pooling and servicing agreement | FORECLOSURE FRAUD | by DinSFLA - Part 2

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MO E. DIS. COURT: “Not Clear Who U.S. Bank Was A Successor To” SCHWEND-McCUMMISKEY v. US BANK, N.A. et al

MO E. DIS. COURT: “Not Clear Who U.S. Bank Was A Successor To” SCHWEND-McCUMMISKEY v. US BANK, N.A. et al


SCHWEND
v.
US BANK, N.A.

(E.D.Mo. 12-3-2010).
Case No. 4: 10 CV 1590 CDP

Excerpt:

As plaintiff points out, it is not at all clear who US Bank was a successor to, since “Wachovia Bank, N.A. Pooling and Servicing Agreement dated as of November 1,
2004. Asset-Backed Pass-Though Certificates Series 2004-WWF1” does not appear to refer to an entity who could be a trustee or security holder, but rather appears to refer to an agreement of some sort. More importantly, there is nothing in the record to show how US Bank, Wachovia Bank, or “Pooling and Servicing Agreement dated as of November 1, 2004” came to be the holder of this note. As noted above, the original lender shown in the Deed of Trust is Argent Mortgage Company LLC and the original trustee is Lenders Management Corp. The forbearance agreement that Schwend later signed is with America’s Servicing Company. From the record here it is not at all clear that US Bank was the lawful holder of the note with the power to foreclose, and if it was not, the claim for wrongful foreclosure is more than plausible. See, e.g., Cobe v. Lovan, 92 S.W. 93, 97 (Mo. 1906) (foreclosure sale void when foreclosing defendant did not hold title
to the note).

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Testimony of Diane E. Thompson Before the Senate Banking, Housing Committee

Testimony of Diane E. Thompson Before the Senate Banking, Housing Committee


I was impressed with Mrs. Thompson and her knowledge. Excellent read with Mr. Levitin’s testimony.

Excerpts:

What robo-signing reveals is the contempt that servicers have long exhibited for rules, whether
the rules of court procedure flouted in the robo-signing scandal or the contract rules breached in
the common misapplication of payments or the rules for HAMP modifications, honored more
often in the breach than in reality. Servicers do not believe that the rules that apply to everyone
else apply to them. This lawless attitude, supported by financial incentives and too-often
tolerated by regulators, is the root cause of the robo-signing scandal, the failure of HAMP, and
the wrongful foreclosure of countless American families.

The falsification of judicial foreclosure documents is closely and directly tied to widespread
errors and maladministration of HAMP and non-HAMP modification programs, and the forcedplaced
insurance and escrow issues. Homeowners for decades have complained about servicer
abuses that pushed them into foreclosure without cause, stripped equity, and resulted, all too
often, in wrongful foreclosure. In recent months, investors have come to realize that servicers’
abuses strip wealth from investors as well.3 Unless and until servicers are held to account for
their behavior, we will continue to see fundamental flaws in mortgage servicing, with cascading
costs throughout our society. The lack of restraint on servicer abuses has created a moral hazard
juggernaut that at best prolongs and deepens the current foreclosure crisis and at worst threatens
our global economic security.

The current robo-signing scandal is a symptom of the flagrant disregard adopted by servicers as
to the basic legal and business conventions that govern most transactions. This flagrant
disregard has been carried through every aspect of servicer’s business model. Servicers rely on
extracting payments from borrowers as quickly and cheaply as possible; this model is at odds
with notions of due process, judicial integrity, or transparent financial accounting. The current
foreclosure crisis has exposed these inherent contradictions, but the failures and abuses are
neither new nor isolated. Solutions must include but go beyond addressing the affidavit and
ownership issues raised most recently. Those issues are merely symptoms of the core problem:
servicers’ failure to service loans, account for payments, limit fees to reasonable and necessary
ones, and provide loan modifications where appropriate and necessary to restore loans to
performing status.

Continue to the testimony below…

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Diane E. Thompson, Of Counsel

Diane E. Thompson has represented low-income homeowners since 1994.  She currently works of counsel for the National Consumer Law Center.  From 1994 to 2007, Ms. Thompson represented individual low-income homeowners in East St. Louis at Land of Lincoln Legal Assistance Foundation.  While at Land of Lincoln Legal Assistance, Ms. Thompson served as the Homeownership Specialist, providing assistance to casehandlers representing homeowners in 65 counties in downstate Illinois, and the Supervising Attorney of the Housing and Consumer unit of the East St. Louis office.  She has served on the boards of the National Community Reinvestment Coalition and the Metropolitan St. Louis Equal Housing Opportunity Council.  She was a member of the Consumer Advisory Council of the Federal Reserve Board from 2003-2005.  Between 1995 and 2001, Ms. Thompson served as corporate counsel to the largest private nonprofit affordable housing provider in the East St. Louis metropolitan area. She received her B.A. from Cornell University and her J.D. from New York University.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Highlights From The Testimony of Adam J. Levitin Before the Senate Banking, Housing Committee

Highlights From The Testimony of Adam J. Levitin Before the Senate Banking, Housing Committee


Watched the hearing yesterday and Mr. Levitin was extremely impressive!

Please watch the video for explosive info regarding securitization, “Nothing-Backed Securities”…transfers are void!

Sorry for the quality but was the best I could do.

.

———————————————————————–

.

Written Testimony of

Adam J. Levitin

Associate Professor of Law

Georgetown University Law Center
Before the
Senate Committee on Banking, Housing, and Urban Affairs

“Problems in Mortgage Servicing from Modification to Foreclosure”
November 16, 2010
2:30 pm

Excerpts:

A number of events over the past several months have roiled the mortgage world, raising
questions about:


(1) Whether there is widespread fraud in the foreclosure process;

(2) Securitization chain of title, namely whether the transfer of mortgages in the
securitization process was defective, rendering mortgage-backed securities into non-mortgagebacked
securities
;

(3) Whether the use of the Mortgage Electronic Registration System (MERS) creates
legal defects in either the secured status of a mortgage loan or in mortgage assignments;

(4) Whether mortgage servicers’ have defaulted on their servicing contracts by charging
predatory fees to borrowers that are ultimately paid by investors;

(5) Whether investors will be able to “putback” to banks securitized mortgages on the
basis of breaches of representations and warranties about the quality of the mortgages.
These issues are seemingly disparate and unconnected, other than that they all involve
mortgages. They are, however, connected by two common threads: the necessity of proving
standing in order to maintain a foreclosure action and the severe conflicts of interests between
mortgage servicers and MBS investors.

It is axiomatic that in order to bring a suit, like a foreclosure action, the plaintiff must
have legal standing, meaning it must have a direct interest in the outcome of the legislation. In
the case of a mortgage foreclosure, only the mortgagee has such an interest and thus standing.
Many of the issues relating to foreclosure fraud by mortgage servicers, ranging from more minor
procedural defects up to outright counterfeiting relate to the need to show standing. Thus
problems like false affidavits of indebtedness, false lost note affidavits, and false lost summons
affidavits, as well as backdated mortgage assignments, and wholly counterfeited notes,
mortgages, and assignments all relate to the evidentiary need to show that the entity bringing the
foreclosure action has standing to foreclose.

