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IN RE: RODRIGUEZ | NJ Bankruptcy Court awards debtors counsel 85K fees because Countrywide willfully violated the automatic stay pursuant to § 362(k)

IN RE: RODRIGUEZ | NJ Bankruptcy Court awards debtors counsel 85K fees because Countrywide willfully violated the automatic stay pursuant to § 362(k)


UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY

Re: In re Rodriguez (Chapter 13)
Case No. 07-24687 (MBK)

EXCERPT:

D. The Attorneys’ Fees Requested are Reasonable
Having ruled that the Debtors are entitled to attorneys’ fees, the Court must determine whether the requested fees are reasonable. See Miller, supra, 447 B.R. at 434 (“For Debtors to recover attorneys’ fees, however, such fees must be reasonable and necessary”). Indeed, the policy to discourage willful stay violations is tempered by a reasonableness standard. Id. While such policy guards against excessive litigation, however, it was Countrywide’s actions that created such substantial litigation costs to the Debtors in this case. Moreover, Countrywide has voiced no objection to the reasonableness of the fees requested by Debtors’ counsel. The Court has reviewed the documentation in support of the requested attorneys’ fees and regards the fees to be reasonable in light of the work performed in this case.

V. Conclusion
For the foregoing reasons, this Court: (i) finds that Countrywide willfully violated the
automatic stay pursuant to § 362(k), (ii) awards damages to the Debtors in the form of attorneys’
fees in the amount of $85,033.814, and (iii) directs Countrywide to make payment of the award
to “Francisco and Anna Rodriguez, in care of Abelson & Truesdale, LLC” within 30 days of
entry of this ruling. The Court will enter an order consistent with its findings.

[ipaper docId=82743740 access_key=key-16dspzovwcgo0qi7jl4d height=600 width=600 /]

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LETTER: MBIA tells judge of newly uncovered Countrywide fraud “FACTS” database

LETTER: MBIA tells judge of newly uncovered Countrywide fraud “FACTS” database


Alison Frankel-

I sure hope the Securities and Exchange Commission and other members of the new joint mortgage-backed securities task force are paying attention to the docket in MBIA’s New York State Supreme Court fraud and breach-of-contract suit against Countrywide. On Wednesday, MBIA’s lawyers at Quinn Emanuel Urquhart & Sullivan sent a letter to Justice Eileen Bransten requesting that she order Countrywide to produce discovery on an internal fraud-tracking database “which MBIA had not previously known to exist.” MBIA said it needs the discovery to prepare for upcoming depositions of former Countrywide employees who tried to expose its allegedly fraudulent mortgage underwriting practices, including the well-known whistleblowers Eileen Foster and Mari Eisenman.

[REUTERS LEGAL]

[ipaper docId=81876930 access_key=key-1x9iscls2av3gu2fie2u height=600 width=600 /]

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Arizona v. Countrywide Financial Corp. CV2010-033580, Arizona Superior Court, Maricopa County

Arizona v. Countrywide Financial Corp. CV2010-033580, Arizona Superior Court, Maricopa County


IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, ex rel. THOMAS C.
HORNE, Attorney General,
Plaintiff,

vs.

COUNTRYWIDE FINANCIAL
CORPORATION, et al.,
Defendants.

[ipaper docId=79536678 access_key=key-230tup2numiwbhfeybli height=600 width=600 /]

 

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In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”

In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”


UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
CENTRAL DIVISION

 In re:
JAMES E ALGER, JR. and
DEBORAH J ALGER
Debtors

 

JAMES E. ALGER, JR. and DEBORAH J. ALGER, Plaintiffs,

v.

COUNTRYWIDE HOME LOANS, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-11CB MORTGAGE PASS-THROUGH CERTIFICATES, 11CB, Defendants.

Excerpt:

Each acknowledgment form that the Algers signed contained the following language: “The undersigned each acknowledge receipt of two copies of NOTICE of RIGHT TO CANCEL and one copy of the Federal Truth in Lending Disclosure Statement.” It is unclear whether the Algers acknowledged that each of them received two copies for a total of four or whether they each acknowledged receipt of two copies in total. In analyzing the identical acknowledgment language in In re Cromwell, Judge Hillman, too, found the language ambiguous:

The placement of the word “each” before “acknowledge” renders the phrase susceptible to two meanings. First, that the Debtors acknowledged each receiving two copies as the Defendants[] assert, or second, that they each acknowledged receipt of a total of two copies as the Debtors suggest. While I understand that Countrywide intended the former as that is what the law required, the average consumer would not have necessarily known that. 2011 WL 4498875, at *17. The existence of this ambiguity neutralizes any presumption created by the acknowledgment in favor of delivery of the requisite number of Notices. See id. (resolving the ambiguity “against the drafter of the Acknowledgment such that it did not create a presumption of adequate delivery of a total of four copies”).

In the absence of a presumption of adequate delivery, the burden shifts to the defendants to prove that the Algers each received two copies of the Notice for a total of four for the couple. See id. While the defendants rely on the deposition testimony of Ms. Manugian as evidence of her general practice during closings to establish that the Algers received four copies, the Algers have attested through their affidavits that the first time their loan file was opened after the closing it contained a total of three Notices. The question of how many copies of the Notice the Algers received remains a genuine and material fact in dispute. The defendants’ motion for summary judgment is therefore DENIED.

