Monday, August 30, 2010

Suprize! Banks Help Out More Homeowners Than Obomba

All except for $hiti-Mortage, that is. They claim  to have "no knowledge" of any "alternative plan" based on their own initiatives, like JP Morgan, BOA and Wells Fargo are doing ON THEIR OWN to help  homeowners stay in their homes;


QWRs should stick to the code. Do not turn the QWR into a poor mans discovery. Discovery per court rules and procedure, QWR per 12 USC 2605. Two different animals

Friday, August 27, 2010

A Bright Side to Govt' Mortgage Programs: Help for Some after Loan Modification FAIL but NO Help from $hiti-Bank

NEW YORK (TheStreet) -- If there's anything positive to highlight about the government's response to the mortgage crisis, it's that the Obama administration's "Making Home Affordable" program has kickstarted the private industry into modifying more loans through proprietary programs.

The most recent data released by the Treasury Department on Friday show that the federal program's progress slowed further in July, and that people are canceling federal workouts at a remarkable pace. The vast majority of homeowners who abandon the federal program but stay in their home do so through an alternative offered by a bank.

About 630,000 people have canceled workouts offered by the Home Affordable Modification Program (HAMP), slightly less than the 678,000 who are still in active trials or permanent modifications. Over 45% of those who canceled a trial mod moved into an alternative modification offered by a bank, while 31% of those who weren't eligible for the program did the same.

The statistics can be misleading about the industry's progress in modifying loans, however. The country's four largest mortgage-servicers, Bank of America (BAC), Wells Fargo (WFC), JPMorgan Chase (JPM) and Citigroup (C), represent 63% of the 1.5 million HAMP-eligible borrowers. They have moved an average of 28% of those homeowners into permanent modifications.

But, for instance, while Bank of America has only moved 76,300 borrowers through HAMP since its initiation, it has modified loans for 100,000 borrowers in 2010 alone using alternative workouts. Since January 2008, it has completed more than 665,000 mortgage modifications.

"When a customer is found to be ineligible for HAMP or falls out of a trial modification, we consider an alternative home retention program, and if no viable solution is available, a dignified exit from homeownership," said Rebecca Mairone, an executive in Bank of America's mortgage division.

Wells Fargo and JPMorgan Chase have reported similar trends.

TheStreet examined the myriad difficulties the country has faced in resolving the mortgages of troubled homeowners - from the government program's problems, to banks' response , to homeowners being targeted by mortgage-fraud schemes - in a special series this week.

In announcing the latest statistics, the government acknowledged that progress has been slow-going and that new problems have arisen since President Obama first announced "Making Home Affordable" in February 2009.

"While there has been some stabilization in the housing market, it remains clear that we have more work ahead," Raphael Bostic, assistant secretary at the Department of Housing and Urban Development, said in a statement. "Through the Obama Administration's efforts over the past 16 months, we have seen increased price stabilization and improved home affordability for prospective, qualified homebuyers. At the same time, we know that we must continue to provide support to underwater borrowers, unemployed homeowners, and to the nation's hardest hit neighborhoods."

UPDATE on our own efforts with loan modification thru $hiti-Mortgage 8/27/10

After cancelling the plan citi worked up for us because we have an upside-down mortgage where,due to the housing bubble burst we owe much more than our home is worth ....(Owing over $100,000 and house is worth $75,000 AT MOST). Ignoring Obomas January Directive where he advised the banks to "work with" upside down mortgage holders by reducing some of the principal,....$hiti-Mortgage refuses to work with underwater mortgage holders telling them, is govt loan modification "as is" or nothing.  Then today I read the above article learning that other big banks are taking it upon themselves to help out such mortgage holders with their own "Alternative Modification Programs" or "Alternative Home Retention Programs" - wonderful news, right? Only the right thing for the Bank$ters to do, right? Since they are the ones who illegally artificially inflated the values of their mortgage backed securities when presenting them to investors for sale......soooooooooo

Today I called (866-272-4749) Customer Service at $hitiMortgage and talked to a rep who refused to give me her full name and employee ID # until I put up such a fuss about her refusal that she had to go ask her supervisor if it was ok to give me that info and of course,...the ans was "of course," so the person I spoke to was named Veronica (no last name) and her employee # is VW93176 . I called around 1:15 pm EST)

I told her that we had refused the loan modification plan that $hiti had worked up for us for two reasons;
(1) That the figures didnt include all of the monies allegedly owed, neglecting to include $15,000 in arrears, penalties and fines that (as we understand) will be billed at a later time, seperately, making the total amount of our monthly payments unknown (who would sign onto a contract like that?) and
(2) Because the amount owed on the loan is greater than the homes worth (upside down or underwater mortgage)

I also informed her of the nature of the article above,.....indicating to her that all the other "Big Bank$" were formulating their own programs to help these type mortgage holders,....and then I asked her what sort of program "independant of govt aid" $hiti was offering its homeowner customers in similar circumstance.....ha ha ha  the answer was NOT, nothing, Nada from $hiti for homeowers who dont qualify for govt modification or who hold upsidedown mortgages. According to $hiti-Mortgage,...there is no help for these kind (our kind) of struggling homeowners...ignoring Obomas January Directive (to reduce principal) and ignoring the example of other more "customer friendly" big banks who have taken it upon themselves and come up with their own programs to help struggling homeowners to remain in their homes....

$hiti did however, offer to help us with a "short sale" which means, they will help us sell our home at a reduced price on the open market...(the "long arm" provision which prohibits us or any other family member or friend from purchasing it)

I told $hiti that we were not interested in selling the home but in staying in it. I told them that they only way we would be leaving it is upon a contract recission based on their illegalities and only after which they paid us back every red cent we have into the place.....

Veronica didnt know what to say, but I am sure she made note on the record that we would not go gently into the fight....

$hiti-Wars Continues ......

Sunday, August 22, 2010

More Home-owner Victories (Fla.)


August 19, 2010

During the course of nine separate court hearings in southwest Florida today, a Judge dismissed two foreclosure cases on motion of Jeff Barnes, Esq. for failure of the Plaintiff to link up assignments of the loan from the original lender to the Plaintiff in the Plaintiff’s pleadings, notwithstanding that post-filing assignments had been either filed or served in partial response to discovery. These rulings reflect a change from prior court rulings, where judges had permitted non-original lender Plaintiffs to generally plead that they owned and held the note and mortgage but had not explained how they came into ownership thereof in the allegations of the Complaint.
The effect of these rulings is to now force foreclosing Plaintiffs to give notice to borrowers up front, in the Complaint, as to how the Plaintiff (allegedly) acquired its interest in the mortgage and note, which will have the practical effect of streamlining defensive pleadings and narrowing discovery, and will not allow foreclosing non-original lender Plaintiffs to obscure material chain-of-title issues and blindside borrowers on summary judgment motions where alleged proof of chain of title is introduced for the first time.
The Judge also, in separate hearings, ordered foreclosing Plaintiffs to provide substantive responses to Mr. Barnes’ discovery requests after the Plaintiffs filed blanket objections in one case and open-ended Motions for more time to respond to the discovery (that being a Motion which does not request any specific amount of additional time to respond) in 2 other cases. Blanket objections to all discovery requests and open-ended Motions for more time which the moving Plaintiff does not even set for hearing are a common practice of foreclosure mills which are used to delay or hamstring discovery. The really arrogant mills then file a Motion for Summary Judgment while simultaneously refusing to provide responses to borrower discovery, necessitating additional hearings to reschedule the summary judgment hearing, motions to compel discovery, etc.
Jeff Barnes, Esq., www/

Saturday, August 21, 2010

A Win in NC

It seems like EVERY DAY we are finding more and more of these rulings from the appellate courts…

Great work Foreclosure Fighters!!!

