Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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John Lewis

”How nonholders in possession have the rights of holders”

I would like to present to forum members the following two recent Maryland appellate decisions for their review and analysis:

Hosea Anderson, et ux. V John S. Burson, et al. (Filed: December 20, 2011)

http://www.courts.state.md.us/opinions/cosa/2010/434s09.pdf

Hosea Anderson, et ux. V John S. Burson, et al. (Filed: December 22, 2010)

http://www.courts.state.md.us/opinions/coa/2011/8a11.pdf

After my reading of these two appellate decisions it seemed to me that each decision provides a thorough analysis of how “nonholders in possession have the rights of holders” to enforce the note.  [Note: the reason that I am asking for forum participants assistance in this analysis is that I do not have the knowledge base to present a well thought out critique.]

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George Burns
To me that they seem to have been badly presented and poorly argued.

IMHO, the nails in the coffin were:

1. Mr. Rinn, the Bankruptcy Trustee did not represent BOTH parties, he represented the husband only.
2. The Anderson's tried and failed with the issue of Standing by trying to introduce evidence at the Appellate level  which was not in the record from the trial court. Note the comments on page 21:

"We shall decline to address any of the issues raised by the Andersons for the first time in their reply brief. See Strauss v. Strauss, 101 Md. App. 490, 509, n.4 (1994) (“the scope of a reply brief is limited to the points raised in the appellee’s brief, which, in turn, address[es] the issues originally raised by appellant. . . A reply brief cannot be used as a tool to inject new argument.”). See also Gazunis v. Foster, 400 Md. 541, 554 (2007), and cases therein cited.".

 
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Bill

I think we need to add, a real "nail in the coffin" for the Anderson's was that they ADMITTED and ACKNOWLEDGED the transfer history of the note.

 

THIS IS WHY YOU HAVE TO KEEP THE PSA OUT OF EVIDENCE

 

The PSA PROVES the transfers to the trust and the intent of the originator that the transferees be allowed to enforce the note EVEN WITHOUT AN ENDORSEMENT. 

 

While they still MAY need to produce delivery receipts, they are 95% there.  You can make a lot arguments moot because you put the PSA into evidence. 

 

I think the Anderson's didn't think this all the way through when they acknowledged the transfers.

 

+1 on poorly argued.

 

 

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Because theAndersons conceded the transfer history of the Note, the Substitute Trustees may enforce the Anderson Mortgage as nonholders in possession

 

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In light of the Andersons’ acknowledgments of the Note’s transfer history, the affirmed existence of the debt, and Mr. Anderson’s default

 

 

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John Lewis

And this,  pg 17 & 18 from December 22, 2010:

“Thus, under applicable law, because it was not

alleged that anyone in the chain of title had engaged in fraud or illegality,6 …”

 

6 The absence of fraud or illegality is an important part of our analysis. In the official

comments to section 3-203, several examples are given showing how the existence of fraud

or illegality can be outcome determinative, viz:,,

 

The operation of Section 3-203 is illustrated by the following cases. In each

case Payee, by fraud, induced Maker to issue a note to Payee. The fraud is a

defense to the obligation of Maker to pay the note under Section 3-305(a)(2).

 

* * *

Case # 4. Payee sold the note to Purchaser who took for value, in good faith

and without notice of the defense of the Maker. Purchaser received possession

of the note but payee neglected to indorse it. Purchaser became a person

entitled to enforce the instrument but did not become the holder because of the

missing indorsement. If purchaser received notice of the defense of Maker

before obtaining the indorsement of Payee, Purchaser cannot become a holder

in due course because at the time notice was received the note had not been

negotiated to Purchaser. If indorsement by Payee was made after Purchaser

received notice, Purchaser had notice of the defense when it became the

holder.

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About PSA. This article is written by an Elite Florida Foreclosure Defense lawyer Matt Weidner about the importance of PSA
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Finding Pooling and Servicing Agreements is Key to Killing Your Foreclosure Case!

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If you’re being sued by any entity acting as a trustee, i.e. “US BANK as trustee for the HP Series 2006-c Certificate Holders”, you need to be aware of a variety of issues that may be helpful in your case. I will start another series of video blog posts on the “Capacity Argument”, because this argument works in nearly every case, but it is particularly appropriate in cases where Plaintiff is an exotic, alphabet soup Foreclosure Frankenstein.

Individual mortgages originated by lenders like New Century and Argent were pooled into groups of approximately 8,000 mortgages from around the country to form a Mortgage Trust which held mortgages which had (on paper at least) cumulative values of between 10-12 million dollars. These mortgages that were grouped together and given a name like “HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2″. Interests in these mortgage trusts were then sold to teachers unions, investment funds and other institutional sources around the world. Before selling the interests in these trusts, the institutional investors were required to prepare the contract that would govern the rights between the depositor of the mortgages, trustee of the new trust and the company that would be responsible for collecting payments from homeowners and sending those payments out to those who had invested in the trust. This contract is called the Pooling and Servicing Agreement. The important thing about the Pooling and Servicing Agreement is you will find in virtually every case that all of the parties who are involved violate nearly every provision of their own Pooling and Servicing Agreement. This has important consequences that we will talk more about later, but the Securities and Exchange Commission rules requires these trusts to provide important other reporting information that was widely ignored or worse, falsified by the entities in control of these trusts. Finding such information can be a key to defending your case.