[…]

[ipaper docId=79416654 access_key=key-283t2yirgzh1dous7q5r height=600 width=600 /]

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TREVINO vs MERSCORP | MERS Settles, Avoiding Class Action Foreclosure Fee Lawsuit

TREVINO vs MERSCORP | MERS Settles, Avoiding Class Action Foreclosure Fee Lawsuit


An 11th-hour settlement is expected to stave off potential class action status in a lawsuit that claims foreclosed borrowers were overcharged for attorneys’ fees that the Mortgage Electronic Registration Systems Inc. did not actually incur.

National Mortgage News-

The plaintiffs, Jose and Lorry Trevino, filed a motion seeking class action status and an amended complaint on Jan. 12. The defendants had until Jan. 17 to respond, but received a two-week extension, “so that the parties can memorialize their settlement,” according to court documents filed Jan. 13.

The parties have agreed to terms, but the settlement is pending final paperwork. The case hasn’t been dismissed and likely won’t until the settlement is finalized.

The suit, originally filed in 2007, names Merscorp and a number of its shareholders, including Citigroup, Countrywide, Fannie Mae, Freddie Mac, GMAC Residential Funding, HSBC, JPMorgan Chase, Washington Mutual and Wells Fargo.

[NATIONAL MORTGAGE NEWS]

[ipaper docId=78671760 access_key=key-8o4lqwsa5jcvg5vbx86 height=600 width=600 /]

 

 

 

 

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Questions Raised About Chairman Issa’s Three-Year Campaign to Investigate Members of Congress Who Received Countrywide “VIP” Loans

Questions Raised About Chairman Issa’s Three-Year Campaign to Investigate Members of Congress Who Received Countrywide “VIP” Loans


Washington, DC (Jan. 17, 2012)—Today, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight and Government Reform, sent a letter to Chairman Darrell Issa seeking information about how he plans to proceed with his investigation of Members of Congress who received mortgage loans from Countrywide Financial Corporation under its VIP loan program, also known as the “Friends of Angelo” program after the company’s embattled CEO, Angelo Mozilo. 

In one of his first official acts after becoming Chairman last year, Rep. Issa issued a unilateral subpoena demanding the mortgage files of the Members of Congress who received Countrywide VIP loans.  He stated that “the American people have a right to know the totality of who participated in the Countrywide’s VIP program and what they did in return for access to it,” and that his goal was to “find a way to disclose it all and then get the American people outraged enough to make sure that it never happens again.”

Below is the full letter (click the link for footnotes):

January 17, 2012

The Honorable Darrell E. Issa
Chairman
Committee on Oversight and Government Reform
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Chairman:

     I am writing to request information about how you plan to proceed with the Committee’s investigation of Members of Congress who received mortgage loans from Countrywide Financial Corporation under its VIP loan program, also known as the “Friends of Angelo” program after the company’s CEO, Angelo Mozilo.

     Over the past three years, you have waged a high-profile campaign to obtain the mortgage files of Members of Congress who received VIP loans from Countrywide.  You have referred to these loans as “bribes,” “influence buying,” and “public corruption.”  Although two previous Chairmen of the Oversight Committee followed the longstanding practice of referring matters involving Members of Congress directly to the Ethics Committee, you abandoned this practice last February when you issued a unilateral subpoena—your first as Chairman—demanding to see these Member files yourself.

     The documents produced in response to your subpoena reveal four previously undisclosed instances in which Members of Congress received Countrywide VIP loans.  All four instances involve Republican Members, including three current Republican House Members and one former Republican House Member.

     When you issued your subpoena last February, you explained that you had two purposes in demanding these files.  The first was to determine whether any official actions were taken by policymakers to benefit Countrywide.  The second was to make public all of the information obtained by the Committee in order to deter future wrongdoing.  In one of your first public interviews after issuing your subpoena, you stated that your goal was to “find a way to disclose it all and then get the American people outraged enough to make sure that it never happens again.”

     Last month, however, you reversed course.  Rather than publicly identifying the four additional Members who received Countrywide loans or attempting to determine whether they took any official actions on behalf of Countrywide, you chose instead to refer their cases to the Ethics Committee.  This is exactly the approach you criticized when used for Democratic Senators Kent Conrad and Christopher Dodd and precisely the approach you abandoned when you issued your subpoena last February. 

    On January 13, House Armed Services Committee Chairman Howard “Buck” McKeon and Rep. Elton Gallegly reported publicly that you referred them to the House Ethics Committee, although both denied taking inappropriate actions on behalf of Countrywide.  To date, you have declined to publicly identify the two other Republicans who also received Countrywide VIP loans. 

    Despite your decision to refer these cases to the House Ethics Committee, you have now scheduled two transcribed interviews with Countrywide officials to take place this week.  Both of these transcribed interviews will be with the Countrywide officials who oversaw and processed Chairman McKeon’s VIP loan.

    Since you failed to consult with me before taking these actions, I have several questions about how you plan to proceed with this investigation, which are set forth below.