NO. COA09-1455


Filed: 1 June 2010

of a Deed of Trust Executed by
Hannia M. Adams and H. Clayton
Adams, Dated October 31, 2005,
Recorded in Book 11668, Page 2236
in the Wake County Registry.
Wake County
No. 09 SP 119
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Appeal by respondents from order entered 1 June 2009 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 12 April 2010.

Tatum Law Firm, PLLC, by Brian Steed Tatum, for petitioner–appellee.

Brent Adams & Associates, by Cameron V. Frick and Brenton D. Adams, for respondents–appellants.

MARTIN, Chief Judge.


We recognize that, in the present case, the testimony by affidavit from Ms. Smith, the assistant secretary of Deutsche Bank for Soundview—an out-of-state entity—as well as the in-person testimony offered by Ms. Cole indicated that Deutsche Bank for Soundview is the current holder of the Note and Deed of Trust. However, neither the in-person testimony from Ms. Cole nor the testimony by affidavit from Ms. Smith expressly showed that Novastar transferred or assigned its interest in the Note and Deed of Trust to Deutsche Bank for Soundview. Moreover, as we discussed above, the photocopied Note and Deed of Trust, which were described in Ms. Smith’s affidavit as “exact reproductions” of the original instruments, do not show that the Note was indorsed, transferred, or otherwise made payable by Novastar, the original holder of the instrument, to Deutsche Bank for Soundview. Thus, whereas the record in In re Foreclosure of Brown, 156 N.C. App. 477, 577 S.E.2d 398 (2003), also included an Assignment of Deed of Trust as evidence showing that the original holder of the note and deed of trust had assigned its interest in said instruments to the party seeking to foreclose on the respondent–borrowers, the record before the trial court in the present case contained no such additional evidence. Accordingly, because a foreclosure under a power of sale is not favored in the law and must be “watched with jealousy,” see In re Foreclosure of Goforth Props., 334 N.C. at 375, 432 S.E.2d at 859 (internal quotation marks omitted), we must conclude that the evidence presented to the trial court was not sufficient to establish that the Note was payable to Deutsche Bank for Soundview, and so was not sufficient to support the trial court’s finding of fact that “Novastar Mortgage, Inc., . . . transferred and assigned its interest in the Note and Deed of Trust to Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2005-4 (‘Lender’).” See, e.g., Smathers v. Smathers, 34 N.C. App. 724, 725, 239 S.E.2d 637, 638 (1977) (“The notes upon which plaintiff sues were not drawn, issued or indorsed to her or to her order or to bearer or in blank. Therefore, plaintiff is not the holder of the notes within the meaning of the Uniform Commercial Code, G.S. Ch. 25, and the trial court erred in according her the rights of a holder under G.S. 25-3-301.”); see also Econo–Travel Motor Hotel Corp., 301 N.C. at 203–04, 271 S.E.2d at 57 (holding that, where a promissory note “had never been made payable to plaintiff or to bearer, nor had it ever been indorsed to plaintiff, . . . defendants established that plaintiff was not the owner or holder of the note”). Therefore, we reverse the trial court’s order authorizing Monica Walker, Matressa Morris, and Nationwide to act as substitute trustees and proceed with foreclosure under a power of sale for the property described in the Deed of Trust recorded in Book 11668 at Page 2236 in the Wake County Register of Deeds.
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Judges JACKSON and BEASLEY concur.

Read full opinion below…


Florida Foreclosure Defense
Law Offices of Carol C. Asbury


View this document here;

Friday, August 20, 2010

Bank Fraud and Predatory Lending Articles

Landmark Decision Promises Massive Relief for Homeowners and Trouble for Banks

A landmark ruling in a recent Kansas Supreme Court case may have given millions of distressed homeowners the legal wedge they need to avoid foreclosure. Landmark National Bank v. Kesler

More opinions about this decision here
Banks' Foreclosure Rights Questioned

A growing number of home-mortgage holders in foreclosure are taking their lenders to court, where they are posing fundamental questions about the banks' legal right to repossess their homes, said an attorney addressing a packed crowd of lawyers Thursday at the State Bar of Arizona 2009 Convention in Phoenix. convention
Assignment of a Mortgage Note Without the Mortgage in Florida and Vice Versa

In today's financial world, the law regarding the transfer of mortgage notes and mortgages in the secondary mortgage market is quite a relevant topic. Issues may arise of the effect of the assignment of a mortgage note without the assignment of the related mortgage. One may also question the effect of the assignment of a mortgage without the assignment of the related mortgage note. assignment
Foreclosure Order by Judges in Summit County, Ohio

The judges of the common pleas court - general division have determined that when a foreclosure case is filed the use of a certificate of readiness is required to be filed by parties other than the original mortgagee and note holder. The foreclosing agent must be the original investor and produce the ORIGINAL NOTE. See: New Foreclosure Order
Misbehavior and Mistake in Bankruptcy Mortgage Claims

The data reinforces concerns about whether consumers can trust
financial institutions to adhere to applicable laws. The findings are a chilling reminder of the limits of formal law to protect consumers. Imposing unambiguous legal rules does not ensure that a system will actually function to safeguard the rights of parties. Observing the reality that laws can underperform or even misfire has crucial implications for designing legal systems that produce acceptable and just behavior. Misbehavior
Nearly 1600 hundred Washington homeowners get back hidden fees and higher rates

Nearly 1600 hundred Washington homeowners will get back the hidden fees and higher rates they paid to subprime lender Novastar. The federal class action lawsuit was settled earlier this month. The settlement details were announced Thursday. KUOW's Liz Jones reports.
The Savings and Loan Debacle

The so called saving and loan debacle was the result of the Federal Congress under the whimsical hand of the National Democratic Party changing the rules for chartered savings and loans. These rule changes dramatically altered the carry loss forwards for amortizing purchased assets that contained amortized losses. Debacle
Ohio Court Dismissed 14 Foreclosures

Judge Christopher A. Boyko of the Eastern Ohio United States District Court, on October 31, 2007 dismissed 14 Deutsche Bank-filed foreclosures in a ruling based on lack of standing for not owning/holding the mortgage loan at the time the lawsuits were filed. Dismissed
Subprime Lenders Keep Churning Out Bad Loans

As home foreclosures continue to rise and homeowners struggle to pay abusive subprime mortgages, subprime lenders and some policymakers keep assuring us that the market will correct itself—in other words, that skyrocketing foreclosures and poor loan performance will be enough to make subprime lenders stop marketing and approving risky loans. Subprime Lenders
Ameriquest Payments May Be Near

Early last year, California-based Ameriquest Mortgage Co. and related firms agreed to pay customers $295 million and change their lending prac­tices. That came after attorneys general in the District of Columbia and 49 states — all but Virginia, where the company does no business — inves­tigated the company's lending prac­tices. Ameriquest Payments
Ameriquest Downsizes

Tuesday's announcement comes on the heels of a $325 million nationwide settlement in January, in which ACC Capital Holding Corp. and its subsidiaries agreed to pay $295 million to consumers and make sweeping reforms of practices that states alleged amounted to predatory lending. Ameriquest also agreed to pay $30 million to 49 states and the District of Columbia for costs of the investigation or consumer education and enforcement. Ameriquest Downsizes
STEALING HOMES: Some people unknowingly sign away ownership

Metro Detroit residents in danger of losing their homes to foreclosure, or those looking to tap equity from their houses to catch up on overdue bills, are falling prey to mortgage fraud scams that promise to rescue them from financial peril.

Instead of being helped, however, unsuspecting homeowners are tricked into believing their homes can be saved -- only to later learn that they've lost their houses for good. Stealing Homes
Real Estate Fraud Booms!

