Perils of Pooling: OneWest

Neil_GarfieldPerils of Pooling: OneWest

By Daniel Edstrom
DTC Systems, Inc.

The following article was posted by Neil F. Garfield of livinglies.wordpress.com and comes from the following URL: http://livinglies.wordpress.com/2013/07/31/perils-of-pooling-onewest/

Apparently my article yesterday hit a nerve. NO I wasn’t saying that the only problems were with BofA and Chase. OneWest is another example. Keep in mind that the sole source of information to regulators and the courts are the ONLY people who understand mergers and acquisitions. So it is a little like one of those TV shows where the only way they can get an arrest and conviction is for the perpetrator or suspect to confess. In this case, they “confess” all kinds of things to gain credibility and then lead the agencies and judicial system down a rabbit hole which is now a well trodden path. So many people have gone down that hole that most people that is the way to get to the truth. It isn’t. It is part of a carefully constructed series of complex conflicting lies designed carefully by some very smart lawyers who understand not just the law but the way the law works. The latter is how they are getting away with it.

Continue reading “Perils of Pooling: OneWest”

SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date


SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date

By Neil Garfield
Garfield Gwaltney Kelley and White | LivingLies

Maybe this should have been divided into three articles:

  1. Saldivar: Texas BKR Judge finds Assignment Void not voidable. It never happened.
  2. Erobobo: NY Judge rules ownership of note is burden of the banks. Not standing but rather capacity to sue without injury.
  3. SEC Orders Credit Suisse to disgorge illegal profits back to investors. Principal balances of borrowers may be reduced. Defaults might not exist because notices contain demands that include money held by banks that should have been paid to investors.

But these decisions are so interrelated and their effect so far-reaching that it seems to me that if you read only one of them you might head off in the wrong direction. Pay careful attention to the Court’s admonition in Erobobo that these defenses can be waived unless timely raised. Use the logic of these decisions and you will find more and more judges listening with increasing care. The turning point is arriving and foreclosures — past, present and future — might finally get the review and remedies that are required in a nation of laws.

Continue reading “SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date”

The Internal Revenue Service is Investigating the Tax-Exempt Status of REMICs

The Internal Revenue Service is investigating the Tax-Exempt Status of REMICs

By Daniel Edstrom
DTC Systems, Inc.

Reuters has announced that “The Internal Revenue Service has launched a review of the tax-exempt status of a widely-held form of mortgage-backed securities called REMICs.”  This comes after many years of homeowners, lawyers and securitization experts having discussed the shenanigans of Wall Street.  The standard industry practice is that loans were never perfected into these REMICs, which required the loans as “qualified mortgages” to be in the REMIC within 90 days of the “startup day”, which corresponds with the trust “closing date”.  However, in nearly every case we have seen, the REMIC servicers are doing an assignment of the security instrument into the trust after the loan is in foreclosure in order that whoever is foreclosing has the right to foreclose.  Unfortunately once a loan is in default it is no longer a “qualified mortgage” under REMIC laws, not to mention that it is years past the REMIC “startup day”.  Nor as Judge Arthur Schack puts it in New York, why is the trustee accepting the conveyance of a non-performing loan into the trust?

Specifically the article says “These banks’ transgressions, confirmed in court decisions and through recent action by federal bank regulators, include the failure to formally transfer ownership of mortgages to the trusts that invested in them and the subsequent creation of fraudulent mortgage assignments and other false documents.”  Cease and Desist Consent Orders were just issued against Bank of America, Citibank, HSBC, JP Morgan Chase, US Bank, Wells Fargo, Aurora Bank, EverBank, EverBank Financial Corporation, IMB HoldCo LLC, OneWest, Sovereign Bank, DocX, LPS Default and MERS.  Just wait until the Securities and Exchange Commission decides to investigate Sarbanes-Oxley legislation against the statements these entities have made under oath with what the bank regulators found actually happened with them. Continue reading “The Internal Revenue Service is Investigating the Tax-Exempt Status of REMICs”

Foreclosure Mills Continue Down the Wide Path of Destruction

Foreclosure Mills Continue Down the Wide Path of Destruction

By Daniel Edstrom
DTC Systems, Inc.