Concerns about securitization chain of title also go to the standing question; if the
mortgages were not properly transferred in the securitization process (including through the use
of MERS to record the mortgages), then the party bringing the foreclosure does not in fact own
the mortgage and therefore lacks standing to foreclose. If the mortgage was not properly
transferred, there are profound implications too for investors, as the mortgage-backed securities
they believed they had purchased would, in fact be non-mortgage-backed securities, which
would almost assuredly lead investors to demand that their investment contracts be rescinded,
thereby exacerbating the scale of mortgage putback claims.

[…]

Pay Close Attention To What He Says

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EXCLUSIVE | NYSC COMMERCIAL (CMBS), MERS and a $65 MILLION NOTE

EXCLUSIVE | NYSC COMMERCIAL (CMBS), MERS and a $65 MILLION NOTE


Recently many blogs have been discussing MERS and CMBS, well here is an example of one case from a NY Supreme Court. You can read it and draw your own conclusions by commenting down below if you wish.

Be sure you catch Judge IRA B. WARSHAWSKY’s valid points!

SUPREME COURT : STATE OF NEW YORK
COUNTY OF NASSAU

MASS OP LLC and MASS ONE LLC

against

PRINCIPAL LIFE INSURANCE COMPANY
PRINCIPAL GLOBAL INVESTORS, LLC,
WELLS FARGO BANK, N.A., CENTERLINE
CAPITAL GROUP, INC., BANK OF AMERICA
NATIONAL ASSOCIATION, Successor by
Merger to LASALLE BANK NATIONAL
ASSOCIATION, as TRUSTEE for the Registered
Holders of Bear Stearns Commercial Mortgage
Securities, Inc. Commercial Mortgage Pass-
Through Certificates Series 2006-PWR14

Excerpts:

The application stated that the lender intended to ” securitize” the loan and the borrower was to “cooperate in connection with any such securitization.” The application recited that each borrower was a “single purpose bankruptcy-remote entity…formed exclusively for the purpose of owning and operating the property.” The application stated that the loan amount would be not less than $65 million provided, among other conditions, that the loan amount would be equal to 80% of the appraised value of the property “pursuant to an appraisal approved by lender. “

However, the court hastens to add that it is not insensitive to plaintiffs ‘ predicament. Traditionally, mortgage assignments were recorded with the County Clerk. By searching the mortgage records, the mortgagor could determine the present mortgage holder and attempt to negotiate a “work out” or forbearance. In 1993, several large participants in the mortgage industry created the Mortgage Electronic Registration System (“MERS”). Pursuant to MERS, assignments of residential mortgages, instead of being publicly recorded, are tracked electronically in a private system (See MERSCORP, Inc. Romaine 8 NY3d 90 (2006)). By visiting MERS’ website or dialing its 800 number , a homeowner may access information regarding his or her loan servicer, but not the holder of the mortgage.

This lack of disclosure may create substantial difficulty when a homeowner wishes to negotiate the terms of his or her mortgage or enforce a legal right against the mortgagee and is unable to learn the mortgagee s identity (See 8 NY3d at 104, Kaye, J. dissenting). This

“information deficit” may function to “insulate a note holder from liability… and hide predatory lending practices”

(Id). The MERS system applies only to residential mortgages. However, as the present case illustrates , securitized financing creates the potential for the same abuses with commercial mortgages because of a similar “information deficit. ” While a breach of contract action against the lender does not lie, this court echoes Judge Kaye in calling the issue to the attention of the Legislature (ld). The court will now proceed to determine the sufficiency of plaintiffs ‘ fraud claims.

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Just recently:

2010 NY Slip Op 51791(U)

MASS OP LLC AND MASS ONE LLC, Plaintiffs,
v.
PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL LIFE GLOBAL INVESTORS, LLC, WELLS FARGO BANK, N.A., CENTERLINE SERVICING, INC., BANK OF AMERICA NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO LA SALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES, INC. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-PWR14, BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC., AND “JOHN DOE” NO. 1 THROUGH “JOHN DOE” #7 INCLUSIVE, THE ACTUAL IDENTITIES OF THE LAST NAMED, defendants BEING UNKNOWN TO Plaintiffs, THE PARTIES INTENDED BEING PERSONS, CORPORATIONS, ASSOCIATIONS AND OTHER ENTITIES HAVING OR CLAIMING AN INTEREST IN THE LOAN DESCRIBED IN THIS COMPLAINT, Defendants.

Supreme Court, Nassau County.

Decided September 30, 2010.

IRA B. WARSHAWSKY, J.

PRELIMINARY STATEMENT

Defendants Bear Stearns and Principal Life Insurance move to dismiss the amended complaint. Bear Stearns, which first appears as a defendant in the amended complaint, assert that by entering into a settlement agreement with certain defendants, and have thereby reaffirmed the valuation of the shopping center and have recovered damages, bars them from further claims under the “one recovery” doctrine. They also claim that the breach of fiduciary duty claim against Bear Stearns is barred by the 3-year statute of limitations, which commenced with the refinancing on November 8, 2006, with service upon Bear Stearns on December 24, 2009. Bear Stearns also contends that the plaintiff has failed to allege a “relationship of higher trust”, essential to a claimed breach of a fiduciary duty; that the claim which plaintiff asserts against Bear Stearns is barred by the Martin Act; and, to the extent a claim of “joint venture” with Bear Stearns is asserted, recovery is also barred under the “one recovery” doctrine.

In similar fashion, Principal Life contends that plaintiffs’ settlement with the servicer defendants renders the amended complaint moot; there was no fiduciary relationship between plaintiffs and Principal Life; the Pooling and Servicing Agreement did not establish a joint venture; and plaintiffs have failed to state a claim for breach of a fiduciary duty.

BACKGROUND

This action arises from the refinancing of the Phillips at Sunrise Mall in Massapequa. Plaintiff, the owner of the mall, sought to borrow $65,000,000 from Principal Life to refinance the existing $40,000,000 mortgage on the mall. Plaintiff contends that prior to the November 8, 2006 refinancing transaction, Principal Life represented that the $65,000,000 represented no more than 80% of the value of the real estate. They claim that this was erroneous, based upon a defective appraisal performed by Cushman & Wakefield, allegedly based upon faulty data. Plaintiff claims to have expressed concern about repaying the loan, but were advised that Principal Life’s servicing entity, Principal Global Investors, LLC would be responsive to the needs of plaintiff.

After the closing, Principal Life assigned the loan to Principal Commercial Funding, LLC, which then sold the loan to Bear Stearns as the “depositor” for a commercial mortgage-backed securities trust (“CMBT”). Plaintiff contended in part that the failure of Principal Life Insurance to divulge its fee arrangement with Bear Stearns, which encouraged them to inflate the amount of the mortgage, breached a duty to plaintiff. The mortgage was deposited along with many other mortgages in the securitization process. Through underwriters, commercial mortgage certificates were sold in the open market.

By December 2008, in the midst of a global economic crisis, plaintiffs had lost two major tenants, and were experiencing difficulty in making payments under the mortgage. Their efforts to modify the mortgage with Principal Global were not successful, and they were advised to contact Wells Fargo Bank, N.A., the “master servicer”. Plaintiffs contend that they were unable to make headway in such discussions with any servicer.