Campaign to Obtain Files on Members of Congress

    You launched your campaign to obtain the files of Members who received loans under the Countrywide VIP loan program on June 17, 2008, when you wrote to former Committee Chairman Henry A. Waxman requesting that “the Committee investigate and hold hearings on allegations that mortgage lenders may have made special deals with Members of Congress.”  Chairman Waxman denied your request, responding that the longstanding practice of the Committee had been to allow the House Ethics Committee to handle allegations regarding Members of Congress.

    Rather than defer to the Ethics Committee, you argued that the Oversight Committee must investigate Members of Congress who were part of a wider conspiracy of “influence buying” and “public corruption.”    You stated:

We’re talking about a vast business enterprise that was buying, currying favor with politicians throughout the country and in fact probably distorted the laws that you and I had to live under.

    You also stated:

We cannot close the book without criminal investigations and likely indictments against Countrywide officials and people who knowingly took subsidized below-cost loans and in return produced, if you will, a deal for Countrywide.

    Even when the Ethics Committee conducted investigations, you dismissed them as limited and inadequate.  After the Senate Ethics Committee found no credible evidence that Senators Kent Conrad or Christopher Dodd knowingly accepted discounted loans, you stated:

This story does not change my approach to the investigation of the Countrywide VIP program.  I will continue to press forward with this investigation and strongly believe that a subpoena to Bank of America [which purchased Countrywide] is a necessary next step to fully expose how Countrywide attempted to use its VIP program to buy influence.

Similarly, on September 30, 2009, you stated:

We’re beyond ethics here.  We are at a point where the American people at least should know who they gave money to or benefit to, how they did it, and so on. … What we do know is there is a level of intended corruption by Countrywide that clearly had an effect on government’s decisions for years, and we are ignoring it.

    Over the past three years, you have stated repeatedly that the Oversight Committee should determine the full scope of the loan program and make this information public.  According to a Washington Post story on March 19, 2009, you stated:  “The full story of Countrywide’s efforts to buy influence hasn’t been told and shouldn’t be swept under the rug because no chairman is prepared to issue a subpoena.”  Similarly, on June 24, 2009, you stated in a press release:  “The American people deserve to know the extent that special benefits co-opted public servants who were supposed to be watchdogs of the mortgage industry.”  And on September 29, 2009, you stated on Fox Business:  “[I]f we don’t get to these individuals and figure out what they did in their official capacity, we’re not going to be able to reasonably undo some of what was done.” 

Information About Additional Republican Members

    In one of your first official acts as Chairman, you issued a unilateral subpoena on February 16, 2011, demanding a wide array of documents, emails, and other communications relating to mortgages offered through the “VIP and/or Friends of Angelo program.”  Unlike the subpoena issued by former Chairman Edolphus Towns, your subpoena demanded that mortgage files for Members of Congress—even those of current Members—be delivered directly to your offices instead of the House Ethics Committee. 

    You reiterated that your goals were to determine whether any official actions were taken by policymakers to benefit Countrywide and to make public information you obtained in order to deter future wrongdoing.  You stated:

This subpoena will allow us to obtain the information needed to answer the outstanding public interest questions regarding the full size and scope of the VIP program.  The American people have a right to know the totality of who participated in the Countrywide’s VIP program and what they did in return for access to it.  Our role is to get all of the facts so that the American people can judge for themselves who should be held responsible and accountable.

     Prior to the issuance of your subpoena, three Democratic Members of Congress had been identified publicly as potentially having received VIP loans from Countrywide:  Senator Kent Conrad, Senator Christopher Dodd, and Congressman Edolphus Towns.  Senators Conrad and Dodd were both cleared by the Senate Ethics Committee, which concluded on August 7, 2009, that there was “no credible evidence” that either Senator “knowingly accepted a gift, including a loan not available to the public.”  Congressman Towns issued several public statements denying that he knowingly received any preferential treatment from Countrywide.

    In response to your subpoena, the Committee obtained information about four previously unknown instances in which Members of Congress received VIP loans, including three current Republican House Members and one former Republican House Member.  After discovering that all of these Members are Republicans, you sent a letter on December 16, 2011, referring their cases to the House Ethics Committee.

    On Friday, House Armed Services Committee Chairman Howard “Buck” McKeon and Rep. Elton Gallegly acknowledged publicly that they are two of the Republican Members you referred to the House Ethics Committee in December.  In particular, a spokesperson for Chairman McKeon said he was “pretty shocked and angry” when you informed him about the VIP loan documents obtained by the Committee.

Interviews with Countrywide Officials Who Processed Chairman McKeon’s VIP Loan

    Although you referred cases involving Members to the House Ethics Committee in December, you have now scheduled two transcribed interviews with Countrywide officials to take place this week.  In particular, Committee investigators are scheduled to conduct transcribed interviews with two officials who oversaw and processed Chairman McKeon’s VIP loan:  Stephen Brandt, a Countrywide Executive Vice President who oversaw the VIP program, and Maritza Cruz, a Countrywide Loan Manager for VIP loans.

