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Showing posts with label "mortgage meltdown". Show all posts
Showing posts with label "mortgage meltdown". Show all posts

Thursday, November 19, 2009

A VIEW TO A VIEW

Adversary hearing –

Stop, I cannot take much more….Please! Odds are slim and none. Call a trustee and ask yourself…. (Again this is something published late last spring. You're in bankruptcy? Petition the court to enter in as a creditor based on the facts for calling receivership in the first place. The lender (most likely FSB and not N.A. "Way to go Blabby") violated FAS 140-3 and your private right to action was to determine the obligation "void". Your are entitle you to a return of the entire amount paid to date. That would install you in the preceding as a creditor and the "holder in due course" the investor as a debtor.

Be careful of what you read and use "AbbyPedia" (Wikipedia) or http://Foreclosureinfosearch.com yourself to get precise information.

M.Soliman

admin@borrowerhotline.com

Wow! Did I not share this with you months ago.

M.Soliman ----------I thought the whole point of securitization was "bankrupt remote entities", trusts, etc. Do you mean to tell me that some banks are actually holding these assets on their balance sheets? You mean in some instances they kept the asset but assigned the borrowers payments? . . . I spoke to the FDIC for over two hours on this subject. Their attorneys and the head of member bank compliance could not give me an honest answer the question of off balance sheet financing and default being the trigger for assignments. look; (1) Your attacks on M.Soliman are a joke when you recite his articles from last spring. (2) More than one of you is a past client (wow) (3) Your desire to call clients and defame him are causing them to join in this claim of tortuous interference (get an attorney).

(4) I am Booked got it...booked till next spring and cannot testify in any new cases. So read what you want as I publish it and leave the need to police my views to the moderator of this site.

God Bless M.Soliman admin@borrowerhotline.com (We are going in to fight an OSC for lifting a notice of pendency. Let's stay tuned and see what happens.)

Wednesday, November 18, 2009

MORTGAGE LIES AND MORE CRIMINAL NONSENSE

Mortgage loans originated through the conduit channel were generally initially underwritten by the seller to the seller's underwriting guidelines.The Bank reviews each seller's guidelines for acceptability, and these Guidelines generally meet industry standards and incorporate many of the same factors used by Fannie Mae, Freddie Mac and The Bank. Each mortgage loan sire-underwritten by The Bank for compliance with its guidelines based only on the objective characteristics of the mortgage loan, such as FICO, documentation type, loan-to-value ratio, etc., but without reassessing the underwriting procedures originally used. In addition, a portion of the mortgage loans acquired from a seller is subjected to a full re-underwriting. Exceptions to underwriting standards are permitted in situations in which compensating factors exist. Examples of these factors are significant financial Reserves, a low loan-to-value ratio, significant decrease in the borrower's Monthly payment and long-term employment with the same employer.

Juris Pro Expert Witness: LENDER TROUBLES MOUNT GIVING HOMEOWNERS IN FORECLOSURE HOPE#comment-c8255542724899662059#comment-c8255542724899662059

Juris Pro Expert Witness: LENDER TROUBLES MOUNT GIVING HOMEOWNERS IN FORECLOSURE HOPE#comment-c8255542724899662059#comment-c8255542724899662059

A Flawed Path to Foreclosure

The Bank has two principal underwriting methods designed to be Responsive to the needs of its mortgage loan customers: traditional underwriting And e-MITS (Electronic Mortgage Information and Transaction System) Underwriting. E-MITS is an automated, internet-based underwriting and risk-based Pricing system. The Bak believes that e-MITS generally enables it to Estimate expected credit loss, interes rate risk and prepayment risk more Objectively than traditional underwriting and also provides consistentUnderwriting decisions. The Bank has procedures to override an e-MITS Decision to allow for compensating factors.The Bank's underwriting criteria for traditionally underwrittenMortgage loans includes an analysis of the borrower's credit history, ability toRepay the mortgage loan and the adequacy of the mortgaged property as Collateral. Traditional underwriting decisions are made by individuals Authorized to consider compensating factors that would allow mortgage loans not Otherwise meeting The Bank's guidelines.

Tuesday, November 17, 2009

compliance with the servicing criteria

By Maher Soliman / Director / CEO

EX-34.2(logo) ERNST & YOUNGErnst & Young LLP220 South Sixth Street, Ste 1400Minneapolis, MN 55402-4509Phone (612) 343-1000http://www.ey.com/Report of Independent Registered Public Accounting FirmThe Board of DirectorsU.S. Bank National AssociationWe have examined management's assertion, included in the accompanying Report onAssessment of Compliance with Securities and Exchange Commission (SEC)Regulation AB Servicing Criteria, that U.S. Bank National Association (theCompany) complied with the servicing criteria set forth in Item 1122(d) of theSEC's Regulation AB for the Corporate Trust Asset Backed Securities platform(the Platform) as of and for the year ended December 31, 2007, except forservicing criteria 1122(d)(1)(i), 1122(d)(1)(iii), 1122(d)(2)(i)-(vii),1122(d)(3)(i)-(iv), and 1122(d)(4)(iv)-(xv), which the Company has determinedare not applicable to the activities performed by them with respect to theservicing platform covered by this report.

Management is responsible for theCompany's compliance with those servicing criteria. Our responsibility is toexpress an opinion on management's assertion about the Company's compliance withthe servicing criteria based on our examination.Our examination was conducted in accordance with attestation standardsestablished by the American Institute of Certified Public Accountants, asadopted by the Public Company Accounting Oversight Board (United States) and,accordingly, included examining, on a test basis, evidence about the Company'scompliance with the applicable servicing criteria and performing such otherprocedures as we considered necessary in the circumstances.

Our examinationincluded testing of less than all of the individual asset backed transactionsand securities that comprise the Platform, testing of less than all of theservicing activities related to the Platform, and determining whether theCompany processed those selected transactions and performed those selectedactivities in compliance with the servicing criteria.

Furthermore, ourprocedures were limited to the selected transactions and servicing activitiesperformed by the Company during the period covered by this report. Ourprocedures were not designed to determine whether errors may have occurredeither prior to or subsequent to our tests that may have affected the balances or amounts calculated or reported by the Company during the period covered by this report for the selected transactions or any other transactions.

We believe that our examination provides a reasonable basis for our opinion. Our examination does not provide a legal determination on the Company's compliance with the servicing criteria.In our opinion, management's assertion that the Company complied with theaforementioned servicing criteria as of and for the year ended December 31,2007, for the Corporate Trust Asset Backed Securities platform is fairly stated,in all material respects.SincerelyAuditors

Monday, November 16, 2009

follow the money

Again, follow the money as in......gain on sale accounting and general ledger entries? I say yes!

 

If you will succeed in court you must answer these questions. Mischievous and desperate unattended children will attack the truth for pure entertainment..

Read my words and go and seek an authority. Believe me people and embrace the truth, use it to your advantage and cherish it. You won't be sorry...

An accounting authority should be asked.

 

1) Who booked the gain upon confirmation of a sale?

2) What constitutes a sale according to the journal entry and GAAP? (Forget the mortgage).

3) Is there any accounting value or validity to subsequent events?

4) Do these events cause the mortgage trade journal entry to be asterisked of classified?

5) Which domino in a string of dominos will fall upon answering these questions?

The last question is the MOST important of all. Or better stated,

the last question is the MOST important of all . . .

Sunday, November 15, 2009

The big three includes Fitch Ratings, Moody's Investors Service and Standard & Poor's

There is little doubt about serious shortcomings for rating agencies and residential mortgage-backed securities and collateralized debt obligations.

By M.Soliman

PRESS RELEASE Sunday, November 15, 2009; Los Angeles, Calif // The rating agencies are viewed as instrumental in allowing the mortgage mess of 2007 and beyond to mushroom out of control. The Securities and Exchange Commission was on top of this issue earlier this year. The big three includes Fitch Ratings, Moody's Investors Service and Standard & Poor's whereby these market leaders dominated the rating component necessary for registrants to conduct business unchecked.

The objective is for structured finance ratings to help and not hinder investors who rely on rating agency assessments of collateral. RMBS deals were arranged by 12 investment banking firms and 90% of CDO deals were arranged by 11 investment banks.

We and analysts question how the rating agencies actually went about rating subprime collateral, CDOs and their role in the residential Mortgage backed securities sector consisting of collateralized securities offerings. The SEC investigation sought as much detail and any information from rating agencies leading to a more rationale understanding from such an irrational effort. What's key here to consider is how critical the rating process is to securitization and why such a massive negligent effort was allowed to succeed.

In other words what are the underlying causes for the problems? Barring any information released from an SEC investigation conducted in June of this year the consensus leans more towards negligence and a general underscore for inappropriate reliance on historical status quo stemming from years gone by. Those years and historical accounts were more than less from portfolio cannibalism by the major securitizers and registrants.

"No doubt" say's M.Soliman and industry sector analyst based in Los Angeles. "An obvious degree of ineptness was employed in modeling the risk weighted assumptions. Over collateralization was overly relied upon using assumptions void of the reality of artificially stimulated demand from trash content comprising program offerings. The effort by the end of 2004 demonstrated no regard for true meaningful consumption estimates seeking to scale a variety of credit tranches to a single category of cash strapped domestic homeowners."

Conflicts of interest with regards to issuers are alleged at all three firms. Here is an example of the rating efforts inability to gauge risk and rate quality of assets and deal structure. These deals are structured by deficient modeling based upon some fairly complex assumptions built around some very easy to understand corollaries. For example how does the fact your anticipated cash flow is derived from cash strapped borrowers affect prepayment speed? And, what risk effect is obvious for underlying securities when the cash flows are solely dependent on phantom reserves and over-exaggerated borrower income determined from stated income verification acceptance methods.

The agencies will argue some adjustments using out-of-model rationale were employed. There is nothing available to evidence this assertion considering the rating models. According to Lori Richards, director for the office of Compliance Examinations and Inspections "It was impossible for us, as examiners, to understand the rationale, to determine what happened."

I question the marketing practices and methods for generating customer brand and loyalty. So ask yourself this "was there likelihood to excite increased production by the agencies marketing divisions whereby concessions were offered to a ratings model solely to increase market share.

The SEC commission, who is absent from the broader subprime enforcement picture will eventually step in here, that is should it ever decide to take enforcement action. The SEC can certainly influence the solutions to the problem of rating agencies and integrity for RMBS and CDOs. It is assumed the three top agencies have initiated taking some action for correcting the problems. What else can serve as the elixir for ensuring investor confidence?

M.Soliman is an expert witness who provides attorneys with testimony in mortgage fraud related cases. He can be reached at 213-627-2324

 

 

Wednesday, November 11, 2009

SOLIMAN AND RECENT PRESS

The Other Real Estate Crisis Newsweek Voices - Daniel Gross ...
Jan 9, 2008 ... This information is offered by Maher Soliman, the web site ... unity is not yet complete Angela Merkel on Berlin Wall anniversary CNN ...www.newsweek.com/id/87984 - Cached - Similar -

Recession-Proof Real Estate? Newsweek Business Newsweek.com
Jan 30, 2008 ... Saw somthing on TV - Maher Soliman, the managing Director for a ... unity is not yet complete Angela Merkel on Berlin Wall anniversary CNN ...www.newsweek.com/id/106188 - Cached - Similar -

Stumper : BAILEY: With McCain and the Economy, Is the Third Time ... - Nov 7
Here's my NEWSWEEK colleague Holly Bailey with a report from the McCain caravan in ... According to Maher Soliman, an analyst with www.borrowerhotline.com ...blog.newsweek.com/.../bailey-with-mccain-and-the-economy-is-the-third-time-the-charm.aspx - Cached - Similar -

CNN Political Ticker: All politics, all the time Blog Archive ...
May 7, 2008 ... Newsweek article said that one of the members of the Illinois State Senate wanted to run for the U.S. Senate. ...... By BRODY MULLINS and KRIS MAHER May 5, 2008; Page A1 ...... Khaled Soliman, May 7th, 2008 4:44 pm ET ...politicalticker.blogs.cnn.com/.../blitzer-what-would-you-like-me-to-ask-barack-obama/ - Similar -
BorrowerClaims: WHY MORTGAGE SECURTIZATION DOES NOT WORK - Nov 7
Jan 7, 2009 ... According to Soliman, "I changed my views and no longer see the problem ... news organizations (Newsweek, CNN and MSNBC) over the internet. ...borrowerclaims.blogspot.com/.../why-mortgage-securtization-does-not.html - Similar -
SubPrime Expert: 06/01/2008 - 07/01/2008
Real Estate: Making Mortgage Loan Counseling Mandatory Newsweek Voices ..... Telephone number 310-765-7388. Maher Soliman Nationwide Loan Services. ...www.foreclosureinfosearch.com/2008_06_01_archive.html - Cached - Similar -
Foreclosureinfosearch / Call Us 310-765-7388: Newsweek Samulson ...
According to Newsweek published report / Samulson: Retail sales dropped 1.2 ... Maher Soliman, analyst for consumer homeowner website said "Samuelson is ...www.foreclosureinfosearch.com/.../newsweek-samulson-storyline-comments.html - Similar -
Show more results from www.foreclosureinfosearch.com
Yahoo! 360° - Entries tagged "cnn"
By Maher Soliman January 30th 2008 / For Immediate Release; ... Tags: foreclosure, countrywide, bankofamerica, newsweek, cnn, latimes ...blog.360.yahoo.com/blog-OUNCBoQifqUOW48iXYNCSEwZyrLGqcjE1Kc-?...cnn - Similar -

Stop Foreclosure! www.borrowerhotline.com
Mar 20, 2008 ... Issue #1 - America's Money: All this week at 12 pm ET, CNN explains how .... Maher Soliman, Managing Director for www.Borrowerhotline.com ...borrowerhotline.blogspot.com/ - Cached - Similar -

There are Still too Many Houses

House prices have pulled out of their free fall, but don't expect them to recover until we work through a huge property glut.

By Colin Barr, senior writer Last Updated: November 11, 2009: 9:08 AM ET

NEW YORK (Fortune) -- The lights are on in the housing market. But at more and more places, nobody's home. House prices have risen in recent months after a long plunge, according to the National Association of Realtors and the S&P Case-Shiller national index. Fewer Americans owe more than their property is worth, according to a report this week from Zillow.com.

But a full-fledged housing recovery will remain elusive until the market can absorb all the houses and apartments that were built during the housing boom. And on that front, progress has been slow. About one in seven housing units was vacant in the third quarter, according to the Census Department. This year has registered the highest reading since the government began collecting such data in 1965.

Part of the glut comes from a rash of foreclosures as strapped borrowers fall behind on their mortgages. But rental apartments are emptying out at a record clip as well, as a spike in the jobless rate and a decade of subpar wage growth have sent many Americans back home to live with Mom and Dad.

And some owners, such as Treasury Secretary Tim Geithner, have decided to rent their houses out after they couldn't sell them. "There's just too many houses out there for the population we have," said Brian Peterson, an economist at Indiana University who focuses on housing. "The market's going to take a couple years to clear."