Plaintiffs commenced the original action on March 11, 2009, suing the maker and seller of the loan, the servicers and trustee for their roles in originating and servicing the loan. They did not sue Bear Stearns or any underwriters or other entities involved in bringing the commercial mortgage certificates to market. The complaint was dismissed by Order dated July 1, 2009, but the dismissal was without prejudice to plaintiffs’ seeking to replead to allege a breach of fiduciary duty.

Plaintiffs did so move on September 16, 2009, seeking to add Bear Stearns as a defendant. Defendant Bear Stearns notes that the moving papers included a copy of the proposed amended complaint, but not a summons, and that this is a significant factor in the claimed expiration of the statute of limitations. By Order of December 14, 2009, the Court granted plaintiffs’ motion in part and denied it in part. Plaintiff was permitted to allege a first cause of action in the Amended Complaint claiming a breach of fiduciary duty claim against Principal Life and Bear Stearns, and also permitted the assertion of a similar claim against Wells Fargo and Centerline Servicing, Inc. and Bank of America N.A. under a joint venture theory in the second cause of action. Plaintiff was also permitted to replead a cause of action against Principal Life.

On December 24, 2009 plaintiff made service of the Amended Complaint and Supplemental Summons upon Bear Stearns by service on the New York Secretary of State. By letter dated April 29, 2010 from June Diamant, Esq., Bear Stearns learned that plaintiff reached a settlement with defendants Centerline, Bank of America, Wells Fargo and Principal Global. While Bear Stearns has not seen the settlement agreement, a reading of the letter indicates that there has been no reduction in the principal amount of the loan, but interest is being deferred for some period of time.

Principal Life’s motion asserts that the only claim surviving against them after the Decision and Order of the Court and the settlement with Wells Fargo Bank, N.A. as “master servicer”, Centerline Servicing, Inc. as “special servicer”, Bank of America, N.A., and Principal Global Investors, LLC, are an alleged breach of fiduciary duty based upon its failure to reveal its compensation arrangement with Bear Stearns, and a second cause of action on the theory of a joint venture and breach of a fiduciary duty thereunder.

The Amended Complaint

The complaint alleges Five Causes of Action as follows:

First: Principal assigned an appraised value which would be relied upon by plaintiff to determine the amount of debt which they could safely assume. Principal and Bear Stearns, possessing superior knowledge and expertise than plaintiff in originating loans and issuing debt, placed the loan in a securitized pool. The undisclosed compensation agreements between Principal and Bear Stearns incentivized Principal to originate the loan and Bear Stearns to deposit it into the CMBS trust. The failure of Principal and Bear Stearns to advise plaintiff of the fee arrangement constituted a breach of fiduciary duty.

Second: Wells Fargo, Bank America and Centerline, as trustees and servicers of the loan, acted as joint venturers with Principal and Bear Stearns. In this capacity they owed a fiduciary duty to plaintiffs, which they breached.

Third: Principal failed to disclose the methodology by which it valued the property at an inflated price so as to benefit from undisclosed compensation agreements with Bear Stearns. Had plaintiffs been aware of the profit motive which caused Principal to misrepresent the value of the property, they would not have committed to the mortgage. Plaintiff seeks a reformation of the Loan by reducing the principal to 80% of the fair market value and a prohibition against defendants or other owner of the loan from declaring plaintiffs in default.

Fourth: In order to induce plaintiff to agree to the loan Principal made fraudulent misrepresentations of a material fact, that is, that the servicers would be responsive to plaintiff at a time when Principal knew that the loan would be transferred to others who would refuse to communicate with plaintiff, and whose preference was to have the loan go into default rather than resolve issues so as to maintain it as a performing loan.

Fifth: Despite the provision in the mortgage that communications to the lender were to be directed to Principal, neither Principal nor any other defendant notified plaintiff that the contact had been changed, resulting in a lack of communication from Principal in response to contacts from plaintiff. Principal’s servicing arm, Global, advised that communications must be directed to the Master Servicer, yet neither the Master Servicer nor any of the other defendants were willing to respond or carry out the obligations of the lender/mortgagee, although holding the powers of the mortgagee. Defendants thereby breached their obligations under the Mortgage Agreement and Loan Documents by failing to exercise the discretion granted in the Mortgage Agreement in a reasonable manner.

Plaintiffs demand damages of $28,000,000 on the First, Second, Fourth and Fifth Causes of Action, and reformation of the Mortgage in the Third Cause of Action.Plaintiffs oppose the motions of Bear Stearns and Principal, in part asserting that by virtue of the prior Order of the Court, after review of the proposed amended complaint, the Court directed an answer as opposed to a further motion to dismiss. They also contend that the prior settlement with servicer-defendants does not render the matter moot, that the claims against Bear Stearns are not time-barred, that the breach of fiduciary duty claim is sufficiently pleaded, the information that the moving defendants failed to disclose is material, that the action is not barred by the Martin Act, and that the breach of fiduciary claim is adequately pleaded against Bear Stearns on the theory of joint venture liability. Plaintiff asserts the same claims with respect to defendant Principal.

DISCUSSION

Defendants Principal and Bear Stearns move for dismiss pursuant to Civil Practice Law and Rules §§ 3211 (a)(1) and 3211 (a)(7).

CPLR § 3211 (a)(1) provides as follows:

(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1. a defense is founded upon documentary evidence;

In order to succeed in a claim based upon documentary evidence, “. . . the defendant must establish that the documentary evidence which forms the basis of the defense be such that it resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim”. (Symbol Technologies, Inc. v. Deloitte & Touche, LLP, 69 AD3d 191, 194 [2d Dept. 2009]); (DiGiacomo v. Levine, 2010 WL 3583424 (N.Y.AD2d Dept.]).

When determining a motion to dismiss for failure to state cause of action pursuant to Civil Practice Law and Rules § 3211 (a)(7), the pleadings must be afforded a liberal construction, facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every favorable inference, and the court must determine only whether the facts as alleged fit within any cognizable legal theory. (Uzzle v. Nunzie Court Homeowners Ass’,. Inc. 55 AD3d 723[2d Dept. 2008]). A pleading will not be dismissed for insufficiency merely because it is inartistically drawn; rather, such pleading is deemed to allege whatever can be implied from its statements by fair and reasonable intendment; the question is whether the requisite allegations of any valid cause of action cognizable by the state courts can be fairly gathered from all the averments. (Brinkley v. Casablancas, 80 AD2d 815 [1st Dept. 1981]).

Defendants contention with respect to § 3211 (a)(1) is, in part, that the settlement agreement with servicing defendants belies the claims that the appraised value was inflated, or the interest rate too high. Aside from the fact that the Court has not seen the settlement agreement, defendants argument presumes that plaintiffs had the opportunity to reduce the principal balance or interest rate in conjunction with their settlement negotiations, and that their failure to do so is an acknowledgment on their part that the loan was not based upon an inflated appraisal and that the interest rate was appropriate. Instead, the settlement merely provided for a deferral of interest payments for some period of time in an effort to allow plaintiff to recover from the loss of two anchor tenants.

