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Thursday, October 23, 2008
If declining home values have you down, and you'd like some company in your misery, here's a glimmer of good news: when it comes to the housing downturn, the United States is starting to have plenty of company.
It's been nearly three years since U.S. home values peaked at the height of what was, in retrospect, a bubble fueled by low interest rates, speculation and a general giddiness as millions of Americans began to look at their houses not only as a place to live, but as an asset that would make them rich. For years the experts assured nervous homebuyers as nationwide home prices had never fallen year-over-year since the Great Depression—a record that's come to a painful halt as the average U.S. home has now lost more than 15 percent of its value.
Meanwhile, a similar transformation has been taking place in other countries.
In much of the world, home prices soared during the first half of this decade, rising far beyond the levels that you'd expect, based on traditional economic factors. In the last year, however, many of those markets have seen their housing bubbles burst, too. In fact, during the first six months of 2008, a host of economies—including that of Denmark, New Zealand, the UK, Spain, Sweden, Canada and Norway—have seen home prices fall at a faster rate than is occurring in the United States.
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Wednesday, October 22, 2008
INTRODUCTION TO DECLARATORY RELIEF
Disputes regarding business transactions including, foreclosures, unlawful detainers and such, often evolve over a period of time. Usually (it is to be hoped), people who make deals and then disagree about them will first attempt to adjust their differences privately, among themselves. Only after they have attempted to do so and failed and, further, deemed the controversy to be sufficiently substantial that legal counsel is needed to assist in the resolution of the controversy. Though seemingly more honored in the breach than the observance, the retained counsel should themselves attempt to resolve the matter through negotiation rater than rushing to file a lawsuit. Only if the attorneys are also unable to resolve the matter and the negotiation process has broken down completely should the controversy
"The civil litigation process still remains thereafter a part of the negotiation process. However, once submitted to litigation, the negotiation process will, if it remains fruitless, ultimately be ended by a judicial decree."
be submitted to a court. The civil litigation process still remains thereafter a part of the negotiation process. However, once submitted to litigation, the negotiation process will, if it remains fruitless, ultimately be ended by a judicial decree.
While the development of equity jurisprudence over the past few hundred years is well known to have been a response to the rigidity of the older law court system, it is less well known that this process is ongoing to this day. One of the frustrations and inefficiencies of the legal system as it existed at the end of the 19th century was its inability to act promptly. That is, even assuming that the parties negotiated reasonably, both between themselves and later with the assistance of their attorneys, if no amicable resolution was reached the courts adjudicated the dispute without reference to the parties' business needs and expectations. This problem was particularly acute if the dispute had arisen before a material breach of obligation had yet occurred. If the parties had anticipated a problem before it actually reached the stage of alleged material breach, the courts offered little or no help. Instead of assisting the parties in reaching a just solution to their controversy, the courts generally refused even to hear the case until it had ripened into what the courts legalistically termed a "case or controversy" and, thus, dismissed prospective (but often very real) disputes as "sham", "moot" or "nonjusticiable". However, without reference to hidebound historic precedent, it was obviously unsatisfactory to tell would-be litigants that they would get no help from the court until one party's side had suffered the damage of an actual breach. The analogy to the fossilization of the law courts in England in the Middle Ages is clear.
To remedy this unsatisfactory situation in 1921 the California legislature enacted the Declaratory Relief Act, the forerunner of the existing Declaratory Relief statutes. Though previous statutes had provided for something much like Declaratory Relief in specific situations, the idea of the statute was to empower the court, in the event of an "actual controversy" to "declare" the parties' rights and obligations before the dispute had otherwise ripened into a full-blown action for, perhaps among other things, breach of contract. The rights and obligations of "any interested person" may, according to the statute be declared "under a deed, will or other written instrument, or under a contract", or "in respect to, in, over or upon property" and certain other specific, property-related matters. Since the provision "under a contract" is separate from "a deed, will or other written instrument" jurisdiction has been interpreted to include disputes as to oral contracts; the constitutionality of statutes and ordinances is also often tested with this remedy.