The Securities and Exchange Commission Edgar Database can be found here. You can also put the name of your Frakenstein, Alphabet Soup Trust into quotes, “The IXIX 2006-A Trust” into a straight google search and see what comes up. Here are Step-By-Step instructions:

Finding Pooling And Servicing Agreements (PSA’s)
For Securitized Mortgage Loans

The “Pooling and Servicing Agreement” is the legal document that contains the responsibilities and rights of the servicer, the trustee, and others over a pool of mortgage loans. The Pooling and Servicing Agreement can be a stand-alone document or it can bepart of another paper, usually called the “Prospectus.” If the securitization is public,these documents must be filed with the Securities and Exchange Commission (SEC), andwill be available to the public at http://www.sec.gov. Locating a Pooling and ServicingAgreement on the SEC website can be a challenge. The most important information you will need to find the Pooling and Servicing Agreement is the name of the original lender and the title of the pool of loans. We will work through an example below. Assume that the lender is Ameriquest Mortgage Co.We don’t know the name of the pool that the homeowner’s mortgage ended up in, but we
do know that the mortgage was made on June 1, 2002.

Step One:
Go to http://www.sec.gov and click on “Search for Company Filings” under “Filing & Forms(EDGAR).” Under “General-Purpose Searches,” click on “Companies & other filers.”Then, in the “Enter your search information” box, type in “Ameriquest” next to “Company name” and click on the “Find Companies” button.

Step Two:
The page you are now looking at shows a long list of the names of securitized pools of loans. We know the mortgage was made on June 1, 2002. Look for the entry titled“AMERIQUEST MORT SEC INC ASS BK PAS THR CERTS SER 2002 2.” The document number is CIK 0001175125. Click on that number. We selected this entry because it said 2002 on it and the loan in question was made in 2002. There may be several other pools of mortgage loans that Ameriquest securitized in 2002 but this is the first one we come to on this list (when reviewed in late February 2007) so we will pull itup.

Step Three:
Now you see a list of documents filed with the SEC that are related to this pool of loans.Scroll down to the bottom and you will see a document titled “Prospectus.” This is the document that will likely be the one you want, assuming that the mortgage loan you are concerned about is in this pool. We can only make an educated guess, unless you knowthe name of the securitized pool in advance (which is unlikely). Click on either “htm or text”next to this document and the Prospectus will appear. Now,
bookmark this document on your web browser, so you can come back to it easily in the future.

Step Four

Is this likely to be the document you want? Scroll down to page S-2 and you will see a Table of Contents. Included in that is the “Pooling and Servicing Agreement” which starts on page S-76. Also, scroll down one more page, past the Table of Contents, and you will see a “Summary of Prospectus Supplement.” Certain important information islisted there, including the cut-off and closing dates for loans that will be included in this pool. The closing date is June 7, 2002. Based on this information, you can assume that
this document governs the responsibilities of the servicer of the mortgage loan in question, unless that servicer tells you otherwise and can back it up with a reference to a different agreement or pool. Other important information listed in this Summary includes the title of the pool, and the
identity of the servicer and trustee. The servicing rights may have been sold since this document was filed and the current servicer may be a different company but the trustee(the legal holder of the mortgage) should be accurate.

Step Five:
Go the Pooling and Servicing Agreement to find what you need to know. It should describe how the servicer is paid and by how much, who keeps late and other fees, whatauthority it has to modify the loan or engage in workouts with homeowners, and its obligations to pass mortgage payments on to the trustee. Some of the best information I get comes from intrepid consumer researchers out there who care enough to dig into these things. Perhaps the most powerful thing about this and other online forums is the ability for consumers and advocates to share what they’ve found. In my estimation, what this pro-se Defendant found is enough to blow the lid off his foreclosure case…..read on:

I was served Lis Pendens last month, (April 2010), naming the plaintiff Deutsche Bank National Trust Company, As Trustee for HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OPT2

I looked into the records for that entity in the SEC EDGAR online database and discovered that the last annual report was filed in 2007, contemporaneously with a FORM 15 filing.That Form 15 filing claimed a standing under 15d-6 of the 1934 SEC regulations which exempts the entity of filing an annual report, whereby the number of claimed investors had fallen below the SEC registration and reporting threshold of 300 persons. ( To my understanding, the same Form 15 filing is also used when a registered, reporting, entity is dissolved.)

