US Bank Summary Judgment Denied in Iowa
By Daniel Edstrom
DTC Systems, Inc.
Motion for Summary Judgment denied in Iowa.
Download ruling: http://dtc-systems.net/wp-content/uploads/2011/12/US_Bank_vs_Wheeler_MSJ_Ruling.pdf
Author: dmedstrom
Reverse Engineering and Failure Analysis
- Reverse Engineering Wall Street
Texas Ropes One In: Motion to Dismiss Denied
Texas Ropes One In: Motion to Dismiss Denied
By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net
From April Charney:
…”If the holder of the deed of trust does not own or hold the note, the deed of trust serves no purpose, is impotent, and cannot be a vehicle for depriving the grantor of the deed of trust of ownership of the property described in the deed of trust….[finding that]…inherent in the procedural steps outlined in the Texas Property Code is the assumption that whatever entity qualifies as a “mortgagee” either owns the note or is serving as an agent for the owner or holder of the note; and, the statute assumes that when a foreclosure is conducted by someone other than the owner or holder of the note, the person conducting the foreclosure will be acting as agent or nominee for the owner or holder…Otherwise, the Texas statutory law would make no sense, and would be directly at odds with long-standing, basic principles governing the relationship between real estate borrowers, on the one hand, and their corresponding secured real estate lenders, on the other.” (edited from the below decision):
JANE McCARTHY, Plaintiff, vs. BANK OF AMERICA, NA, BAC HOME LOANS SERVICING, LP, and FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendants. NO. 4:11-CV-356-A December 22, 2011
The OCC Misses the Point on Toxic Waste
The OCC Misses the Point on Toxic Waste
By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net
We all see what we want to see. But when others control the conversation, it is easy to miss the point. As a regulator the Office of the Comptroller of the Currency should be taking the lead and controlling the conversation, but in reality, they have been bridled and are being led around by the nose. Conspiciously absent are numerous issues they as a regulator have the responsibility of dealing with. This article is timely in response to an article by Neil F. Garfield (http://livinglies.wordpress.com/2011/12/27/the-big-lie-banks-did-nothing-illegal/), which is a response to Yves Smith of Naked Capitalism article (http://www.nakedcapitalism.com/2011/12/more-msm-criticism-of-obama-nothing-illegal-here-move-along-stance-on-foreclosure-fraud.html), which is a response to a Reuters article (http://www.reuters.com/article/2011/12/22/us-foreclosures-idUSTRE7BL0MC20111222). But I found none of these articles until I was finished writing this post. Take the following random and critical issues:
- Are the loans in the pool? Were the loans ever in the pool? Does the pool exist? Did the pool perfect interest in any of the loans? This issue is very political and the OCC in our opinion will never address this issue or look into this.
- What loans are in default? Can a loan be in default? What comes first, the default or the loss?
- Are there any compliance issues?
World Savings Bank: Wells Fargo Admits Loans Were Securitized
World Savings Bank: Wells Fargo Admits Loans Were Securitized
By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net
http://livinglies.wordpress.com
In a huge disclosure, Wells Fargo Bank has admitted that World Savings loans were securitized. This is a big move for homeowners strapped with Option ARM negative amortization loans. In recent months we have seen numerous endorsements on World Savings promissory notes showing that the notes were in fact endorsed to The Bank of New York. This is not an isolated incident as we now have 3 confirmed cases where World Savings notes were endorsed to The Bank of New York. Foreclosure defense lawyers have been seeking to know what this information means for their clients. These details are revealed in the LivingLies / Luminaq / AHC combo and in the DTC Systems Securitization Reverse Engineering and Failure Analysis for Lawyers (disclosure: DTC Systems provides their unique and premier Securitization Reverse Engineering and Failure Analysis and also provides services to Attorney Neil F. Garfield’s Securitization Report and Securitization Commentary, which is included in the LivingLies Combo).
Here is the original World Savings post: https://dtc-systems.com/world-savings-bank-loans-were-securitizated/
Lona vs Citibank: Decision from Court of Appeals of California
Lona vs Citibank: Decision from Court of Appeals of California
By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net
http://livinglies.wordpress.com
Here is this summary judgment reversal from an original ruling against a homeowner. Download the PDF at the end.