We have already talked about the foreclosure mills the Law Offices of David J. Stern PA and Ben-Ezra & Katz PA and NDEx West (owned by Dolan Media) with its doppelgänger foreclosure mill law firm, Barrett Daffin Frappier Turner & Engle.  Now we turn our attention to Shapiro & Burson apparently out of Maryland.  As stated on livinglies.wordpress.com (and originally from 4closurefraud.org), The Baltimore Sun’s Jamie Smith Hopkins reports that 1,000 or more Maryland deeds are likely forgeries that were created by a foreclosure mill (the law firm of Shapiro & Burson).  It turns out that last year two other law firms in Maryland admitted they had forged signatures on foreclosure documents in a similar manner (Bierman Geesing & Ward along with Covahey Boozer Devan and Dore).  I have already shown that NDEx West (owned by Dolan Media) along with Barrett Daffin Frappier Turner & Engle does the same thing.  This is very easy to show for just about any foreclosure mill.  Here is how.  Just go down to the recorders office and pull up 20 documents in each of the last 3 or 4 years naming your favorite foreclosure mill (NDEx West or whoever).  The chances of you not finding one forgery are probably close to 0%.  The chances of you finding multiple forgeries is very high (99%+). Continue reading “Foreclosure Mills Continue Down the Wide Path of Destruction”

Understanding the Governing Documents 1

Understanding the Governing Documents 1

by Daniel Edstrom

Wall Street financial engineering is a thing to behold.  Of course most of it is in complex legal terms difficult to comprehend.  Let’s take a look at a few definitions in a Prospectus Supplement and break them down.  This is from the RASC Series 2005-EMX4 Trust put out by GMAC.

Subordination. So long as the Class M Certificates remain outstanding, losses on the mortgage loans which are not covered by amounts payable under excess cash flow or overcollateralization will be allocated to the Class M Certificates that remain outstanding with the lowest payment priority, and the other classes of certificates will not bear any portion of such losses. If none of the Class M Certificates are outstanding, all such losses will be allocated to the Class A Certificates as described in this prospectus supplement.

What this means: Numerous classes of certificates are issued.  In this trust the Class A certificates are paid in priority first while any losses first come out of the Class M certificates.  Once the Class A certificates principal is paid in full, the principal is applied to the Class M certificates.  Once the Class M certificates absorb all losses and the principal is reduced to zero, the Class A certificates will suffer losses.  The diagram to the left shows what this looks like.  Is there a loss?  Only if the loss is not covered by “amounts payable under excess cash flow” or “overcollateralization.”

DEBT SERVICE REDUCTION–Modifications of the terms of a mortgage loan resulting from a bankruptcy proceeding, including a reduction in the amount of the monthly payment on the related mortgage loan, but not any permanent forgiveness of principal.

What this means: A reduction in the monthly payment based on a bankruptcy ruling but not including any permanent principal forgiveness.  This doesn’t mean much at the moment but we will revisit this shortly.

Realized Loss–As to any defaulted mortgage loan that is finally liquidated the portion of the Stated Principal Balance plus accrued and unpaid interest remaining after application of all amounts recovered, net of amounts reimbursable to the master servicer for related Advances, Servicing Advances and other expenses, towards interest and principal owing on the mortgage loan. For a mortgage loan the principal balance of which has been reduced in connection with bankruptcy proceedings, the amount of the reduction. As to any mortgage loan that has been the subject of a Debt Service Reduction, the amount of the reduction. For a mortgage loan that has been modified, following a default or if a default was reasonably foreseeable, the amount of principal that has been forgiven, the amount by which a monthly payment has been reduced due to a reduction of the interest rate, and any Servicing Advances that are forgiven and reimbursable to the master servicer or servicer. To the extent the master servicer receives Subsequent Recoveries with respect to any mortgage loan, the amount of the Realized Loss with respect to that mortgage loan will be reduced to the extent such recoveries are received.