The Mortgage Consolidation, Extension and Modification Agreement between Mass Op, LLC and Mass One, LLC, as borrower, and Principal Life Insurance as lender, provides at ¶ 6.1 as follows:

The relationship between Borrower and Lender is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with Borrower and no term or condition of any of the Note, this Security Instrument and the other Loan Documents shall be construed so as to deem the relationship between Borrower and Lender to be other than that of debtor and creditor. Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property”.

This is documentary evidence which clearly refutes any claim that plaintiff relied upon the expertise of Principal and was thereby in a relationship which required a higher level of trust than that between debtor and creditor. New York Courts have been reluctant to find a fiduciary relationship between lenders and borrowers, and the language of the security agreement simply amplifies this position. (Dobroshi v. Bank of America, N.A., 65 AD3d 882, 884 [1st Dept.2009]). There have been relatively rare circumstances in which a fiduciary relationship between a lender and a borrower has been found, but these inevitably involved certain unique circumstances, as when the Court concluded that the underlying motivation for a lender was to drive the borrower out of business. (In re Monahan Ford Corp. of Flushing, 340 B.R. 1 [Bankr. E.D.NY 2006]).

In the absence of such special circumstances, plaintiff did not have a fiduciary relationship with Principal. Principal’s motion to dismiss the First Cause of Action for Breach of Fiduciary Duty is granted.

The motion by Bear Stearns to dismiss is also granted as to the First Cause of Action. Plaintiff has no contractual relationship with Bear Stearns, and certainly no fiduciary responsibility on the part of Bear Stearns to advise plaintiff of its financial arrangement with Principal.

The Second Cause of Action is directed as the servicing defendants, claiming that they were joint venturers with Principal and Bear Stearns in that they divided responsibilities and compensation with respect to the loan, all without the knowledge of plaintiff. As such joint venturers, they all owed a fiduciary responsibility to plaintiff. As noted, however, neither Principal or Bear Stearns were in a fiduciary relationship with plaintiff, and, even if the subsequent servicing defendants were part of a joint venture, they did not assume a fiduciary responsibility from their assignors, who had none.

The Second Cause of Action is dismissed for failure to state a cause of action.

The Third Cause of Action seeks a reformation of the loan agreement based upon Principal’s failure to reveal to plaintiff the methodology by which the value of $82,000,000 was arrived at or its financial arrangement with Bear Stearns. In the absence of a fiduciary relationship, Principal had no obligation to reveal the methodology by which it estimated the value of the property; nor was it obligated to reveal its financial arrangement with Bear Stearns.

In fact, plaintiffs seem to have been fully apprised of the Cushman Wakefield appraisal, which is what formed the basis for Principal’s determination that the loan did not exceed 80% of the value of the property. The proposed terms of loan, described as an “application”, made it clear that the loan amount represented 80% of the appraised value pursuant to an appraisal approved by the Lender. Principal’s motion to dismiss the Third Cause of Action is granted.

The Fourth Cause of Action alleges fraud and fraudulent misrepresentation against Principal. In order to sustain a cause of action for actual fraud, plaintiff must prove:

• defendant made a representation, as to a material fact;

• the representation was false;

• the representation was known to be false by defendant;

• it was made to induce the other party to rely upon it;

• the other party rightfully relied upon the representation;

• the party relying upon the representation was ignorant of its falsity;

• the party suffered injury or damage based on its reliance. (Otto Roth & Co. Inc., v. Gourmet Pasta, Inc. 277 AD2d 293 [2d Dept. 2000]).

The Fourth Cause of Action in the Amended Complaint adds nothing to the claim of fraud which was previously dismissed. This is the law of the case, and the motion by Principal to dismiss the Fourth Cause of Action is granted.

In its earlier decision the Court determined that representations with respect to the servicer being “extraordinarily accessible in servicing the loan”, made to sophisticated investors, was a matter of puffery, not a representation of a material fact upon which plaintiffs were entitled to rely.

The Fifth Cause of Action alleges a breach of contract in that Principal is identified as the party to be contacted by mortgagor with respect to the mortgage; but after the securitization, neither Principal nor any other defendant advised Principal of the identity of the party with whom to make contact with respect to the mortgage. If there is any obligation on the part of Principal to advise the mortgagor of the identity of a special or master servicer, it would have to be contained in the only agreements between them, the Consolidation, Modification and Extension Agreement of November 8, 2006, and the Note and Mortgage executed in conformity with the Agreement.

The Consolidation Agreement is silent on the subject. The note in the amount of $65,000,000 calls for the payment to the order of Principal Life Insurance Company, at 711 High Street, Des Moines, Iowa 50392 (“Lender”) or at such other place as the holder hereof may from time to time designate, in writing, . . .”. This gives the lender the right to direct payment to the order of another, or to a different location, but places no obligation upon it to do so. To the contrary, ¶ 12 of the Promissory Note, Exh. “G” to the Affirmation of Joshua A. Zielinski, provides as follows:

(a) Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Security Instrument and the other Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter accruing after said transfer; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

Lender, Principal Life, transferred the Note, notice of which Borrower (plaintiffs) waived, and upon such transfer of the Note and collateral, Lender was absolved from all further liability in the matter. (Exh. “K” to Affirmation of Joshua A. Zielinski).

The Fifth Cause of Action, as set forth in the Amended Complaint, is dismissed.

In light of the foregoing determinations as to each of the causes of action, the Court finds it unnecessary to address the claims of Bear Stearns that the failure of the plaintiff to annex a Supplemental Summons to their motion to amend the complaint caused service to be beyond the three year statute of limitations, that the claim is barred by the Martin Act, and that recovery is barred by the “one recovery” doctrine.

This constitutes the Decision and Order of the Court.

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Institutional Holders of Countrywide-Issued RMBS Issue Notice of Non-Performance Identifying Alleged Failures by Master Servicer to Perform Covenants and Agreements in More Than $47 Billion of Countrywide-Issued RMBS

Institutional Holders of Countrywide-Issued RMBS Issue Notice of Non-Performance Identifying Alleged Failures by Master Servicer to Perform Covenants and Agreements in More Than $47 Billion of Countrywide-Issued RMBS


PR Newswire

HOUSTON, Oct. 18 /PRNewswire/ –Today, the holders of over 25% of the Voting Rights in more than $47 billion of Countrywide-issued RMBS sent a Notice of Non-Performance (Notice) to Countrywide Home Loan Servicing, as Master Servicer (“Countrywide Servicing”), and to Bank of New York, as Trustee, identifying specific covenants in 115 Pooling and Servicing Agreements (PSAs) that the Holders allege Countrywide Servicing has failed to perform.

The Holders’ Notice alleges that each of these failures has materially affected the rights of the Certificateholders under the relevant PSAs. Under Section 7.01 of the PSAs, if any of the cited failures “continues unremedied for a period of 60 days after the date on which written notice of such failure has been given … to the Master Servicer and the Trustee by the Holders of Certificates evidencing not less than 25% of the Voting Rights evidenced by the Certificates,” that failure constitutes an Event of Default under the PSAs.