LONA v. CITIBANK, N.A.
JONAS Z. LONA, Plaintiff and Appellant,
v.
CITIBANK, N.A., as Trustee, etc. et al., Defendants and Respondents.
No. H036140.
Court of Appeals of California, Sixth District.
Filed December 21, 2011.
Law Office of Adlore V. Clarambeau, Adlore V. Clarambeau, Attorneys for Appellant Jonas Z. Lona.
Alvarado Smith, John M. Sorich, S. Christopher Yoo, Geoffrey C. Brethen, Attorneys for Respondent Citibank, N.A.
CERTIFIED FOR PUBLICATION
WALSH, J.*
Responding to a mortgage broker’s “marketing enticement,” a homeowner agreed in January 2007 to refinance his home for $1.5 million. With a monthly income of only $3,333, the homeowner quickly fell behind in his monthly payments of $12,381.36. In August 2008, the home was sold at a nonjudicial foreclosure sale. The homeowner filed an action against the lender, the loan servicer, and others to set aside the trustee’s sale claiming that he was a victim of predatory lending. He claimed the transaction was invalid because the loan broker ignored his inability to repay the loan, and, as a person with limited English fluency, little education, and modest income, he did not understand many of the details of the transaction which was conducted entirely in English.
In response to the homeowner’s claim, the lender and the loan servicer moved for summary judgment, arguing: that the homeowner had failed to tender the amounts due on the loans, which was required to set aside the sale; that none of the exceptions to the tender requirement applied; and that the homeowner voluntarily entered into the loan agreements and was personally responsible for the loss of his home. The trial court granted summary judgment to the lender and loan servicer.
We will reverse the summary judgment. In doing so, we define the elements of an equitable cause of action to set aside a foreclosure sale and exceptions to the requirement that the borrower tender any amounts due under the loan. We hold that summary judgment was improper because: the homeowner presented sufficient evidence of triable issues of material fact with regard to the alleged unconscionability of the transaction; and the motion did not address a pertinent exception to the tender requirement, which the homeowner had raised in his complaint. Continue reading “Lona vs Citibank: Decision from Court of Appeals of California”
Legal Standing At Inception
Legal Standing At Inception
By Daniel Edstrom
DTC Systems, Inc.
No I am not an attorney and no I am not providing legal advice. This is the name of an article I just read posted on Neil Garfield’s LivingLies blog. The article is from Mark Stopa, an attorney in Florida. Read this article first and then come back and read my comments below: http://livinglies.wordpress.com/2011/12/19/legal-standing-at-inception/
When I saw the title, I thought awesome, they will go back to the origination of the loan. But they went back to the time the judicial foreclosure case was filed. This is a good argument and it should be fairly straight forward, or at least as straight forward as anything can be in a legal proceeding. What I was looking for was what I heard this last week from somebody. They went to bankruptcy court and told the judge that they had evidence that their loan was table funded, which means the named lender did not provide the money to fund the loan. The money to fund the loan came from an unknown and undisclosed third party. The bankruptcy judge made a simple statement. The judge said that if the named originator did not fund the loan, then they have nothing to transfer, and the movant in the motion for relief from stay (the bank) would therefore have nothing. This judge understands that the note is only evidence of the obligation, it is not the actual obligation. Transfer of the note or the security instrument (Mortgage, Deed of Trust, Security Deed or Mortgage Deed) without an interest in the obligation itself, is meaningless. That is the type of standing issue that I would like to see attorneys make in all states.
Is this why under Regulation “Z” table funded loans have the presumption of being predatory?
Deed of Trust Example Language
[Picture: MERS Shareholders]
Deed of Trust Example Language
By Daniel Edstrom
DTC System, Inc.