     The documents obtained pursuant to your subpoena indicate that Ms. Cruz is listed as the contact person for several of Chairman McKeon’s VIP loan documents.  In addition, she prepared his Uniform Underwriting and Transmittal Summary.  Her signature, as well as Chairman McKeon’s signature, appear on his Notification of Underwriting Approval and Closing Conditions. 

     These documents also indicate that Chairman McKeon appears to have obtained a significant discount on his VIP loan as a direct result of personal intervention by Countrywide CEO Angelo Mozilo.  Specifically, an internal email from Mr. Brandt to Countrywide employees handling this loan states explicitly:

Per Angelo – “take off 1 point, no garbage fees, approve the loan and make it a no
doc”.

     Last week, a spokesperson for Chairman McKeon stated that he had “no inkling” that he received a VIP loan and that, “as far as he knew, never received any special favors on the home loan.”  The documents obtained pursuant to your subpoena do not indicate whether Chairman McKeon was informed about his discount.  However, the documents describe at least three conversations Chairman McKeon had with Countrywide employees, including with an account executive instructed to provide the preferential rate.  That employee’s notes of these conversations state:

FOA [Friends of Angelo] referral, Please order appraisal ASAP.  You may call the borrower at his Washington office [number redacted] and get the Sons phone number for the appraiser contact.  The borrower would like to hear from the appraiser this week. 

The borrower is a bit difficult to deal with.  He seems on the edgy side.

Called Mr. McKeon at work [redacted name] his secretary said she would ask “B” for son’s phone #.  Mr. McKeon called said we could call 1) his home [number redacted] his wifes work [number redacted] campaign office

Borrower wants to close ASAP.  Explained to him demands are not here yet.

     In addition, a follow-up letter sent to Chairman McKeon provided forms for him to sign and stated:  “Thank you for allowing COUNTRYWIDE’s VIP TEAM to assist you with your financing needs on the above referenced property.”

    Finally, the documents obtained pursuant to your subpoena indicate that Chairman McKeon was referred to the VIP program by “Mike Farrell/MBA.”  This notation appears to be a reference to Michael J. Ferrell, who was then the chief lobbyist of the Mortgage Bankers Association of America (MBA).  According to his biography, Mr. Ferrell led MBA’s successful campaign to lobby Congress to block the imposition of higher fees on mortgage lenders.

Request for Information

    When you issued your unilateral subpoena last February, press accounts noted your aggressive approach and your high-profile demands for Member files.  For example, one press report stated that your “maiden subpoena is no-holds-barred Issa” and that the “restraint showed in the prior Congress … is nowhere to be found in this subpoena.”  It also stated:  “Issa could be launching grenades.  If the probe turns up anything and the findings become public, it could provide a degree of discomfort for lawmakers.”

    At the time, you seemed to recognize the possibility that Republicans could be among the Members of Congress who received VIP loans.  On multiple occasions over the past three years, you indicated that you planned to pursue this investigation even if Republican Members were implicated.  For example, on September 29, 2009, you stated:

There’s plenty of high profile Republicans who took these, some might call them bribes, certainly they were inappropriate to take under our laws.  Congressman, key staffers, including on the committees of jurisdiction on the Republican side are involved.   

    After initially driving the Committee down the road of investigating Members of Congress, you appeared to reverse course in December when you referred these cases to the Ethics Committee.  Now, however, you have scheduled transcribed interviews with Countrywide officials who oversaw and processed Chairman McKeon’s VIP loan.  These sudden shifts raise key questions about how you plan to proceed with this investigation:

  1. You have stated:  “The American people have a right to know the totality of who participated in the Countrywide’s VIP program and what they did in return for access to it.”  Have you instructed your staff to question Mr. Brandt and Ms. Cruz about their roles in overseeing and processing Chairman McKeon’s VIP loan?  
  2. You have stated:  “The full story of Countrywide’s efforts to buy influence hasn’t been told and shouldn’t be swept under the rug because no chairman is prepared to issue a subpoena.”  Do you intend to publicly release the identities of the remaining two Republican lawmakers, one current and one former, who your investigation has revealed were also beneficiaries of Countrywide VIP loans? And do you intend to conduct a transcribed interview with the former chief lobbyist of the Mortgage Bankers Association of America?
  3. You have stated:  “The American people deserve to know the extent that special benefits co-opted public servants who were supposed to be watchdogs of the mortgage industry.”  Do you intend to hold public hearings on these issues?  If so, do you intend to call as a witness former Countrywide CEO Angelo Mozilo?

    Thank you in advance for your prompt answers to these critical questions.

                        Sincerely,
                        Elijah E. Cummings
                        Ranking Member

[ipaper docId=78586594 access_key=key-1wafoedmuizd8341ne0j height=600 width=600 /]

source:http://democrats.oversight.house.gov

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Judge keeps credit crisis-related securities fraud suit against General Electric alive

Judge keeps credit crisis-related securities fraud suit against General Electric alive


GE’s slogan couldn’t have been much truer than this.

The D & O Diary-

In a January 12, 2012 opinion that quotes from (and relies upon) former Treasury Secretary Henry Paulson’s credit crisis memoirs, Southern District of New York Judge Richard Holwell granted in part and denied in part the motion to dismiss in the subprime and credit crisis related securities class action lawsuit that investors had filed against General Electric, certain of its directors and officers, and its offering underwriters. A copy of Judge Holwell’s opinion can be found here.