What this means: This is part of the Wall Street engineering genius that is difficult to understand.  Basically what it is saying is that despite what you might believe,  despite what a judge rules in bankruptcy, and despite the fact that a loan modification has been applied to a loan, the investors receive the original payment of principal and interest.  Even after a ruling by a standing bankruptcy judge the investors receive the original principal and interest based upon the original note (or at least the copy of the note allegedly pooled into the trust).  One can only imagine the book-keeping nightmares that servicers face keeping multiple sets of books and trying to keep them all straight.  This is my best guess as to why the servicers have such a hard time keeping the accounting straight for those in bankruptcy.  Just ask O. Max Gardner III how often the servicers mess up bankruptcy rulings.

Read all of the above again.  Even if the principal and interest payment are reduced in bankruptcy, the servicer is required to advance the principal and interest of the original mortgage loan as amortized.  Once the loan is liquidated (paid off), the principal loss is calculated at that time and advances which have not been paid by other forms of credit enhancements are paid back to the advancing party.   THE INVESTORS GET THEIR MONEY during the course of the loan (whether or not paid by the homeowners), then it gets ripped out of their hands all at once when the loss is calculated.  But you never know for sure whether the investors will actually suffer a loss or if the credit enhancements will pay for it.  This is one of many reasons why the homeowner is entitled to a full accounting.

Bankruptcy judges be warned: Wall Street takes your rulings with a grain of salt and applies them in their own fashion.  This can only stem from multiple sets of books that are concealed, misrepresented and not disclosed to the courts.

Disclaimer Reminder:  This is a blog for educational and informational use only and does not constitute legal advice.  Take no action without first consulting an attorney in your jurisdiction.

Split: The Note and the Deed of Trust (Redux)

The Note and Mortgage are split in judicial states the same as the Note and Deed of Trust in non-judicial states.

Split: The Note and the Deed of Trust (Redux)

by Daniel Edstrom

The Note and Mortgage are split in judicial states the same as the Note and Deed of Trust in non-judicial states.

The first issue is that the note was sold in 2005 but the Deed of Trust appears to have been left behind.  For the uninitiated, if the Note and Deed of Trust are split, this causes a nullity.  A nullity means the security interest is lost and the debt becomes unsecured.  In securitization this is standard operating procedure and is one of the issues that we are left to face.  Upwards of 60,000,000 homes may be unencumbered leaving those who own the notes on these houses with no power of sale.  And more considering MERS wasn’t the only party involved in splitting the note from the security instrument.

Who owns these loans if they are unsecured?  That was the whole purpose of creating the securitization diagram in the first place.

The result?  More questions, few answers. Continue reading “Split: The Note and the Deed of Trust (Redux)”

Obligations and Defaults

We now jump ahead in the story and skip all the details of securitization including when, if and how your loan was allegedly transferred into the mortgage loan pool (the securitization trust).

If you haven’t heard of John Courson,

I want to change that.

John is the President and CEO of the Mortgage Bankers Association.

by Daniel Edstrom

Mr. Courson believes that it is a moral imperative to keep your financial obligations.  If you haven’t seen the video here http://www.thedailyshow.com/, you should.

Now let’s look at the alleged obligations and who is actually obligated.  This will lead us down the road to defaults and who is actually in default.  If you have a mortgage, you by default are the obligor because you are the one with the “obligation” to repay.  The note you signed is not the obligation but is evidence of the obligation.  The obligation arose when money was advanced by a “creditor” and you accepted the money.  So even if the note doesn’t exist there is still an obligation.  A default occurs when you fail to meet the terms of your obligation.  In days gone by this would be the end of the story, but thanks to Wall Street financial engineering we haven’t even reached the beginning yet.

We now jump ahead in the story and skip all the details of securitization including when, if and how your loan was allegedly transferred into the mortgage loan pool (the securitization trust).  We will just assume for the sake of argument that your loan is in the pool and that everything is A-OK, which is what the big banks with the robo-signing blues are saying anyway.  The SEC Filings are the governing documents and because they are typically a thousand pages of legal gibberish, you have to understand what words mean, such as “obligation” and “default”.  Let’s start with default.  Here is what US Bank, N.A., which acts as Trustee on thousands of securitized trusts says a default is (from http://www.usbank.com/cgi_w/cfm/commercial_business/products_and_services/corp_trust/terms_ps.cfm#d): Continue reading “Obligations and Defaults”