Declaratory Relief is "cumulative"; it is available, in the same lawsuit, with other forms of relief. That is, a party may seek other appropriate relief (for example, an Accounting) in the same lawsuit Declaratory Relief is sought (for example, when a Declaration that the parties are partners is sought). Though the notion that such relief is "cumulative" seems straightforward, it is subject to several significant qualifications.
First, in times of extremely congested courts clever counsel inserted a Declaratory Relief cause of action into the plaintiff's pleading along with other claims for relief; thus, would obtain a priority over virtually all other matters (matters that, by definition, had been pending longer) in the setting for trial. The statute was, therefore, amended to provide an automatic trial setting priority only if Declaratory Relief was the only claim stated by the plaintiff (trial setting priority was discretionary with the court, after hearing on a notice motion, if any other relief was sought).
Second, Declaratory Relief operates only prospectively; that is, it declares the parties' rights and obligations in the future. The remedy is not available at all where no future relations were contemplated by the parties but, instead, all that confronted them was a completed act of alleged wrongdoing. In short, a litigant may not seek a declaration that another party's conduct constituted, for example, a breach of contract and then sue again (having at least collaterally estopped the opponent) for damages arising from that same conduct (breach). Such procedural maneuvering would violate the rule against "splitting" one's cause of action and would, if allowed, burden the courts with two lawsuits. However, nothing prevents a litigant who has received a decree that certain conduct would constitute, for example, a breach of contract from suing for damages or other relief after the opposing party again engages in the same conduct.
Copyright © 2007 John T. Blanchard, P.C., All Rights Reserved.
Posted by Mortgage-Mess Labels: http://www.foreclosureinfosearch.com/search/label/http%3A%2F%2Fwww.free-credit-report-free-credit-check.com, Selling Short Buying Short Buying Foreclosures Stoping Foreclosures Keep Your Home Discount Homes
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Tuesday, October 21, 2008
Selling Short Buying Short Buying Foreclosures Stoping Foreclosures Keep Your Home Discount Homes
Posted by Mortgage-Mess Labels: Selling Short Buying Short Buying Foreclosures Stoping Foreclosures Keep Your Home Discount Homes
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MAHER E SOLIMAN
Compliance Officer
Nationwide Loan Servicing 711 South Olive Street Suite 509 Los Angeles, CA 90014
Our findings to date are as follows.- The beneficiary typically lacks standing to accelerate the note and render the obligation in default. The foreclosure actions brought against the defendents are categorically defined as a wrongful foreclosure.
The beneficiary has failed to perform the conditions, covenants and promises due the trustor. The fiduciary accountability to a consumer and their welfare is not mandated under any civil procedures code. A fiduciary is highly accountable however for the ethical, transparent and standard for fair lending. The beneficiary's actions were not fair or ethical and should compel a settlement offer that considers a forfeiture of the lenders security and collateral they hold in the subject property. The trustor's will be compelled to release the beneficiary of any liability and exposure for compensatory and punitive damages.
My understanding is that the seriousness of the material misrepresentations will likely cause the courts to find the deed to be defect and therefore unenforceable. My experience in similar matters has proven that subsequent to a foreclosure the lenders motion to enforce their recovery (summary judgment) will be subject to a dismissal. A counter action brought by the borrowers can motion for the lien to be ruled invalid and discharged.
The argument a deceptive obligation that causes hardships is voidable, will render any conveyance of an interest or in the real estate unenforceable. If the deed is found to be defect a conveyance or sale by the trustees must fail.
I can be reached at the number below.