Mortgage scams thrive amid soaring home prices, little regulation and, in some cases, complicit borrowers. Higher rates result because of Yield Spread Premiums. Fraud Booms
Ocwen Facing Litigation Wave

Plaintiff lawyers are currently seeking class action status for 57 federal cases being consolidated in Chicago and the West Palm Beach company says it is facing 331 lawsuits altogether. Ocwen (NYSE: OCN) previously wound down its savings and loan subsidiary after an enforcement action by the Office of Thrift Supervision. Litigation
Texas Jury Rules Against Ocwen

A jury in Galveston, Texas, has awarded $11.5 million to a customer of Ocwen Financial Corp. and its former Ocwen Federal Bank subsidiary, after determining they committed fraud in servicing her home equity loan. Against Ocwen
NAR Backpedals On Predatory Lending Stance; Will Support Bill That Lets Predators Off The Hook.

It's all in the name of the bill, stupid! Inside sources tell us that the National Assn. of REALTORS® will announce support for a bill that is fiercely opposed by civil rights leaders and consumer activists.Off the hook.
Belini vs. Washington Mutual Bank

The plaintiffs, Richard and Theresa Belini, alleged that the defendant, Washington Mutual Bank, sold them a high-cost mortgage without making disclosures required by TILA and equivalent Massachusetts law. They sued in federal court, asserting claims for damages for failure to make these disclosures, for rescission, and for damages for Washington Mutual's alleged failure to respond properly to their notice of rescission, under both TILA and similar Massachusetts law. The district court held that all of the Belinis' damages claims were time barred, without discussing separately their claim for Washington Mutual's alleged failure to-3- respond to their notice of rescission. This left the rescission claim itself and the question of whether there was either federal question jurisdiction or diversity jurisdiction. The court found that the amount-in-controversy requirement was not met, so there was no diversity jurisdiction, and that there was no federal question jurisdiction over a claim for rescission (as opposed to a claim for damages) because of the Massachusetts exemption from certain TILA requirements. Belini vs Washington Mutual.
Court of Appeals Reinstates $6 Million Punitive Damage Award Against Servicer

Court of Appeals Reinstates $6MM Punitive Damage Award Against Servicer In Stark v. Sandberg, Phoenix & von Gontard, PC , the Court of Appeals reinstated a six million dollar punitive damage arbitration award against a mortgage loan servicer. EMC Mortgage Corporation bought Stark's loan after he was in default. The fact that the loan was in default at the time of the purchase made EMC subject to the Fair Debt Collection Practices Act, even though it was collecting its own loan. The arbitrator was outraged at the lender's disregard for the borrower's right (1) to be free from physical intrusion into the home and (2) to be represented by legal counsel. He decided that the prohibition in the arbitration agreement against punitive damages ". . . as to which borrower and lender expressly waive any right to claim to the fullest extent permitted by law" might not prohibit punitive damages because the law did not expressly permit the borrower to waive such damages. Furthermore, the arbitration agreement incorporated Missouri law and public policy, which prohibited waivers of this nature. Stark vs EMC.
$3,000,000 Jury Award Against Ocwen

Plaintiff Attorney: Hilliard & Munoz, L.L.P.

Jury finds Ocwen Federal Bank guilty of malfeasance and criminal conduct and awards plaintiff $3,000,000.00. Guzman vs. Ocwen
Think Twice Before Telling a Little Lie to your Lender

If you needed to stretch your actual income to qualify for a mortgage to buy the house you love, would you consider telling a little white lie, fibbing to your lender? Little Lie.
Predatory Lending Bill Introduced

New Bill Expands Homeowners' Protection Against Predatory Lending. On Wednesday March 9 Rep. Brad Miller, Rep. Mel Watt and Rep. Barney Frank introduced a bill that would protect homeowners from predatory lenders significantly better than current federal law. Modeled after North Carolina's successful anti-predatory lending law, the bill would eliminate existing loopholes in federal law. Lending Bill.
Widespread Mortgage Fraud Threatens America´s Homeowners, New Report Finds

Home Insecurity: How Widespread Appraisal Fraud Puts Homeowners At Risk, reveals troubling evidence that many American homeowners and buyers are at financial risk from mortgage appraisal fraud. As a consequence, countless homeowners have borrowed more money than their homes are really worth. Mortgage Fraud.
$60 Million Settlement with First Alliance Mortgage Company

The settlement, awaiting approval by a federal court, is expected to return $2,500 to $3,300 each to 18,000 First Alliance borrowers in 18 states and the District of Columbia. Settlement.
What Isn't Disclosed Under the Truth in Lending Act?

Five pieces of important information that are not disclosed are identified by writer, Professor of Finance Emeritus Jack Guttentag at the Wharton School of the University of Pennsylvania. What isn't Disclosed.
Major Mortgage Lender Sues for Millions in Real Estate Fraud

A major wholesale mortgage lender is suing an Indiana mortgage broker, a title company and an appraiser for allegedly using inflated appraisals to bilk the lender out of millions of dollars, the Fort Wayne News-Sentinel reported. Real Estate Fraud.
FTC Settles Deceptive Loan Case

Capital City Mortgage, a mortgage lender and servicer has settled Federal Trade Commission charges that it deceptively induced consumers into taking loans secured by their homes, overcharged borrowers, and, in some instances, caused consumers to lose their homes. The settlement permanently bans the defendants from future lending fraud and requires them to pay consumer redress and other monetary relief totaling at least $750,000. Settles Case.
Fannie Mae Dismisses CEO, CFO

Franklin Raines, the powerful and politically savvy CEO of Fannie Mae, was forced out Tuesday night by the mortgage finance company's board of directors, bringing an end to a contentious, three-month public brawl over the quality of Fannie's financial statements. Dismiss Raines.
Poll: Half of Americans Worry About Debts

WASHINGTON - During a season with shoppers racing about to wrap up holiday spending, half of Americans say they worry about their overall level of debt, an Associated Press poll found. Poll.
More U.S. Home Buyers Fall Prey to Predatory Lenders and Subprime Loan Market Grows Despite Troubles.

Two great articles about how Subprime lenders provide mortgages or home equity loans to people, including high-income borrowers, who don't qualify for conventional financing. Such lenders accept credit scores below the 620-660 threshold generally needed for prime financing and require less-stringent income documentation. And how Subprime lending (higher-interest loans to consumers with impaired or non-existent credit histories) has been the fastest-growing part of the mortgage industry. Homeowners Fall Prey.
Ameriquest Accused Of 'Boiler Room' Tactics

Monday, February 07, 2005 - UPI LOS ANGELES, (UPI) -- Ameriquest, the largest sub-prime U.S. lender, has been accused of allegedly fabricating data, forging documents and hiding fees. Copyright 2005 by United Press International Used With Permission. Boiler Room.
Was Your Yield Spread Premium Disclosed?

Even if mortgage brokers yield to pressure to make clear and timely disclosures of controversial yield spread premiums (YSP's), consumers will still have to contend with a substantial segment of the mortgage industry that doesn't have to disclose YSP's. Was YSP Disclosed?
Mortgage Borrowers File R.I.C.O. Lawsuit

Two former Tennessee customers of nationwide mortgage lender Household International are charging in a Nashville federal court that the corporation was functioning as a racketeering operation when it offered misleading loan terms to its potential clients. R.I.C.O. Lawsuit
A Nation in Debt

All Things Considered Series Explores America's Borrowing Culture. Nation in Debt.
Financial Education: No Substitute for Predatory Lending Reform

As consumers today enjoy more access to credit from a wider variety of sources, opportunities also have expanded for predatory lending in subprime markets. Education is one way to help people achieve financial literacy and avoid abusive loans, but it does not represent a panacea. In this paper, we provide a brief overview of literacy programs and discuss why education alone will not adequately address predatory lending issues. Education.
Freddie Mac Scandal Could Hurt Housing Market

Who is Freddie Mac, and why should a corporate governance scandal and an SEC investigation, as well as a criminal investigation into Freddie Mac, impact housing prices? Scandal.
Federal Trade Commission Letter Dated February 7, 2002