The homeowner vacancy rate dropped to 2.6% in the third quarter from 2.8% a year ago, when homeowner vacancies hit their all-time high. But a jump in the rental vacancy rate, to 11.1% from 9.9% a year earlier, more than offset that decline. Because twice as many people own their homes as rent, the total vacancy rate -- 14.5% in the third quarter -- exceeds the sum of the homeowner and rental vacancy rates.

The rise in vacancies comes after a decade in which homebuilders, motivated by easy financing and rising prices, built many more homes than the U.S. needed. About 1.2 million households are formed each year, on average, according to government estimates. But housing starts averaged 1.7 million a year between 1996 and 2006, when the boom topped out.

"There was some overbuilding during that period," said Walter Molony, a public affairs specialist at the National Association of Realtors. Since then, housing starts have dropped sharply, allowing the market to soak up some of the excess. And prices have dropped precipitously in the most overbuilt markets in the South and West, luring some buyers off the sidelines. Peterson also notes that the vacancy numbers have expanded over the years to include more types of vacant homes, such as seasonally occupied beach houses.

Meanwhile, tax credits, mortgage modifications and government mortgage market support have helped slow the decline of house prices. Federal mortgage purchases have brought down 30-year mortgage rates by a third of a point, according to Wall Street estimates. More than 350,000 Americans have used the $8,000 homebuyer tax credit to buy their first house, according to industry data.

But because most of those buyers were presumably renters beforehand, their purchases filled one vacancy while creating another. The biggest factor working for a recovery now, Peterson said, is that buyers who were once priced out of many housing markets are being lured in by lower prices. But those people may not take the plunge until their job prospects firm up, he added. That may take a while at a time when unemployment is at a 26-year high and the economy has shed jobs for 22 straight months.

"We need those people to start buying houses and starting families," he said.

First Published: November 10, 2009: 12:48 PM ET

Sunday, July 26, 2009

Countrywide Checks

Bank of America, which acquired Countrywide Financial Corp., one of the most active of the subprime lenders, has begun issuing checks to its borrowers who are eligible for foreclosure assistance under an agreement with attorneys general in 40 states. Borrowers most likely to be eligible for assistance must have experienced a foreclosure, short sale, or deed-in-lieu of foreclosure after taking out a Countrywide mortgage. Rust Consulting, a third-party administrator, is managing the program, and notifying and paying eligible customers. Source: Reuters News, Steve Eder (07/23/2009)

Saturday, July 25, 2009

CONFERENCE: THE NEXT GENERATION OF CLAIMS, REGULATIONS,

RESIDENTIAL MORTGAGE LITIGATION & REGULATORY ENFORCEMENT October 27 - 28, 2009 The Adolphus Hotel Dallas, Texas American Conference Institute’s National Forum on PREPARING FOR THE NEXT GENERATION OF CLAIMS, REGULATIONS, OBTAIN EXPERT ADVICE AND KEY INSIGHTS THAT WILL HELP YOU: • Mitigate the impact of borrower stall tactics, including claims arising from bankruptcy Proceedings, on foreclosures • Respond to suitability and misrepresentation claims tied to Option ARMs and other non-traditional mortgages • Prepare for the effects that emerging regulations and legislation, including amendments to RESPA and TILA, will have on litigation and compliance initiatives • Defend against investor claims arising from loan modifications • Manage the increase in investor repurchase demands and contest improper claims • Counter investor claims related to mortgage-backed securities and derivative products, including CDOs and CDS • Ensure proper standing before bringing foreclosure proceedings and defeat challenges to loan ownership • Defend against claims brought by municipalities seeking damages for alleged harm caused by foreclosures Hon. Timothy J. Corrigan - U.S. Dist. Ct., M.D. Fla. Hon. Michael B. Kaplan - U.S. Bankr. Ct., D.N.J. Post-Conference Master Class: Mastering the Nuances of Foreclosure and Bankruptcy: Establishing Effective Defenses Against the Newest Claims and Counterclaims October 28, 2009 – 3:15 p.m. - 5:45 p.m. DISTINGUISHED CO-CHAIRS: Frank A. Hirsch, Jr. Partner Alston & Bird LLP Andrew K. Stutzman Partner, Chair of the Mortgage & Lending Litigation Practice Group Stradley Ronon Stevens & Young, LLP REGULATORY AND ENFORCEMENT PERSPECTIVES FROM: Department of Justice Federal Deposit Insurance Corporation Federal Reserve Board Illinois Attorney General’s Office EXPERIENCED IN-HOUSE COUNSEL FROM: Bank of America GMAC Financial Services Greenpoint Mortgage Bankers Association VIEW FROM THE BENCH: MEDIA PARTNERS: MORTGAGE FINANCE INSIDE SPONSORED BY: RESIDENTIALMORTGAGE LITIGATION & REGULATORY ENFORCEMENT October 27 - 28,

Thursday, July 09, 2009

GAIN ON SALE ACCOUNTING AND LOAN TRADING

I would use Citigroup (warehouse lender) to fund a whole loan purchase. I would post a five percent haircut (set aside). In other words the lender (me) needed $5,000 for every $100,000 I would borrow. We would have 60 days to sbmit, ship and sell the asset. I would show (commitment) with SAXON the buyer who never bought a loan (after my first six months) . You see SAXON was the dummy commitment to fool regulators. I would assign the asset to SAXON but always include in the lenders package an executed "Blank Jurat or naked endorsement" and "Blank assignment". That was the poison pill (for the FSB to dump if Uncle Sam showed up) and needed for a last minute substitution of "Buyer". So GMAC eventually buys the asset. They wire $100,000 and change and Citi is made whole. And we would keep the change or premium. GAAP Book Enties Wire Out: Deposit 5,000.00 Balance 95,000.00 Loans Held 100,000.00 Wire In Balance 100,000.00 premium 2,500.00 Loans Sold 102,500.00 Gain on Sale: Loans Sold 102,500.00 Loans held 100,000.00 Gain on Sale 2,500.00 Today, they do the same selling loans. But the Bank used to "floor" the loan…well you see, the never relinquish the loan with millions in"haircut " and trillions in funding. Lender funds the loan and "Transfors" to the ABS Trust who buys the loan. The Trust wires back ......another five percent for the next loan. So where did the money investors deposited or $100,000 for the loan sale end up....if only $5,000 was sent back and deposited. If they deposited "Depositor" on $5,000 for the next loan well then Hey, thats not a sale.....FAS140 -3 (Transferred assets and control). What is it then...."A hypothication"? Leveraging Bank Assets to purchase more assets. But hey, Fund the loan and that is (e.g.) $100,000 out. Sell the loan and thats $5,000 back. Now the ABS Trust is funding the liquidity cycle itself. But investor puts out $100,000 and the Bank puts out $100,000 and thats $200,000 and only $5,000 is accounted for. ...and you really think they are going to give YOU a work or of Modification! admin@borrowerhotline.com It's a sad sad situation . . . and it's getting more and more absurd. Elton John

Saturday, March 14, 2009

The Lender Benefits in a Foreclosure

The matter concerning a wrongful foreclosure claim must stand the test of procedural scrutiny from a perspective of civil codes, policy adherence and ethical compliance. An abundance of errors, omissions and recklessness by one party against another are grounds for making a claim and seeking a resolution in or outside the courtroom. Intent can be difficult to prove where isolated in one area of lending such as TILA and RESPA compliance. It may be difficult to defend in instances of violations spread out over many areas of both the loan and the recovery. This is especially true for a compliant loan when a recovery causes the borrower to suffer from willful negligent acts in a wrongful foreclosure. The Trustors claim of a breach must show substantive arguments for there to be standing in a courtroom. But what about those instance where the lender shows their efforts to be wrongful and a recurring pattern?

In the first example the facts show the intent of the lender was indeed an isolated case to defraud? In the latter, the allegations and events having occurred throughout the recovery are more than an isolated desperate private party lender circumventing the rules and regulations governing the foreclosure procedures as set forth in California? Employing an aggressive means of interpreting the code and California foreclosure law is paramount concerning it occurs on a mass level through a collective force who all claims interest yet are lacking Joinder and employing unlawful estoppels'. A lender recovery falls under the power of sale provision found in the promissory note alongside the acceleration clause. In states such as California the lenders begin the process of foreclosure at 60 days down or upon rating the account seriously delinquent. The events and actions of the lenders in a recovery commence accordingly under the California procedures found in the code 2920 through 2940 as follows:

Notice of Intent 30 day advance
Notice of Default 90 days
Notice of Sale 20 days (before)
Trustees Sale The 21st day of notice

What conclusions will counsel make where a lender is a market leader and national presence and elects to bypass the procedures under the California code? Forget for a moment the reasons, causes and effects which impact each borrower's unique situation. Focus here on the outcome, a foreclosure of the beneficial interest and security where the recovery process is continually inconsistent. Consider now the consistency of that outcome, a foreclosure and where ad hoc innovations assist the recovery process and advantageously benefit the beneficiary.A good case in point is the evolution of MERS unique and wonderful alternative pitfalls of a county recorder's office burdened by the volume to trailing assignments and recordings. MERS has by pure chance evolved into a convoluted and uncontrolled Guiney Pig that allows the beneficial interest to emerge as the holder in due course when in fact that party remains undisclosed and potentially left out of the recovery. A willful intent combinations (wholly or partially owned subsidiaries) acting as the collective lender can leverage the law and force random interpretive procedures in a foreclosure. The disparity in resources and defenses compared to a borrower raise serious doubt of the employment of MERS as was intended and employed as convenience to a borrower at time of refinance and or a sale.

The lender is operating in cities across this State where an initiative is in effect calling for an amicable resolution and workout for each delinquent consumer homeowner facing default. The passage of the amended California civil code 2923.5 is an example of a beneficiary's creative innovation detrimental to the trustor. It is beyond the spirit and intent of the amended code and subject to the ethical and rightful enforcement as intended. Lenders are administering the mandate for compliance using a corrosive, unethical and near impossible means for avoiding and not ensuring a borrowers rights. These rights are stripped away in a recovery process and leave borrowers subject to a foregone conclusion which is a loss of home.

An analysis of a lawful foreclosure and ethical recovery a lender is entitled must ensure transparency and lawfully operating within the code. The lost note question and use of MERS paint an example of an aggressive means to bypass code and affords a beneficiary the luxury of a non-judicial fast court docket and speedy recovery. One error or one mistake taken at each or any level of the process is grounds for rescinding the foreclosure.

As for the inevitable, eviction from the home post foreclosure, nothing of substance can come to fruition in a holdover hearing as compared to a mortgage state and more appropriate judicial process. The courts are showing signs of stress from the volume of pro per filings and rightfully so. But that is the price to be paid in times of tumult, where questions exist under the power of sale provisions as set forth. We are operating in a recession and in an unaffordable legal system lacking capable lawyers. It rewards a lender for deceptiveness and unlawful sidestepping of the code and the hunch the borrower will be slow to react and cannot afford a defense. Californians, you do not have a chance to survive in a legal system that is dominated by only a few lawyers that completely comprehend this tragedy. The numbers of individuals who can afford qualified legal representation are paled by the number of homeowners who cannot.

Instrument shown as the Deed of Trust is dated 10/20/2006. The Notice of Default is shown as 6/23/2008. A Substitution of Trustee should therefore be recorded on 6/23/2008.or before the date of the Notice of default. A Substitution of Trustee found in the file shows 7/25/2008.

A lawful assignment of the deed of trust should be recorded prior to the any party laying claim to the asset and borrower receivable. An assignment was in file and is dated 8/22/2008. Notice of Sale (min) cannot occur prior to 9/21/2008. Therefore a Statement of Notice of Intent to comply is an ethical consideration for amendments to code 2934(A) and is arguably something the servicing agent elected to completely bypass the legislation. Therefore, we are still waiting for the Notice of Sale (Actual) conformation and Trustees Sale confirmation showing either 1) a conveyance back to the lender or 2) a bon-e-fide sale to an arms third party or 3) a statement that explains the servicer /lenders intent using a controlled sale to a less than arms third party.

A missing debt validation statement / Notice of Intent and absent 30 Days due diligence effort for ensuring assistance preclude the Notice of Default. There appears to be no assistance offered for work out, consideration of a remedy, offers of a resolution, addressing the predatory components and for seeking to divulge the facts concerning the lender is in no way the beneficiary of record and is subject to a mere interest in the loan. That interest does not give the lender or beneficiary a right of violating the real entities trust structure which is vulnerable to losing its status and valuable standing under a complaint method of recovery. If the trust has endured any deceptive or non transparent acts and initiative motivated by a lack of transparency the borrowers is subject

Sunday, February 22, 2009

WHERE’S THE NOTE, WHO’S THE HOLDER:

ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATEHON. SAMUEL L. BUFFORDUNITED STATES BANKRUPTCY JUDGECENTRAL DISTRICT OF CALIFORNIALOS ANGELES, CALIFORNIA(FORMERLY HON.) R. GLEN AYERSLANGLEY & BANACKSAN ANTONIO, TEXASAMERICAN BANKRUPTCY INSTUTUTE APRIL 3, 2009WASHINGTON, D.C.WHERE’S THE NOTE, WHO’S THE HOLDERINTRODUCTION In an era where a very large portion of mortgage obligations have been securitized, by assignment to a trust indenture trustee, with the resulting pool of assets being then sold as mortgage backed securities, foreclosure becomes an interesting exercise, particularly where judicial process is involved. We are all familiar with the securitization process. The steps, if not the process, is simple. A borrower goes to a mortgage lender. The lender finances the purchase of real estate. The borrower signs a note and mortgage or deed of trust. The original lender sells the note and assigns the mortgage to an entity that securitizes the note by combining the note with hundreds or thousands of similar obligation to create a package of mortgage backed securities, which are then sold to investors.Unfortunately, unless you represent borrowers, the vast flow of notes into the maw of the securitization industry meant that a lot of mistakes were made. When the borrower defaults, the party seeking to enforce the obligation and foreclose on the underlying collateral sometimes cannot find the note. A lawyer sophisticated in this area has speculated to one of the authors that perhaps a third of the notes “securitized” have been lost or destroyed. The cases we are going to look at reflect the stark fact that the unnamed source’s speculation may be well-founded.UCC SECTION 3-309If the issue were as simple as a missing note, UCC §3-309 would provide a simple solution. A person entitled to enforce an instrument which has been lost, destroyed or stolen may enforce the instrument. If the court is concerned that some third party may show up and attempt to enforce the instrument against the payee, it may order adequate protection. But, and however, a person seeking to enforce a missing instrument must be a person entitled to enforce the instrument, and that person must prove the instrument’s terms and that person’s right to enforce the instrument. §3-309 (a)(1) & (b).WHO’S THE HOLDEREnforcement of a note always requires that the person seeking to collect show that it is the holder. A holder is an entity that has acquired the note either as the original payor or transfer by endorsement of order paper or physical possession of bearer paper. These requirements are set out in Article 3 of the Uniform Commercial Code, which has been adopted in every state, including Louisiana, and in the District of Columbia. Even in bankruptcy proceedings, State substantive law controls the rights of note and lien holders, as the Supreme Court pointed out almost forty (40) years ago in United States v. Butner, 440 U.S. 48, 54-55 (1979). However, as Judge Bufford has recently illustrated, in one of the cases discussed below, in the bankruptcy and other federal courts, procedure is governed by the Federal Rules of Bankruptcy and Civil Procedure. And, procedure may just have an impact on the issue of “who,” because, if the holder is unknown, pleading and standing issues arise.BRIEF REVIEW OF UCC PROVISIONSArticle 3 governs negotiable instruments – it defines what a negotiable instrument is and defines how ownership of those pieces of paper is transferred. For the precise definition, see § 3-104(a) (“an unconditional promise or order to pay a fixed amount of money, with or without interest . . . .”) The instrument may be either payable to order or bearer and payable on demand or at a definite time, with or without interest. Ordinary negotiable instruments include notes and drafts (a check is a draft drawn on a bank). See § 3-104(e). Negotiable paper is transferred from the original payor by negotiation. §3-301. “Order paper” must be endorsed; bearer paper need only be delivered. §3-305. However, in either case, for the note to be enforced, the person who asserts the status of the holder must be in possession of the instrument. See UCC § 1-201 (20) and comments. The original and subsequent transferees are referred to as holders. Holders who take with no notice of defect or default are called “holders in due course,” and take free of many defenses. See §§ 3-305(b). The UCC says that a payment to a party “entitled to enforce the instrument” is sufficient to extinguish the obligation of the person obligated on the instrument. Clearly, then, only a holder – a person in possession of a note endorsed to it or a holder of bearer paper – may seek satisfaction or enforce rights in collateral such as real estate. NOTE: Those of us who went through the bank and savings and loan collapse of the 1980’s are familiar with these problems. The FDIC/FSLIC/RTC sold millions of notes secured and unsecured, in bulk transactions. Some notes could not be found and enforcement sometimes became a problem. Of course, sometimes we are forced to repeat history. For a recent FDIC case, see Liberty Savings Bank v. Redus, 2009 WL 41857 (Ohio App. 8 Dist.), January 8, 2009.THE RULESJudge Bufford addressed the rules issue this past year. See In re Hwang, 396 B.R. 757 (Bankr. C. D. Cal. 2008). First, there are the pleading problems that arise when the holder of the note is unknown. Typically, the issue will arise in a motion for relief from stay in a bankruptcy proceeding.According F.R.Civ. Pro. 17, “[a]n action must be prosecuted in the name of the real party in interest.” This rule is incorporated into the rules governing bankruptcy procedure in several ways. As Judge Bufford has pointed out, for example, in a motion for relief from stay, filed under F.R.Bankr.Pro. 4001 is a contested matter, governed by F. R. Bankr. P. 9014, which makes F.R. Bankr. Pro. 7017 applicable to such motions. F.R. Bankr. P. 7017 is, of course, a restatement of F.R. Civ. P. 17. In re Hwang, 396 B.R. at 766. The real party in interest in a federal action to enforce a note, whether in bankruptcy court or federal district court, is the owner of a note. (In securitization transactions, this would be the trustee for the “certificate holders.”) When the actual holder of the note is unknown, it is impossible – not difficult but impossible – to plead a cause of action in a federal court (unless the movant simply lies about the ownership of the note). Unless the name of the actual note holder can be stated, the very pleadings are defective.STANDINGOften, the servicing agent for the loan will appear to enforce the note. Assume that the servicing agent states that it is the authorized agent of the note holder, which is “Trust Number 99.” The servicing agent is certainly a party in interest, since a party in interest in a bankruptcy court is a very broad term or concept. See, e.g., Greer v. O’Dell, 305 F.3d 1297, 1302-03 (11th Cir. 2002). However, the servicing agent may not have standing: “Federal Courts have only the power authorized by Article III of the Constitutions and the statutes enacted by Congress pursuant thereto. ... [A] plaintiff must have Constitutional standing in order for a federal court to have jurisdiction.” In re Foreclosure Cases, 521 F.Supp. 3d 650, 653 (S.D. Ohio, 2007) (citations omitted). But, the servicing agent does not have standing, for only a person who is the holder of the note has standing to enforce the note. See, e.g., In re Hwang, 2008 WL 4899273 at 8.The servicing agent may have standing if acting as an agent for the holder, assuming that the agent can both show agency status and that the principle is the holder. See, e.g., In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008) at 520.A BRIEF ASIDE: WHO IS MERS?For those of you who are not familiar with the entity known as MERS, a frequent participant in these foreclosure proceedings:MERS is the “Mortgage Electronic Registration System, Inc. “MERS is a mortgage banking ‘utility’ that registers mortgage loans in a book entry system so that ... real estate loans can be bought, sold and securitized, just like Wall Street’s book entry utility for stocks and bonds is the Depository Trust and Clearinghouse.” Bastian, “Foreclosure Forms”, State. Bar of Texas 17th Annual Advanced Real Estate Drafting Course, March 9-10, 2007, Dallas, Texas. MERS is enormous. It originates thousands of loans daily and is the mortgagee of record for at least 40 million mortgages and other security documents. Id.MERS acts as agent for the owner of the note. Its authority to act should be shown by an agency agreement. Of course, if the owner is unknown, MERS cannot show that it is an authorized agent of the owner.RULES OF EVIDENCE – A PRACTICAL PROBLEMThis structure also possesses practical evidentiary problems where the party asserting a right to foreclose must be able to show a default. Once again, Judge Bufford has addressed this issue. At In re Vargas, 396 B.R. at 517-19. Judge Bufford made a finding that the witness called to testify as to debt and default was incompetent. All the witness could testify was that he had looked at the MERS computerized records. The witness was unable to satisfy the requirements of the Federal Rules of Evidence, particularly Rule 803, as applied to computerized records in the Ninth Circuit. See id. at 517-20. The low level employee could really only testify that the MERS screen shot he reviewed reflected a default. That really is not much in the way of evidence, and not nearly enough to get around the hearsay rule.FORECLOSURE OR RELIEF FROM STAYIn a foreclosure proceeding in a judicial foreclosure state, or a request for injunctive relief in a non-judicial foreclosure state, or in a motion for relief proceeding in a bankruptcy court, the courts are dealing with and writing about the problems very frequently.In many if not almost all cases, the party seeking to exercise the rights of the creditor will be a servicing company. Servicing companies will be asserting the rights of their alleged principal, the note holder, which is, again, often going to be a trustee for a securitization package. The mortgage holder or beneficiary under the deed of trust will, again, very often be MERS.Even before reaching the practical problem of debt and default, mentioned above, the moving party must show that it holds the note or (1) that it is an agent of the holder and that (2) the holder remains the holder. In addition, the owner of the note, if different from the holder, must join in the motion.Some states, like Texas, have passed statutes that allow servicing companies to act in foreclosure proceedings as a statutorily recognized agent of the noteholder. See, e.g., Tex. Prop. Code §51.0001. However, that statute refers to the servicer as the last entity to whom the debtor has been instructed to make payments. This status is certainly open to challenge. The statute certainly provides nothing more than prima facie evidence of the ability of the servicer to act. If challenged, the servicing agent must show that the last entity to communicate instructions to the debtor is still the holder of the note. See, e.g., HSBC Bank, N.A. v. Valentin, 2l N.Y. Misc. 3d 1123(A), 2008 WL 4764816 (Table) (N.Y. Sup.), Nov. 3, 2008. In addition, such a statute does not control in federal court where Fed. R. Civ. P. 17 and 19 (and Fed. R. Bankr. P. 7017 and 7019) apply.SOME RECENT CASE LAWThese cases are arranged by state, for no particular reason.MassachusettsIn re Schwartz, 366 B.R.265 (Bankr. D. Mass. 2007)Schwartz concerns a Motion for Relief to pursue an eviction. Movant asserted that the property had been foreclosed upon prior to the date of the bankruptcy petition. The pro se debtor asserted that the Movant was required to show that it had authority to conduct the sale. Movant, and “the party which appears to be the current mortgagee…” provided documents for the court to review, but did not ask for an evidentiary hearing. Judge Rosenthal sifted through the documents and found that the Movant and the current mortgagee had failed to prove that the foreclosure was properly conducted. Specifically, Judge Rosenthal found that there was no evidence of a proper assignment of the mortgage prior to foreclosure. However, at footnote 5, Id. at 268, the Court also finds that there is no evidence that the note itself was assigned and no evidence as to who the current holder might be. Nosek v. Ameriquest Mortgage Company (In re Nosek), 286 Br. 374 (Bankr D Mass. 2008). Almost a year to the day after Schwartz was signed, Judge Rosenthal issued a second opinion. This is an opinion on an order to show cause. Judge Rosenthal specifically found that, although the note and mortgage involved in the case had been transferred from the originator to another party within five days of closing, during the five years in which the chapter 13 proceeding was pending, the note and mortgage and associated claims had been prosecuted by Ameriquest which has represented itself to be the holder of the note and the mortgage. Not until September of 2007 did Ameriquest notify the Court that it was merely the servicer. In fact, only after the chapter 13 bankruptcy had been pending for about three years was there even an assignment of the servicing rights. Id. at 378. Because these misrepresentations were not simple mistakes: as the Court has noted on more than one occasion, those parties who do not hold the note of mortgage do not service the mortgage do not have standing to pursue motions for leave or other actions arising form the mortgage obligation. Id at 380. As a result, the Court sanctioned the local law firm that had been prosecuting the claim $25,000. It sanctioned a partner at that firm an additional $25,000. Then the Court sanctioned the national law firm involved $100,000 and ultimately sanctioned Wells Fargo $250,000. Id. at 382-386. In re Hayes, 393 B.R. 259 (Bankr. D. Mass. 2008). Like Judge Rosenthal, Judge Feeney has attacked the problem of standing and authority head on. She has also held that standing must be established before either a claim can be allowed or a motion for relief be granted. OhioIn re Foreclosure Cases, 521 F.Supp. 2d (S.D. Ohio 2007). Perhaps the District Court’s orders in the foreclosure cases in Ohio have received the most press of any of these opinions. Relying almost exclusively on standing, the Judge Rose has determined that a foreclosing party must show standing. “[I]n a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time that the complaint was filed.” Id. at 653. Judge Rose instructed the parties involved that the willful failure of the movants to comply with the general orders of the Court would in the future result in immediate dismissal of foreclosure actions. Deutsche Bank Nat’l Trust Co. v. Steele, 2008 WL 111227 (S.D. Ohio) January 8, 2008. In Steele, Judge Abel followed the lead of Judge Rose and found that Deutsche Bank had filed evidence in support of its motion for default judgment indicating that MERS was the mortgage holder. There was not sufficient evidence to support the claim that Deutsche Bank was the owner and holder of the note as of that date. Following In re Foreclosure Cases, 2007 WL 456586, the Court held that summary judgment would be denied “until such time as Deutsche Bank was able to offer evidence showing, by a preponderance of evidence, that it owned the note and mortgage when the complaint was filed.” 2008 WL 111227 at 2. Deutsche Bank was given twenty-one days to comply. Id. IllinoisU.S. Bank, N.A. v. Cook, 2009 WL 35286 (N.D. Ill. January 6, 2009). Not all federal district judges are as concerned with the issues surrounding the transfer of notes and mortgages. Cook is a very pro lender case and, in an order granting a motion for summary judgment, the Court found that Cook had shown no “countervailing evidence to create a genuine issue of facts.” Id. at 3. In fact, a review of the evidence submitted by U.S. Bank showed only that it was the alleged trustee of the securitization pool. U.S. Bank relied exclusively on the “pooling and serving agreement” to show that it was the holder of the note. Id.Under UCC Article 3, the evidence presented in Cook was clearly insufficient. New YorkHSBC Bank USA, N.A. v. Valentin, 21 Misc. 3D 1124(A), 2008 WL 4764816 (Table) (N.Y. Sup.) November 3, 2008. In Valentin, the New York court found that, even though given an opportunity to, HSBC did not show the ownership of debt and mortgage. The complaint was dismissed with prejudice and the “notice of pendency” against the property was cancelled. Note that the Valentin case does not involve some sort of ambush. The Court gave every HSBC every opportunity to cure the defects the Court perceived in the pleadings. California In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008)andIn re Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008)These two opinions by Judge Bufford have been discussed above. Judge Bufford carefully explores the related issues of standing and ownership under both federal and California law. TexasIn re Parsley, 384 B.R. 138 (Bankr. S.D. Tex. 2008)andIn re Gilbreath, 395 B.R. 356 (Bankr. S.D. Tex. 2008)These two recent opinions by Judge Jeff Bohm are not really on point, but illustrate another thread of cases running through the issues of motions for relief from stay in bankruptcy court and the sloppiness of loan servicing agencies. Both of these cases involve motions for relief that were not based upon fact but upon mistakes by servicing agencies. Both opinions deal with the issue of sanctions and, put simply, both cases illustrate that Judge Bohm (and perhaps other members of the bankruptcy bench in the Southern District of Texas) are going to be very strict about motions for relief in consumer cases. SUMMARYThe cases cited illustrate enormous problems in the loan servicing industry. These problems arise in the context of securitization and illustrate the difficulty of determining the name of the holder, the assignee of the mortgage, and the parties with both the legal right under Article 3 and the standing under the Constitution to enforce notes, whether in state court or federal court. Interestingly, with the exception of Judge Bufford and a few other judges, there has been less than adequate focus upon the UCC title issues. The next round of cases may and should focus upon the title to debt instrument. The person seeking to enforce the note must show that:(1) It is the holder of this note original by transfer, with all necessary rounds; (2) It had possession of the note before it was lost; (3) If it can show that title to the note runs to it, but the original is lost or destroyed, the holder must be prepared to post a bond; (4) If the person seeking to enforce is an agent, it must show its agency status and that its principal is the holder of the note (and meets the above requirements). Then, and only then, do the issues of evidence of debt and default and assignment of mortgage rights become relevant.

Tuesday, February 10, 2009

Foreclosure Victory For Nor Cal Area Homeowner!

A Sacramento area court ruling against the plaintiff came in an unlawful detainer hearing last Friday. Lenders and servicers are taking notice of the "sale" by trustee that was set aside in favor of a loan modification. Submitted by Steve Shafer

February 5, 2009 / Sacramento California - The Bay Area Superior Court decision and judgment against the plaintiff allows the "sale" by the trustee to be set aside in favor of a loan modification. Lenders nationwide who originate and service loans know California offers them a "safe haven" from homeowner's who dispute a recent foreclosure. That means overwhelming odds for anyone in foreclosure who loses their home to a lender in a foreclosure. The borrower becomes a holdover and must respond to an unlawful detainer after their home is lost.

