One cannot step into the same river twice, Heraclitus famously declared.

Abstract:
This article takes as its point of departure the financing technique referred to as “securitization,” a close cousin of secured lending that has grown to enormous size since its origin more than two decades ago. The article pursues two themes. One is a critique of the legal foundations of securitization, which includes a perspective on aspects of fraudulent transfer law that are well established historically but have been neglected in recent decades. The other is exploration of the implications of this product growing so vast despite its dubious legal foundations. In that regard, the article explores two points of legal sociology that apply to new financial products generally. The first is that a product can become so widely used that it cannot be permitted to fail, notwithstanding its dubious legal foundations. The second is that the debt rating agencies have become de facto lawmakers, because it is their decision to give a favorable rating to a financial product the credit quality of which depends on a debatable legal judgment that allows the product to grow too big to fail. Two nascent products are identified as candidates for the operation of a similar dynamic. The article ends with a normative assessment of securitization from a pragmatic perspective, concluding that legislative action is appropriate to ratify the product’s object, with constraints.

Heraclitus

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1012937&

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2008 NY Slip Op 08705

GMAC MORTGAGE CORPORATION, d/b/a DiTECH.COM, appellant,

v.

ROBERT CHAN, ETC., ET AL., respondents, et al., defendants.

2007-11812, 2008-09115.

Appellate Division of the Supreme Court of New York, Second Department.

Decided November 12, 2008.

EXCERPT:

A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid (see Cruz v Cruz, 37 AD3d 754; Crispino v Greenpoint Mtge. Corp., 304 AD2d 608; Yin Wu v Wu, 288 AD2d 104; Rosen v Rosen, 243 AD2d 618; Filowick v Long, 201 AD2d 893). Thus, the Supreme Court correctly held that there are triable issues of fact as to the validity of both the deed and subject mortgage and properly denied the plaintiff’s motion for summary judgment.

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GMAC was denied in 2009

Hendra Wargo, appellant,

v.

Paul Henri Jean, et al., defendants, Wilmington Finance, a Division of AIG Federal Savings Bank, respondent. (Action No. 1) Wilmington Finance, a Division of AIG Federal Savings Bank, respondent, v Paul Jean, defendant, Hendra Wargo, appellant.(Action No. 2)

2009-06932 2010-01452 (Index Nos.?4192/06, 8697/06) —

October 26, 2010

WILLIAM F. MASTRO, J.P. JOSEPH COVELLO THOMAS A. DICKERSON SHERI S. ROMAN, JJ. Mary Patricia Papini Guidetti, Middletown, N.Y., for appellant.

Day Pitney LLP, New York, N.Y. (Jonathan M. Borg of counsel), for respondent in Action No. 1.

Law Offices of Jordan S. Katz, P.C., Melville, N.Y. (Michael Lowe of counsel), for respondent in Action No. 2.

Argued-September 30, 2010

Excerpt: Since, at the time Wilmington moved for summary judgment on the complaint in the foreclosure action, the issues of forgery and fraud were also being litigated in the fraud action, the Supreme Court should have granted Wargo’s motion to stay all proceedings in the foreclosure action, pending resolution of the fraud action. If Wargo succeeds in proving that the documents transferring the property to Jean were fraudulent, or that the signatures thereon were forged, then Wilmington’s mortgage is not valid and Wilmington cannot succeed in the foreclosure action (see Johnson v. Melnikoff, 65 AD3d 519, 520; ?GMAC Mtge. Corp. v. Chan, 56 AD3d 521, 522). Moreover, since the Supreme Court did not determine in the foreclosure action that there was no forgery or fraud, but only that the issues of forgery and fraud were irrelevant to the disposition of that action, those issues have not been necessarily decided against Wargo. ? Accordingly, the doctrine of res judicata is inapplicable, and the Supreme Court should not have granted Wilmington’s motion to dismiss the complaint in the fraud action on that ground (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500).

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