In a previous release, the Holders emphasized their intent to invoke all contractual remedies available to them to recover their losses and to protect their rights. Kathy Patrick of Gibbs & Bruns LLP, lead counsel for the Holders, emphasized that the Holders’ notice does not seek to halt loan modifications for troubled borrowers. Instead, it urges the Trustee to enforce Countrywide Servicing’s obligations to service loans prudently by maintaining accurate loan records, demanding the repurchase of loans that were originated in violation of underwriting guidelines, and compelling the sellers of ineligible or predatory mortgages to bear the costs of modifying them for homeowners or repurchasing them from the Trusts’ collateral pools.

Patrick also noted that the group of Holders that tendered today’s Notice of Non-Performance is larger, and encompasses more Countrywide-issued RMBS deals, than were included in the August 20 instruction letter. When asked why the group of holders was larger, Patrick replied, “Ours is a large, determined, and cohesive group of bondholders. We have a clearly defined strategy. We plan to vigorously pursue this initiative to enforce Holders’ rights.”

The Notice of Non-Performance, which is the first step in the process of declaring an Event of Default, was issued on behalf of Holders in the following Countrywide-issued RMBS:

Deal Name   .   .                 .       .
Deal Name    .       .      .                      .
Deal Name
CWALT 2004-32CB

CWHL 2004-22
CWL 2006-15
CWALT 2004-6CB

CWHL 2004-25
CWL 2006-16
CWALT 2004-J1
CWHL 2004-29
CWL 2006-19
CWALT 2005-14
CWHL 2004-HYB9
CWL 2006-2
CWALT 2005-21CB
CWHL 2005-11
CWL 2006-20
CWALT 2005-24
CWHL 2005-14
CWL 2006-22
CWALT 2005-32T1
CWHL 2005-18
CWL 2006-24
CWALT 2005-35CB
CWHL 2005-19
CWL 2006-25
CWALT 2005-36
CWHL 2005-2
CWL 2006-26
CWALT 2005-44
CWHL 2005-3
CWL 2006-3
CWALT 2005-45
CWHL 2005-30
CWL 2006-5
CWALT 2005-56
CWHL 2005-9
CWL 2006-7
CWALT 2005-57
CB CWHL 2005-HYB3
CWL 2006-9
CWALT 2005-64
CB CWHL 2005-HYB9
CWL 2006-BC2
CWALT 2005-72
CWHL 2005-R3
CWL 2006-BC3
CWALT 2005-73CB
CWHL 2006-9
CWL 2006-BC4
CWALT 2005-74T1
CWHL 2006-HYB2
CWL 2006-BC5
CWALT 2005-81
CWHL 2006-HYB5
CWL 2006-SD1
CWALT 2005-AR1
CWHL 2006-J2
CWL 2006-SD3
CWALT 2005-J5
CWHL 2006-OA5
CWL 2006-SD4
CWALT 2005-J9
CWHL 2006-R2
CWL 2006-SPS2
CWALT 2006-14CB
CWHL 2007-12
CWL 2007-2
CWALT 2006-20CB
CWHL 2007-16
CWL 2007-5
CWALT 2006-37R
CWHL 2008-3R
CWL 2007-6
CWALT 2006-41CB
CWL 2005-10
CWL 2007-7
CWALT 2006-HY12
CWL 2005-11
CWL 2007-9
CWALT 2006-OA11
CWL 2005-13
CWL 2007-BC1
CWALT 2006-OA16
CWL 2005-16
CWL 2007-BC2
CWALT 2006-OA17
CWL 2005-2
CWL 2007-BC3
CWALT 2006-OA6
CWL 2005-4
CWL 2007-QH1
CWALT 2006-OA9
CWL 2005-5
CWL 2007-S3
CWALT 2006-OC10
CWL 2005-6

CWALT 2006-OC2
CWL 2005-7

CWALT 2006-OC4
CWL 2005-8

CWALT 2006-OC5
CWL 2005-9

CWALT 2006-OC6
CWL 2005-AB2

CWALT 2006-OC7
CWL 2005-AB3

CWALT 2007-17CB
CWL 2005-AB4

CWALT 2007-23CB
CWL 2005-BC5

CWALT 2007-24
CWL 2005-IM1

CWALT 2007-OA7
CWL 2006-10

CWALT 2008-2R
CWL 2006-12

.

Copyright 2010 PR Newswire. All Rights Reserved

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of america, bank of new york, countrywide, pooling and servicing agreementComments (1)

FDIC Chairman Sheila C. Bair Addresses Robo-Signers

FDIC Chairman Sheila C. Bair Addresses Robo-Signers


Remarks by FDIC Chairman Sheila C. Bair to the Urban Land Institute, Washington, DC
October 13, 2010
Opener

Good afternoon. Thank you for inviting me to speak. The real estate sector has played a leading role in the recession and financial turmoil we have experienced in the past few years. The downturn in residential real estate markets and the ensuing financial crisis plunged the country into deep recession.

The economy is now recovering, but progress is slow, and the effects of the recession — including high unemployment — are likely to persist for some time. Once again, the health of the real estate sector will be crucial in determining the path of the entire economy. Restoring stability and normalcy to residential and commercial real estate markets will be essential to establishing a more robust economic recovery. But we still have a lot of work to do to repair our system of mortgage finance.

What I would like to discuss with you today is the work that needs to be done — in the short term and over the long term — to restore the vitality of real estate finance and the stability of our financial system.

Outlook for Housing and the Mortgage Market

After three long and difficult years for the housing sector, we’ve begun to see positive signs — but also continue to see hurdles to overcome. Home prices have largely stabilized in most markets. The Case-Shiller 10-city home price index, which declined by some 33 percent from the height of the crisis, has risen by just over 4 percent in the past year.

Federal policy initiatives — including tax credits for new buyers, the Treasury’s Home Affordable Modification Program, and the Federal Reserve purchases of mortgage-backed bonds — have played an important role in helping to restore stability to U.S. housing markets. But these initiatives come at the price of unprecedented government intervention. Through the FHA and the GSEs, nearly 60 percent of all mortgages outstanding today have government backing. Of the nearly $2.5 trillion in loan originations since 2009, about 94 percent were guaranteed by the GSEs, the FHA or the VA. In addition, the Federal Reserve has purchased more than $1 trillion of mortgage-backed securities.

And despite this unprecedented intervention, many challenges exist. Expiration of the homebuyer tax credit in April led to a second-quarter slump in new home sales and building-related retail sales that helped to slow the pace of economic growth over the summer.

Mortgage Foreclosures Trends

Meanwhile, a sustained high volume of mortgage foreclosures has been adding to the number of vacant homes and distressed sales. Some 2.4 million mortgages remained in the foreclosure process at the end of June, while another 2.7 million mortgages were at least 60 days past due. As of June, an estimated 11 million homeowners, or nearly 1 in 4 of those with mortgages, were underwater, owing more than their homes are worth. Not only are these borrowers generally unable to take advantage of today’s record low mortgage rates to refinance, but they become more likely to walk-away from their mortgages.

We also need to move away from incentives that encourage the lax underwriting that we saw prior to the crisis.