Background

As discussed in greater detail here, the plaintiffs first filed their action in March 2009, alleging that the company had failed to disclose information regarding the company’s health and the health of its financial subsidiary, GE Capital, at the height of the financial crisis. As Judge Holwell summarized it, the plaintiffs allege that “during a time when the financial markets were crumbling and companies across the United States were scrambling to disclose their holdings in subprime loans, GE withheld information regarding its substantial holdings in subprime and non-investment grade loans and touted GE as safe in comparison to its competitors, despite the fact that GE was also feeling the impact of the financial crisis.”

[THE D & O DIARY]

[ipaper docId=78429366 access_key=key-k85na7sard7u3ohckjv height=600 width=600 /]

 

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Fraud and folly: The untold story of General Electric’s subprime debacle – iWATCH

Fraud and folly: The untold story of General Electric’s subprime debacle – iWATCH


Michael Hudson, continues his great series into the subprime fraud mess, this time GE’s turn!

iWATCH-

For General Electric Co., hawking subprime mortgages was a long way from making light bulbs and jet engines.

That didn’t stop the industrial giant from jumping into the subprime business in 2004, lending blue-chip respectability to the market for risky home loans by paying roughly half a billion dollars to buy California-based WMC Mortgage Corp.

What GE got in the bargain, former WMC employees say, was a place where erstwhile shoe salesmen, ex-strippers and even a former porn actress could sign on as sales reps and make big money pushing home loans. WMC’s top salespeople earned a million dollars a year or more and lived fast, swigging $1,000 bottles of Cristal and wheeling around in $100,000 Ferraris and Bentleys.

[iWATCH NEWS]

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Syncora Guar. Inc. v Countrywide Home Loans, Inc. 650042/09 1.3.2012

Syncora Guar. Inc. v Countrywide Home Loans, Inc. 650042/09 1.3.2012


Supreme Court, New York County

Syncora Guarantee Inc., Plaintiff,

against

Countrywide Home Loans, Inc., COUNTRYWIDE SECURITIES CORP., COUNTRYWIDE FINANCIAL CORP., and BANK OF AMERICA CORPORATION, Defendants.

[ipaper docId=77091015 access_key=key-2o48po62z1cpi1cavlzg height=600 width=600 /]

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MBIA Insurance Corp. v. Countrywide Home Loans Inc., 602825-2008 SUMMARY JUDGMENT 1.3.2012

MBIA Insurance Corp. v. Countrywide Home Loans Inc., 602825-2008 SUMMARY JUDGMENT 1.3.2012


SUPREME COURT OF THE STATE OF NEW YORK

MBIA Insurance Corporation,

v

Countrywide Home Loans, Inc., et al., 

[ipaper docId=77090661 access_key=key-13v4rj9xjd50mjupv4b8 height=600 width=600 /]

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Massachusetts Attorney General prolongs the pain for homeowners

Massachusetts Attorney General prolongs the pain for homeowners


WSJ-

It’s been four years since the housing bust began, and some Democrats are fighting to keep it going. That’s the message out of Massachusetts, where Attorney General Martha Coakley is layering on more uncertainty for the mortgage industry with a lawsuit that’s already driven one company to roll back its business in the state.

Ms. Coakley unveiled her case recently against Bank of America, J.P. Morgan Chase, Citigroup, GMAC Mortgage, Wells Fargo and the electronic clearinghouse Mortgage Electronic Registration System (MERS). She claims they engaged in “unfair and deceptive foreclosure practices” and “false documentation practices,” deceived borrowers about the availability of loan modifications and failed to comply with a state property-registration statute.

[WALL STREET JOURNAL]

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BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”

BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”


FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICTOR BALDERAS and BELEN
BALDERAS,
Plaintiffs-Appellants,

v.

COUNTRYWIDE BANK, N.A., a
National Banking Association;
AAA FUNDING, INC., DBA
USA Funding, a California corporation;
COUNTRYWIDE HOME MMA-JMA
LOANS, INC., DBA America’s
Wholesale Lender, a New York
corporation; MOR CAZAKOV, an
individual; GALENA KOROL, an
individual; DOES 1 through 10,
inclusive,
Defendants-Appellees. þ

Appeal from the United States District Court
for the Southern District of California

Michael M. Anello, District Judge, Presiding
Argued and Submitted

June 9, 2011—Pasadena, California

Filed December 29, 2011

EXCERPT:

KOZINSKI, Chief Judge:

The Balderases allege that they are immigrants who were
rooked by a bank that signed them up for loans it knew they
couldn’t afford, on terms they didn’t agree to. These are the
facts as recited in the complaint: Mor Cazakov, a mortgage
broker, cold-called the Balderases, representing that he could
refinance their home, switch them to a fixed rate mortgage
and let them cash out $50,000, all without a penalty. Subsequently,
Soraya Qassim, a “duly authorized agent” of Countrywide
Bank (Countrywide), filled out a uniform residential
loan application (URLA) for them and showed up unannounced
at their home, urging the Balderases to sign it. But
the form was in English, which they can’t read, and it overestimated
their income by over $40,000 per year. Qassim told
them it was an informal document the bank needed, so the
Balderases signed.

