflected an inaccurate accounting of the principal due.

Comments?

Click here to read the complete story at Livinglies's Weblog.

Click here to read the complete story at msnbc.com: Real estate.

HOSTED BY BRAD KEISER

March 22-24, 2010 Phoenix AZ

Marriott Chandler AZ

For Lawyers, Paralegals and other litigation support personnel, expert witnesses, accountants (send a CPA a link to this post), loss mitigation personnel, and TILA (Compliance) Auditors

Register Today – Seating is Limited

Download ==> FMA Workshop March 22-24, 2010 Registration form

The purpose of the workshop is to go beyond the basics of the Truth In Lending aka TILA audit and broaden the analysis to include the effects of the securitization, chain of title and appraisal. The objective is to provide the lawyer and/or those that support lawyers additional leverage in foreclosure prevention, litigation or otherwise that will enable them to be more successful in not just delaying but winning or in the case of bankruptcy practitioners providing tools to enlarge the estate or challenge the motion to lift stay.

This seminar is going to extend over two and a half days and will involve multiple presenters. It will take place March 22-24, 2010 in Phoenix, Arizona.

In order to maintain the “workshop” environment involving interactive participation between participants and instructors, the number of people who can attend must be limited to twenty people. First come basis.

If you are interested in attending the FORENSIC MORTGAGE ANALYSIS WORKSHOP, please send your contact information to fdg.eventinfo@gmail.com no later than March 15, 2010. If you are planning to pay by firm check we must receive it by March 12.

1. The first issue we are addressing is the GAP between the basic computer generated TILA compliance audit that often suffers from GIGO (garbage in, garbage out) and a more comprehensive analysis benefited by a trained eye.
2. The main objective is the expansion of the analysis beyond the loan transaction itself and other areas of equal or greater importance to lawyers, specifically issues of fact arising from the impact of securitization, chain of title irregularities and evidence of appraisal manipulation or inflation.
3. Lastly, we wish to present a strategy that provides lawyers with effective tools & analysis, that can be the basis for an expert witness report or affidavit that changes the course of the case from a he-said she-said argument in court and directs it into discovery toward an evidentiary hearing.

The current trend, or so called “produce the note” is a strategy that is working only sporadically, one that some lawyers and many homeowners think is a magical “silver bullet” which can  frequently offend the Judge’s sense of fairness when he/she perceives a borrower’s goal of “getting a free house.”  We want to change that into encouraging the Judge to allow homeowners and their attorneys to be heard on the merits and pursue truth and justice. The goal is not a free house. The goal is determining not just if there are potential TILA counterclaims or remedies, but also the identity of the creditor, examining the documents, parties and process in a securitization, getting a FULL accounting of all financial transactions, and raising issues of fact affecting the specific loan/property/foreclosure proceeding that necessitate discovery and an evidentiary hearing.

Click here to read the complete story at Livinglies's Weblog.

Editor’s Note: to most Judges and most lawyers the thought that a home could be foreclosed by the wrong party, or that there could be a declaration of default on a satisfied mortgage, and that these things could lead to sale of a home by a bank or other party that doesn’t own it to someone who also doesn’t own it — all these things are counter-intuitive. If certainty is a measure of confidence in the marketplace everyone has been certain about real property transactions which must be recorded in the property recording office of each county  in which the property is located.

So when you go into court or challenge the pretender lender out of court, they have the advantage of knowing that any Judge who hears your pleas is first going to assume that your defenses are technical, not real, and designed to delay the inevitable. It is stories like the one below you must keep in mind along with the quote from Beth Findsen who always reminds us that “you can be right as rain on the law, but if the Judge refuses to apply it, you lose anyway.”

That is why it is so important to get your act together (use the free intake form on this blog), get a forensic analysis done that includes securitization, and get an expert declaration that you or your lawyer can use in court. In the first round of motions you won’t convince the judge you’re right and the other side is wrong. But you CAN convince him that your case possibly has merit, that you are entitled to discovery, that you are entitled to a temporary injunction or temporary retraining order, and that you have a right to a hearing on the merits.

Having third party reports and declarations in your hand that you can lay down in front of the judge goes a long way to convince the judge that you at least have the right to be heard on the merits even if, at the moment, he or she doesn’t think it likely you will prevail. If you properly plead and show the Judge something he or she can hold in their hand that, if proven, means you would win the case, then the judge is more likely to follow the law and allow you to proceed.