Sometimes I wonder: Have lenders really learned their lessons?

Just a few days ago, I received a flier from a mortgage lender offering 3.75% fixed rates programs up to 125% of value, and 24-hour underwriting.

And now we have the added concern that lenders may have been foreclosing on homes without proper documentation. The “robo-signing” of foreclosure documents is a serious matter for loan servicers, homeowners, and the entire industry. Upon initial review, it appears that FDIC supervised non-member state banks did not engage in this behavior and have limited exposure to loans signed by “robo-signers.”

We continue to closely monitor the situation, including working with other regulators through our backup examination capacity where the FDIC is not the primary federal regulator. We are also requesting certifications from loss share participants in our failed bank transactions that their foreclosure activity complies with all legal requirements.

The robo-signer situation underscores how wrong things went in the financial crisis and that there is still a lot of work to do. Foreclosure is a costly, unpleasant, and emotional process. It hurts communities and families alike. It should be a last resort. Loan modifications should be considered whenever possible. Foreclosure should only come after careful thought, thorough analysis, and good documentation.

Properly Aligning Incentives and the “Safe Harbor” Rule

The robo-signing issue also points to the poorly aligned incentives that have existed in the mortgage servicing business. Because the pricing of mortgage securitization deals did not adequately provide for special servicing, servicers were not funded or adequately staffed to address problems.

Not only that, servicers are often required to advance principal and interest on nonperforming loans to securitization trusts — but are quickly reimbursed for foreclosure costs. These incentives can have the effect of encouraging foreclosures, while discouraging modifications.

To address these and other problems, the FDIC recently adopted a new rule on securitizations. The new rule requires that the issue of servicer incentives be addressed in order to obtain safe-harbor status. Servicing agreements must provide servicers with the authority to act to mitigate losses in a timely manner and modify loans in order to address reasonably foreseeable defaults. The agreements must require the servicer to act for the benefit of all investors, not for any particular class of investors.

The rule also addresses a recurring problem in servicing: the obligation for servicers to continue funding payments missed by borrowers. Under most current servicing agreements, this obligation has the effect of accelerating foreclosures as servicers seek to recover these payments by selling the home. Our new rule strictly limits advances to just three payments unless there is a way to repay the servicer that does not rely on foreclosure.

While the FDIC’s new rule will help create positive incentives for servicing, it is, by the nature of our authority, limited to banks. The Dodd-Frank financial reform law now provides a chance to improve incentives across the market, whether the securitization is issued by a bank or not. Dodd-Frank requires regulations governing the risk retained by a securitizer. Those regulations may reduce the standard 5 percent risk-retention where the loan poses a reduced risk of default.

Given the important role that quality servicing plays in mitigating the incidence of default, I believe that the new regulations should address the need for reform of the servicing process. We want the securitization market to come back, but in a sustainable manner.

Its return should be characterized by strong disclosure requirements, high-quality loans, accurate documentation, better oversight of servicers, and incentives to assure that servicers act to maximize value for all investors.

The Government’s Footprint in the Mortgage Market

Looking down the road, the big question on everyone’s mind is what to do about federal government involvement in mortgage lending. For now, federal involvement is needed to keep credit flowing on reasonable terms to the housing market as the economy and the financial system recover. But going forward, there needs to be a broader debate about the future role of government in mortgage finance and the housing sector.

In hindsight, the implicit government backing enjoyed by the mortgage GSEs, where profits were privatized and the risks were socialized, was an accident waiting to happen. The time has come to take a hard look at the full range of housing policies and programs, including the size and nature of tax breaks and other subsidies to owner-occupied and rental real estate. As a nation, we must shift our focus away from narrow, short-term political interests and toward policies that create long-term sustainable improvement in the living standards of all Americans.

Commercial Real Estate Lending

We also face significant challenges in commercial real estate. Average CRE prices are down by 30 to 40 percent or more from their peak levels of 2007, and rents continue to drop for most property types and in most geographic markets.

Credit availability has also been limited as lenders have tightened standards, issuers have virtually stopped offering commercial mortgage-backed securities, and the credit standing of many borrowers has declined. FDIC-insured institutions hold about half of the $3.5 trillion in CRE loans outstanding, which means we’ve been focused on commercial real estate for a very long time. Lenders will continue to face some tough choices when loans come up for renewal with collateral values that have declined significantly from peak levels.

The federal regulatory agencies issued guidance last Fall designed to provide more clarity to banks on how to report those cases where they had restructured problem loans. This was an important step to reduce uncertainty as to how restructuring efforts would be viewed and reported for regulatory purposes.

Some have criticized these loan workouts as a policy of “extend and pretend.” But, as on the residential side, the restructuring of commercial real estate loans around today’s cash flows and today’s low interest rates may be preferable to the alternative of foreclosure and the forced sale of a distressed property. And going forward, as is the case with residential mortgage lending, we need better risk management and stronger lending standards for bank and nonbank originators to help prevent a recurrence of problems in commercial real estate finance.

Conclusion

Obviously, these remain very challenging times for the real estate industry, and for our economy at large. Recovery of the U.S. real estate sector will take time. Problem loans will need to be worked out or written off, and credit channels will have to be re-established around a sounder set of market practices.

As this is taking place, the FDIC and other regulators will be doing our part to promptly and carefully implement the various elements of Dodd-Frank. We are committed to transparency and openness in this process, and have established an open-door policy to make it easier for the public to give input and track the rulemaking process.

I know there is a lot of concern out there right now that Washington and the business community are at cross purposes, and that financial regulatory reform could become an impediment to the economic recovery. I understand these concerns.

But I want to emphasize to you, as I said at the outset of my remarks, that I firmly believe that we share the same basic goals: to restore the vitality of real estate finance and the stability of our financial system. The American people have paid a high price for the mistakes, excesses and abuses of the past. And there is plenty of blame to go around.

I think they are looking for us, as leaders in government and business, to work together and come up with common sense approaches that will put our financial system on a sounder and steadier path for the future. I have outlined some of my thoughts on what needs to be done, and I am looking forward to hearing your thoughts as well in the Q&A session.

We have many challenges before us. But we are Americans. And that means that when the challenges are the greatest, we work together to resolve differences, find solutions and fix the problem. That knowledge, of who we are and what we’re capable of, should give all of us confidence that the future remains bright despite the challenges of the present. Thank you.

Last Updated 10/13/2010 communications@fdic.gov


© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, fdic, foreclosure, foreclosure fraud, foreclosures, robo signers, servicers, sheila bair, TrustsComments (3)

MERS BIFURCATED THE NOTE AND MORTGAGE, NOW THERE IS TROUBLE!

MERS BIFURCATED THE NOTE AND MORTGAGE, NOW THERE IS TROUBLE!


DinSFLA

This is what we have been saying from day 1. By using MERS they have split the Note and Mortgage= “Bifurcate”.

By not assigning from the Originator to the Sponsor this is where lies the problem. Instead they transferred the notes to the Trusts in ___________________________ name? Which leaves this a Bearer instrument.

So by maintaining the notes in a bearer name, each step must have been documented and assigned according to the PSA. If these were securitized, question is did the true sale ever happen? Bottom Line.