Three days later, on the evening of Monday, September 25,
2006, Cazakov showed up at their home with a notary public
and loan documents also written in English. He told them that
Countrywide “demanded” their signatures “that night” and he
couldn’t and wouldn’t leave without getting them. The
Balderases protested and asked to arrange the loan signing
when their English-literate daughter could attend. But Cazakov
said that Countrywide had instructed him to stay until he
got the signatures, and he “engaged in a series of actions
designed to intimidate, harass, and pressure [the Balderases]
into signing the loan documents.” After six hours of unrelenting
pressure by Cazakov and several unsuccessful attempts to
read the paperwork, the Balderases capitulated and signed the
documents just after midnight. On Wednesday, they called
Cazakov and asked him to rescind the loans. He refused. They
then called Countrywide a day later seeking the same relief.
Countrywide also refused, falsely representing it was too late.
In fact, the three-day statutory rescission period extended
through the next day, Friday, September 29.

The Balderases filed a complaint alleging, among other
things, a violation of the Truth In Lending Act (TILA). See
15 U.S.C. §§ 1601 et seq. Countrywide filed a 12(b)(6)
motion, which the district court granted. This timely appeal
followed.

* * *

[ipaper docId=76788689 access_key=key-4hh5yvqdgfzpfge3kza height=600 width=600 /]

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TYT: Feds Won’t Prosecute Banks Despite Evidence Of Crimes

TYT: Feds Won’t Prosecute Banks Despite Evidence Of Crimes


by on Dec 23, 2011

A devastating report by Reuters shows that the federal government is focusing on small scale swindlers while ignoring crimes by big banks despite a wealth of evidence against them. The Young Turks host Cenk Uygur breaks it down.

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Adam Levitin: More Rot in the OCC Foreclosure Reviews

Adam Levitin: More Rot in the OCC Foreclosure Reviews


Credit Slips-

Michael Olenick, Gretchen Morgenson, and Yves Smith have all written pretty damning things about the foreclosure reviews persuant to the OCC consent orders with major mortgage servicers. (For my own previous thoughts, see here and here.) I’ve just started to peruse some of the engagement letters with the firms conducting the reviews, and the rot is even worse that these other critics portray.

What follows is in no way a comprehensive cataloging of the problems in the OCC foreclosure review process–this is just what I spotted from the briefest of perusals.  Yet it is clear that there are two types of serious problems:  conflicts of interest and flawed substance of the review process. I’ll lay both out below and then give some thoughts as to what could and should be done to remedy this farcical process in order to ensure some accountability to the public and justice for homeowners. The post concludes with some thoughts about the core problem–the OCC–and what can be done to remedy it.   

Conflicts of Interest

[…]

[CREDIT SLIPS]

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Still Waiting for Cleanup in Foreclosure Mess – ProPublica

Still Waiting for Cleanup in Foreclosure Mess – ProPublica


by Marian Wang ProPublica, Dec. 27, 2011, 10:56 a.m.

This is part of our year-end series, looking at where things stand in each of our major investigations.

If last year [1] was the year in which faulty foreclosures and bank errors became a full-blown scandal, this has been the year of waiting for something to be done about it.

First, there’s the still-to-come multi-state settlement over alleged fraud on the part of the country’s five largest mortgage servicers. That’s the settlement being brokered by a coalition of state attorneys general and once touted [2] as homeowners’ best bet for redressing banks’ flaws in foreclosure and mortgage documentation. Over the past year, one story after another declared such a deal was imminent, but the details — the total price tag [3], the deal’s framework, and the expected date — have continually been changing.

Earlier this month, the Des Moines Register reported Iowa Attorney General Tom Miller — a point man for the attorneys’ general probe — as saying that the final deal should be complete before Christmas [4] and would include a measure to reduce the total debt owed by underwater homeowners. No deal has yet been announced. Miller wouldn’t disclose a dollar figure on the size of the settlement — or whether California, one of the hardest-hit states, would participate.

Over the course of the year, some state attorneys general seemed to lose faith in the coordinated effort, voicing concerns that the eventual settlement would be too easy on the banks.

California Attorney General Kamala Harris signaled her hesitation too [5], as did the attorneys general of New York [6], Delaware, Nevada, Massachusetts [7], Kentucky [8] and Minnesota [9]. These state attorneys general — many of whom have filed their own suits against major servicers [10], foreclosure processing firms [11], and other players [12] — questioned whether the settlement would limit their ability to take more aggressive action against foreclosure abuses in their states and either expressed doubts about whether they’d sign on to the final settlement or pulled out of the talks altogether.

Banks, meanwhile, have pushed for the settlement to include broader releases from legal liability over mortgage-related abuses. According to a recent Wall Street Journal piece, they’ve tried to make their participation in the settlement contingent on being shielded [13] from the possibility of lawsuits brought by the new Consumer Financial Protection Bureau.

Also still to be determined? An official to monitor the banks and servicers [14] and ensure they comply with whatever agreement is eventually reached.

