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.
First, Nevada law is clear that “[a]n action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.” Ernestburg v. Mortgage Investors Group, No. 2:08-cv-01304-RCJ-RJJ, 2009 WL 160241, at *6 (D. Nev. Jan. 22, 2009) (internal citations and quotations omitted). The plaintiff must establish that they were not “in default when the power of sale was exercised.” Id. (citing Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983)). Furthermore, a claim for wrongful foreclosure does not arise until the power of sale is exercised. Collins, 662 P.2d at 623.