NAPLES — It was retirement incarnate. Then, the foreclosure lawsuit came.

Warren Nyerges, 45, left his law enforcement career and moved to Golden Gate Estates late last year with his wife. He was spending his days preparing his backyard for grass, painting the interior of his home and joking about the snow he abandoned in Cleveland.

“I’ve had nothing but a ball. To come down here, it’s a life dream,” Nyerges said.

To top it all off, the couple’s single-story, 2,700-square-foot home was paid off. Nyerges said he even offered $5,000 more than Bank of America was asking, quickly sealing the deal with title insurance.

But on Feb. 18, a man came to the couple’s home with a lawsuit. Bank of America had begun foreclosing on the property, and Nyerges’ dream was temporarily put on hold.

“I wish I could have taken my blood pressure the day I got served that thing, because I was livid,” Nyerges said. “I told my wife it shortened my life by 10 years.”

Nyerges said he called the process server, who told him to call the courthouse, where officials told him to call the lawyer, who then told him the issue was between him and Bank of America. Nyerges said he felt like many of the officials thought he was trying to get out of paying a mortgage.

After he was served, Nyerges said in a March 1 interview, “each and every day thereafter, excluding Saturdays and Sundays, I’ve been in contact with someone from the bank or the law firm.”

After unsuccessful calls to Bank of America’s main number, Nyerges said he went to one of the bank’s branches, found a manager, and “plopped this mess down on his desk.”

“I work for Bank of America. I am with these people. This lawsuit has no merit. It needs to stop,” Nyerges said the bank manager told others at the company after reviewing Nyerges’ documents. Nyerges said the bank didn’t believe their own employee.

On Feb. 22, he went back to the bank branch and had the documents faxed to the company. By March, an employee at the bank said they were researching the case, Nyerges said.

“They’re researching it,” Nyerges said the bank employee told him. “Calm down.”

“She just couldn’t understand why I was so upset about this,” Nyerges said, adding that he was nice at first, but later became more frustrated.

With multiple trips to the bank branch and the courthouse and about 25 hours dealing with the suit, which he had 20 days to respond to in order to avoid acknowledging the facts as accurate, Nyerges said he had no choice but to file a motion.

Acting as his own attorney, Nyerges’ first motion demanded the suit be dismissed with damages and he later filed a second motion seeking $2,500 for his time and expenses.

In a statement, Bank of America said officials are still trying to determine what happened.

“Bank of America sincerely apologizes to Mr. Nyerges for this inconvenience. We are currently researching the matter and are stopping the foreclosure,” the statement said. “We are still in the process of identifying the root cause that created this issue.”

Public records filed for Nyerges’ property add only more confusion to the situation. According to the records, the previous owners are Henry and Nelly M. Imbachi, who bought the home in July 2005. The lawsuit is related to the first of two mortgages they took on the property by August 2005.

When her husband lost his job, Nelly Imbachi said Bank of America foreclosed on the second mortgage. That foreclosure began in September 2008, Bank of America obtained title to the home in April 2009 and the second mortgage — not the first mortgage — was satisfied in August 2009, according to official records filed with the Collier Clerk of Court.

Nelly Imbachi said the unemployment insurance she had with Bank of America didn’t help. She said the company told her she didn’t file the necessary papers. She said the family never got a lawyer, later filed for bankruptcy and have not been notified of the current lawsuit.

“When they told us we lost the house, that is when we stopped paying,” Nelly Imbachi said of the first mortgage.

Tuan Van Ho, a Macro Island man who did not return a request for comment, then purchased the home for $155,000 on July 17, 2009, according to official records.

A month later, Nyerges purchased the home for $165,000, just three days after the Imbachi’s second mortgage was satisfied, the records indicate. In November, Nyerges said he looked up the property on the Collier County Property Appraiser’s Web site, discovered Ho was still listed as the owner, and asked for the situation to be corrected.

Indeed, on Nov. 13, 2009, Ho transferred the property back to Bank of America for no cost, two-and-a-half months after Nyerges had bought the home from Bank of America and while the Imbachi’s first mortgage still wasn’t satisfied.

So, what led to Nyerges being named in the suit remains a mystery. For the most part, Nyerges is more concerned, he said, with having his family’s name cleared, damages for the time he has spent and expenses paid fighting the suit, and a return to the relative serenity he once had.