This letter responds to your request for information regarding the enforcement activities of the Federal Trade Commission ("Commission" or "FTC") under the Truth in Lending, Consumer Leasing, Equal Credit Opportunity, and Electronic Fund Transfer Acts ("Acts") during the year 2001 for use in preparing the Federal Reserve Board's ("Board") Annual Report to Congress. You have asked for information regarding the Commission's enforcement activities pursuant to those Acts, including methods of enforcement, and the extent to which compliance is achieved by entities subject to the Commission's enforcement authority. Also, you have asked whether the Commission recommends any changes to these laws or their implementing regulations or wishes to provide other comments or observations. FTC Letter.
Audit Review of First County National Bank

The examination report stated that the bank's level of compliance with consumer laws and regulations was less than satisfactory. The examination report noted many violations of the RESPA, TILA, and BSA. Since the examination, management has taken steps to ensure corrective action. This review revealed that such actions have been effective in correcting noted violations. Audit Review.
Brokerage Fined for Predatory Loans to Black Home-Buyers

HARRISBURG, Pa. - A state agency has hit a black-owned mortgage brokerage with nearly $910,000 in damages and fines for so-called "reverse redlining" - selling loans with predatory terms to black families. Predatory Loans.
Overvalued Appraisals in a Softening Market

The New York Daily News ran a story today on the problem of inflated appraisals. The article addresses run of the mill overvaluation. Overvalued Appraisals.
AARP Class Action

Whether an arbitration clause that is silent regarding class actions under TILA affords plaintiff the ability to pursue class claims in any forum. AARP Class Action.
Recent Massachusetts Federal Court Case May Spur Truth In Lending Class Actions Seeking Rescission of Mortgage Loans

A recent court decision may trigger a new wave of Truth in Lending litigation in Massachusetts. McIntosh v. Irwin Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003), holds that a suit seeking rescission of a mortgage loan due to Truth in Lending Act (TILA) violations can properly be maintained as a class action. Class Actions.
abn amro/island mortgage
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Join Us Today, We have been successfully helping consumers with Debt Resolution and Credit Repair more than 10 years.

Thursday, August 19, 2010

Tracking Down the PSA

PSA= Pooling and Servicing Agreement

EDITOR’S NOTE: There are two things you need — the loan specific title search with analysis and the securitization search, report and analysis. One tracks the chain of title the other tracks the chain of money. You must track both in order to avoid the “proffers” and bogus representations of opposing counsel. The only thing I would add is that the Prospectus, Assignment and Assumption Agreement, Distribution reports and “re-stated” agreements tell a long tale as well.

The search for the securitization documents is not as simple as you might think. The claim of some “Trustee” for a “pool” is never backed up by documents showing the full chain of title of the loan, because the receivables were assigned, not the loan. More than one pool can often be found claiming “ownership” of a loan that meets MOST of the characteristics of your loan, but not all of them. It is these inconsistencies that enable you to chip away at the credibility of the pretender lenders.

COMBO TITLE and SECURITIZATION Search, Report, Documents and Comprehensive Analysis;

You must realize that while the original PSA is a good starting point, it isn’t the ending point. That is because of the the dissolution of hundreds if not thousands of these special purpose vehicles which was easy because they were never officially formed in the first place. You must realize that the point of fact is that there is a “claim” that the loan is in a “pool” which may or may not have ever existed, but that the the documentary trail shows it was never really assigned tot he pool. So the money trail leads us to those people who have an actual interest in the loan — only after you can make the point that ALL transactions by or relating to the “pool” must be accounted for and allocated to individual loans.

My opinion, is that the the money people, if they can be found, have an interest that can imposed by equity and not by law. Everyone else is simply out to line their own pockets without ever having invested a dime in the loan transaction.
“You have to get the PSA and the mortgage loan purchase agreement and the hearsay bogus electronic list of loans before the court. You have to educate your judge about the lack of credibility or effect of the lifeless list of loans as the Uniform Electronic Transactions Act specifically exempts Residential Mortgage-Backed Securities from its application. Also, you have to get your judge to understand that the plaintiff has given up the power to accept the transfer of a note in default and under the conditions presented to the court (out of time, no delivery receipts, etc). Without the PSA you cannot do this.

Additionally the PSA becomes rich when you look at § 1-302 (b) which says that the obligations of good faith, diligence, reasonableness and care prescribed by the code may not be disclaimed by agreement, but may be enhanced or modified by an agreement which determine the standards by which the performance of the obligations of good faith, diligence reasonableness and care are to be measured. These agreed to standards of good faith, etc. are enforceable under the UCC if the standards are “not manifestly unreasonable.”

The PSA also has impact on when or what acts have to occur under the UCC because § 1-302 (c) allows parties to vary the “effect of other provisions” of the UCC by agreement.
Through the PSA, it is clear that the plaintiff cannot take an interest of any kind in the loan by way of an “A to D” assignment of a mortgage and certainly cannot take an interest in the note in this fashion.
Without the PSA and the limitations set up in it “by agreement of the parties”, there is no avoiding the mortgage following the note and where the UCC gives over the power to enforce the note, so goes the power to foreclose on the mortgage.

So, arguing that the Trustee could only sue on the note and not foreclose is not correct analysis without the PSA.
Likewise, you will not defeat the equitable interest “effective as of” assignment arguments without the PSA and the layering of the laws that control these securities (true sales required) and REMIC (no defaulted or nonconforming loans and must be timely bankruptcy remote transfers) and NY trust law and UCC law (as to no ultra vires acts allowed by trustee and no unaffixed allonges, etc.).

The PSA is part of the admissible evidence that the court MUST have under the exacting provisions of the summary judgment rule if the court is to accept any plaintiff affidavit or assignment.

If you have been successful in your cases thus far without the PSA, then you have far to go with your litigation model. It is not just you that has “the more considerable task of proving that New York law applies to this trust and that the PSA does not allow the plaintiff to be a “nonholder in possession with the rights of a holder.””


For Municipalities, Housing Crisis Goes On and On

Tuesday, August 17, 2010

HUD Forclosures

$hiti: $anitizing Investor FRAUD

$hiti-Wars Con't

It has been about 1 week since I spoke to Mr Granado from the Ex. Dept re: the proposed loan modification they have worked out for us. I informed him that we would not be signing the documents as the terms are unconscionable in that (1) not all debts allegedly owed to them were incorporated into the loan. (2) There was no reduction in the principal for what is now an unside-down mortgage.

Mr. Granado informed me that he was not authorized to make any changes to the proposed contract but that he would be in touch with someone who does have the authority and assured us that "we would be hearing from someone soon." So now it has been a week so I decided I would call Mr Granado back today to see what the hold up is....if worse comes to worse and they do not want to make any modifications to the loan, I am going to seek to recind any contract they allege we have with them already, and I am going to do so based on the SCE's evidence that $hiti fraudlently inflated the values of their mortgage backed securities to their is my understanding of contract law that where their is any wrongdoing involved, a contract can be declared null and void. The beauty of winning a contract recission based on fraud (or negligence) is that $hiti will have to give us back every cent we have invested in our home. Not good to lose your home but at least you will get your expenses back.

8/17/10 1:30pm EST

Ha Ha Ha I couldnt get ahold of any of the people I have been talking too, but I got into it with this new guy pretty good and let him have it. He suggested that we just go ahead and sign the contract indicating to us what a great favor $hiti is doing us by waiving all the late fees...when I asked how much they thought we owed in late fees he came back with the figure of $500. something and I said,...WOW. Thats it? Thats the "big sacrifice" you are making for us,......forgiving ALL THAT? Ha ha ha . I told him that the main problem is the upside down mortage we now have (owing over $100,000 for a home not worth more than $75,000) and reminded him of Obombas December Initative to the banks to reduce some of the principle for homeowners in our situation...he didnt say much after that. I also warned him that if $hiti didnt do something to reduce the principle that we would be looking to recind the contract on the basis of their fraudlent representations re: the value of their mortgage securities to their investors, which led me to the subject of just who is the real "note-holder" of our mortgage - which is NOT $hiti. I asked who really "owns" the note and how much did they pay for it? (In other words, how much did $hiti gain by the sale and how much is the investor out? ) Pennies on the dollar, no doubt. $hiti didnt lose a dime on this one. It was the investors who took the loss due to $hitis'mis-representations. Maybe we will "be nice" and just pay to $hiti what its investor lost which would be pennies on the dollar compared to what we (allegedly) owe. $hiti is trying to get rich off of the homeowners delemia, even though they are out no $$$ - it is the investors they are trying to "make whole" cause the investors are now suing $hiti also.