Meanwhile, federal banking regulators have also begun to act. In April, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, and the Federal Reserve accused eight mortgage servicers and two third-party mortgage processing firms of 201Cunsafe and unsound [15]” foreclosure practices and ordered them to come up with a plan to prevent the same errors going forward. (Read the orders [16] they received.) But the revamp plans drawn up by the banks are kept confidential [17]. And no financial penalties [18] have been issued, though regulators have said that they’re still to come.

Regulators also launched an interagency foreclosure review program [19] [PDF] this year to identify and compensate homeowners who were wronged in the foreclosure process. The plan is to review sample loan files pulled from the files from 14 largest mortgage servicers, as well as files from homeowners who submit a request for a review.

The regulators in charge of the program have so far declined to disclose information on key aspects of the review, such as what kinds of compensation are available to homeowners, how compensation would be calculated, and for what specific offenses. (Homeowners with questions can see our FAQ on the reviews [20] to see whether they’re eligible for review and how to apply.)

The reviews themselves are being conducted by outside consulting firms [21] that will be supervised by the regulators but paid by the banks. As we’ve reported [22], some lawmakers have raised concerns about the experience of the reviewers and whether they will truly be able to operate independently of the banks.

Finally, it bears mentioning that despite the efforts on both the federal and state level to address the systemic failures of banks and mortgage servicers, errors are continuing [23] — and they’re still causing wrongful foreclosures.

The only subset of homeowners who seem to have gotten a break — or redress for botched foreclosures — is military families. Earlier this year, the Justice Department settled lawsuits [24] against subsidiaries of Bank of America and Morgan Stanley over allegations that they wrongfully foreclosed on active duty service members, in violation of a law that specifically offers them greater protection from foreclosure. As part of that settlement, the two companies apologized [25] and paid a combined penalty of $22 million, plus compensation to certain service members who suffered wrongful foreclosures.

 

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Details of Mortgage Servicing Settlement Between Banks and AGs Begin to Emerge – TIME

Details of Mortgage Servicing Settlement Between Banks and AGs Begin to Emerge – TIME


Well, not really because what ever “negotiations” there is, we always know you’re out to help the banks and the not people.

Time-

The never-ending negotiations between the 50 state attorneys general (minus a few big ones) and five major banks over penalties and standards for past, present and future mortgage servicing are finally ending, and some details are beginning to emerge from sources familiar with the deal. The big number is the $25 billion that the banks will commit to three categories of the settlement: $5 billion in cash payments, mostly to the states, $3 billion in refinancing for underwater mortgages, and $17 billion in principal reduction. Here’s the breakdown:

Of the $5 billion, $1.5 billion will go to people who have been foreclosed on and were abused in some way during the process. The claims are nearly instantaneous–”we don’t read anything, it’s check the box,” says one state AG negotiator. But the payments are also small: $1,500 to $2,000. Now, the vast majority of people who lost their homes over the last several years probably would not have been able to make their payments even if the banks had been behaving well. For them a no-questions-asked $2,000 check from the bank for the poor treatment they received in the process may be fair. On the other hand, those who were unfairly evicted may be insulted by the small amount. But no one taking the payment would be giving up any rights to bring cases against the banks for wrongful eviction or other claims they may have. The federal regulator with oversight of the issue, the Office of the Comptroller of the Currency, has sent out 4.5 million forms to potentially wrongfully evicted families; processing those claims will be paid for by the banks.

[TIME]

 

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Foreclosure Relief? Don’t Hold Your Breath – Gretchen Morgenson

Foreclosure Relief? Don’t Hold Your Breath – Gretchen Morgenson


No matter how much corruption is exposed from the government, they simply don’t care.

It’s up to the few AG’s like CA, DE, MA, NY, NV to bring the fraud (CEO’s & not the low level employees) to jails.

Gretchen Morgenson-

THROUGHOUT the foreclosure crisis, Washington has done little to help people hang on to their homes. All those programs that were supposed to help — HAMP, HARP, Hope for Homeowners — have mostly failed.

So many were skeptical when the Office of the Comptroller of the Currency announced yet another program in April. This one was intended to provide reparations to homeowners who’d been hurt financially by foreclosure abuses at banks.

[NEW YORK TIMES]

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Reuters Special Report: The watchdogs that didn’t bark

Reuters Special Report: The watchdogs that didn’t bark


This is an absolute must read.

“I think it’s difficult to find a fraud of this size on the U.S. court system in U.S. history,” said Raymond Brescia, a visiting professor at Yale Law School who has written articles analyzing the role of courts in the financial crisis. “I can’t think of one where you have literally tens of thousands of fraudulent documents filed in tens of thousands of cases.”

Reuters-

Four years after the banking system nearly collapsed from reckless mortgage lending, federal prosecutors have stayed on the sidelines, even as judges around the country are pointing fingers at possible wrongdoing.

The federal government, as has been widely noted, has pressed few criminal cases against major lenders or senior executives for the events that led to the meltdown of 2007. Finding hard evidence has proved difficult, the Justice Department has said.

The government also hasn’t brought any prosecutions for dubious foreclosure practices deployed since 2007 by big banks and other mortgage-servicing companies.

But this part of the financial system, a Reuters examination shows, is filled with potential leads.