“As I explained in my pleading today, they cost me long distance phone calls, gas, time and do you know how far my house is from the court house?” Nyerges said. “A lawyer would charge you $200 or $250. I’m charging $100. Just cut me a check for $2500 and we’ll act like the whole thing never happened.”

Click here to read the complete story at Livinglies's Weblog.

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:

Click here to read the complete story at Livinglies's Weblog.

This is pretty aggressive and pretty abusive. I don’t know how under GAAP this follows the rules whatsoever,” he said, referring to Generally Accepted Accounting Principles.“That reeks of an auditor who, rather than being really truly independent, is beholden to management,” he said, adding that the S.E.C. and the Justice Department should follow up on Mr. Valukas’s findings.

Executives at other Wall Street banks professed surprise at Lehman’s accounting maneuvers. Goldman Sachs, Barclays Capital and other banks said on Friday they did not use repos to hide liabilities on their balance sheets.

EDITOR’S NOTE: Surprised? Other than the people who thought they would not get caught, who is surprised by the fact that upon close scrutiny Lehman’s books were cooked and Ernst and Young “auditors” went along with it? Ask any “Joe” or “Jane” in the street if they are surprised.

So a few scapegoats are going to jail in the usual perp walk while most of the “masterminds” walk away with taxpayer money jingling in their pocket, with homeowners being bounced from their homes, with the economy in a death spin, and while their wallets bursting with cash, are replaced with more wallets in more places with more pockets.

Let’s put it very simply: If the experts are surprised they are not experts. Or, if they are experts, they are co-conspirators. To paraphrase Brad in the survey workshops they were either stupid or just plain lying.

But I didn’t post this because I am angry and outraged over the behavior of Wall Street, regulators, congress and the Obama administration. The reason I write this is to highlight the fact that persistence pays off. What was unthinkable, crazy, conspiratorial 3 years ago when i first started writing on this subject is now being accepted as axiomatically true.

If you persist in challenging the pretender lenders and demanding that the real creditor step forward, if you persist in getting a full accounting from the creditor (investor) down to the the debtor (borrower, homeowner), then you will magnify your chances of prevailing against a fraudulent foreclosure. Nearly all of the foreclosures during the past 3 years were fraudulent. Millions of people are thinking of their old homestead while they probably still own it, even though they left or were evicted.

Get your facts together, get that forensic analysis, get an expert to declare the truth, and get a lawyer who either understands securitized mortgage loans or is willing to learn. And don’t stop, don’t give and don’t leave until the last option of the last move has been played — because it is only THEN that the other side will cave in and offer you a reasonable settlement. And even then you still need to go to court with a quiet title action because the people offering you the deal are NOT your creditor and don’t know the name(s) of your creditor much less represent them.

Findings on Lehman Take Even Experts by Surprise

By MICHAEL J. de la MERCED

For the year that it took the court-appointed examiner to complete his report on the demise of Lehman Brothers, officials from Wall Street to Washington were anticipating it as the definitive account of the largest bankruptcy in American history.

And the report did just that when it was unveiled on Thursday, riveting readers with the exhaustive detail contained in its nine volumes and 2,200 pages. Yet almost immediately, it raised a host of new questions.

Now government regulators have what some lawyers call a road map for further inquiry into former Lehman executives like Richard S. Fuld Jr. and the auditing firm Ernst & Young.

Whether the Justice Department and the Securities and Exchange Commission will actually pursue their own legal actions is unclear. But legal experts said on Friday that the examiner, Anton R. Valukas, had provided plenty of material for civil regulatory action at the least with his findings of “materially misleading” accounting and “actionable balance sheet manipulation.”

“It’s certainly not helpful to any of them,” Michael J. Missal, a partner at the law firm K&L Gates and the examiner in the bankruptcy case of New Century Financial, said of some individuals accused of impropriety in the report. “It certainly assists private litigants and probably increases the pressure on the government to take some kind of action here.”

Representatives for the S.E.C. and the United States attorneys offices in Manhattan and Brooklyn declined to comment.

While Mr. Fuld and other former top Lehman officials are already defendants in a number of civil lawsuits, the new discoveries by Mr. Valukas have taken even veteran observers by surprise. Chief among these was the revelation of a particularly aggressive accounting practice, known internally as Repo 105, that Mr. Valukas said helped the investment bank mask the true depths of its financial woes.