I then began looking at many other securitized trusts in the EDGAR database. Literally dozens and dozens of these securitized trusts have done exactly the same thing. he trust is established and appropriate SEC documents are filed for a period of time, usually 1 or 2 years. The trust then files a Form 15 claiming exemption of the obligation to file reports with the SEC under 15d-6

The paper trail for the Trust with the SEC thereby *ends* Many of these trusts have not filed anything with the SEC for years. Many as far back as 2005 and 2006

Some of the SEC Form 15d-6 filings disclosed as few as 15 or less investors. Bear in mind, these are for trusts that purportedly hold well over $1 BILLION in mortgages, and there are dozens and dozens of these trusts with a mere hand full of investors! I also noted that the “agent of record” of many of these trusts have changed many times, and are very infrequently “named”, but list only an address and phone number, (usually in New York). In several of the cases I’ve looked at in the EDGAR database, I actually called some of the phone number listed at 3:00am EST and got the voicemail of someone at a bank in N.Y. Note that the answering party was NEVER a bank listed as the Trustee, (as Deutsche Bank is in my case), or the trust “administrator” as listed in the PSA or any subsequent SEC filings.

I actually got the voicemail of some fellow at HSBC Bank who was the “anonymous” contact in my case! My point is this;

Has anyone actually verified that the securitized trusts claimed to be under the trusteeship of some of these banks still ACTUALLY EXIST?

We’ve been so focused on the NOTE and the fraudulent paper being slung about for assignment of those notes, and whether or not the “plaintiff” has standing to bring the foreclosure action, has anyone thought to see if the “plaintiff trust” is even still active or not? Were many of these trusts actually dissolved after payouts from credit default swaps and TARP funds and the actual investors now long gone? We have no records to show whether they are alive or dead. Most of these trusts haven’t filed anything with anyone in years as far as I can tell.

Certainly, as in my case, Deutsche Bank, (as Trustee), still exists, but can these plaintiff securitized trusts be made to *prove* they still exist?

What happens to a foreclosure case if the plaintiff entity,(the securitized trust, *not* the Trustee for it), no longer exists or cannot prove it exists?

IT’S TIME FOR ME TO GET BACK TO AN ISSUE THAT I HAVEN’T TALKED ABOUT FOR A WHILE AND IT IS THIS CAPACITY ISSUE…BECAUSE IT STRIKES AT THE HEART OF THESE CASES. SIMPLY PUT, A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN’T EXIST


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“The REMICs have failed! “The REMICs have failed!”

If Paul Revere were alive today he would be riding through the town warning “The REMICs have failed!” However, the government these days would go, “Shhhhhh!”

Most average homeowners have no idea what a REMIC is – actually most attorneys have no clue …. so, you know many of the Judges are completely in the dark. REMICs are a form of IRS tax shelter sold to investors as part of the mortgage-backed securities package (Real Estate Mortgage Investment Conduit (“REMIC”) pursuant to I.R.C. §§860A-G).

The documents that killed the REMICs may actually help save your home.

A new report by Oppenheim Law reveals “the Black Magic of Securitized Trusts”. The largest key to REMICs is that they are required to be passive vehicles, meaning that mortgages cannot be transferred in and out of the trust once the closing date has occurred, unless the trust can meet very limited exceptions under the Internal Revenue Code. I.R.C. §860G. The 90 day requirement is imposed by the I.R.C. to ensure that the trust remains a static entity. However, since the mortgage-backed securities trust controlling documents, the Pooling & Servicing Agreement (PSA), requires that the trustee and servicer not do anything to jeopardize the tax-exempt status; PSAs generally state that any transfer after the closing date of the trust is invalid.

What does that mean to the average homeowner in foreclosure? Check the recordation office and look for the “Assignment of Mortgage” on your property – generally found just before the Notice of Foreclosure is filed with the State if your loan was securitized. Looking through hundreds of these beauties there have been few, if any, that were timely assigned to the trusts. How can you quickly tell if the Assignment of Mortgage has failed to make it timely to the trust?

The Assignment of Mortgage [below] shows a 2006 Trust – and a fraudulent assignment in 2009 – 3 years AFTER the Trust had CLOSED! Not only was it too late – but the Trust could not accept it pursuant to the REMIC of RFMSI 2006SA4 PSA and as further defined in the Oppenheim Law report. Assignments of Mortgage are public documents.

What was not known until very recently, in fact Delaware Attorney General Beau Biden brought it out in his case Delaware v. MERS, lenders generally failed to follow the PSA and properly assign the mortgage loans to the Trusts. In the transcripts that AG Biden cited from In re Kemp, 440 B.R. 624, 626 (Bankr. D.N.J. 2010) (No. 08-18700) (Aug. 11, 2009), an employee for Bank of America responsible for servicing the securitized Countrywide mortgage loans testified under oath that Countrywide did not have a practice of delivering original documents such as the note to the Trust and was not in the habit of endorsing notes at the bottom, but favored allonges that they made as they went along. She further testified that allonges are typically prepared in anticipation of foreclosure litigation, rather than at the time the mortgage loans are purportedly securitized. Both of these facts are contrary to the requirements of the PSA that the note be endorsed in blank and delivered to the trustee at the time of securitization. Thanks to foreclosure defense attorney, Bruce H. Levitt, of South Orange, NJ - Bankruptcy Chief Judge JUDITH H. WIZMUR totally got it! See her Opinion here.