Left message at 877 245 2511 for Mr Ray Granado to call me back.

"Oh what tangeld webs we weave when first we practice to decieve." - Bill Shakespeare

Saturday, August 7, 2010

1st Call of the Day Come Monday

GMAC Faces Foreclosure Brawl in NY Courts

Mandatory Foreclosure Prevention?

Gif Docs


I hear the criticisms of our judges but truth be told, I’ve never had a bad experience in front of a foreclosure judge….when I did my job, prepared my case and had a court reporter present. And while I respect the efforts of homeowners who start the fight pro se, if you want to save your home, if you want the respect of the court and the opposing party, you must hire an experienced foreclosure defense attorney to fight this battle.

I’m posting these Motions and memorandum primarily so that other attorneys from around the state will use them, develop them and argue the issues in front of judges. The issues contained within these documents are very important and frankly they require experienced and committed attorneys to make the arguments correctly. These documents and the issues presented are tools and like any tool they should only be used by operators who are trained to use them. Having said that I just hate seeing these coverage attorneys for the foreclosure mills wheeling in their boxes of hundreds of foreclosure cases and throwing this garbage into our courtrooms. I am appalled that the mills have joined forces and share the same coverage attorneys between all the mills. Where is the formal and specific authorization for that attorney to represent that client before the court?

How can coverage attorneys represent to the court that, there are no issues of material fact in the hundreds of files that are in his wheelbarrow when those files have been prepped by another law firm? Why is that attorney not required to file a Notice of Appearance so the court knows what attorney is affirmatively representing to the court the veracity and authenticity of all the facts in his case?

Special thanks to my intrepid law clerk Michael Fuino who is primarily responsible for all the excellent research and drafting contained within these memos and motions. Hats off to him! Enough of all of that, here go the goods.

Motion to Dismiss Action;

Defendants Answer, Affirmative Defences and Motion to Dismiss;


Friday, August 6, 2010

US Banks Swift Code Lists

Fed Reserve Note-holder?

Revised March 2006 Page 1 of 5

The Federal Reserve Bank of New York accepts from qualified institutions pledges of one-to-four family mortgage loans to secure their borrowings from the discount window, subject to certain terms and conditions. This document outlines the
requirements of this collateral program (also referred to as a “Borrower-in- Custody” or “BIC” program).

The BIC program provides qualifying institutions with the ability to increase the amount of collateral pledged for discount window purposes while avoiding the costs of physically delivering notes, loan agreements and other documentation in respect
of the pledged mortgage loans to the Federal Reserve Bank of New York.

The integral foundation of the BIC program is the ability of the Federal Reserve Bank of New York to take possession of the notes, loan agreements and other documentation in respect of the pledged mortgage loans in the event that circumstances warrant such action. Therefore, the Federal Reserve Bank of New York needs to be fully informed of the location, security, and completeness of all such documentation.

The U.S. Treasury Department has also approved qualifying institutions to pledge one-to-four family mortgage loans to secure deposits received under its Special Direct Investment Program, subject to terms and conditions substantially similar to those
outlined in this document.

Institutional Eligibility

Eligibility for this BIC program is based on the Federal Reserve Bank of New York’s comfort level with an institution’s overall financial condition, loan administration controls, documentation practices, asset quality, and ability to meet all of the
requirements of this program. To qualify for this BIC program, an institution must be in sound financial condition in the judgement of both its primary regulator and the Federal Reserve Bank of New York. Generally, institutions rated CAMELS 4
or 5 will be excluded; other institutions will be accepted on a case-by-case basis. Before accepting pledges of one-to-four family mortgage loans from an institution, the Federal Reserve Bank of New York will require that the institution complete a
BIC pre-qualification form. At its discretion the Federal Reserve Bank of New York may also require an inspection of the collateral site before accepting an institution into this program.