That was not the case for an El Dorado area resident at a recent hearing for an unlawful detainer matter heard in a Placerville County superior court room. The recent victory in court was in an unlawful detainer matter for the defendant Ms. Stella Onyeu and mortgage lender and securities sponsor - AURORA LOAN SERVICES v. STELLA D. ONYEU (case number PCU2008032).

AURORA LOAN SERVICES like so many other lender servicing agents has come under greater scrutiny as of late for questionable business practices. According to its web site Aurora Loan Services is operating as usual. The company is a subsidiary of Lehman Brothers Bank, and not part of the Lehman Brothers Holding Inc. bankruptcy filing.

The case was originally filed in October of last year and shortly thereafter was dismissed when the Plaintiff failed to show at a scheduled hearing. Subsequent motions were filed to vacate the dismissal in favor of a motion to dismiss by the plaintiffs. The matter was heard recently heard again by the same court and earlier mentioned presiding judge. Mark Terbeek is the attorney for the Defendant and Maher Soliman a Juris Pro witness provided case development and court expert testimony.

This judgment for the defendant is monumental given the courts limited jurisdiction related to the lenders sole focus to have the borrower removed from the home. The issues at hand are the legal procedural limitations and high attrition rate for defendants and their attorney's. The problem is the defendant's lack of standing for pleading a wrongful foreclosure due to jurisdiction of the court.

So what does this all mean? Many homeowners can find some hope, for the moment, in knowing the otherwise unfriendly California UD courts will now hold some promise for hearing arguments as to the foreclosure and the plaintiffs standing. According to foreclosure and REO sales analyst Brenda Michelson of Nationwide Loan Services "It's hit or miss at this level of the law and the courts willingness to step outside of its jurisdiction." The smaller outlying courts seem to me to be more willing to entertain defense arguments that the plaintiff may not be the holder in due course and lacks capacity throughout the foreclosure" Terbeek's response is that if the plaintiff cannot demonstrate a logical and properly conveyed transfer of the beneficial interest - it is not entitled to possession.

After the foreclosure and conveyance back to the trustee, the homeowner is considered unlawfully occupying the dwelling as a holdover. However, the court ruled that AURORA had in fact violated its duty to show good faith and comply accordingly under the recent California statutes and amendments Power of Sale provision. The presiding judge who heard the matter ordered a judgment against the company allowed for Terbeek to enter a request for all legal fees due.

According to legal expert Soliman, "there are more attorneys willing to now jump into the wrongful foreclosure business and fight the court on the jurisdiction issue. However, it is nearly impossible to rely on the judge and courts at this level". Soliman is an examiner with Nationwide Loan Services and has engagements in multiple cases throughout California through attorneys such as Terbeek who represented the defendant.

Jurisdiction: An Overview

The term jurisdiction is really synonymous with the word "power" and the sovereignty on behalf of which it functions. Any court possesses jurisdiction over matters only to the extent granted to it by the Constitution, or legislation of a paramount fundamental question for lawyers is whether a given court has jurisdiction to preside over a given case. A jurisdictional question may be broken down into various components including whether there is jurisdiction over the person (in personam), the subject matter, or res (in rem), and to render the particular judgment sought.

An unlawful detainer lawsuit is a "summary" court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord's complaint. Normally, a judge will hear and decide the case within 20 days after the borrower now tenant files an answer.

The question of whether a given court has the power to determine a jurisdictional question is itself a jurisdictional question. Such a legal question is referred to as "jurisdiction to determine jurisdiction." In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court. In an eviction lawsuit, the lender is the "plaintiff" and the prior borrower and homeowners become an occupant holdover and the "defendant." Immediately after the trustee sale of the home the conveyance by the trustee is entered in favor of the lender. Until recently in most cases the lender is with in its right foreclose if a borrower has missed a number of payments, failed to make the insurance premiums or not paid the property taxes. "But sometimes a lender is wrong and you can fight foreclosure by challenging the foreclosure process and related documents" said Soliman.

As the new owner of record AURORA HOME LOAN SERVICES must follow procedures no different than that of a landlord in a tenant occupancy dispute. The next step is to remove the homeowner from the subject dwelling. If the tenant doesn't voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. If the lender makes a mistake in its filing of the foreclosure documents a court my throw out the whole foreclosure case. In the case of a wrongful foreclosure the borrower's claims are limited to affirmative defenses.

Affirmative Defenses

Unlike a judicial proceeding, California lenders need to merely wait out the mandatory term for issuing default notices and ensure it has properly served those notices to the borrower. In other words the hearing and trial taken place in the above referenced matter is not subject to arguments brought by the homeowner for wrongful foreclosure versus the question as to lawful possession of the property by the lender.

California lenders are typically limited to only the defenses a landlord will face when opposed and made subject to claims of wrongfully trying to evict a tenant. Claims such as the Plaintiff has breached the warranty to provide habitable premises, plaintiff did not give proper credit before the notice to pay or quit expired or plaintiff waived, changed, or canceled the notice to quit, or filed the complaint to retaliate against defendant are often completely unrelated to the matter at hand. The courts decision to enforce the provisions of an earlier modification in lieu of a foreclosure sends a major wake up call to the lenders who are under siege to avoid foreclose and be done with mortgage mess affecting United States homeowners. Soliman says the decision is unfortunately not likely to be read into as case precedent for future lawyers and wrongful defendants seeking to introduce our case as an example of a lenders wrongful action.

Soliman goes on to say "it's both interesting and entertaining to see experienced attorneys who jump in and immediately question the issue of the courts authority. Its reality time when they get to their first hearing and see first hand the problematic issues with jurisdiction."

Servicing agents are never the less on notice they must be ready to defend themselves when the opportunity to argue the plaintiffs standing are allowed in an unlawful detainer motivate by a foreclosure. Therefore, the debate about what the courts hear will remain open and subject to further scrutiny by the lawyers for both sides and judges who preside over the courts at this level.

Nationwide Loan Servicing is an approved Expert Witness who provides court testimoney in matters concerning wrongful foreclosures, Federal Savings Banks regultory violations and SEC filings for private registrations.

Monday, November 03, 2008

IMPORTANT ANNOUCEMENT: Link to Stop Foreclosure

PressRelease "Immediate" Los Angeles, CA /11 01 2008 Link to Stop Foreclosure (dateline) A director for a mortgage secondary markets aduiting group shares their views on the recent events impacting Wall Street and lenders. Maher Soliman is a outspoken critic and somewhat boisterous voice that demands the mortgage industry start to implement a real mortgage loan setlement plan. According to Soliman, "the sooner the better for determining actual losses from wrongfull and highly speculative securities dealings - -somthing needs to give, in other words. FASB and FSP Reporting The FASB issued FASB Staff Position (FSP) FAS 140-3, is as follws: "Accounting for Transfers of Financial Assets and Repurchase Financing Transactions," to address repurchase financing transactions related to previously transferred financial assets. A repurchase financing transaction occurs when a buyer (First Franklin and a Merill Lynch Partner) who are initial transferee of a financial asset obtains financing from the seller (Merill Lynch Operating Subsidiary i.e. Bank & Trust, the initial transferor) through a repurchase agreement. Under this arrangment, the buyer transfers the financial asset back to the seller as collateral until the financing is repaid. The term repurchase agreement is described in paragraphs 96 and 97 of FASB Statement 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities. When a transfer of a financial asset and a repurchase financing occur between the same counterparties (or consolidated affiliates of either counterparty), a question arises as to whether the transactions should be viewed together or separately for purposes of evaluating the sale accounting criteria in Statement 140. This question first arose with respect to mortgage real estate investment trusts (REITs) but may have widespread application to a number of other entities, including those that buy financial assets and make use of repurchase financing from the seller and those that sell financial assets and provide repurchase financing to the buyer. Mortgage REITs, hedge funds, broker-dealers and banks may be parties to these transactions. Some entities may participate at different times as either buyers (initial transferees) or sellers (initial transferors). B. Scope The FSP applies to a repurchase financing which is a transaction in which the buyer (initial transferee) of a financial asset obtains financing from the seller (initial transferor) by transferring the financial asset back as collateral until the financing is repaid. Typically, there are three transfers of financial assets that take place in a repurchase financing as discussed in the following table: Transfer Transferor Transferee Initial transfer of financial assets with cash paid by buyer to seller Seller (initial transferor), for instance a broker-dealer or bank Buyer (initial transferee), for instance a customer such as a mortgage REIT or hedge fund Transfer of financial assets to the lender (initial transferor) in a repurchase financing transaction with cash paid to the borrower (initial transferee) Borrower under the financing (initial transferee) Lender under the financing (initial transferor) Transfer of financial assets in settlement of repurchase financing with borrower (initial transferee) making payment to the lender (initial transferor) Lender (initial transferor) returns financial assets Borrower (initial transferee) receives financial assets " If Soliman is correct in his assumptions, this could mean a long, very long winter for us all. Material Misrepresentation NLS or Nationwide Loan Services, LLC. is a compliance and due diligence firm that has purchased and sold over a billion in mortgages, subprime mortgage receivables, and loan servicing for over 20 years. The Subprime mortgage loan collateralized programs were always vulnerable and they did not work back when NLS serviced and traded mortgage loans. I am talking about the late eighties and up tp today. I recall selling, mortgage’s to the likes of Westinghouse and Ford. It did not work back then we want to tell you it does not work now. Now consider, “why the need to make such a bold and maybe boring statement? I do so for one reason! THIS IS THE MEANS FOR YOU TO CANCEL A LOAN OR GET BACK THE HOME YOU LOST. The lender as determined by the promissory note is not a lender at all. It is a pass through certificate loan originator I partnership with an investment banking concern. The provider is who “originates” the debt from consumers. A lender or a bank has two or more capitalization rules and reg’s it must follow and that is what assures us of the misrepresentation. This correspondence is simply called the Foreclosure "Link" How to Avoid a Foreclosure”. The subject is so convoluted and so complex that most will balk. Others try to repeatedly understand and to no avail. These questions will answer the question “What is NLS and what do we do?". We are not counsel and do not represent to be such. We are not a "help you fix the problem" Internet de Novo run by mortgage brokers. We are experts in court case’s and act as an attorneys consultant and litigation specialty development firm who needs your help in correcting the mortgage mess that plagues the country.What’s the payoff to you? You may keep your home or get back the home you lost to a lender that may not be a lender at all or a "Party" allowed under federal guidelines to foreclose on you and your family.You need to register with us and that is for free. Our cost for processing your information is reasonable. THE COST WE CHARGE HOWEVER IS NOT FOR PROFIT AND OUR EARNINGS WILL SHOW HOW WE OPERATE AT A LOSS. Are we failing to disclose something here with regards to the public? If proven to date we are not clear on things, then let me disclose the following to all our clients. We can show why and most importantly "where" the subprime mess is flawed with respect to liability for these obligations! In other words, the private label securities and mortgage loan origination platforms carried a heavy price in terms of its efficiency. The programs and products were destined to be abused for the sake of the securities and certificate holders (who I believe were also duped). The business needed a "bull" or continually "propped up" housing market to keep it from collapse between periods of flat rates and zero growth in housing. So does this all ring a bell? Were you inclined to refinance or move up and purchase a more expensive home after the previous market and your involvement (loan origination) was at that time over?Our goal is as follows in accordance with the objectives listed below; 1.To get you out of foreclosure and out of an arguable obligation 2. To expose the subprime markets as a questionable origination and delivery platform. 3. Show consumers were the facts point to "huge" front end margins to the Wall Street sponsor's but were flawed in a sizable downward fall back and would cause an economic collapse. (Cause and not be a victim of - this is critical to understand). 4. To expose the industries weaknesses and flaws with regards to exposure and claim. 5. To protect American's barring an executive order and congressional and senate support for government intervention and preemption. 6. To make the arguments for a loan to be rescinded (removed) with an honest and integrity rich approach towards the sensitive condition of the investment firms, all people’s livelihoods and the need to correct the problem. I want to emphasize in the last statement or line item 5 what is meant. We do consider the United States need to remain a viral and stronger economic leader and its efforts to bail out the investment banking firms who have now an unimaginable outstanding obligation to the world. Your loan obligations over the recent years were the sources of capital flow into the economy and caused the domestic GNP to remain strong and for our World trade partners to prosper. So now all we ask is to get the picture straight and to stop deceiving Americans at risk of losing their homes. Unfortunately for the economy, the truth is that if Americans are allowed to walk from their homes, the impact to the economy will be even more devastating that what you see now at hand. That's not your fault. You did your part and now the mortgage industry, the Capitol markets investors ,the surety bond holders, title insurers and errors and omissions blanket providers and others paid premiums to ensure us IN times like this has arrived.That's who must make good on their promises and allow the credit rating agencies, investment bank securities sponsors and capital management firms purchasing these securities acknowledge once and for all - Subprime borrowers are not the problem - it's the defective loans you received that now must be returned to the place of purchase. Thank you Maher Soliman Director Senior Compliance Officer P.s No we never have or were willing to acknowledge something we are not. We do not negotiate modifications or workout under a lender terms and that's due to - -there is nothing valid to modify! Complaince Case Study: Nomura /Lehman/Aurora Oct 31st 2008 The lender as determined by the promissory note is not a lender at all. It is a pass through certificate provider who nearly “originates” the debt from consumers. These private label (non agency) business entities are fully disclosed in SEC memorandum filings and provide specific information with regards to the parties named on the promissory note as an originator, holding NO ASSETS, and under a repurchase and sale contract. They do not act as a lender in any way other than appearance. This deceptive means of operating is an attempt to mirror the efficiency of Fannie Mae and Freddie Mac in accordance with government guarantees and trading the assets to and from investors in that government secuired certificate. Not as a lender and not as a lender. (definitions) Aurora is a master Servicer who specializes in originating and servicing residential mortgage loans.Lehman Brothers Holdings Inc. (NYSE:LEH), the nation's fourth-largest investment bank, is under bankruptcy protection and has 'substantially' reduce its U.S. residential-mortgage lending business. The investment house said the move will mostly affect its Aurora Loan Services business, which acts as its primary mortgage unit. Lehman will take a $40 million charge as part of the plan." The collapse of Lehman Brothers is feared to leave Nomura to cover such losses on its own. Nomura fell into the red for the first time in nine years in fiscal 2007, with a group net loss of 67.8 billion yen, due to the disposition of 260 billion yen in losses resulting from the subprime loan crisis. The value of certain world debt related securities (Icelandic securities)has established a potential claim under a disposition of assets by the parties as evidenced by value having fallen sharply recently, making it increasingly likely that Nomura's losses will worsen or cause it seek bankruptcy protection. Nomura must cope with a potential loss resulting from a dip in the share price of a U.S. hedge fund management firm it financed. The risk of insolvency for so-called monoline bond insurers in the United States, with which Nomura has business deals, increased, inflicting additional (billion’s)in losses resulting from specific subprime related difficulties and overall crisis. Aurora’s Master Servicing group is headquartered in Littleton, Colorado. As one of the nation’s largest master servicers of residential mortgage-backed securities, we are defined by our commitment to our Investors and our dedication to “solely” building master servicing partnerships that add unprecedented value for our clients. Aurora as a facilitator to the investors, or beneficiaries, is solely acting as a master servicer that services and whose principle business is designed to do the following: 1. Evaluate the overall performance of the underlying servicers 2. Mitigate investor risk 3. Support post purchase due diligence They have relationships with over 200 servicers, resulting in our boarding over 500,000 loans per year (as of 2005). This achievement reflects Aurora’s ability to effectively oversee the loan administration, investor reporting, compliance and default management activities of primary and special servicers.