My mailing Information is as follows:
707 Olive Street
Suite 509
Los Angeles, CA 90014
Maher Soliman
Compliance Officer
Our concerns are subjective while the audited findings submitted to you are with merit. My recommendations and desire to expedite this case are solely for the purpose of avoiding litigation. I would none the less recommend the same proposed settlement to your client if I were engaged accordingly. Objectivity, as you know, the key test of materiality will differentiate negligence from all willful acts against consumers acting in good faith. Your client's unwillingness to provide any explanation or acknowledge the
offer to exchange documents (exhibits) to date will prove a critical flaw in the behavior of Sun Trust, Sun Trust Bank, The trustee, all successors and assigns and all DOES, 1 through 1,000 who represent the trust holders' and beneficial interest in the asset. My concern again is for the mounting material misrepresentations found in the file which will show the claims made herein are substantial. The risks to your client for failing to take action, if deemed to be acting in a predatory manner are greater concern. None the less, a pending unconfirmed offer to
MORTGAGE FRAUD
Introduction
Unlike mail fraud, bank fraud, or wire fraud, mortgage fraud does not have its own federal statute associated with it. However, that definitely does not prevent the federal government from aggressively prosecuting the crime under the title of "mortgage fraud.". As is seen in Pasquantino v. United States, 125 S.Ct. 1766 (2005) (No. 03-725) (defendants convicted under the wire fraud statute for defrauding the Canadian government of excise taxes due on illegally imported liquor), Assistant United States Attorneys (hereinafter, AUSAs) will tie one of the existing fraud statutes to an act that is somehow fraudulent. Sometimes it will be the wire fraud statute, and other times it will be the bank fraud statute, the mail fraud statute, or any number or combination of other fraud statutes. Even other times, all that will be alleged is a conspiracy to commit mortgage fraud, which is also punishable by federal statute.
Mortgage fraud prosecution has increased in recent years due to low interest rates on home mortgages which make purchasing homes easier and more attractive, and as the housing market grows, we can expect even more mortgage fraud cases to be brought. One can only imagine what will happen if and when the housing market bursts and banks attempt to initiate foreclosures and recoup what they claim are losses.
Fraud is defined as a "knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment." Black's Law Dictionary 685 (8th ed. 2005). While fraud is usually a tort, and therefore a civil cause of action, when the conduct is willful, there may be criminal prosecution. Id. Mortgage fraud, therefore, while it has no official definition in Black's, can be defined as committing some sort fraudulent activity in conjunction with the mortgage process. Sometimes, when a person is investigated for an attempt to defraud, which is defined as "caus[ing] injury or loss to (a person) by deceit," id. at 456, there may be no actual loss or injury to another person during the investigation. This is one of the hardest things for a person who is being investigated to comprehend. Therefore, it is essential that people involved in any way in the real estate industry understand how the FBI investigates and classifies mortgage fraud and what has and has not been deemed to be fraud.
Investigations
The FBI has recently ramped up efforts to investigate mortgage fraud, and it does so in two distinct categories: "Fraud for Profit," (hereinafter, FFP) and "Fraud for Housing," (hereinafter FFH). Federal Bureau of Investigation, Financial Crimes Report to the Public, D1 available here. According to the FBI, Fraud for Profit is sometimes referred to as "Industry Insider Fraud," and the motive here is to "revolve equity, falsely inflate the value of the property, or issue loans based on fictitious properties." Id. Apparently, nearly 80% of all reported fraud losses fall into the FFP category. FFH is different. It involves "illegal actions perpetrated solely by the borrower," and the motive in these types of cases "is to acquire and maintain ownership of a house under false pretenses," typically by a borrower "who makes misrepresentations regarding his income or employment history to qualify for a loan." Id. at D2.
The FBI claims that it is focusing its efforts on industry insiders, those who fall within the FFP category. Id. It sees rising trends in equity skimming, property flipping, and mortgage related identity theft. Id. Equity skimming schemes often "involve the use of corporate shell companies, corporate identity theft, and the use or threat of bankruptcy/foreclosure to dupe homeowners and investors." Id. Property flipping involves the purchase of properties "and artificially inflating their value through false appraisals. The artificially valued properties are then repurchased several times for a higher price by associates of the 'flipper.' After three or four sham sales, the properties are foreclosed on by victim lenders." Id".