Legal Documentation Requirements

To qualify for this BIC program, an institution must have on file with the Federal Reserve Bank of New York a current Letter
of Agreement (Exhibit 1 to Operating Circular 10), Authorizing Resolutions for Borrowers (Exhibit 2 to Operating Circular
10), Borrower in Custody of Collateral Agreement (Appendix B to Operating Circular 10), authorized borrower's letter, and
signature card for pledging assets and all other documentation required by Operating Circular 10
http://www.frbdisco untwindow. org/oc10. pdf. It is normal policy of the Federal Reserve Bank of New York to file UCC
financing statements with respect to pledged collateral.
Eligible Collateral
A loan in which proceeds are used to purchase or refinance residential property and which is itself secured by a first lien on the
purchased property (a mortgage loan) is eligible to be pledged under this BIC program.
Only FIRST mortgage loans on one-to-four family residential property (i.e., a single family home or up to a four family home
or condominium complex) are acceptable collateral. The underlying property should be an owner-occupied primary residence.
Revised March 2006 Page 2 of 5
A mortgage loan originated by another organization, including an affiliate mortgage company, and subsequently purchased by
an institution will be eligible collateral under this BIC program only if (i) the note has been properly endorsed and (ii) the
mortgage has been assigned to such institution. A mortgage that is in the name of the mortgage company or an affiliate is not eligible under
this BIC program unless the institution provides evidence acceptable to the Federal Reserve Bank of New York that it has legal
title to these mortgages.
A mortgage loan originated by another organization which was subsequently acquired by an institution will be eligible collateral
under this BIC program only if such institution provides evidence acceptable to the Federal Reserve Bank of New York that
the mortgage loan (i) was subject to the acquisition transaction and (ii) is owned by such institution. In the case of any merger
that resulted in a name change, an institution should provide evidence of the merger to affirm that such institution is in fact
the successor and sole owner of the pledged mortgage loan.
A mortgage loan with a loan-to-value ratio greater than 80% should be accompanied by private mortgage insurance (PMI).
Ineligible Collateral
The following types of loans are not eligible collateral under this BIC program:
· Loans secured by a mortgage on property which is a secondary residence;
· Participations in mortgage loans otherwise constituting eligible collateral under this BIC program;
· Any loans secured by mortgages on other than one-to-four family residential property, including loans secured by
mortgages on the following types of property: commercial property, vacation property, investment property, or raw
· Loans already pledged to another institution;
· Loans secured by a mortgage on co-ops;
· Loans that are 60 days past due within the past 12 months;
· Loans on non-accrual status;
· Loans that are adversely classified by bank regulators;
· Loans that have either been paid-off or matured.
Collateral Valuation
Prior to assigning value to the collateral pledged, a pre-qualification form must be completed by the institution and approved
by Federal Reserve Bank of New York staff. Generally, the Federal Reserve Bank of New York will assign a collateral value
to the pledged mortgage loans consistent with the collateral margin specifications detailed in the Federal Reserve System
Discount and PSR Collateral Margins Table. The Federal Reserve Bank of New York’s determination of collateral value will
also be based on several other factors, including the timeliness of the collateral schedule submission and the outcome of
on-site inspections.
Loan Documentation Requirements
A one-to-four family mortgage loan will be eligible collateral under this BIC program only if an institution maintains the
following documents in respect of such mortgage loan:
· ORIGINAL NOTE. The mortgage loan documentation should include a signed, original note, and any amendments or
modifications thereto, containing a loan amount (i) equal to that shown on the mortgage, and (ii) equal to or greater than the
current outstanding principal balance shown on the current collateral schedule. The note should contain a "promise to pay"
and be payable to the pledging institution. Notes that are not payable to or endorsed to the pledging institution will not be
accepted unless they have been assigned to the pledging institution in a manner satisfactory to the Federal Reserve Bank of
New York.
· ORIGINAL MORTGAGE. The mortgage loan documentation must include a signed, original and properly recorded
mortgage, and any amendments or modifications thereto. The county recorder's stamp or seal should appear on the
Revised March 2006 Page 3 of 5
mortgage. In the absence of an original recorded mortgage, a copy certified by the county recorder's office of the
original document is acceptable.
should be at least equal to the amount of the note, the lending institution should be named as the insured, and the
legal description of the property should match that in the mortgage. A title insurance commitment is not acceptable.
· EVIDENCE OF APPRAISAL. The original appraisal should be for an amount equal to or greater than the current
outstanding principal balance. It should be certified by a professional licensed appraiser. Unless PMI coverage is
evident, the loan-to-value ratio should be within a benchmark of 80 percent.
· HOME INSURANCE COVERAGE. (Flood, Hazard). Flood insurance coverage, if required, should be in an amount
at least equal to the lesser of the current outstanding principal balance or the maximum required by law. Hazard
insurance coverage should be in an amount at least equal to the lesser of the current outstanding principal balance or
the replacement cost of the property. Documentation showing that the policy is current should be available upon
request, and the institution should demonstrate that procedures exist to monitor whether insurance coverage is
· PROPERTY TAX. The institution should provide evidence that (i) property taxes are paid on a timely basis and (ii)
procedures exist to monitor tax payments.
· PRIVATE MORTGAGE INSURANCE COVERAGE. The institution should provide evidence acceptable to the
Federal Reserve Bank of New York that mortgage loans with loan-to-value ratios greater than 80% are covered by
Power of Attorney and Endorsements
The Federal Reserve Bank of New York prefers that an institution deliver to it a notarized Power of Attorney appointing the
Federal Reserve Bank of New York attorney-in- fact to sell and assign any pledged collateral. In some cases, the Federal
Reserve Bank may accept an endorsement of pledged notes instead of the Power of Attorney.
Collateral Custody and Controls
Storing Collateral Documents
An institution should house all pledged mortgage loans and any related documents in a segregated location that is both
accessible to and known by the Federal Reserve Bank of New York. All documents should be stored in a fire-resistant
environment where physical access is controlled, limited to specific individuals, and tracked. For example, unlocked file
cabinets are not an acceptable storage environment. Ideally, the collateral should be maintained in a secured vault that allows
for easy removal in the event the Federal Reserve Bank of New York needs to take possession of the collateral.
The Federal Reserve Bank of New York prefers that all legal documents evidencing the pledged mortgage loans be held
together in a secured, fire-resistant environment; however, when space is limited, an institution may hold such documentation
(other than the promissory notes) in a separate location (file room, cabinets etc.) in close proximity within the secured facility
where the promissory notes are kept.
Moving Collateral Documents
An institution may not move any promissory notes, loan agreements or other supporting
documentation (together, the “Collateral Documents”) relating to the pledged mortgage loans without
prior written notification to, and approval from, the Federal Reserve Bank of New York.
Revised March 2006 Page 4 of 5
An institution must make any request to move the Collateral Documents in writing to the Federal Reserve Bank of New York.
The request must be made thirty days prior to the requested move in order to ensure the necessary protective measures are
taken. Before the transfer can take place, the Federal Reserve Bank of New York may require, at its discretion, that an
institution (i) obtain the written approval of the move by the Federal Reserve Bank of New York and (ii) submit the new
location where the Collateral Documents will be housed to a site inspection by the Federal Reserve Bank of New York.
Federal Reserve Bank of New York staff will then work with the institution to develop a suitable schedule to transfer the
collateral to the new site.
The Federal Reserve Bank of New York will not give value to the pledged mortgage loans while the notes evidencing such loans are in transit. While
the notes are in transit and depending on the circumstances, the Federal Reserve Bank of New York may request an institution
to pledge other assets as collateral.
Collateral Identification
The Collateral Documents relating to the pledged mortgage loans should be segregated from other documents and clearly
identified as being pledged to the Federal Reserve Bank of New York so that a potential purchaser of such assets would be
aware of the pledge and so that the institution does not transfer or re-pledge such assets. The notes evidencing the pledged
mortgage loans should be identified as pledged to the Federal Reserve Bank of New York in the following manner:
· Label individual notes or folders with a conspicuous stamp or affix a legend that indicates the note is pledged to the Federal
Reserve Bank of New York; or
· Label file cabinets/file cabinet drawers with a sign indicating that all of the notes filed in the cabinet/drawer are pledged to
the Federal Reserve Bank of New York; or
· Place a prominent sign indicating that all of the notes residing in the general area are pledged to the Federal Reserve Bank of
New York.
In addition, an institution should clearly identify the pledged mortgage loans as pledged to the Federal Reserve Bank of New
York in the institution’s information management system in a manner satisfactory to the Federal Reserve Bank of New York,
or an institution must otherwise provide evidence of internal control sufficient, in the judgment of the Federal Reserve Bank
of New York, to prevent the sale or other transfer of the loans pledged to the Federal Reserve Bank of New York.
Collateral Reporting Requirements
On a monthly basis, or more frequently as deemed necessary by the Federal Reserve Bank of New York, an institution should
submit a collateral schedule (hardcopy or electronic form) of all mortgage loans pledged to the Federal Reserve Bank of New
York. An institution should also submit, simultaneously with the collateral schedule, a signed deposit application for the new
outstanding principal balance of pledged mortgage loans along with a signed withdrawal application for the previous
outstanding principal balance of pledged mortgage loans. Each collateral schedule must be initialed on the page where the
totals are shown by an individual listed on the institution’s signature card for pledging assets.
Each collateral schedule should include the institution’s name and its ABA number, a statement that the mortgage loans
identified on the collateral schedule are pledged to the Federal Reserve Bank of New York and the following information for
each pledged mortgage loan:
· Name and account number of the obligor or maker,
· Location of the property (street address, city, state, and zip),
· Original amount of the note,
· Current outstanding principal balance,
· Maturity date, and
· Current interest rate (with a notation as to whether the interest rate is fixed or variable).
Revised March 2006 Page 5 of 5
Collateral Monitoring by the Participating Institution
An institution must promptly notify the Federal Reserve Bank of New York if, at any time, the aggregate outstanding principal
balance of the pledged mortgage loans declines by 10 percent or more from the most recently reported aggregate outstanding
principal balance. Depending on the circumstances, at any time the Federal Reserve Bank of New York may request that an
institution pledge additional collateral.
Borrower In Custody of Collateral Certification
The Borrower in Custody of Collateral Certification (the “Certification” ) attests to the controls and other procedures in place
to safeguard the pledged mortgage loans and related documentation. An institution shall perform an initial and, thereafter,
periodic Certification. All Certifications should be submitted to the Federal Reserve Bank of New York on a yearly basis or
within the internal auditor cycle of between 12 and 18 months.
The completed Certification should be signed by (i) an internal or external auditor, or in the case where the institution does
not have an internal audit department, an independent director, or officer of the bank, and (ii) by an individual listed on the
institution's signature card to pledge assets or an authorized individual designated in the Borrowing Resolution on file with the
Federal Reserve Bank of New York.
On-Site Inspections
Federal Reserve Bank of New York staff will perform periodic on-site inspections of the institution’s facility and the Collateral
Documents to ensure that they are secure and in proper order. The length of an inspection will depend on, among other
things, the number of pledged mortgage loans. During the inspection, Federal Reserve Bank of New York staff will review a
sampling of currently pledged mortgage loans and will request a tour of the facility where the pledged mortgage loans are
housed to ensure that they are properly safeguarded and that the pledge to the Federal Reserve Bank of New York is identified
Following the on-site inspection, Federal Reserve Bank of New York staff will discuss their findings with the official(s)
responsible for the maintenance of the pledged mortgage loans and any related custodial services. This discussion will cover
the results of the inspection, including any exceptions found and recommendations for improvement. Federal Reserve Bank of
New York staff will document their findings in a letter to the officer(s) responsible for the pledge of the mortgage loans and
their ongoing maintenance. The institution must promptly correct each exception found during the inspection or remove the
mortgage loan subject to the exception from the collateral pledge by submitting a new collateral schedule excluding all such
mortgage loans to the Federal Reserve Bank of New York.
Should the review uncover severe breaches of the requirements of this BIC program, participation in the program may be
suspended or terminated at the discretion of the Federal Reserve Bank of New York.
Please contact the Discount Window (866-226-5619) for more information.