The trust investors have been suing Countrywide and other Wall Street banks for inflated appraisals, systematically abandoning underwriting guidelines and over-rated bonds. The investors did not yet know that many of the mortgage loans failed to make it timely into the trusts and that the REMICs had been damaged. In fact, recently the IRS has taken notice and already initiated an investigation into the “active” activities of these trusts and the tax implications from them. Scot J. Paltrow, Exclusive: IRS Weighs tax penalties on mortgage securities, REUTERS, April 27, 2011.

Here’s a fine example of a (too) late Countrywide Assignment of Mortgage made in 2010 to a CWABS 2005-3 Trust. Did they just figure the courts were going to be oblivious forever?

This is FIVE (5) years too late! Oh yeah, the REMIC has or should have failed. And it appears there are thousands, if not millions of these gems filed all across America in every state property recordation office – you just have to look.

Law Professor Adam Levitin, Georgetown University, describes the conflict the following way in the Oppenheim Law report:

“The trustee will then typically convey the mortgage notes and security instruments to a “master document custodian” who manages the loan documentation, while the servicer handles the collection of loans. Increasingly, there are concerns that in many cases the loan documents have not been properly transferred to the trust, which raises issues about whether the trust has title to the loans and hence standing to bring foreclosure actions on defaulted loans. Because, among other reasons, of the real estate mortgage investment conduit (“REMIC”) tax trust of many private-label securitizations (“PLS”) . . . it would not be possible to transfer the mortgage loans (the note and the security instrument) to the trust after the REMIC’s closing date without losing REMIC status.”

Levitin further points out:

“As trust documents are explicit in setting forth a method and date for the transfer of the mortgage loans to the trust and in insisting that no party involved in the trust take steps that would endanger the trust’s REMIC status, if the original transfers did not comply with the method and timing for transfer required by the trust documents, then such belated transfers to the trust would be void. In these cases, there is a set of far-reaching systemic implications from clouded title to the property and from litigation against trustees and securitization sponsors for either violating trust duties or violating representations and warranties about the sale and transfer of the mortgage loans to the trust.”

Without valid assignments, attorneys say that standing and jurisdiction issues rise to the top and may be asserted at any time – even first time on appeal. If the pretender lender did not have a standing to non-judicially foreclose because the assignment of mortgage is void, logically everything thereafter would be a nullity – that could open up a can of worms beyond the pretender lenders’/servicers’ repair.

These documents appear to have been fraudulent and as lawsuits assert – were intentionally prepared and executed to unlawfully confiscate the property from the homeowners. It appears it was easier to create the fraud and get paid by default insurance or credit default swaps than it was to modify they loans with the homeowners. Not only was there fraud on the homeowners, but also on the investors.

But could REMICs be why the investors don’t partner up with the borrowers? They were both duped. The borrowers unwittingly relied on the [inflated] appraisals and had no idea that the underwriting guidelines had been “systematically abandoned” – just like the investor claims. But there is one big difference…

If the investors include the borrowers, the fraudulent assignment of mortgages will surface and the REMIC fraud will float to the top like a dead body in a botched murder case…. and somebody will be stuck with paying the IRS – even if the investors win the case and get their investments back.

Could these fraudulent assignments save your home or undo the foreclosure? That’s a question to ask a competent foreclosure defense attorney and have him review your file.

Next, we need to follow the money… who actually got paid, how much and when??

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George Burns
Ann

What is the relevance of these 2 long posts regarding PSA and REMICs?

Weidner said that it was good to know what is in your PSA  BUT he did not say anything about using it or how to use it in a case. Neither did Levitin.

Have you ever seen Weidner advocate introducing the PSA in a case?

There is a BIIIGG difference between knowing something and using it.
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Each case is different. These posts are for info only. Consult an attorney
I am not sure if it is wise to put the PSA in evidence or not but it seems the PSA provides a lot of info.

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POOLING AND SERVICING (PSA) - THE ROOT OF FORECLOSURE DEFENSE

The Pooling and Servicing Agreement (PSA) is the document that actually creates a residential mortgage backed securitized trust and establishes the obligations and authority of the Master Servicer and the Primary Servicer. The PSA is the heart and root of all securitized based foreclosure action defenses. The PSA establishes that mandatory rules and procedures for the sales and transfers of the mortgages and mortgage notes from the originators to the Trust. It is this unbroken chain of assignments and negotiations that creates what is called “The Alphabet Problem.”

In order to understand the “Alphabet Problem,” you must keep in mind that the primary purpose of securitization is to make sure the assets (e.g., mortgage notes) are both FDIC and Bankruptcy “remote” from the originator. As a result, the common structures seek to create at least two “true sales” between the originator and the Trust.