Examiners in bankruptcy cases are appointed by the Justice Department to investigate accusations of wrongdoing or misconduct. Their job is to determine whether creditors can recover more money in these cases, and their findings often serve as guides for more lawsuits and even regulatory action.

What examiners are not asked to do is play judge and jury. Though the report contains strong language — Mr. Valukas deems Mr. Fuld “at least grossly negligent” in his role overseeing Lehman — it stops short of accusing anyone of criminal conduct or of violating securities law.

Patricia Hynes, a lawyer for Mr. Fuld, said on Thursday that her client “did not know what those transactions were — he didn’t structure or negotiate them, nor was he aware of their accounting treatment.” She did not return an e-mail seeking additional comment on Friday.

Mr. Valukas’s findings have stirred loud discussion among legal and accounting experts over the ways Lehman sought to improve its quarterly results months before it collapsed.

Over hundreds of pages, Mr. Valukas details the genesis of and the process behind Repo 105. Based on standard repurchase agreements — short-term loans commonly used by many firms for daily financing needs, in which borrowers temporarily exchange assets in return for cash up front — Lehman took a particularly aggressive accounting approach to these transactions.

Here, the investment bank used repos to temporarily park assets off its books to make its end-of-quarter debt levels look better than they did — while calling them sales instead of loans.

The accounting tactic, first used by Lehman in 2001, had one catch, according to Mr. Valukas: no American law firm would sign off on its use.

Enter Linklaters, a highly respected British law firm that gave Lehman the answer it wanted. So long as the repos were conducted in London through the bank’s European arm, and so long as the company took other cosmetic steps to make these transactions appear to be sales instead of financings, Linklaters determined that they would pass regulatory muster.

A spokeswoman for Linklaters said on Friday that the firm was not contacted by Mr. Valukas and that its legal opinions were not criticized in the examiner’s report as wrong or improper.

Lehman also had the backing of Ernst & Young, which certified the bank’s financial statements despite receiving warnings from a whistle-blower who said there were accounting improprieties. An Ernst & Young spokesman said on Thursday that the firm stood by its work for 2007, the last year it conducted an audit of Lehman’s financial results.

But Lynn E. Turner, a former chief accountant for the S.E.C., accused Ernst & Young of abdicating its responsibility to the audit committee of Lehman’s board by not presenting the concerns.

“This is pretty aggressive and pretty abusive. I don’t know how under GAAP this follows the rules whatsoever,” he said, referring to Generally Accepted Accounting Principles.

“That reeks of an auditor who, rather than being really truly independent, is beholden to management,” he said, adding that the S.E.C. and the Justice Department should follow up on Mr. Valukas’s findings.

Executives at other Wall Street banks professed surprise at Lehman’s accounting maneuvers. Goldman Sachs, Barclays Capital and other banks said on Friday they did not use repos to hide liabilities on their balance sheets.

Click here to read the complete story at Livinglies's Weblog.

Click here to read the complete story at msnbc.com: Real estate.

see FORECLOSURE_SUBPRIME_MORTGAGE_LENDING_AND_MERS1

Editor’s Note: This appears to be public domain. The article is excellent in its analysis of MERS. Here is the Table of Contents:

FORECLOSURE, SUBPRIME MORTGAGE LENDING, AND THE MORTGAGE ELECTRONIC REGISTRATION SYSTEM
Christopher L. Peterson*
TABLE OF CONTENTS
I.
THE AMERICAN REAL PROPERTY RECORDING SYSTEM
II.
THE ORIGIN AND OPERATION OF MERS
III.
THE QUESTIONABLE LEGAL FOUNDATION OF MERS
A.
MERS Does Not Own Legal Title to Mortgages Registered On Its Database
B.
MERS Lacks Standing to Bring Mortgage Foreclosures
C.
MERS’ Foreclosure Efforts Implicate the Federal Fair Debt Collection Practices Act
i.
MERS is a Third Party Debt Collector
ii.
Mortgage Servicers that Cloak Themselves in MERS’ Name Should be Construed as Debt Collectors
D.
Loans Recorded in MERS’ Name May Lack Priority Against Subsequent Purchasers for Value and Bankruptcy Trustees
IV.
ANALYZING MERS’ ROLE IN THE RESIDENTIAL MORTGAGE MARKET
A.
MERS and the Mortgage Foreclosure Crisis
B.
MERS and Atrophy of the Land Title Information Infrastructure
C.
Title Recording Law and Democratic Governance

Click here to read the complete story at Livinglies's Weblog.