Chart of the Day: Housing Market Ugly Everywhere

Thursday, August 5, 2010

New Housing Bubble About to Pop

Kid Wins Victory Over Deutsche Bank

Ca. Ct. Rules: MERS Cant Foreclose and Citi-Bank cant Collect

Someone (Not Me) is Making Progress

Hi everyone,

I received a letter today from the OCC in Houston. I sent a letter to the governor who contacted the NC Commissioner of Banks who forwarded my 100 pages of correspondence to the OCC regarding my letter.

1) Sale delayed till 20 Sept.
2) The OCC has determined I have a valid claim and they
are working to get my questions answered.
I'm copying a couple of paragraphs from the letter here:

"This letter acknowledges receipt of your correspondence concerning the above referenced bank. The Office of the Comptroller of the Currency (OCC) is the federal regulator responsible for this institution (Wells Fargo Bank). Based upon your correspondence we have opened a case in the OCC's Customer Assistance Group (CAG). Please make note of the case number , and provide the number on any future correspondence." "Also please include any additional documentation that supports your position".

"We have carefully reviewed the information you provided, and contacted the bank requesting a response to your issues."

"The OCC examines national banks to ensure their safe and sound financial condition and ensures complieance with applicable banking laws, rules and regulations. The CAG was established to assist customres who have questions or complaints involving national banks. For additional information on the OCC and CAG please visit

I'm adding the OCC address again in cases anyone wants to send a complaint: Comptroller of the Currency
Administrator of National Banks
Customer Assitance Group
1301 McKinney Street, Suite 3450
Houston, TX 77010-9050
Fax 713-336-4301

The Rich Get Rich & The Poor Get Poorer / What Else is New?

This is insane!