Delivery & Acceptance Must Happen


Nearly all Pooling and Servicing Agreements require that On the Closing Date, the Purchaser will assign to the Trustee pursuant to the Pooling and Servicing Agreement all of its right, title and interest in and to the Mortgage Loans and its rights under this Agreement (to the extent set forth in Section 15), and the Trustee shall succeed to such right, title and interest in and to the Mortgage Loans and the Purchaser’s rights under this Agreement (to the extent set forth in Section 15). Also, an Assignment of Mortgage must accompany each note and this almost never happens.

We believe nearly every single loan transferred was transferred to the Trust in blank name. That is to say the actual loans were apparently not, as of either the cut-off or closing dates, assigned to the Trust as required by the PSA.

Quite the can of worms. Anyone who says that the banks will fix all this in a few months is seriously delusional.

I am not a pro, finance guru and that is why there is a comment section below. But I do have common sense and I smell scam.

Vanilla, chocolate, strawberry …each state is different. Eliminate Electronic Recordings PERIOD!

One of the best videos I have seen on this crisis.

MORTGAGE POOL SECURITIZATION CHART

RELATED LINKS:

SECURITIZATION 101

.

MERS 101

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, bifurcate, chain in title, deed of trust, foreclosure, foreclosure fraud, foreclosures, mbs, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC.Comments (5)

WHAT CERTIFIED POOLING & SERVICING AGREEMENTS LOOK LIKE

WHAT CERTIFIED POOLING & SERVICING AGREEMENTS LOOK LIKE


Our friend in California Brian Davies recently got a “Golden Ticket” in the mail. Below are certified copies of the Pooling & Servicing Agreement of his loan including the Prospectus for RAST 2007-A5, pass thru 2007E, psa 03-01-07.

Via: Brian Davies

GET THESE INTO THE COURT RECORD FOR THE DEFINITIVE WAY THE RECORD NEED TO BE JUDICIALLY NOTICED–B.DAVIESMD@GMAIL .COM

How you can get these:

http://www.scribd.com/doc/36801952/The-Securities-and-Exchange-Commission-How-to-File-to-Get-Certified-Copies-of-the-Prospectus-and-Polling-and-Servicing-Agreements

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in chain in title, deed of trust, foreclosure, foreclosures, insider, investigation, mbs, originator, pooling and servicing agreement, psa, rmbs, S.E.C., servicers, stopforeclosurefraud.com, trade secrets, trustee, Trusts, truth in lending act, Wall StreetComments (6)

DRAFTING MOTIONS FOR RELIEF FROM STAY IN CHAPTER 13 CASES

DRAFTING MOTIONS FOR RELIEF FROM STAY IN CHAPTER 13 CASES


ANTICIPATING DEBTOR’S CHALLENGES AND WITHSTANDING LITIGATION

Via: Brian Davies

GREAT LOOK AT THE BANKS WAY OF TRYING TO GET AROUND THE BANKRUPTCY. HERE IS THE WAY THEY LOOK AT THE ASSIGNMENTS AND TRANSFERS. NOTE THE POOLING AND SERVICING AGREEMENTS ARE IMPORTANT. IT ALSO SCREWS THEM WHEN THEY TRY TO TRANSFER AFTER THE CLOSE OF THE TRUST.

[ipaper docId=36801375 access_key=key-1gd8wpuuku9gainunkxb height=600 width=600 /]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bankruptcy, brian w. davies, chain in title, deed of trust, discovery, foreclosure, foreclosure fraud, foreclosures, mortgage, note, securitization, servicers, trustee, TrustsComments (1)

Open Letter to all attorneys who aren’t PSA literate by April Charney

Open Letter to all attorneys who aren’t PSA literate by April Charney


Via: Max Gardner

Are You PSA Literate?

Written on August 16, 2010 by admin

We are pleased to present this guest post by April Charney.

If you are an attorney trying to help people save their homes, you had better be PSA literate or you won’t even begin to scratch the surface of all you can do to save their homes. This is an open letter to all attorneys who aren’t PSA literate but show up in court to protect their client’s homes.

First off, what is a PSA? After the original loans are pooled and sold, a trust hires a servicer to service the loans and make distributions to investors. The agreement between depositor and the trust and the truste and the servicer is called the Pooling and Servicing Agreement (PSA).

According to UCC § 3-301 a “person entitled to enforce” the promissory note, if negotiable, is limited to:

(1) The holder of the instrument;

(2) A nonholder in possession of the instrument who has the rights of a holder; or

(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 3-309 or section 3-418(d).

A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Although “holder” is not defined in UCC § 3-301, it is defined in § 1-201 for our purposes to mean a person in possession of a negotiable note payable to bearer or to the person in possession of the note.

So we now know who can enforce the obligation to pay a debt evidenced by a negotiable note. We can debate whether a note is negotiable or not, but I won’t make that debate here.

Under § 1-302 persons can agree “otherwise” that where an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, that the transferee is granted a special right to enforce an “unqualified” indorsement by the transferor, but the code does not “create” negotiation until the indorsement is actually made.

So, that section allows a transferee to enforce a note without a qualifying endorsement only when the note is transferred for value.? Then, under § 1-302 (a) the effect of provisions of the UCC may be varied by agreement. This provision includes the right and ability of persons to vary everything described above by agreement.

This is where you MUST get into the PSA. You cannot avoid it. You can get the judges to this point. I did it in an email. Show your judge this post.

If you can’t find the PSA for your case, use the PSA next door that you can find on at www.secinfo.com. The provisions of the PSA that concern transfer of loans (and servicing, good faith and almost everything else) are fairly boilerplate and so PSAs are fairly interchangeable for many purposes. You have to get the PSA and the mortgage loan purchase agreement and the hearsay bogus electronic list of loans before the court. You have to educate your judge about the lack of credibility or effect of the lifeless list of loans as the Uniform Electronic Transactions Act specifically exempts Residential Mortgage-Backed Securities from its application. Also, you have to get your judge to understand that the plaintiff has given up the power to accept the transfer of a note in default and under the conditions presented to the court (out of time, no delivery receipts, etc). Without the PSA you cannot do this.

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

The PSA also has impact on when or what acts have to occur under the UCC because § 1-302 (c) allows parties to vary the “effect of other provisions” of the UCC by agreement.

Through the PSA, it is clear that the plaintiff cannot take an interest of any kind in the loan by way of an A to D” assignment of a mortgage and certainly cannot take an interest in the note in this fashion.

Without the PSA and the limitations set up in it “by agreement of the parties”, there is no avoiding the mortgage following the note and where the UCC gives over the power to enforce the note, so goes the power to foreclose on the mortgage.

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

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

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

And I am not impressed by the argument “This is clearly something that most foreclosure defense lawyers are not prepared to do.”?Get over that quick or get out of this work! Ask yourself, are you PSA adverse? If your answer is yes, please get out of this line of work. Please.

I am not worried about the minds of the Circuit Court Judges unless and until we provide them with the education they deserve and which is necessary to result in good decisions in these cases.

It is correct that the PSA does not allow the Trustee to foreclose on the Note. But you only get there after looking at the PSA in the context of who has the power to foreclose under applicable law.