I have read numerous cases including appeals court cases (both Federal and State). It appears to me that the actual language from the Security Instrument regarding MERS is being brought up or argued in a very general way and without a thorough analysis. I am not an attorney and will not provide legal advice to anyone. This is not legal advice but provided only for educational and informational purposes only. This is simply what a standard CALIFORNIA-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH MERS Form 3005 looks like, in relation to the main MERS language (not all inclusive).
- This security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note.
- For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property […]
- “MERS” is Mortgage Electronic Registration Systems, Inc.
- MERS is the beneficiary under this Security Instrument
- MERS is a separate corporation that is acting solely as nominee for Lender and Lender’s successors and assigns.
- The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of MERS.
- Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument
Ohio Supreme Court Certifies Questions Regarding GMAC Robo-signing Issues and Ohio Consumer Sales Practices Act
Ohio Supreme Court Certifies Questions Regarding GMAC Robo-signing Issues and Ohio Consumer Sales Practices Act
By Daniel Edstrom
DTC Systems, Inc.
On August 24, 2011, the Ohio Supreme Court agreed to hear the following questions:
MOTION AND PROCEDURAL RULING
On review of preliminary memoranda pursuant to S.Ct.Prac.R. 18.6. The court will answer the following questions:
1. “Does the servicing of a borrower’s residential mortgage loan constitute a `consumer transaction’ as defined in the Ohio Consumer Sales Practices Act., R.C. 1345.01(A)?”
2. “Does the prosecution of a foreclosure action by a mortgage servicer constitute a `consumer transaction’ as defined in the Ohio Consumer Sales Practices Act., R.C. 1345.01(A)?”
3. “Is an entity that services a residential mortgage loan, and prosecutes a foreclosure action, a `supplier . . . engaged in the business of effecting or soliciting consumer transactions’ as defined in the Ohio Consumer Sales Practices Act., R.C. 1345.01(C)?'”
O’DONNELL, J., dissents.
Ruling: http://dtc-systems.net/wp-content/uploads/2011/12/State-ex-rel-DeWine-v.-GMAC-Mtge-LLC.pdf
Presentation regarding Mortgage Servicing Origination and Foreclosure Issues: http://dtc-systems.net/wp-content/uploads/2011/12/08-Mortgage-Servicing-Origination-and-Foreclosure-Issues-Jeff-Loeser-presentation.pdf
Interesting California Civil Codes
Interesting California Civil Codes
By Daniel Edstrom
DTC Systems, Inc.
Those who haven’t read these should read through them for educational purposes.
California Civil Code Selections
1044
Property of any kind may be transferred, except as otherwise provided by this Article.
1045
A mere possibility, not coupled with an interest, cannot be transferred.
1046
A right of reentry, or of repossession for breach of condition subsequent, can be transferred.
1047
Any person claiming title to real property in the adverse possession of another may transfer it with the same effect as if in actual possession.
1054
A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor.
1056
A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.
1057
A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow. Continue reading "Interesting California Civil Codes"
OCC Guidance on Potential Issues With Foreclosed Residential Properties
Guidance on Potential Issues With Foreclosed Residential Properties
By Daniel Edstrom
DTC Systems, Inc.
The Office of the Comptroller of the Currency has issued the following guidance in respect to foreclosed properties:
OCC 2011-49
Subject: Foreclosed Properties
Date: December 14, 2011
To: Chief Executive Officers of All National Banks and Federal Savings Associations, Department and Division Heads, and All Examining Personnel
Description: Guidance on Potential Issues With Foreclosed Residential Properties
Background
In the current economic environment, national banks and federal savings associations (collectively, banks) are facing challenges resulting from unprecedented numbers of troubled residential mortgage loans. Foreclosures on residential properties also are occurring in unprecedented numbers and are projected to continue this trend in the near term. Among the many consequences of high levels of foreclosures are growing inventories of foreclosed residential and commercial properties. The Office of the Comptroller of the Currency (OCC) is providing guidance to banks on obligations and risks related to foreclosed property. This guidance highlights legal, safety and soundness, and community impact considerations.1 It primarily focuses on residential foreclosed properties, but many of the same principles apply to commercial properties. Continue reading “OCC Guidance on Potential Issues With Foreclosed Residential Properties”