One of the defenses used by the famous Foreclosure Defender, April Charney is the following: PLAINTIFF FAILED TO COMPLY WITH APPLICABLE POOLING AND SERVICING AGREEMENT LOAN SERVICING REQUIREMENTS: Plaintiff failed to provide separate Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers, including this Defendant pursuant to and in accordance with the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission that controls and applies to the subject mortgage loan. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable pooling and servicing agreement is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure. You therefore have in the most basic securitized structure the originator, the sponsor, the depositor and the Trust. I refer to these parties as the A (originator), B (sponsor), C (depositor) and D (Trust) alphabet players. The other primary but non-designated player in my alphabet game is the Master Document Custodian for the Trust. The MDC is entrusted with the physical custody of all of the “original” notes and mortgages and the assignment, sales and purchase agreements. The MDC must also execute representations and attestations that all of the transfers really and truly occurred “on time” and in the required “order” and that “true sales” occurred at each link in the chain.
Section 2.01 of most PSAs includes the mandatory conveyancing rules for the Trust and the representations and warranties. The basic terms of this Section of the standard PSA is set-forth below:

2.01 Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.

(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Trustee for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:

(i) the original Mortgage Note (except for no more than up to 0.02% of the mortgage Notes for which there is a lost note affidavit and the copy of the Mortgage Note) bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed “Pay to the order of _____________, without recourse” and signed in the name of the last endorsee. To the extent that there is no room on the face of any Mortgage Note for an endorsement, the endorsement may be contained on an allonge, unless state law does not so allow and the Trustee is advised by the Responsible Party that state law does not so allow. If the Mortgage Loan was acquired by the Responsible Party in a merger, the endorsement must be by “[last endorsee], successor by merger to [name of predecessor]“. If the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be
by “[last endorsee], formerly known as [previous name]“;

A review of all of the recent “standing” and “real party in interest” cases decided by the bankruptcy courts and the state courts in judicial foreclosure states all arise out of the inability of the mortgage servicer or the Trust to “prove up” an unbroken chain of “assignments and transfers” of the mortgage notes and the mortgages from the originators to the sponsors to the depositors to the trust and to the master document custodian for the trust. As stated in the referenced PSA, the parties have represented and warranted that there is “a complete chain of endorsements from the originator to the last endorsee” for the note. And, the Master Document Custodian must file verified reports that it in fact holds such documents with all “intervening” documents that confirm true sales at each link in the chain.

The complete inability of the mortgage servicers and the Trusts to produce such unbroken chains of proof along with the original documents is the genesis for all of the recent court rulings. One would think that a simple request to the Master Document Custodian would solve these problems. However, a review of the cases reveals a massive volume of transfers and assignments executed long after the “closing date” for the Trust from the “originator” directly to the “trust.” I refer to these documents as “A to D” transfers and assignments.
There are some serious problems with the A to D documents. First, at the time these documents are executed the A party has nothing to sell or transfer since the PSA provides such a sale and transfer occurred years ago. Second, the documents completely circumvent the primary objective of securitization by ignoring the “true sales” to the Sponsor (the B party) and the Depositor (the C party). In a true securitization, you would never have any direct transfers (A to D) from the originator to the trust. Third, these A to D transfers are totally inconsistent with the representations and warranties made in the PSA to the Securities and Exchange Commission and to the holders of the bonds (the “Certificateholders”) issued by the Trust. Fourth, in many cases the A to D documents are executed by parties who are not employed by the originator but who claim to have “signing authority” or some type of “agency authority” from the originator. Finally, in many of these A to D document cases the originator is legally defunct at the time the document is in fact signed or the document is signed with a current date but then states that it has an “effective date” that was one or two years earlier.
Hence, we have what I call the Alphabet Problem. Now, I want to admit that I have never been strong in math or in spelling. But, the way I see all of this spells out the word FRAUD.

“As a result of the underwriting guidelines used in connection with the origination of the mortgage loans in the trust, these mortgage loans are likely to experience rates of delinquency, foreclosure and bankruptcy that are higher, and that may be substantially higher, than those experienced by mortgage loans underwritten to Fannie Mae and Freddie Mac conforming guidelines. Furthermore, changes in the values of mortgaged properties may have a greater effect on the delinquency, foreclosure, bankruptcy and loss experience of the mortgage loans than on mortgage loans originated in a more traditional manner. Similarly, an overall general decline in residential real estate values could cause a particularly severe decline in the value of the mortgaged properties relating to mortgage loans in the trust.”

SOME HELPFUL HINTS IN FINDING YOUR POOLING AND SERVICING AGREEMENT:

If this is helpful to anyone, Countrywide Funding aka Bank of America files with the SEC under the name CWABS . Bank of New York Mellon bought the note. The agreement states Countrywide must forward the notes to Bank of NY; however Countrywide has admitted they never complied which is being used as a defense in several cases. Here is a link to mine, maybe you can start there and search for the year in which your mortgage was issued:

http://www.secinfo.com/drjtj.v776.d.htm

I believe GMAC files under the name RAMP.