Sunday, July 20, 2008

Citigroup Center posted a $2.5 billion Loss

According to borrowerhotline, recent published reports shows more GOOD news for mortgage meltdown fans. These SADISTIC members of the "I can't take anymore" financial industry fan club will delight to know that Citigroup posted a $2.5 billion loss. This is again subject to confirmation of reports issued on Friday, July 18, 2008. Staff at borrowerhotline reported that Citi laid off more employees in the second quarter as it struggled with surging loan defaults. 7:37 a.m. ET, 7/18/08 http://www.borrowerhotline.com/

Experts Corner: Another FDIC Bank Failure

American Marine Bank

News of another FDIC member bank falling under the FDIC control was published late this week. The “Emerald City” is the latest to be welcomed back to join the party! Characteristic of the FDIC bulletins that we have come to be familiar with in 2008 and 2009, we are told if you had a loan with American Marine Bank, the friends and family members at the FDIC want you to continue to make your payments as usual.

Our question is to whom? Who is the holder in due course?The purpose of this analysis and discussion of the FDIC are subject to the various parties’ who have interest in your loan. It’s about their representations, conduct and decisions made while enforcing a foreclosure. Making a bad decision or employing conduct viewed to be deceptive will cause any transaction or enforcement of a right to a security to be rendered voidable.

Furthermore the asset may suffer from malfeasance and willful error and omissions causing the loan to be valued far below its market value due to serious impairment. Successfully demonstrating in court the reasons why your loan has become so seriously impaired that the real security, a deed of trust or mortgage, will fall into a judicial abyss and subject the true holder in due course to lose its rights to in a recovery of the asset in a foreclosure. In other words the right to accelerate and foreclose becomes lost to the transaction

Your loan was likely sold after it originated. A sale of the asset versus a government backed insurance guaranty is the single most controversial component of the subprime lenders dilemma.

A bonifide sale and transfer must be evidenced which differentiates the private label loans from the GSE or Fannie Mae and Freddie Mac class of loans delivered to Wall Street.

In a true sale the lender who sold it is lost to the privileges and rights to the asset forever. So I guess the question is not so much about a foreclosure due to a breach and delinquent obligation. This discussion is for us to understand to “whom” you owe the money and what right do they have to enforce the obligation and right to foreclose? Lawful Transfers



A “transfer” is the “streets” vernacular for booking a sale of a loan or pool of loans. The transfer of an asset by the lender to a less than arms investor is routinely conducted solely for accounting purposes. None the less it’s a sale that is forever entered in to the books.



The purpose of this analysis and discussion of the FDIC are subject to the various parties’ representations and decision making that may cause the asset to become so impaired that the real security, a deed of trust or mortgage becomes lost to the transaction. My last sale as a trader was a transfer of a bulk pool of “toxic waste” was back in 2001. The loans acquired and sold under my direction were never really that bad as we had one of the lowest delinquency rates in the region for sub prime assets sold and serviced. What I do know or at least remember from my days of bulk whole loan trading was from selling to the same major market leaders who are in trouble today.



Let’s back up for a moment to consider how accountants arrive at a specific value. A valuation is necessary for a foreclosure to take place just as it is for the original loan to be sold. A sale involves a contract and the essential elements f the law amongst the two parties. The first is consideration (money) and the second is the intent of the parties for lawful exchange and or transfer.



Consideration is required for transferring any good or service amongst one party to another, including a sale of a bulk pool of mortgage loan receivables.

If a mortgage is valued at par then you typically measure its worth at the combined cost to date or basis in the asset. A true and more accurate valuation is based upon the market and what one will pay assuming demand. It’s the true inherent value of a gallon of milk that will force someone to go elsewhere or not to drink milk at all. The same rationale holds true for an asset such as a closed mortgage receivable subject to its ability to attract a fair price in an open market. A mark to market value is entered by an accountant prior to sale if the owner is seeking to value the worth of the assets it holds.



Estimating value based on the future worth of an asset is something that continues to attract criticism whereby a historical valuation is entered based on a discounted future value. A presumption of value is calculated in a variety of ways sometimes using an internal rate of return offset by depreciation. In the mortgage industry I call this type of valuation complete lunacy. And this is where things get interesting with taking a look back at the cause of the mess we are now in.



Generally Accepted Accounting Principals aka “GAAP” allows us a standard to apply a historical value on a loan which is necessary for estimating consistency as with the life of a loan. The terms of the note say 30 years but we know that homeowners rarely keep a loan to term. Valuations use variables such as prepayment velocity or life based on a traditional or historic early payoff.



The CPR is the measurement of prepayment speed determine from reversion (sale of a home) refinance or the opposite end of the spectrum which is delinquency and default. Mortgages originated over the last decade were attributed an estimated holding time or CPR of say 60 months. Other things that influence price and for understanding the lenders desire to become fixated with the sub prime mortgage sector are subject to ethical scrutiny. I am referring to extreme maximum leverage used to buy loans and the introduction of something called accounting practices such as derecongnition. The latter is suspect, according to many accountants, as it offer no real value to a transfer and subject to entering a “gain on sale.”



The "streets" ability to substantiate its reporting methods. The Expert Witness must have among other things a legal understanding and verifiable accounting practices background. So figure an offshore investor will take a coupon of 1% at twice the current alternative which was a US Treasury. So I guess a WAC of 8% would yield on $100,000 certificate up to $800,000 in capital investment. Or is that $100,000 yielding 8 separate $100,000 certificates?



What ever it is its six of one and half a dozen of the other. It makes me want to run to the Hampton's and buy the biggest home they can offer. It makes me want to find the worse of the worse credit and put them into a loan.....any loan.



The problem with this madness conducted under the great GWB (and side kick “Don't call me Cheney call me "Dick”) administration is the regulatory absence for the bubble Wall Street elite would eventually pop.



The money raised was at a huge multiple and was causing CDO product to suffer from heavy demand internationally in a market that had long exceeded capacity. ( . . . .It makes me cringe and recall the old Keystone Kops silent flicks; remember the morons running around that said nothing and were always trying to help while and causing even more chaos …..Anyway!



I cannot pinpoint of fully grasp the role of the FDIC here but fear we may have an accounting play that shows the bank lines were actually used as “paid in capital” . It’s called derecongnition under GAAP and FASB accounting pronouncements for isolating the source and use of funds.



Will this help your arguments to save your home? YOU BET IT WILL! The big question is where the logic here is and why would the bank regulators let this happen? These Pretender Lenders were not pretenders at all. I call them “Tender Lenders” who tendered a note like currency instead of parking it in a vault like the asset it is. Therefore when tendered the check is electronically debited (hmm) and treated like a cancelled check.



The lost note is not a coat lost by a child at school. It’s lost to the payee who failed to deliver to the payor that check evidencing a debit stamped paid in full.



Hey, Barney just a minute . . . Hey, Wilma I’m home!!!!! So lets say these guys raised volumes of cash at huge multiples and did so with FDIC capitalization or tax payer insured capital contributions into a “NewCo” or De novo or S*P* E*.



If so, I feel the SPE is more like an STD and its all absolute "Bull Crepes". Where did these guys put all the capitalization anyway from money and stock…Huh? Especially with all these stringent FDIC risk weight capital set aside requirements. It’s a regulatory capital priority and basic fiscal mandate enforced by the OTS.



I got to know, where did they "Deposit" the money and stock ...do you know? I am referring to the "Deposits by the Wall Street “Depositors” you see. Deposited, Depositor, Depository, Restroom, tell me Wendy! Where’s the beef! Howard, who goofed I must known, who goofed!



Hey! ....wait a minute!!!....D*E*P*O*S*I*T*O*R*S! Yikes…OMG! How much more can we take!



So back to the failure of another institution, one of Americas and Pacific Northwest’s finest! American Marine Bank. So who do we bring an action against now? FDIC say’s “for all questions regarding “new” loans and the lending policies of the new successor call Columbia State Bank, and to please contact your branch office.



They continue that shares of American Marine Bank were owned by its holding company, AMB Financial Services Corporation, Bainbridge Island, WA. The holding company was not included in the closing of the bank or the resulting receivership. So if you are a shareholder of AMB Financial Services Corporation, please do not contact or file a claim with the Receiver. You may contact AMB Financial Services Corporation directly for information. How convenient is that….a BK waiting to happen.





The FDIC claims it does offer a reference guide to deposit brokers acting as agents for their investor clientele. This web site outlines the FDIC's policies and procedures that must be followed by deposit brokers when filing for pass-through insurance coverage on custodial accounts deposited in a failed FDIC Insured Institution. Wait a minute here now just slow down. FDIC makes no mention of a lender consumer grievance, and tells us to call the broke parent of the bank. Now are these loans in question considered FDIC troubled assets? Okay, we cannot help you with a predator loan but we will be back to foreclose on you?



My heart is pounding right now and I cannot take anymore folks…..really! But on a more serious note, consider the following. A bad notary signature, broken promise by a “Tender Lender” or forged MERS document is not the argument to bet the house on (no pun intended) It won’t get you to the promised land so can the need for an audit. It won’t get you to the Promised Land, so here is my advice!







SAVE YOUR MONEY! . . . UNLESS YOU WANT TO BORE THE HELL OUT OF A JUDGE AND GET THROWN OUT OF COURT.



It’s time to step up or step down!





By "Toxic Waste Guru" (LOL)



M.Soliman



expert.witness@live.com



REQUIREMENTS OF THE APPLICABLE CUSTODIAN .

(ii) If Custodian determines that the documents in the MortgageFilefor a Delivered Mortgage Loan conform in all respects with Section3(b)(i),and unless otherwise notified by Buyer in accordance with Section3(b)(i),Custodian shall include such Mortgage Loan in the CustodialMortgage LoanSchedule issued to Buyer.

If the documents required in any Mortgagedonot conform (except as otherwise notified in Section 3(b)(i)),Custodianshall not include such Mortgage Loan in any Custodial Mortgage LoanSchedule. Custodian shall notify Sellers and Buyer of any documentsthatare missing, incomplete on their face or patently inconsistent andof anyMortgage Loans that do not satisfy the criteria listed above.Sellers shallpromptly deposit such missing documents with Custodian or completeorcorrect the documents as required by Section 3(a) or remove therelatedMortgage File from the Request for Certification.

On or prior tothePurchase Date and as a condition to purchase, except with respectto aWet-Ink Mortgage Loan, Custodian shall deliver to the Buyer anelectronicCustodial Mortgage Loan Schedule to the effect that the Custodianhasreceived the Mortgage File for each Purchased Mortgage Loan on theMortgageLoan Schedule and as to each Mortgage File, specifying any documendelivered and any original document that has not been received, andverifying the items listed in this Section 3(b).(c) As required by Section 3(a), Custodian shall deliver to Buyer,nolater than 3:00 p.m. Eastern Time on the related Purchase Date(provided, thatthe

Custodian has timely received the items required in Section2(b) herein),electronically or via facsimile, followed, if requested in writingby Buyer, byovernight courier, a Custodial Mortgage Loan Schedule havingappended thereto aschedule of all Mortgage Loans with respect to which Custodian hascompleted theprocedures set forth in Sections 3(a) and 3(b)(i) hereof andcertify that it isholding each related Mortgage File for the benefit of Buyer inaccordance withthe terms hereof.

Pleading (Not for Use) Lenders egregious, ongoing and far reaching fraudulent schemes