[REUTERS]

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Chairman Issa Issues Subpoena for All Countrywide VIP Docs, Lawmakers got “Friends of Angelo” loans

Chairman Issa Issues Subpoena for All Countrywide VIP Docs, Lawmakers got “Friends of Angelo” loans


WASHINGTON. D.C. – In December of 2008, House Committee on Oversight and Government Reform Chairman Darrell Issa (R-CA), then the Committee’s Ranking Member, launched an investigation into Countrywide Financial Corporation’s infamous VIP and Friends of Angelo Program that exposed the inner workings of Countrywide’s efforts to buy friends in critical government and industry positions affecting the company’s business interests. Today, Chairman Issa issued a wide-ranging subpoena to Bank of America for all documents and records related to Countrywide’s VIP program.

“Countrywide orchestrated a deliberate and calculated effort to use relationships with people in high places in order to manipulate public policy and further their bottom line to the detriment of the American taxpayers even at the expense of its own lending standards,” said Issa. “This subpoena will allow us to obtain the information needed to answer the outstanding public interest questions regarding the full size and scope of the VIP program. The American people have a right to know the totality of who participated in the Countrywide’s VIP program and what they did in return for access to it. Our role is to get all of the facts so that the American people can judge for themselves who should be held responsible and accountable.”

The subpoena compels Bank of America to produce the following by noon on March 7, 2011:

  • All documents, including emails, related to covered borrowers serviced by Countrywide Financial through the Branch 850 and/or VIP and/or Friends of Angelo program.
  • All documents, including e-mails, transmitted by Countrywide officials notifying a covered borrower of membership in the VIP and/or Friends of Angelo program.
  • All documents, including e-mails, transmitted between and among Countrywide officials discussing the purposes and goals of the VIP and/or Friends of Angelo program.
  • Documents sufficient to show the number of persons enrolled in the VIP and/or Friends of Angelo program for each of calendar years 1996-2008, and the city and state of residence of such persons who were covered borrowers.

The term “covered borrowers” means at the time of the loan the borrower, or their spouse, was:

  • A current or former officer or employee of a federal agency
  • A current or former Member, officer, or employee of the U.S. Congress
  • A current or former officer or employee of a government-sponsored enterprise
  • A current or former officer or employee of a state or local government

 

###

source: http://oversight.house.gov

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Schneiderman Teams Up With FHFA IG on Foreclosure Fraud Investigation

Schneiderman Teams Up With FHFA IG on Foreclosure Fraud Investigation


For all those AG’s who ARE doing their job to protect the people (tiny handful only), we thank you very much.

This is BIG NEWS!

FDL-

As other Attorneys General took the lead in efforts to fight foreclosure fraud, with lawsuits from Delaware’s Beau Biden, Massachusetts’ Martha Coakley and Nevada’s Catherine Cortez Masto, we hadn’t heard as much from New York’s Eric Schneiderman lately. But he’s back in the news, teaming with a federal Inspector General on an investigation:

The federal watchdog overseeing US mortgage giants Fannie Mae and Freddie Mac is joining forces with New York’s attorney-general to investigate banks’ mortgage securitisation practices, a partnership that could make it easier for authorities to bring fraud charges against Wall Street companies.

Eric Schneiderman, New York attorney-general, and Steve Linick, the inspector general supervising Fannie and Freddie and the Federal Housing Finance Agency (FHFA), the unit responsible for the taxpayer-owned home loan financiers, signed a co-operation agreement in recent weeks that allows the two investigators to share documents, findings and to pool their resources, according to people familiar with the matter.

The collaboration escalates Mr Schneiderman’s probe into roughly a dozen banks and mortgage insurers as part of a broad investigation into whether banks properly bundled hundreds of billions of dollars worth of home loans into now-soured securities sold to investors.

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Management gurus claim they were blindsided by toxic culture at Countrywide – Iwatch

Management gurus claim they were blindsided by toxic culture at Countrywide – Iwatch


Expert fired for raising concerns about doomed lender, she says

On her first day at Countrywide Financial Corp., Cynder Niemela gave a talk to a gathering of her new colleagues. Every company, she said, has its own culture. Each is a tribe with its own rituals and myths.

Niemela, a management guru who’d worked for Boeing and other big employers, told the group of executives that research showed it took 16 months for a worker to become fully part of a corporate “tribe.” That time would allow her, she added, to offer a fresh perspective on how things were done at Countrywide.

[Iwatch]

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Dear Attorneys General: If You Want to Be Re-elected, Sue the Banks.

Dear Attorneys General: If You Want to Be Re-elected, Sue the Banks.


By Abigail Caplovitz Field |

Dear Attorneys General:

If you want to be reelected–in those 41 states where voters get to have their say on how well you’re doing your job–you’d better get busy and indict some document fraudsters, or at least sue the big banks for their deceptive and deeply damaging practices. That’s because voters are catching on to just how above the law bankers believe they are. And if you don’t make a real effort to hold the banks accountable–NO, the “50 state” settlement Santa’s supposedly giving to the banks doesn’t count, as I’ll get to–if you don’t make a real effort to hold the banks to account, you’ll get voted out for any candidate that credibly promises accountability.

See, the gig is up.

[…]

[REALITY CHECK]

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