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS RELATED TO POOLING & SERVICING AGREEMENTS

  1. Plaintiff failed to comply with the foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans, including the Plaintiff, to advise borrowers, including this separate Defendant, of any home ownership counseling Plaintiff offers together with information about counseling offered by the U.S. Department of Housing and Urban Development.
  2. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x(c)(5).
  3. Plaintiff failed to provide separate Defendants with legitimate and non predatory access to the debt management and relief that must be made available to borrowers, including this Defendant pursuant to and in accordance with the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission that controls and applies to the subject mortgage loan.
  4. Plaintiff’s non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to the applicable pooling and servicing agreement is an actionable event that makes the filing of this foreclosure premature based on a failure of a contractual and/or equitable condition precedent to foreclosure which denies Plaintiff’s ability to carry out this foreclosure.
  5. The special default loan servicing requirements contained in the subject pooling and servicing agreement are incorporated into the terms of the mortgage contract between the parties as if written therein word for word and the defendants are entitled to rely upon the servicing terms set out in that agreement.
  6. Defendants are third party beneficiaries of the Plaintiff’s pooling and servicing agreement and entitled to enforce the special default servicing obligations of the plaintiff specified therein.
  7. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with the foreclosure prevention servicing imposed by the subject pooling and servicing agreement under which the plaintiff owns the subject mortgage loan.
  8. The section of the Pooling and Servicing Agreement (PSA) is a public document on file and online at http://www.secinfo.com and the entire pooling and servicing agreement is incorporated herein.
  9. The Plaintiff failed, refused or neglected to comply, prior to the commencement of this action, with the servicing obligations specifically imposed on the plaintiff by the PSA in many particulars, including, but not limited to:
    a. Plaintiff failed to service and administer the subject mortgage loan in compliance with all applicable federal state and local laws.
    b. Plaintiff failed to service and administer the subject loan in accordance with the customary an usual standards of practice of mortgage lenders and servicers.
    c. Plaintiff failed to extend to defendants the opportunity and failed to permit a modification, waiver, forbearance or amendment of the terms of the subject loan or to in any way exercise the requisite judgment as is reasonably required pursuant to the PSA.
  10. The Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to provide servicing of this residential mortgage loan in accordance with the controlling servicing requirements prior to filing this foreclosure action.
  11. Defendants have a right to receive foreclosure prevention loan servicing from the Plaintiff before the commencement or initiation of this foreclosure action.
  12. Defendants are in doubt regarding their rights and status as borrowers under the National Housing Act and also under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission. Defendants are now subject to this foreclosure action by reason of the above described illegal acts and omissions of the Plaintiff.
  13. Defendants are being denied and deprived by Plaintiff of their right to access the required troubled mortgage loan servicing imposed on the plaintiff and applicable to the subject mortgage loan by the National Housing Act and also under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission.
  14. Defendants are being illegally subjected by the Plaintiff to this foreclosure action, being forced to defend the same and they are being charged illegal predatory court costs and related fees, and attorney fees. Defendants are having their credit slandered and negatively affected, all of which constitutes irreparable harm to Defendants for the purpose of injunctive relief.
  15. As a proximate result of the Plaintiff’s unlawful actions set forth herein, Defendants continue to suffer the irreparable harm described above for which monetary compensation is inadequate.
    18. Defendants have a right to access the foreclosure prevention servicing prescribed by the National Housing Act and under the Pooling and Servicing Agreement filed by the plaintiff with the Securities and Exchange Commission which right is being denied to them by the Plaintiff.
  16. These acts were wrongful and predatory acts by the plaintiff, through its predecessor in interest, and were intentional and deceptive.
  17. There is a substantial likelihood that Defendants will prevail on the merits of the case
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Angelo
George
Nick wooten who is a pretty good foreclosure defense attorney, won a big case in Alabama using the PSA and new york trust law. Re: Horace v. LaSalle Bank.

Here is the Motion for summary judgement and memorandum of law in support of the motion, excellent case law in support of his position.

This came from Matt weidner:
http://mattweidnerlaw.com/blog/wp-content/uploads/2011/04/case-file.pdf

Also, here is the affidavit from Wootens expert witness.

http://www.scribd.com/doc/52092257/Tom-Adams-Affidavit-Horace-case

I haven't seen any of these points argued in NY, but can't see why they wouldn't hold water, especially if it all NY trust law with supporting cases.
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John Lewis

452 B.R. 319 (2011)

Paul R. CORREIA and Tammie K. Correia, Debtors.
Paul R. Correia and Tammie K. Correia, Plaintiffs-Appellants,
v.
Deutsche Bank National Trust Company, as Trustee Under the Pooling and Servicing Agreement Series ITF INABS-2005-A, Defendant-Appellee.

BAP No. MB 10-064. Bankruptcy Nos. 07-10280-WCH. Adversary No. 08-01359-WCH.

United States Bankruptcy Appellate Panel for the First Circuit.

June 30, 2011.

 

It appears that some courts have determined that ….” Debtors lacked standing to challenge the mortgage's chain of title under the PSA. Again, we agree. The Debtors cannot show they were a party to the contract, and, therefore, the record compels the bankruptcy court's conclusion.

JEZZZZZZZ

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Gary
Mr. Roper always encouraged borrowers to find, read and otherwise learn about the PSA, but uniformly recommends that the PSA not be put into evidence.  I would bet on Mr. Roper's approach any day of the week over what is advocated by swindlers or even inexperienced attorneys.