COMPLAINT ---------------------------------------------------- INTRODUCTION COME NOW THE PLAINTIFF, IN THIS MATTER AND CASE that arises out of Defendants' egregious and ongoing and far reaching fraudulent schemes for improper use of of Plaintiff's identity, negligent and/or intentional misrepresentation of appraised fair market value upon which Plaintiff was contractually bound to rely and factually entitled to rely, fraud in the inducement, fraud in the execution, usury, and breaches of contractual and fiduciary obligations as Mortgagee or "Trustee" on the Deed of Trust. Claims further cite the "Mortgage Brokers," "Loan Originators," "Loan Seller","Mortgage Aggregator," "Trustee of Pooled Assets", "Trustee or officers of Structured Investment Vehicle", "Investment Banker", "Trustee of Special Purpose Vehicle/Issuer of Certificates of 'Asset-backed Certificates'", "Seller of 'Asset-Backed' Certificates (shares or bonds)," "Special Servicer" and Trustee, respectively, of certain mortgage loans pooled together in a trust fund. 2. The participants in the securitization scheme described herein have devised business plans to reap millions of dollars in profits at the expense of Plaintiff and other investors in certain trust funds 3. In addition to seeking compensatory, consequential and other damages, Plaintiff seeks declaratory relief as to what (if any) party, entity or individual or group thereof is the owner of the promissory note executed at the time of the loan closing, and whether the Deed of Trust (Mortgage) secures any obligation of the Plaintiff, and A Mandatory Injunction requiring reconveyance of the subject property to the Plaintiff or, in the alternative a Final Judgment granting Plaintiff Quiet Title in the subject property. FACTS SUMMARY OF THE FACTS OF THIS CASE 4. Plaintiff is the nominal payor on the subject promissory Note. The Loan Seller is a financial institution that was paid a fee to pose as a residential mortgage lender, when in fact the source of loan funds and the actual lender (Investors in Certificates) and underwriter (Mortgage Aggregator and Investment Banker) were other parties whose identities and receipt of fees and profits were withheld from Plaintiff at Closing and despite numerous requests continue to be withheld from Plaintiff by the Defendants contrary to the requirements of Federal Law and applicable State Law. 5. Unknown to Plaintiff, the Loan Seller, acting as principal in its relationships with the "independent appraiser" of the property and the mortgage broker and mortgage originator, induced the Plaintiff into a transaction that did not and could not meet normal underwritingstandards for a residential mortgage. The Loan Seller posed as a conventional mortgage lender thus leading Plaintiff to reasonably believe that the Loan Seller, the mortgage broker, and the loan originator had an interest in the success( repayment of the loan) of the transaction that Plaintiff was induced to believe was being executed at the time of the "closing" of the subject loan transaction. 6. In fact, the Loan Seller, mortgage broker, appraiser, loan originator, title agent, escrow agent and Trustee on the Deed of Trust, had no financial stake (i.e., liability) in the transaction andno interest other than obtaining Plaintiff's signature on a "loan" that could never be repaid, contrary to representations and assurances from the conspiring participants in this fraudulent scheme. In fact, the "Appraisal" was intentionally and knowingly inflated along with other loan data to justify the closing of the "loan transaction." 7. Plaintiff relied upon the due diligence of the apparent "Lender" (i.e., actually the Loan Seller) in executing the and accepting the closing documents. In fact, no "lender" was involved in the closing in the sense of an entity performing due diligence and evaluation pursuant to national standards for underwriting and evaluating risk of loaning money in a residential loan closing. 8. Thus no bank or other financial institution actually performing under the standards, rules and regulations governing such institutions was the "lender" which is the basis for Plaintiff's cause of action for usury, to wit: that the inflated appraisal added an undisclosed cost to the loan which when added to the other terms, disclosed and undisclosed, and amortized over the real expected life of the "loan" exceeds the limits set by the State legislature for usury and is not subject to exemption because the presence of a financial institution in the transaction was a ruse in which the form of the transaction covered over and mislead the Plaintiff as to the real parties in interest and the fees generated by the production of the subject "loan transaction." Their purpose was solely to collect fees, rebates, kickbacks and profits that were never disclosed to Plaintiff and have only recently been discovered by Plaintiff through consultation with experts in securitization of residential mortgage loans, and diligent research including the filings of some parties with the Securities and exchange Commission which disclose the normal manner of operating this fraudulent scheme. 10. Plaintiff has repeatedly requested and demanded compliance with Qualified Written Requests under Real Estate Settlement Procedures Act, the Truth in Lending Act, and other applicable state and Federal Statutes which the Defendants have either ignored or refused to acknowledge or refused to resolve, copies of which demands are attached hereto as Exhibits and incorporated herein. 11. Plaintiff's Counsel and other professionals hired by Plaintiff have conducted interviews with witnesses and have personally observed the practices and facts alleged herein. Besides theobvious theft of identity which lies at the core of the pattern of conduct defining the Defendants' illegal and fraudulent scheme, it is observably obvious that the property was appraised improperly, never verified despite "stringent" underwriting standards imposed by Government Sponsored Entities (interim investors) with which the Defendants purported to comply (and did not) to wit: the appraisal report attached hereto and incorporated herein clearly shows the fair market value of the site (without improvements) quadrupling in less than 24 months and then returning to original value within 6 months after the closing of the "loan" transaction. 12. Further, no less than three legal persons apparently claim to have performed the appraisal only two of which are shown to have received compensation and one of which is already admitted as merely being a pass-through vehicle of Quicken Loans by which Quicken Loans could claim, but not earn, additional undisclosed fees. Upon information and believe Defendant (name) may have performed the only review for appraisal services although the appraisal report was apparently produced by Defendant Cornerstone for a fee of $450 onto which the stamped signature of Defendant Quintero appears. Quintero does not claim to be an employee of Cornerstone and is believed by Plaintiff to be an "independent contractor". The settlement statement also reports an appraisal fee to Defendant TSI, which is a vehicle through which Quicken Loans improperly charges borrowers undisclosed fees and does not perform any work whatsoever. 13.The Loan Seller was named as the Payee on the subject promissory note and the beneficiary under the mortgage terms allegedly securing the performance under the subject note. The "Trustee" was named as the Trustee on the Deed of Trust executed at the time of the alleged"closing" of the "loan transaction." In accordance with State law, the Deed and terms of security were recorded in the county records. 4.Notwithstanding the above, and without the knowledge of the Plaintiff, the Loan Seller had entered into Assignment and Assumption Agreements with one or more parties and Pooling and Service Agreements with one or more parties including but not limited to the mortgage aggregator prior to or contemporaneously with the "Closing" of the subject "loan transaction." 14.1. Under the terms of these agreements, the Loan Seller received a sum of money, usually on receiving an application for a loan equal to the gross amount of the loan sought by Plaintiff plus a fee of 2.5% or more which was allocated to the subject loan transaction. 15.Contrary to the documents presented before and during the "closing" of the "loan transaction" the Loan Seller was neither the source of funding nor the "Lender." 15.1. Thus at the time of recording, the source of funding and the "Lender" was a different entity than the nominal mortgagee or beneficiary under the deed of trust and was neither named nor disclosed in any fashion. 15.2. The security for the "loan" thus secured an obligation that had been paid in full by a third party. Said third party(ies) was acting as a financial institution or "Lender" without even having been chartered or registered to do so despite regulations to the contrary from laws and rules of State or Federal authorities and/or agencies. 16.Some form of documentation represented by the Loan Seller to the Mortgage Aggregator was presented before or contemporaneously with the "closing" of the loan" transaction. In some cases the documentation included actual copies of the documents presented at "Closing." 16.1. In most cases it consisted of either forged blank notes or vague descriptions of the content of the notes that were placed into the pool of assets that would be "securitized." 16.2. Plaintiff has discovered numerous cases in which the "loan closing" either did not take place at all or included documentation substantially different than the original offer and acceptance and substantially different than what could have been reported to the Mortgage Aggregator prior to the "closing." Plaintiff has discovered numerous cases in which foreclosure has proceeded despite the fact that no loan closing was ever consummated, no papers were ever signed, or the loans were properly rescinded properly under law. 17.Plaintiff does not know what version of documentation was presented to the MortgageAggregator and if the Mortgage Aggregator took one or more varying descriptions of the alleged "loan documents" into more than one pool of assets which was eventually sold for the purpose of securitizing the assets of the pool which included the subject loan transactioneither once or more than once. Plaintiff has requested such information numerous times onlyto be met with complete silence and defiance or obfuscation from the Defendants. 18.There is no assignment of the subject mortgage in the county records, but there is a non-recorded Pooling and Services" Agreement and a non-recorded Assignment and Assumption Agreement which appears to substitute the Trustee over the pooled assets for the nominal Trustee in the Deed of Trust. 18.1. The powers of this second Trustee were in turn transferred to either a Trustee for a Special Investment Vehicle (which performed the accounting and reporting of the pool assets) or to an investment bank Collateral Debt Obligation manager whose department performed the accounting and reporting of the pool assets. 18.2. The reporting of the pool assets consisted principally of descriptions of the notes "signed" by borrowers and limited descriptions of the general terms of the note suchthat the note appeared to be more valuable than the initial terms of payment by the "borrower." 19.The note from the subject "loan transaction" was eventually allocated into a new corporation (Special Purpose Vehicle) formed for the express purpose of holding the pooled assets under certain terms. 19.1. The terms included the allocation of payments from one note to pay any deficiency in payment of another note in unrelated "loan transactions" contrary to the terms of each such note which required payments to be allocated to the principal, interest, escrowand fees associated with only that specific "loan transaction." 19.2. Whether such "deficiency" was caused by the difference between the higher general terms of description of the note or the lower actual payment requirements from the"borrower" is not known, despite numerous requests for accounting and the refusal of Defendants to provide any such information. 0.The Investment Banking firm arranged through payment for a false inflated appraisal of thecertificates and/or issuer of the certificates that would be sold to investors in much the sameway as it had procured the false appraisal of the property that "secured" the "loan transaction." In addition, insurance was purchased from proceeds of this transaction, creditdefault swaps were purchased from proceeds of this transaction, the investors investmentswere "oversold" to create a reserve pool from which the SPV could pay deficiencies in payments, and the SPV created cross-collateralization agreements and overcollateralization of the pool assets to assure payments to the investors, thus creating co-obligors on the payment stream due from the Plaintiff on the subject "loan transaction." 1.The pool assets, including the Plaintiff's subject "loan transaction " were pledged completelyto the owners of the "asset-backed securities." All the certificates were then transferred to aSeller who in turn sold the certificates in varying denominations, each of which had slightlydifferent terms depending upon which segment of the pool (tranche) secured the investment. 2. If there is a holder in due course of the Plaintiff's note arising from the subject "loantransaction" it is the investors who purchased said securities (certificates). Some of saidsecurities are held by the original purchaser thereof, others were sold at weekly auctionmarkets, others were paid by re-sales of property that was "secured", others were paid fromprepayments, others were paid by sale at full or partial price to the investment bank thatoriginated the entire transaction, some of which might be held by the Federal Reserve as non-recourse collateral, and others might have been paid by one or more of the insurance, creditdefault swaps, cross guarantees or cross collateralization of the segment of the pool thatsecured the relevant investor who owned certificates backed by a pool of assets that includedthe subject "loan transaction." 3. It is doubtful that any of the Defendants have any knowledge or have made any effort todetermine whether the putative holders in due course have been paid in whole or in part. Itcan only be said with certainty that these Defendants seek to enforce loan documents for which they have already been paid in full plus illegal fees for participating in an illegal scheme. These Defendants seek to add insult to injury by demanding ownership of the property in addition to the receipt of payment in full long before any delinquency or default even allegedly occurred. 4. In order for these Defendants to maintain legal standing in connection with the subject loan transaction they are required to show the entire chain of title of the note and the entire chainof title of the mortgage. They have refused to do this despite numerous requests, leading PLaintiff to concluded that the Defendants cannot produce such evidence of a complete chain of title or are intentionally withholding the information that would show breaks in such chain. 5.Plaintiff is left in the position of being in an adversary roceeding with ghosts. While these Defendants have informally offered or considered providing indemnification for any third party claims, the fact remains that any relief awarded these defendants, any standing allowed to these defendants would expose the Plaintiff to multiple claims and suits from an unknown number of parties and entities that all claim, possibly correctly, to the holders in due course.Any grant of ac certificate of title to an entity other than Plaintiff or the nominal mortgagee creates an incurable defect in title. 26.There is no recording of any document in the county records which predates the Defendants' attempt to initiate foreclosure and/or eviction or which would authorize them to proceed. Significance of REMIC 27.Mortgage backed Securities (MBS) Certificates are "pass through Certificates," where the Trust has elected to be treated as a Real Estate Mortgage Investment Conduit ("REMIC") to enjoy the tax exempt status allowed under 15 U.S.C. §§806A-G. 27.1. REMIC regulations impose very strict limitations as to the nature of the investments aREMIC trust may make (i.e. "permitted investments") and transactions which it maynot undertake (i.e. "prohibited transactions"). 27.2. Any violation of REMIC regulations has significant tax implications for the Trust, as well as all Certificate holders. For example, any income realized by the Trust from a "prohibited transaction" is taxed at 100%. 27.2.1. The REMIC regulations also provide that any entity that causes the REMIC regulations to be violated is liable to the Trust and the Certificate holders for the entire amount of the tax. 27.3. Only income from "qualified mortgages" and permitted investments" may enter a REMIC trust. 27.4. A "qualified mortgage" is an obligation (i.e. mortgage) which is principally secured by an interest in real property which (1) was transferred to the Trust on the startup date,(2) was purchased by the REMIC Trust within 3 months after the startup date or (3)any qualified replacement mortgage. 27.5. Permitted investments are limited to: 27.5.1. Cash Flow Investments (i.e. temporary investment where the Trust holds money it has received from qualified mortgages pending distribution to the Certificateholders); 27.5.2. Qualified Reserve Assets (i.e. any intangible property which is held forinvestment and is part of a reasonably required reserve to provide for fullpayment of expenses of the REMIC or amounts due on regular interests in theevent of defaults on qualified mortgages or lower than expected returns on cashflow investments. 27.5.2.1. These investments are for very defined purposes and are to be passive innature. They must be "reasonably required." 27.5.3. Liquidation Proceeds from "foreclosed property" which is acquired in connection with the default or imminent default of a "qualified mortgage" held by the Trust. 28. In order to maintain the REMIC status, the Trustee and the Servicers must ensure that the REMIC receives no income from any asset that is not a "Quailed Mortgage" or a "Permitted Investment." 26 U.S.C. § 806F(a)(2)(B). 28.1. Prohibited Transactions include the disposition of a qualified mortgage (except where the disposition is "incident to" the foreclosure, default, or imminent default of the mortgage); or the receipt of any income from an asset that is not a Qualified Mortgageor a Permitted Investment. 26 U.S.C. § 860F(a)(2)(B). 28.2. Prohibited Transactions are taxed in an amount 100% of the REMIC's net income from such prohibited transaction. 26 U.S.C. § 860F(a)(1). 28.3. Contributions of any "property" – e.g., cash, mortgages, etc. – made to the REMIC areaxed at 100% of the contribution, except for the four following exceptions: 28.3.1. Contributions to facilitate a "clean up call" (i.e. the redemption of a class of 28.3.2. regular interest, when by reason of prior payments with respect to those interests 28.3.3. the administrative costs associated with servicing that class outweigh the benefits 28.3.4. of maintaining the class). Reg. § 1.860G-2(j)(1). 