It is not correct that the Trustee has the power or right to sue on the note and PSA literacy makes this abundantly clear.

Are you PSA literate? If not, don’t expect your judge to be. But if you want to become literate, a good place to start is by attending Max Gardner’s Mortgage Servicing and Securitization Seminar.

April Carrie Charney

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bankruptcy, chain in title, foreclosure, foreclosure fraud, foreclosures, Max Gardner, mbs, mortgage, note, psa, rmbs, securitization, trustee, Trusts, Wall StreetComments (1)

SEC CERTIFIED RECORDS OF TRUST OFFERINGS FOR COURT

SEC CERTIFIED RECORDS OF TRUST OFFERINGS FOR COURT


via: Brian Davies

The SEC is the regulator who allowed the Prospectus for many Mortgage Backed Securities to be filed. The Indymac MBS Residential Asset Securitization Trust 2007-A5, mortgage pass through 2007-E, with the Pooling and Servicing Agreement dated 3-1-2007 outlines proper assignment protocols and is the document that is needed for the court record. The SEC will do requests so you may judicially notice these documents for the record.

Your request was received in the certification office on 8/3/10; the time frame is 14+ working days to process

[ipaper docId=35735721 access_key=key-1idvnbxticok4iyv3im0 height=600 width=600 /]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in brian w. davies, deed of trust, foreclosure, foreclosures, mortgage, S.E.C., securitization, trustee, TrustsComments (1)

MORTGAGE SERVICING COMPANIES PREPARING “REPLACEMENT” MORTGAGE ASSIGNMENTS: By Lynn E. Szymoniak, Esq., Ed.

MORTGAGE SERVICING COMPANIES PREPARING “REPLACEMENT” MORTGAGE ASSIGNMENTS: By Lynn E. Szymoniak, Esq., Ed.


MORTGAGE SERVICING COMPANIES

PREPARING “ REPLACEMENT” MORTGAGE ASSIGNMENTS

By Lynn E. Szymoniak, Esq., Ed. Fraud Digest, May 6, 2010

CALIFORNIA – ORANGE COUNTY

Carrington Mortgage Services, LLC

Tom Croft and others

CALIFORNIA – SAN DIEGO COUNTY

Chase Home Finance

FLORIDA – BROWARD COUNTY

Patricia Arango, Caryn Graham and others

Law Offices of Marshal Watson

FLORIDA – BROWARD COUNTY

Cheryl Samons, Beth Cerni and others

Law Offices of David Stern

FLORIDA – DUVAL COUNTY

Lender Processing Services

Valerie Broom, Margaret Dalton, Michele Halyard, Michael Hunt, Joseph

Kaminsky, Kathy Smith, Coleman Stokes and others

FLORIDA- HILLSBOROUGH COUNTY

Florida Default Law Group or Law Offices of Daniel Consuegra

FLORIDA – PALM BEACH COUNTY

Ocwen Loan Servicing

Scott Anderson, Oscar Taveras, Doris Chapman, Jonathan Burgess, Laura

Buxton and others

FLORIDA – PINELLAS COUNTY

Nationwide Title Clearing

Bryan Bly, Vilma Castro, Dhurato Doko, Jessica Fretwell and others

GEORGIA – FULTON COUNTY

Lender Processing Services

Linda Green, Korell Harp, Jessice Ohde, Linda Thoresen, Tywanna Thomas,

Cheryl Thomas, Christie Baldwin and others

MINNESOTA -DAKOTA COUNTY

Lender Processing Services

Liquenda Allotey, Topeka Love, Christine Anderson, Christine Allen, Eric Tate

OHIO – FRANKLIN COUNTY

Chase Home Finance

Christina Trowbridge, Whitney Cook and others

PENNSYLVANIA – ALLEGHANY COUNTY

Home Loan Services, Inc.

PENNSYLVANIA – MONTGOMERY COUNTY

GMAC (and Homecomings Financial)

Jeffrey Stephan, John Kerr and others

SOUTH CAROLINA – YORK COUNTY

America’s Servicing Company

John Kennerty, China Brown and others

TEXAS – COLLIN COUNTY

BAC Home Loan Servicing, f/k/a Countrywide Home Loans Servicing, LP

TEXAS – DALLAS COUNTY (COPPELL, TX)

American Home Mortgage Servicing

TEXAS – HARRIS COUNTY

Litton Loan Servicing, LP

Marti Noriega, Denise Bailey, Diane Dixon and others

TEXAS – TARRANT COUNTY

Saxon Mortgage Services

TEXAS – TRAVIS COUNTY

IndyMac Bank Home Loan Servicing

Brian Burnett, Kristen Kemp, Suchan Murray, Chamagne Williams and others

TEXAS – WILLIAMSON COUNTY

IndyMac Bank (years after IndyMac Bank, F.S.B. ceased to exist, many of the signers will sign as officers of IndyMac Bank, F.S.B. (the entity that should have made the assignment to the trust years ealier)

Erica A. Johnson-Seck, Dennis Kirkpatick, Eric Friedman and others

UTAH

SALT LAKE COUNTY

Select Portfolio Servicing

Luisa Alfonso, Bill Koch and others

Many mortgage-backed securitized trusts are missing critical documents needed to foreclose – i.e., the mortgage assignment. An excellent discussion of this is found in the decision of Massachusetts Land Court Judge Keith Long reaffirming a 2009 ruling (Ibanez) that invalidated foreclosures on two properties because the lenders did not hold clear title to the properties at the time of the foreclosure sale. Mortgage assignments were a key issue in Ibanez, a case that involved ineffective assignments to the Trust. Judge Long noted:

…the plaintiffs’ own securitization documents required mortgage assignments to be made to the plaintiffs in recordable form for each and every loan at the time the plaintiffs acquired them. Surely, compliance with this requirement would (and certainly should) have been a priority for an entity issuing securities dependent on recoveries from loans, such as these, known from the start to have a higher than normal risk of delinquency and default. U.S. BANK, N.A. v. Antonio Ibanez, et al., Commonwealth of Massachusetts, Land Court Dept., 08 MISC 384283 (KCL).

This Ibanez decision and many others deal with the issue of mortgage assignments prepared years after the closing date of the trust, usually when the Trustee or mortgage servicer has realized that the Trust does not have the assignment needed to foreclose or has a defective assignment – such as one issued in blank, unsigned and undated.

Many trusts and servicers try to replace the missing assignments, often with assignments executed within a few months of the foreclosure – and in many cases even after the foreclosure is filed or the home is sold (in non-judicial foreclosure states). The date and place of the Assignment often reveals whether the Assignment is actually a “replacement” – issued years after the Trust closed, and even years after the original lender supposedly making the Assignment disappeared into bankruptcy.

The servicer rarely identifies itself and discloses that this is an attempt to replace a missing assignment. It is, therefore, very useful to know that Mortgage Assignments notarized in the counties above are more often than not replacement Assignments prepared by or on behalf of the Trusts – by the servicers for the Trust or document preparation companies working for the servicers, or even law firm employees working for the Trust.

Please send corrections/additions to szymoniak@mac.com.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (4)

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