Nick Wooten won one Alabama case when a foreclosure mill attorney showed up unprepared and was ambushed by a well prepared and well supported argument.  While it is certainly possible for a pro se litigant to surprise an unprepared plaintiff, there are hundreds of cases which show that introducing the PSA can lose a case.  In one case, Mr. Wooten was able to win.

As far as we have been able to discover, Mr. Wooten has never again prevailed with this argument, which has now already been soundly rejected by several other courts.

My money is on Mr. Roper.
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Bill

Angelo wrote:
George
Nick wooten who is a pretty good foreclosure defense attorney, won a big case in Alabama using the PSA and new york trust law. Re: Horace v. LaSalle Bank.

Here is the Motion for summary judgement and memorandum of law in support of the motion, excellent case law in support of his position.

This came from Matt weidner:
http://mattweidnerlaw.com/blog/wp-content/uploads/2011/04/case-file.pdf

Also, here is the affidavit from Wootens expert witness.

http://www.scribd.com/doc/52092257/Tom-Adams-Affidavit-Horace-case

I haven't seen any of these points argued in NY, but can't see why they wouldn't hold water, especially if it all NY trust law with supporting cases.


AAAAah yes, the Horace case.   I knew someone would bring it up again. The Great White Unicorn of foreclosure defense. 

This is a trial court decision and doesn’t have precedential value anywhere, including in Alabama

It would be interesting to ask an attorney in NY WHY this argument has NOT been made if it holds any water.   Especially with decades of trust law.

But all the arguments and citations sure look pretty.
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Angelo
Bill

You are 100% correct, that this case has no value what so ever in any court, outside of this judges courtroom.  But like Gary has stated, ".......which has now already been soundly rejected by several other courts."  Well those also have no value either, then.

My main question is why hasn't that case been appealed then?  Because if an appeals court does affirm that ruling, then what value does it have?  Just a thought.
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ka
Quote:
My main question is why hasn't that case been appealed then?  Because if an appeals court does affirm that ruling, then what value does it have?  Just a thought.


Angelo:

In most jurisdictions, an appeal can only be taken on issues and arguments raised before the trial court.  In Horace, a poorly prepared foreclosure mill lawyer was ambushed by a better prepared Mr. Nick Wooten.

In studying the record, the plaintiff probably discovered that it had failed to raise and preserve the winning issues.  For this reason, an appeal could only make things work for the mortgage servicers and investors.  They could not have won on appeal, and the appellate decision would seem to then give some actual authority to a defense that holds no water whatsoever when the plaintiff is prepared and makes the correct arguments. 

Appealing would have been a very poor strategic decision.  It was better to move on and better prepare for the next outing in the trial court.  That we have seen no further decisions that are supportive of Horace and Mr. Levetin's  arguments.
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George Burns
I was curious so I used Google to look up Nick Wooten. I got a link to a Housing Wire article and noticed in the sidebar mention of a few other cases. It seems that in Alabama 2 Courts decided the opposite of this Horace case.

It is amusing that most foreclosure defense advocates do not seem to have the strength of character to mention defeats, even when the defeats outnumber the wins.

People who need foreclosure defense certainly need to do reasearch and not fall for the hype so easily found on the internet. This is yet another instance where well meaning posters like Ann help to disseminate information that creates more problems than it helps.
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Bill

Angelo wrote:
Bill

You are 100% correct, that this case has no value what so ever in any court, outside of this judges courtroom.  But like Gary has stated, ".......which has now already been soundly rejected by several other courts."  Well those also have no value either, then.

My main question is why hasn't that case been appealed then?  Because if an appeals court does affirm that ruling, then what value does it have?  Just a thought.


You really COULDN'T even say it has value in this judges court room.  Mr. Wooten was WELL prepared.  He had just about as good a witness as you are going to find to refute the banks securitization claims.  He had a lot of cases.  It was well written.   But as ka pointed out, the main problem was he ambushed an unprepared Plaintiff.  Usually arguments like this ONLY work once.  There is no surprise the second time around.  IF the bank had appealed and LOST, there WOULD be some case law in Alabama.  But I think the second time around a well prepared Plaintiff would make the correct argument and the court of appeals would be overturned. 

In Alabama, a different trial court REJECTED this same legal theory in U.S. Bank v. Congress.  These are very similar arguments.  In fact, Congress used the same affiant to support her arguments, Tom Adams as well as a professor from Albany law school.  I think the court made the CORRECT decision. 

1.  When a case involves real estate, the laws of where the real estate is located are used.

2.  Ms. Congress thought NY law should be used because the PSA clearly states the agreement is governed by NY law.  The court found that Ms. Congress is NOT a party to the PSA and could NOT invoke it's provisions.

This decision is in line with other jurisdictions and I think this is the BIGGEST problem a homeowner will face when ATTEMPTING to use these arguments. 