By LYNN E. SZYMONIAK, ESQ. Editor, Fraud Digest
(, AUGUST 1, 2010
In the last weekend in July, 2010, photographs of Florida lawyer David
J. Stern appeared on the internet. Stern, the owner of the largest
foreclosure law firm in Florida, was photographed sun-bathing on his
130’ foot yacht, reportedly named “Su Casa es Mi Casa” (your house
is my house). There were also photos alleged to be of Stern’s 2008
black Bugatti Veyron, a $1.85 million car and the most expensive
street legal car. “Su Casa” is not Stern’s only yacht. The Bugatti is
not Stern’s only sports car.i
Stern has likely profited more than most any other Florida lawyer from
the nation’s foreclosure crisis. The Law Offices of David J. Stern
represent most major banks in foreclosures and bankruptcies. Stern’s
firm is one of the largest working for Lender Processing Services, Inc.,
the Jacksonville-based company that specializes in “default
management.” According to an article in the Tampa Tribune, the firm’s
revenues grew to $260 million as a result of its foreclosure work.
In addition to his law firm, Stern also heads DJSP Enterprises, Inc., a
publicly-traded corporation formed in early 2008.ii According to DJSP
Enterprises, the company is the largest provider of processing
servicesiii for the mortgage and real estate industries in Florida and
one of the largest in the United States. “Processing services” sounds
like a benign activity, but an examination of some of the documents
prepared by Stern’s businesses shows otherwise.
Stern employees regularly prepare and sign mortgage assignments to
residential mortgage-backed trusts in cases where the trusts cannot
produce the original assignments from the lenders to the trust. These
documents are necessary for the trusts to prove that they have the
right to foreclose.
These assignments must be signed by an officer or authorized
representative of the bank or mortgage company that sold the
mortgage to the trust or to the securities company that helped to
make the trust. Stern’s employees regularly sign as if they are such
mortgage company officers or officers of the registry service, Mortgage
Electronic Registration Services (“MERS”), without disclosing that they
are actually Stern’s employees.
When Stern’s employees sign these Mortgage Assignments, they
routinely give false information about the date the trust acquired the
mortgages. According to documents prepared by Stern, tens of
thousands of mortgages (and the income from the promissory notes
secured by the mortgages) went off the books of the previous owners
in 2004, 2005 and 2006, went into the unknown, and then appeared
on the books of mortgage-backed trusts in 2009 and 2010.
Chain-of-title is not just an issue for the buyers and sellers of
particular homes and title insurance companies. Some entity – and
most likely several entities – are claiming these mortgages and loans
as assets when regulators and investors are determining solvency and
compliance, but disavowing these same “assets” when
acknowledgement of ownership would result in responsibilities ranging
from payment of taxes to lawn mowing.
Stern employees often sign as if a bankrupt or out-of-business
company or a failed bank owned the mortgage and loan up until
foreclosure is imminent. In county recorders’ offices across the state,
the Stern-created records show that the trusts acquired mortgages
and loans on dates when no such acquisitions ever took place. The
trusts claim ownership solely to prove that they have the right to
foreclose. The date selected is arbitrary – chosen by Stern or LPS or
the mortgage servicing company. In reality, residential mortgagebacked
trusts did not rush to acquire billions of dollars in sub-prime
non-performing loans in 2008 and 2009 as these assignments falsely
No one has ever asked who paid the taxes on the income from these
mortgages during the years of unknown ownership. Who claimed
these mortgages and loans as assets on their financial statements in
order to attract and keep investors? What mortgage servicing
companies charged fees for “servicing” mortgages and loans that were
“UNOWNED” for several years? What pension funds and investor
groups paid fees to mortgage servicing companies to service
“UNOWNED” loans?
Several judges in Brooklyn began asking a related question years ago.
In Deutsche Bank National Trust Company v. Rose Harris, Index No.
35549/07 Supreme Court of NY (Brooklyn) February 5, 2008, the
Honorable Arthur Schack wrote: “Further, the Court requires an
explanation from an officer of plaintiff DEUTSCHE BANK as to why, in
the middle of our national subprime mortgage financial crisis,
DEUTSCHE BANK would purchase a non-performing loan from
INDYMAC…” In HSBC Bank v. Valentin, 21 Misc. 3d 1124 [A]: Judge
Schack wrote:
Further, according to plaintiff’s application, the default of
defendants Valentin and Ruiz began with the nonpayment
of principal and interest due on January 1, 2007. Yet, four
months later, plaintiff HSBC was willing to take an
assignment of the instant nonperforming loan. The Court
wonders why HSBC would purchase a nonperforming loan,
four months in arrears?
In Wells Fargo v. Saint Aubin, 2009 WL 311364 (N.Y. Sup.), Judge
Schack noted:
The court needs to know if WELLS FARGO performed due
diligence in purchasing this nonperforming loan or whether
this was a device for FIRST FRANKLIN to shift its loss to
the bondholders of plaintiff's mortgage loan trust, a
collateralized debt obligation. Nobel Laureate Paul
Krugman, in his July 2, 2007-New York Times column,
“Just Say AAA,” in writing about the subprime mortgage
crisis, could have been alluding to FIRST FRANKLIN in the
instant case…
Because of the structure of mortgage-backed trusts, it is impossible in
most cases, without a subpoena, to identify the mortgages and loans
that the trust supposedly owned and the date the trust actually
acquired these assets. The weak laws regarding residential mortgagebacked
trusts and the even weaker laws regarding mortgage
assignments made a perfect storm for securities companies, mortgage
servicing companies, banks acting as trustees and foreclosure law
firms willing to do their bidding.
The Law Offices of David Stern became the leader in providing services
– and documents.
Cheryl Samons, an office manager for the Law Offices of David Stern,
has signed more mortgage assignments than any other Stern
employee. She has admitted in depositions that she has no personal
knowledge of the facts recited on the mortgage assignments.
According to tens of thousands of mortgage assignments signed by
Cheryl Samons and filed in county records throughout Florida:
• Wells Fargo Bank acquired thousands of mortgages from MERS in
2008, 2009 and 2010. According to these assignments, this is NOT
MERS acting as a nominee for the previous lender - the
grantor/previous owner is identified as “Mortgage Electronic
Registration Services;”
• Deutsche Bank National Trust Company, as trustee for Trusts that
closed in 2005 and 2006, acquired thousands of mortgages in 2008,
2009 and 2010 from MERS, including such acquisitions for:
Fremont Home Loan Trust, Series 2006-3;
Morgan Stanley ABS Capital 1, Inc. Trust 2006-HE4;
Morgan Stanley ABS Capital 1, Inc. Trust 2006-WMC2;
Morgan Stanley IXIS Real Estate Capital 1 Trust 2006-1;
Morgan Stanley Loan Trust 2006-HE2;
Morgan Stanley Loan Trust 2006-HE4
Morgan Stanley Loan Trust 2006-NC2;
Morgan Stanley Loan Trust 2007-1;
Morgan Stanley Loan Trust 2007-3;
Soundview Home Loan Trust 2006-3
• HSBC Bank, as trustee for Trusts that closed in 2005 and 2006,
acquired thousands of mortgages in 2008, 2009 and 2010 from MERS
including such acquisitions for:
SG Mortgage Securities Trust 2006-FRE1
• U.S. Bank, N.A., as trustee for Trusts that closed in 2005 and 2006,
acquired thousands of mortgages in 2008, 2009 and 2010 from MERS,
including such acquisitions for:
Bear Stearns Asset-Backed Securities 1 Trust 2006-IM1
MASTR Alternative Loan Trust 2006-HE1
MASTR Asset-Backed Securities Trust 2006-AB1;
MASTR Asset-Backed Securities Trust 2006-FRE1;
MASTR Asset-Backed Securities Trust 2006-FRE2;
MASTR Asset-Backed Securities Trust 2006-HE2;
MASTR Asset-Backed Securities Trust 2006-HE4;
SG Mortgage Securities Asset-Backed Certificates, Series 2006-FRE2
Structured Asset Investment Loan Trust 2006-4
Occasionally, Samons has forgotten to sign and date an Assignment,
but her signature (i.e., the empty line) has nonetheless been
witnessed and notarized by other Stern employees.iv On other
documents, Samons has signed over the signature line of Stern
employee Beth Cerni and, again, the signature was nonetheless
witnessed and notarized by other Stern employees.v Samons has also
signed for Stern notary Shannon Smith.
The problem with Stern’s documents goes far beyond mortgage
assignments. In 2008 and 2009, Stern’s firm filed between 4,000 and
7,000 foreclosures in Florida each month. In thousands of cases,
Stern filed these actions knowing that the banks he represented had
no documents that gave the banks standing to foreclose.
Stern’s lawyers claimed repeatedly that the bank, acting as trustee,
owned the note and mortgage, had physical possession of the note
and mortgage, and then mysteriously lost the note and mortgage.
They filed these allegations knowing that they were false, but also
knowing that the majority of homeowners in foreclosure would default.
In the cases where homeowners did object, Stern’s lawyers then
produced the assignments and necessary documents, often created by
their own staff, using the title of MERS officers.
When the Florida Supreme Court amended the rules of civil procedure
effective February 11, 2010, to require that all foreclosure complaints
be verified, the Stern lawyers ignored the new rule and continued to
file hundreds of non-verified foreclosure complaints.
On July 26, 2010, a civil RICO class action lawsuit was filed against
David Stern, individually, The Law Offices of David Stern, P.A. and
MERSCORP. See, Figueroa v. Merscorp, Inc., et al., Case No. 0:10-cv-
61296-CMA, United States District Court, Southern District of Florida,
Ft. Lauderdale Division. The lawsuit focuses on the fraudulent
assignments signed by Cheryl Samons. The plaintiffs are represented
by Fort Lauderdale attorney Kenneth Eric Trent.
The class action RICO lawsuit came just six days after David Stern,
DJSP Enterprises and Kumar Ahaney were named as defendants in a
class action lawsuit for violation of securities laws also filed in the
Southern District of Florida. The securities’ lawsuit seeks damages for
investors who purchased stock in DJSP Enterprises between March 16,
2010 and May 27, 2010. The lawsuit alleges that DJSP Enterprises
generates a significant amount of its revenue from flat fees earned
within the first month of a referral and that any significant decrease in
the number of referrals would materially and adversely affect its
revenues. DJSP Enterprises experienced a substantial decrease in the
number of referrals in April and May, 2010, but did not publicly
disclose the substantial slowdown until May 27, 2010. When the
substantial decrease in referrals was disclosed, the price per share of
DJSP Enterprises fell from $8.87 per share to $6.33 per share, causing
a substantial loss to shareholders.
Florida judges often take extraordinary measures to accommodate the
Law Offices of David Stern. In thousands of cases, Stern’s lawyers are
allowed to appear telephonically. In Palm Beach County, all of Stern’s
cases are assigned to be heard in the same courtroom by the same
judge so that the Stern lawyers do not have to travel from courtroom
to courtroom. Stern’s lawyers often fail to serve litigants with
pleadings and documents prior to a hearing and instead reach into
their briefcases at the hearing and deliver documents and pleadings at
the moment of the hearing. Stern lawyers frequently “find”
documents that were previously alleged to have been lost, with no
questions asked by the Courts.
David J. Stern has amassed a fortune by providing documents and
services to banks for foreclosures. The days of “anything goes” in
foreclosures in Florida seem to be numbered, however, and banks may
soon be required to account for the actions of the Stern employees.
i Stern’s other autos include a 2010 silver Ferrari convertible, a 2009 red Ferrari
coupe, a 2009 black Ferrari coupe, four Porsches, a 2010 white Cadillac
Escalade, a 2011 Mercedes Benz coupe, a 2008 Bentley, a 2009 Rolls Royce, a
2008 Aston Martin Vantage, a 2007 Maserati Quattroporte, as well as BMWs,
Hummers and Land Rovers.
ii Shares in DJSP Enterprises traded in January, 2010 for $13.65; at
the close of business of July 30, 2010, shares traded for $3.73.
iii According to DJSP materials: “The Company provides a wide range of
processing services in connection with mortgages, mortgage defaults,
title searches and abstracts, REO (bank-owned) properties, loan
modifications, title insurance, loss mitigation, bankruptcy, related
litigation and other services. The Company's principal customer is the
Law Offices of David J. Stern, P.A., whose clients include all of the top
10 and 17 of the top 20 mortgage servicers in the United States, many
of which have been customers of the Law Firm for more than 10 years.
The Company has approximately 1,000 employees and is
headquartered in Plantation, Florida, with additional operations in
Louisville, Kentucky, and San Juan, Puerto Rico. The Company's U.S.
operations are supported by a scalable, low-cost back office operation
in Manila, the Philippines, that provides data entry and document
preparation support for the U.S. operation.”
iv See File #3281725, Assignment of Mortgage of Ernesto Diaz, Saint
Lucie County, Florida; see, also File # 107994571, Assignment of
Mortgage, Andrea Sylvester, Broward County, Florida.
v See File #3349080, Assignment of Mortgage of Neil Pettihomme,
Saint Lucie County, Florida.

Tuesday, August 3, 2010

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