28.3.5. Any cash payment in the nature of a guarantee, such as payments to the REMIC Any violation of REMIC regulations will defeat the privileged tax status and will subject the REMIC to 100% taxation, plus penalties and interest. These taxes and penalties are ultimately borne by the Certificate holders. under a surety bond, letter of credit or insurance policy. 28.3.6. Any cash contribution during the three month period after the start-up day; and Any cash contribution to a qualified reserve fund made by a holder of a residual interest. On a monthly basis, the Investment Banking firm and/or its agents, servants or employees compiled, individually and in concert, oversaw and approved all the information contained in the Distribution Reports and electronically sent same to certain parties. 29.1. Based upon research performed by experts on behalf of the Plaintiff. the data regarding the number of bankruptcies, aggregate Special Servicing Fees, and aggregate Trust Fund Expenses was routinely incomplete, false, and/or misleading. 29.2. Further said report intentionally obfuscated the illegal allocation of payments, the failure to disclose payments, and the effect on the alleged obligation of the Plaintiff, to wit: despite numerous insurance products, credit default swaps, cross collateralization, over collateralization and polling at multiple levels, money received by some or all of these Defendants under the pretense of it being a "Mortgage Payment" was in fact retained, reserved, applied to non-performing loans to make them appear as though they were performing loans, or paid as fees to the enterprise Defendants described in this complaint. 29.3. Based upon the failure of the Defendants to respond, Plaintiff has every reason to believe that the party receiving the payments (Amtrust Bank) is neither the holder in due course of the note nor the owner of any rights under the mortgage provisions of the deed of trust. 29.3.1. Further, Plaintiff has every reason to believe that her payments are not being forwarded to the holder in due course of the note nor to any other authorized party. 29.3.2. Accordingly Plaintiff is in jeopardy, to wit: the true holder in due course and potentially dozens or even thousands of third parties could come forward claiming an unsatisfied interest in the promissory note and may or may not be subject to Plaintiffs various affirmative defenses and counterclaims. "transaction." for example, if the toxic waste paper wold under cover of Plaintiffʼs credit rating and identity was sold at an investment return of 6% and the mortgage note carried a principal balance of $300,000, the enterprise Defendants sold the "investment" certificates on that "loan" for approximately $740,000 and thus received $440,000 in illegal, fraudulent and undisclosed "profits" or "fees" in a $300,000 mortgage transaction.29.3.8.4. Thus the economics of mortgage origination changed, to wit: the worse the loan, the more money the enterprise defendants made as long as there were enough people, like Plaintiff, whose identify was used to hide the high volume ( and high profit) of toxic waste loans. 29.3.8.5. It was thus in the financial interest of the enterprise Defendants to create unrealistic and false market expectations, deceiving the public as a whole in specified geographical areas of the country that were identified by these enterprise Defendants as targets. 29.3.8.6. Since these illegal profits were not disclosed, the Plaintiff is entitled to an accounting and a pro rate share of the profits obtained by the illegal, improper and undisclosed use of her name, credit rating and identity. 29.3.8.7. Based upon the opinion of Plaintiffʼs experts, Plaintiffʼs share of said profits would be in excess of $1 million. 30. The Distribution Reports are supposed to accurately reflect the "financial health of the trust," and provide Certificate holders,with important data such as the number of loans in bankruptcy, the aggregate amount of special servicing fees, and the aggregate amounts of trust fund expenses. Each and every one of these categories is essential for to assess its profit and loss potential in the REMIC entity. Furthermore, this data is used by bond rating agencies to assess the value of the Certificates. 31. Based upon the filings and information of the Plaintiff it appears that no accurate accounting has ever been presented to anyone and that therefore the identity and status of any putative holder in due course is completely shrouded in secrecy enforced by these Defendants, their agents, servants and employees. 31.1. Unreported repurchases of certificates or classes of certificates would and did result in a profit to the REMIC that went unreported, and which was not credited to Borrowers where the repurchase was, as was usually the case, the far less than the original investment. 31.2. While the Plaintiff would never have entered into a transaction in which the true nature of this scheme was revealed, any profits, refunds, rebates, fees, points, costs or other income or gain should be credited on some basis to said borrowers including Plaintiff herein. GENERAL ALLEGATIONS 32. The end result of the false and misleading representations and material omissions of Defendants as to the true nature of the mortgage loan actually being processed, which said Defendants had actual knowledge was in direct conflict with the original Uniform Residential Loan Application, early TIL, and Plaintiff' stated intentions and directions to said Defendants at the time of original application for the loan, fraudulently caused Plaintiff to execute predatory loan documents. 33. At no time whatsoever did Defendants ever advise Plaintiff (nor, as far as Plaintiff can determine, any "investor" in certificates of mortgage-backed securities) that: 33.1. the mortgage loan being processed was not in their best interest; 33.2. the terms of the mortgage loan being processed were less favorable than the fixed-rate loan which Defendants previously advised Plaintiff that they qualified for; 33.3. that the mortgage loan was an inter-temporal transaction (transaction where terms, risks, or provisions at the commencement of the transaction differ at a later time) on which Plaintiff was providing cover for Defendants' illegal activities. 33.4. that Plaintiff would likely be placed in a position of default, foreclosure, and deficiency judgment regardless of whether she met her loan obligations once the true lender or true holder(s) in due course appeared; 33.5. that the originating "lender", that being Defendant Capital Mortgagebanc and/or Amtrust Bank and/or undisclosed third parties, had no intention of retaining ownership interest in the mortgage loan or fully servicing same and in fact may have and probable had already pre-sold the loan, prior to closing, to a third party mortgage aggregator pursuant to previously executed documentation (Assumption and assignment Agreement, Pooling Services Agreement, etc. all executed prior to Plaintiff's "loan Closing." 33.6. that the mortgage loan was actually intended to be repeatedly sold and assigned to multiple third parties, including one or more mortgage aggregators and investment bankers (including but not limited to Defendants DOES 1-10), for the ultimate purpose of bundling the Plaintiff' mortgage with hundreds or perhaps thousands of others as part of a companion, support, or other tranche in connection with the creation of a REMIC security known as a Collateralized Mortgage Obligation ("CMO"), also known as a "mortgage-backed security" to be sold by a securities firm (and which in fact ended up as collateral for Asset-Backed Securities Certificates, created the same year as the closing); 33.7. that the mortgage instrument and Promissory Note may be sold, transferred, or assigned separately to separate third parties so that the later "holder" of the Promissory Note may not be in privity with or have the legal right to foreclose in the event of default; 33.8. that in connection with the multiple downline resale and assignment of the mortgage and Promissory Note that assignees or purchasers of the Note may make "pay-downs" against the Note which may effect the true amount owed by the Plaintiff on the Note; 33.9. that a successive assignee or purchaser of the Note and Mortgage may not, upon assignment or purchase, unilaterally impose property insurance requirements different from those imposed as a condition of the original loan (also known as prohibition against increased forced-placed coverage) without the Plaintiff' prior notice and consent; 34.As a result of the closing and in connection therewith, Defendants placed the Plaintiff into a pool of a sub-prime adjustable rate mortgage programs, with Defendants intentionally misleading Plaintiff and the other borrowers and engaging in material omissions by failing to disclose to Plaintiff and other borrowers the fact that the nature of the mortgage loan applications had been materially changed without Plaintiff's knowledge or consent, and that Plaintiff was being placed into a pool where the usual loan was an adjustable rate mortgage program despite borrowers not being fully qualified for such a program. 35.Prior to the closing, Defendant Capital Mortgagebanc and/or Amtrust Bank and/or undisclosed third parties failed to provide to Plaintiff the preliminary disclosures required by the Truth-In- Lending Act pursuant to 12 CFR (also known as and referred to herein as "Regulation Z) sec. 226.17 and 18, and failed to provide the preliminary disclosures required by the Real Estate Settlement Procedures Act ("RESPA") pursuant to 24 FR sec. 3500.6 and 35007, otherwise known as the GFE. 36.Defendant Capital Mortgagebanc and/or Amtrust Bank and/or undisclosed third parties also intentionally failed and/or refused to provide Plaintiff with various disclosures which would indicate to the Plaintiff that the consumer credit contract entered into was void, illegal, and predatory in nature due in part to the fact that the final TIL showed a "fixed rate" schedule of payments, but did not provide the proper disclosures of the actual contractually-due amounts and rates. 37.Defendants failed and/or refused to provide a HUD-1 Settlement Statement at the closing which reflected the true cost of the consumer credit transaction. As Defendants failed to provide an accurate GFE or Itemization of Amount Financed ("IOAF"), there was no disclosure of a Yield Spread Premium ("YSP", which is required to be disclosed by the Truth-In-Lending Act) and thus no disclosure of the true cost of the loan. 38.As a direct and proximate result of these failures to disclose as required by the Truth-In– Lending Act, Defendant MOTION received a YSP in a substantial amount of without preliminary disclosure, which is a per se violation of 12 CFR sec. 226.4(a), 226.17 and 18(d) d (c)(1)(iii). The YSP raised the interest rate which was completely unknown to or approved by the Plaintiff, as they did not received the required GFE or IOAF. 39. In addition, the completely undisclosed YSP was not disclosed by Defendant in their broker contract, which contract was blank in the area as to fees to be paid to Defendant. This is an illegal kickback in violation of 12 USC sec. 2607 as well as State law which gives rise to all damages claims for all combined broker fees, costs, and attorneys' fees. 40.The Amount Financed within the TIL is also understated which is a material violation of 12 CFR sec. 226.17 and 18, in addition to 15 USC sec. 1602(u), as the Amount Financed must be completely accurate with no tolerance. 41.Defendants were under numerous legal obligations as fiduciaries and had the responsibility or overseeing the purported loan consummation to insure that the consummation was legal, proper, and that Plaintiff received all legally required disclosures pursuant to the Truth-In- Lending Act and RESPA both before and after the closing. 42.Plaintiff, not being in the consumer lending, mortgage broker, or residential loan business, reasonably relied upon the Defendants to insure that the consumer credit transaction was legal, proper, and complied with all applicable laws, rules, and Regulations. 43.At all times relevant hereto, Defendants regularly extended or offered to extend consumer credit for which a finance charge is or may be imposed or which, by written agreement, is payable in more than four (4) installments and was initially payable to the person the subject of the transaction, rendering Defendants "creditors" within the meaning of the Truth-In-Lending Act, 15 U.S.C. sec. 1602(f) and Regulation Z sec. 226.2 (a)(17). 44.At the closing of the subject "loan transaction", Plaintiff executed Promissory Notes and Security Agreements in favor of Defendants as aforesaid. These transactions, designated by Defendants as a Loan, extended consumer credit which was subject to a finance charge and which was initially payable to the Defendants. 45.As part of the consumer credit transaction the subject of the closing, Defendants retained a security interest in the subject property which was Plaintiff' principal residential dwelling. 46.Defendants engaged in a pattern and practice of defrauding Plaintiff in that, during the entire life of the mortgage loan, Defendants failed to properly credit payments made; incorrectly calculated interest on the accounts; and have failed to accurately debit fees. At all times material, 47.Defendants had actual knowledge that the Plaintiff' accounts were not accurate but that Plaintiff would make further payments based on Defendants' inaccurate accounts. 48.Plaintiff made payments based on the improper, inaccurate, and fraudulent representations as to Plaintiff' accounts. 49.As a direct and proximate result of the actions of the Defendants set forth above, Plaintiff overpaid in interest. 50.Defendants also utilized amounts known to the Defendants to be inaccurate to determine the amount allegedly due and owing for purposes of foreclosure. 51.Defendants' violations were all material in nature under the Truth-In-Lending Act. 52.Said violations, in addition to the fact that Plaintiff did not properly receive Notices of Right to Cancel, constitute violations of 15 USC sec. 1635(a) and (b) and 12 CFR sec. 226.23(b), and are thus a legal basis for and legally extend Plaintiff' right to exercise the remedy of rescission. 53.Defendants assigned or attempted to assign the Note and mortgage to parties who did not take these instruments in good faith or without notice that the instruments were invalid or that Plaintiff had a claim in recoupment. Pursuant to ORC sec. 1303.32(A)(2)(b)(c) and (f), Defendants are not a holder indue course and is thus liable to Plaintiff, individually, jointly and severally. 54. On information and belief and given that the consumer credit transaction was an inter- temporal transaction with multiple assignments as part of an aggregation and the creation of a REMIC tranche itself a part of a predetermined and identifiable CMO, all Defendants shared in the illegal proceeds of the transaction; conspired with each other to defraud the Plaintiff out of the proceeds of the loan; acted in concert to wrongfully deprive the Plaintiff of their residence; acted in concert and conspiracy to essentially steal the Plaintiff' home and/or convert the Plaintiff' home without providing Plaintiff reasonably equivalent value in exchange; and conducted an illegal enterprise within the meaning of the RICO statute. 55. On information and belief and given the volume of residential loan transactions solicited and processed by the Defendants, the Defendants have engaged in two or more instances of racketeering activity involving different victims but utilizing the same method, means, mode, operation, and enterprise with the same intended result. Claims for Relief COUNT I: VIOLATIONS OF HOME OWNERSHIP EQUITY PROTECTION ACT 56. Plaintiff reaffirm and reallege the above paragraphs 1-52 hereinabove as if set forth more fully hereinbelow. 57. In 1994, Congress enacted the Home Ownership Equity Protection Act ("HOEPA") which is codified at 15 USC sec. 1639 et seq. with the intention of protecting homeowners from predatory lending practices targeted at vulnerable consumers. HOEPA requires lenders to make certain defined disclosures and prohibits certain terms from being included in home loans. In the event of noncompliance, HOEPA imposes civil liability for rescission and statutory and actual damages. 58. Plaintiff are "consumers" and each Defendant is a "creditor" as defined by HOEPA. In the mortgage loan transaction at issue here, Plaintiff were required to pay excessive fees, expenses, and costs which exceeded more than 10% of the amount financed. 59. Pursuant to HOEPA and specifically 15 USC sec. 1639(a)(1), each Defendant is required to make certain disclosures to the Plaintiff which are to be made conspicuously and in writing no later than three (3) days prior to the closing. 60. In the transaction at issue, Defendants were required to make the following disclosure to Plaintiff by no later than three (3) days prior to said closing: 60.1. "You are not required to complete this agreement merely because you have received these disclosures or have signed a loan application. If you obtain this loan, the lender will have a mortgage on your home. You could lose your home and any money you have put into it, if you do not meet your obligation under the loan." 61.Defendants violated HOEPA by numerous acts and material omissions, including but not limited to: 61.1. (a) failing to make the foregoing disclosure in a conspicuous fashion; 61.2. (b) engaging in a pattern and practice of extending credit to Plaintiff without regard to their ability to repay in violation of 15 USC sec. 1639(h). 62.By virtue of the Defendants' multiple violations of HOEPA, Plaintiff have a legal right to rescind the consumer credit transaction the subject of this action pursuant to 15 USC sec. 1635. This Complaint is to be construed, for these purposes, as formal and public notice of Plaintiff's Notice of Rescission of the mortgage and note. 63.Defendants further violated HOEPA by failing to make additional disclosures, including but not limited to Plaintiff not receiving the required disclosure of the right to rescind the transaction; 64. the failure of Defendants to provide an accurate TIL disclosure; and the amount financed being understated. 65.As a direct consequence of and in connection with Plaintiff' legal and lawful exercise of their right of rescission, the true "lender" is required, within twenty (20) days of this Notice of Rescission, to: 65.1. (a) desist from making any claims for finance charges in the transaction; 65.2. (b) return all monies paid by Plaintiff in connection with the transaction to the Plaintiff; 65.3. (c) satisfy all security interests, including mortgages, which were acquired in the transaction. 66.Upon the true "lenders" full performance of its obligations under HOEPA, Plaintiff shall tender all sums to which the true lender is entitled. 