The FBI has compiled a list of activities which it feels indicates mortgage fraud.
Inflated Appraisals
Exclusive use of one appraiser
Increased Commissions and/or Bonuses by Brokers and Appraisers
Bonuses might paid (outside or at settlement) for fee-based services
Broker or appraiser might receive higher than customary fees
Falsifications on Loan Applications
Buyers instructed how to falsify the mortgage application
Buyers requested to sign blank application
Fake Supporting Loan Documentation
Buyer requested to sign blank employee or bank forms
Buyer requested to sign other types of blank forms
Purchase Loans Disguised as Refinance
Purchase loans that are disguised as refinances typically require less documentation or might be scrutinized less by the lender
Short Term Investments with Guaranteed Re-Purchase
Investors might be used to flip property prices for a fixed percentage
Multiple "Holding Companies" might be utilized to increase property values. Id. at D9-D10.
It has also described the various types of schemes it sees in mortgage fraud cases.
Property Flipping
Property is purchased, falsely appraised at a higher value, and then quickly sold. What makes this practice illegal is that the appraisal information is fraudulent. The schemes typically involve one or more of the following: fraudulent appraisals, doctored loan documentation, inflated buyer income, etc. Kickbacks to buyers, investors, brokers, appraisers, or title company employees are common in this scheme. In this type of scheme, a home worth $20,000 may be appraised for $80,000 or higher.
Silent Second
The buyer of a property borrows the down payment from the seller through the issuance of a non-disclosed second mortgage. The primary lender believes the borrower has invested his own money in the down payment, when in fact, the funds are borrowed. The second mortgage may not be recorded to further conceal its status from the primary lender.
Nominee Loans "Straw"
The identity of the borrower is concealed through the use of a nominee (also known as a Straw Buyer) who allows the borrower to use the nominee's name and credit history to apply for a loan.
Fictitious or Stolen Identity
A fictitious or stolen identity may be used on the loan application. The applicant may sometimes be involved in an identity theft scheme. In such a scheme, the applicant's name, personal identifying information and credit history are used without the true person's knowledge.
Inflated Appraisals
An appraiser acts in collusion with a borrower and provides a misleading appraisal report to the lender. The report inaccurately states an inflated property value.
Foreclosure Schemes
The perpetrator identifies homeowners who are at risk of defaulting on loans or whose houses are already in foreclosure. Perpetrators mislead the homeowners into believing that they can save their homes in exchange for a transfer of the deed and up-front fees. The perpetrator profits from these schemes by reapplying and mortgaging the property or pocketing fees paid by the homeowner.
Equity Skimming
An investor may use a straw buyer, false income documents, or false credit reports, to obtain a mortgage loan in the straw buyer's name. Subsequent to closing, the straw buyer signs the property over to the investor in a quit claim deed which relinquishes all rights to the property and provides no guaranty to title. The investor does not make any mortgage payments and rents the property until foreclosure takes place several months later.
Air Loans
This is a non-existent property loan where there is usually no collateral. An example of an air loan would be where a broker invents borrowers and properties, establishes accounts for payments, and maintains custodial accounts for escrows. They may set up an office with a bank of telephones, each one used as the employer, appraiser, credit agency, etc., for verification purposes.
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About Us
Maher Soliman
Maher Soliman is a veteran of the primary wholesale and secondary subprime and non agency markets. NLS or nationwide is a sub servicing agent and advisor to counsel "expert" providing "spot" loan evaluations for consumers seeking to file claims with their lender. Offering counsel whole loan evaluations for qualifying asset integrity using RESPA, TILA and GSE guideline's for layered risk and risk weighted tolerances.
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Why You Should Know If Your State has A Home Equity Contract Statue
Some state, most notably California, have home equity sales contract statues that were enacted to prevent buyers from taking unfair advantage of homeowners in foreclosure. A buyer must include a right of recission notice of cancellation clause in the contract.
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