67. Based on Defendants' HOEPA violations, each of the Defendants is liable to the Plaintiff for the following, which Plaintiff demand as relief: 67.1. (a) rescission of the mortgage loan transactions; 67.2. (b) termination of the mortgage and security interest in the property the subject of the mortgage loan documents created in the transaction; 67.3. (c) return of any money or property paid by the Plaintiff including all payments made in connection with the transactions; 67.4. (d) an amount of money equal to twice the finance charge in connection with the transactions; 67.5. (e) relinquishment of the right to retain any proceeds; and 67.6. (f) actual damages in an amount to be determined at trial, including 67.7. attorneys' fees. COUNT II: VIOLATIONS OF REAL ESTATE SETTLEMENT PROCEDURES ACT 68. Plaintiff reaffirm and reallege paragraphs 1-52 above herein as if specifically set forth more fully hereinbelow. 69. As mortgage lenders, Defendants are subject to the provisions of the Real Estate Settlement Procedures Act ("RESPA"), 12 USC sec. 2601 et seq. 70. In violation of 12 USC sec. 2607 and in connection with the mortgage loan to Plaintiff, Defendants accepted charges for the rendering of real estate services which were in fact charges for other than services actually performed. 71. As a result of the Defendants' violations of RESPA, Defendants are liable to Plaintiff in an amount equal to three (3) times the amount of charges paid by Plaintiff for "settlement services" pursuant to 12 USC sec. 2607 (d)(2). COUNT III: VIOLATIONS OF FEDERAL TRUTH-IN-LENDING ACT 72. Plaintiff reaffirm and realleges paragraphs 1-52 above hereinabove as if set forth more fully herein below. 73. Defendants failed to include and disclose certain charges in the finance charge shown on the TIL statement, which charges were imposed on Plaintiff incident to the extension of credit to the Plaintiff and were required to be disclosed pursuant to 15 USC sec. 1605 and Regulation Z 74. sec. 226.4, thus resulting in an improper disclosure of finance charges in violation of 15 USC sec. 1601 et seq., Regulation Z sec. 226.18(d). Such undisclosed charges include a sum dentified on the Settlement Statement listing the amount financed which is different from the sum listed on the original Note. 75. By calculating the annual percentage rate ("APR") based upon improperly calculated and disclosed amounts, Defendants are in violation of 15 USC sec. 1601 et seq., Regulation Z sec. 226.18(c), 18(d), and 22. 76. Defendants' failure to provide the required disclosures provides Plaintiff with the right to rescind the transaction, and Plaintiff, through this public Complaint which is intended to be construed, for purposes of this claim, as a formal Notice of Rescission, hereby elect to rescind the transaction. COUNT IV: VIOLATION OF FAIR CREDIT REPORTING ACT 77. Plaintiff reaffirm and reallege paragraphs 1-52 above as if set forth more fully hereinbelow. 78. At all times material, Defendants qualified as a provider of information to the Credit Reporting Agencies, including but not limited to Experian, Equifax, and TransUnion, under the Federal Fair Credit Reporting Act. 65. Defendants wrongfully, improperly, and illegally reported negative information as to the Plaintiff to one or more Credit Reporting Agencies, resulting in Plaintiff having negative information on their credit reports and the lowering of their FICO scores. 78.1. The negative information included but was not limited to an excessive amount of debt into which Plaintiff was tricked and deceived into signing. 78.2. Notwithstanding the above, Plaintiff has paid each and every payment on time from the time of the loan closing through the present. 79.Pursuant to 15 USC sec. 1681(s)(2)(b), Plaintiff are entitled to maintain a private cause of action against Defendants for an award of damages in an amount to be proven at the time of trial for all violations of the Fair Credit Reporting Act which caused actual damages to Plaintiff, including emotional distress and humiliation. 80.Plaintiff are entitled to recover damages from Defendants for negligent non-compliance with the Fair Credit Reporting Act pursuant to 15 USC sec. 1681(o). 81.Plaintiff are also entitled to an award of punitive damages against Defendants for their willful noncompliance with the Fair Credit Reporting Act pursuant to 15 USC sec. 1681(n)(a)(2) in an amount to be proven at time of trial. COUNT VII: FRAUDULENT MISREPRESENTATION 82.Plaintiff reaffirm and reallege paragraphs 1-52 above as if set forth more fully hereinbelow. 83.Defendants knowingly and intentionally concealed material information from Plaintiff which is required by Federal Statutes and Regulations to be disclosed to the Plaintiff both before and at the closing. 84.Defendants also materially misrepresented material information to the Plaintiff with full knowledge by Defendants that their affirmative representations were false, fraudulent, and misrepresented the truth at the time said representations were made. 85.Under the circumstances, the material omissions and material misrepresentations of the Defendants were malicious. 86.Plaintiff, not being an investment banker, securities dealer, mortgage lender, mortgage broker, or mortgage lender, reasonably relied upon the representations of the Defendants in agreeing to execute the mortgage loan documents. 87.Had Plaintiff known of the falsity of Defendants' representations, Plaintiff would not have entered into the transactions the subject of this action. 88.As a direct and proximate cause of the Defendants' material omissions and material misrepresentations, Plaintiff have suffered damages. COUNT VIII: BREACH OF FIDUCIARY DUTY 89. Plaintiff reaffirm and reallege paragraphs 1-52 above as if set forth more fully hereinbelow. 90. Defendants, by their actions in contracting to provide mortgage loan services and a loan program to Plaintiff which was not only to be best suited to the Plaintiff given their income and expenses but by which Plaintiff would also be able to satisfy their obligations without risk of losing their home, were "fiduciaries" in which Plaintiff reposed trust and confidence, especially given that Plaintiff were not and are not investment bankers, securities dealers, mortgage lenders, mortgage brokers, or mortgage lenders. 91. Defendants breached their fiduciary duties to the Plaintiff by fraudulently inducing Plaintiff to enter into a mortgage transaction which was contrary to the Plaintiff's stated intentions; contrary to the Plaintiff's interests; and contrary to the Plaintiff's preservation of their home 92. As a direct and proximate result of the Defendants' breaches of their fiduciary duties, Plaintiff have suffered damages. 93. Under the totality of the circumstances, the Defendants' actions were willful, wanton, intentional, and with a callous and reckless disregard for the rights of the Plaintiff justifying an award of not only actual compensatory but also exemplary punitive damages to serve as a deterrent not only as to future conduct of the named Defendants herein, but also to other persons or entities with similar inclinations. COUNT IX: UNJUST ENRICHMENT 94. Plaintiff reallege and reaffirm paragraphs 1-52 above as if set forth more fully hereinbelow. 95. Defendants had an implied contract with the Plaintiff to ensure that Plaintiff understood all fees which would be paid to the Defendants to obtain credit on Plaintiff' behalf and to not charge any fees which were not related to the settlement of the loan and without fulldisclosure to Plaintiff. 96.Defendants cannot, in good conscience and equity, retain the benefits from their actions ofcharging a higher interest rate, fees. rebates, kickbacks, profits (including but not limited tofrom resale of mortgages and notes using Plaintiff's identity, credit score and reputationwithout consent, right, justification or excuse as part of an illegal enterprise scheme) andgains and YSP fee unrelated to the settlement services provided at closing. 97. Defendants have been unjustly enriched at the expense of the Plaintiff, and maintenance of the enrichment would be contrary to the rules and principles of equity. 97.1. Defendants have also been additionally enriched through the receipt of PAYMENT from third parties including but not limited to investors, insurers, and other borrowers, the United States Department of the Treasury, the United States Federal Reserve, and Bank of America, N.A. 98. Plaintiff thus demands restitution from the Defendants in the form of actual damages, exemplary damages, and attorneys' fees. COUNT X: CIVIL CONSPIRACY 99.Plaintiff reaffirm and reallege paragraphs 1-52 above as if set forth more fully hereinbelow. 100.In connection with the application for and consummation of the mortgage loan the subject of this action, Defendants agreed, between and among themselves, to engage in actions and a course of conduct designed to further an illegal act or accomplish a legal act by unlawful means, and to commit one or more overt acts in furtherance of the conspiracy to defraud the Plaintiff. 101.Defendants agreed between and among themselves to engage in the conspiracy to defraudfor the common purpose of accruing economic gains for themselves at the expense of anddetriment to the Plaintiff. 102. The actions of the Defendants were committed intentionally, willfully, wantonly, and withreckless disregard for the rights of the Plaintiff. 103. As a direct and proximate result of the actions of the Defendants in combination resulting infraud and breaches of fiduciary duties, Plaintiff have suffered damages. 104. Plaintiff thus demand an award of actual, compensatory, and punitive damages. COUNT XI: CIVIL RICO 105.Plaintiff reaffirm and reallege paragraphs 1-52 above as set forth more fully hereinbelow. 106.Defendants are "persons" as defined by ORC sec. 2923.31(G). 107.The conspiracy the subject of this action has existed from date of application to the present, with the injuries and damages resulting therefrom being continuing. 108.Defendants' actions and use of multiple corporate entities, multiple parties, and concerted and predetermined acts and conduct specifically designed to defraud Plaintiff constitutes an"enterprise", with the aim and objective of the enterprise being to perpetrate a fraud upon thePlaintiff through the use of intentional nondisclosure, material misrepresentation, andcreation of fraudulent loan documents. 109.Each of the Defendants is an "enterprise Defendant". 110.As a direct and proximate result of the actions of the Defendants, Plaintiff have and continue to suffer damages. COMPLAINT TO QUIET TITLE TO REAL PROPERTY 111. Plaintiff reaffirm and reallege paragraphs 1-52 above as set forth more fully hereinbelow. 112. Plaintiff has sent or has caused to be sent authorized Qualified Written Requests to the only known Defendants which the said Defendants have failed and refused to answer despite acknowledging receipt thereof and despite demands from counsel, a copy of which is attached hereto and made a part hereof as specifically as if set forth at length hereat. 113. Plaintiff has sent or has caused to be sent notice of her intent to rescind the subject loan transaction but has only sent those notices to the only entities that have been disclosed. Hence, without this action, neither the rescission nor the reconveyance which the Plaintiff is entitled to file (as attorney in fact for the originating lender) and will file contemporaneously with this complaint, gives Plaintiff full and clear title to the property. 114.The real party in interest on the lender side may be the owner of the asset backed security issued by the SPV, the insurer through some claim of equitable interest, or the Federal government through the United States Department of the Treasury or the Federal Reserve. The security is a "securitized" bond deriving its value from the underlying mortgages of which the subject mortgage is one. Thus Plaintiff is entitled to quiet title against Defendants, clearing title of the purported subject mortgage encumbrance. 115. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. 116. Plaintiff is informed and believes and thereon alleges that, at all times herein mentioned,each of the defendants sued herein was the agent and employee of each of the remainingdefendants and was at all times acting within the purpose and scope of such agency and employment. 117. Plaintiff is informed and believes and thereupon alleges that and each of the Defendantsclaim or might claim an interest in the property adverse to plaintiff herein. However, the claim of said Defendants is without any right whatsoever, and said Defendant have no legal or equitable right, claim, or interest in said property. 118. Plaintiff therefore seeks a declaration that the title to the subject property is vested in plaintiff alone and that the defendants herein, and each of them, be declared to have no estate,right, title or interest in the subject property and that said defendants and each of them, beforever enjoined from asserting any estate, right, title or interest in the subject property adverse to plaintiff herein. 119. WHEREFORE, in this Count, plaintiff prays this Court will enter judgment against defendants and each of them, as follows: 119.1. For an order compelling said Defendant, and each of them, to transfer or release legal title and alleged encumbrances thereon and possession of the subject property to Plaintiff herein; 119.2. For a declaration and determination that Plaintiff is the rightful holder of title to the property and that Defendant herein, and each of them, be declared to have no estate, right, title or interest in said property; 119.3. For a judgment forever enjoining said defendants, and each of them, from claiming any estate, right, title or interest in the subject property; 119.4. For costs of suit herein incurred; 119.5. For such other and further relief as the court may deem proper USURY and FRAUD 119.6. Plaintiff reaffirm and reallege the above paragraphs 1-52 hereinabove as if set forthmore fully hereinbelow. The subject loan, note, and mortgage was structured so as tocreate the appearance of a higher value of the real property than the actual fair market value. 119.7. Plaintiff is informed and believes and thereon alleges that, at all times herein mentioned, each of the defendants sued herein was the agent and employee of each of the remaining defendants and was at all times acting within the purpose and scope of such agency and employment.119.8. Defendants disguised the transaction to create the appearance of the lender being a properly chartered and registered financial institution authorized to do business and to enter into the subject transaction when in fact the real party in interest was not disclosed to Plaintiff, as aforesaid, and neither were the various fees, rebates, refunds, kickbacks, profits and gains of the various parties who participated in this unlawful scheme. 119.9.Said real party in interest, i.e., the source of funding for the loan and the person to whom the note was transmitted or eventually "assigned" was neither a financial institution nor an entity or person authorized, chartered or registered to do business in this State nor to act as banking, lending or other financial institution anywhere else. 119.10. As such, this fraudulent scheme, (which was in actuality a plan to trick the Plaintiffinto signing what would become a negotiable security used to sell unregulatedsecurities under fraudulent and changed terms from the original note) was in fact asham to use Plaintiff's interest in the real property to collect interest in excess of thelegal rate. 119.11. The transaction involved a loan of money pursuant to a written agreement, and assuch, subject to the rate limitation set forth under state and federal law. The "formula rate" referenced in those laws was exceeded by a factor in excess of 10 contrary to the applicable law and contrary to the requirements for disclosure under TILA and HOEPA. 119.12. Under Applicable law, the interest charged on this usurious mortgage prevents any collection or enforcement of principal or interest of the note, voids any security interest thereon, and entitles the Plaintiff to recovery of all money or value paid to Defendants, plus treble damages, interest, and attorney fees. 119.13. Under Applicable Law Plaintiff are also entitled and demand a permanent injunction be entered against the Defendants (a) preventing them from taking any action or making any report in furtherance of collection on this alleged debt which was usurious, as aforesaid (b) requiring the records custodian of the county in which the alleged mortgage and other instruments are recorded to remove same from the record, (c) allowing the filing of said order in the office of the clerk of the property records where the subject property, "Loan transaction" and any other documents relating to this transaction are located and (d) dissolving any lis pendens or notice of pendency relating to the Defendants purported claim. RELIEF SOUGHT WHEREFORE, having set forth numerous legally sufficient causes of actions against the Defendants, Plaintiff pray for the entry of Final Judgment against all Defendants jointly and severally in an amount not yet quantified but to be proven at trial and such other amounts to be proven at trial, and for costs and attorneys' fees; that the Court find that the ransactions thesubject of this action are illegal and are deemed void; that the foreclosure which was instituted be deemed and declared illegal and void and that further proceedings in connection with the foreclosure be enjoined; and for any other and further relief which is just and proper. DEMAND FOR JURY TRIAL Plaintiff demand trial by jury of all matters so triable as a matter of right. Respectfully submitted, _____________________________ Plaintiff _____________________________ ATTORNEY NAME BAR NUMBER Pro Hac Vice, Counsel to Plaintiff ATTORNEY ADDRESS PHONE Fax: VERIFICATION I, am the Plaintiff in the above-entitled action. I have read the foregoingand know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at Phoenix, Arizona. **Only a licensed attorney can represent your rights - Call your local state bar - This site is informational only ** Not licensed to practice law.

Lenders who Lied about Loan Modification Programs

Avoid Foreclosure and Bankruptcy Blog » Lenders who Lied about ...

Jun 23, 2010 ... The attorney will be able to cut through the lender lies and review the true financial status of the borrower in order to paint

THIS IS NOT TO BE CONSTRUED AS LEGAL ADVICE!!

By filing a response, you tell the court that you contest the allegations in the plaintiff’s complaint and force the plaintiff to prove their case in order to win.

If you don’t file a timely response, the plaintiff can petition the court for a “default judgment” and possibly win the lawsuit simply because you failed to respond.

First call an Attorney Immediately. An attorney experienced in defending against the type of lawsuit you’ve been served with will undoubtedly be the best tool in your defense toolbox.

Lawyers are knowledgeable about the procedures involved in lawsuits and skilled at making persuasive arguments to a judge or a jury in your defense. An attorney can also help you try to settle the case out of court as an alternative.This blog only describes situational circumstances and no witness can offer legal advice. M.Soliman is an "expert witness" and not an attorney nor affiliated under a licensed prationer.

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