I do have a copy of the horace case downloaded just in case I do decide to use the same arguments.  This would ONLY be if I was unfortunate enough to have the PSA make it's way in to evidence over my NUMEROUS objections.  I view this as a throw away argument.  It's real value would be to add CONFUSION and LENGTHEN any opposition I have causing a DISTRACTION from more robust arguments.  I would NEVER consider this an argument that MAY prevail and bet my house on it.  I think the decision in Horace would cause problems even IF this argument was decided in New York State.  Outside of NY, the local laws are what governs the suit, we're just not a party to the PSA to invoke it's provisions and use NY law to decide issues in different states.

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ka

Quote:
But like Gary has stated, ".......which has now already been soundly rejected by several other courts."  Well those also have no value either, then.

 

Agreed.  The other cases going the other way, as identified by George Burns and Bill, have no precedential value in Alabama or elsewhere.

 

They do have instructive and possibly persuasive value.

 

The instructive value is that the arguments are not a uniform winner with trial judges and that two of the three cases (of which we are aware) in which the  arguments were made and supported, the borrower LOST.

 

The persuasive value is that when Horace is cited by a defendant to show that the argument is not specious and merits consideration, the well prepared plaintiff will present two contrary decisions suggesting that the Horace decision was anomolous (which I think it is). 

 

*

 

Well said, Bill!

 

There is nothing wrong with throwing in Levetin's argument, AS LONG AS THE DEFENDANT DOESN'T INTRODUCE THE PSA!

 

Putting the PSA into evidence to make the Levetin arguments is like cutting oneself with a knife and bleeding on the pavement in hopes that a mugger slips in your blood and drops his pistol.  While this might work now and then, and might even foil a mugging when the mugger flees out of horror or disgust or when the mugger drops his pistol while laughing at you, this is unlikely to form the basis for a new mainstream defensive technique which will supplant study of martial arts or carrying a concealed handgun.

 

Simply because the lone survivor for whom this novel approach was effective lives to boast about his success in avoiding the loss of his transit pass, it does not follow that the stragegy was a success.  Alas, everyone else employing it is dead and unavailable to explain why and how it failed to work out.

 

Have you ever noticed on flights back from Las Vegas or on trains returning from Atlantic City that everyone talking about their betting was a WINNER?  Does that give you the confidence to run out and SHORT casino stocks?

 

When an attorney, such as Nick Wooten WINS a case using a new theory, he issues a news release and contacts the press.  Foreclosure defense advocates celebrate.  When Mr. Wooten loses a case on the same theories, NOTHING IS SAID.

 

It is the swindlers and the con artists that continue to celebrate the single anomolous victory and rely upon people like Ann to continue posting the MYTH that enables them to continue to handsomely profit by selling snake oil to the unsuspecting.

 

Six million cases in foreclosure.  One victory for Mr. Levetin's theory.  Odds are far, far better in the state lottery.  The lottery tickets are far cheaper, too.

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Now that Ka is attacking attorneys and Levitin,
GOD ????
SIGHT !!!!!!
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Bill

Ann wrote:
Now that Ka is attacking attorneys and Levitin,
GOD ????
SIGHT !!!!!!

Ka is NOT attacking Mr. Wooten or Mr. Levitin.  He is simply pointing out the truth:

Six million cases in foreclosure.  One victory for Mr. Levetin's theory.  Odds are far, far better in the state lottery.  The lottery tickets are far cheaper, too.

Quote:

Six million cases in foreclosure.  One victory for Mr. Levetin's theory.  Odds are far, far better in the state lottery.  The lottery tickets are far cheaper, too.


How can you argue with that?

If someone wants to defend their home they HAVE TO BE ABLE TO ACCEPT THE TRUTH.  Homeowners CAN'T live in la la land.  Mr. Levitin's "theroies" are by his OWN admission untested.  As evidenced by the case I posted in direct conflict with Horace, there would need to be a large mass of case law to CHANGE in order for these arguments to help homeowners.  NOT ONLY would this need to be decided in NY, it would then NEED to be accepted in OTHER jurisdictions so homeowners OUTSIDE of NY could use his arguments.

1.  The NY courts would have to accept Mr. Levitin's arguments that the trust acts are void because of an improper negoation/assignment of the mortgage.

2.  The jurisdiction homeowners live in would have to ACCEPT that homeowners are a party to the PSA and could invoke the PSA's provisions/ enforce them. 

The second argument just isn't going to happen.......It has failed and will continue to fail.  You are just NOT a party to the PSA.

The Andersons LOST because they conceded the transfer history of the NOTE.  If you put the PSA into evidence you are ADMITING/CONCEDING the transfer of the note to the trust.  EVEN WORSE, you are showing the intent of the originator that the trust be allowed to enforce the NOTEThis is the basis for a non-holder in possession of a note being able to enforce the note.  A death blow to ANYONE trying to defend a foreclosure. 

You are INSANE to put the PSA into evidence. 
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ka

Quote:
Now that Ka is attacking attorneys and
Levitin,
GOD ????
SIGHT !!!!!! 

 

Ann:

 

Could you please elaborate on what this cryptic post means?

 

Are you comparing me to a deity?  Are you identifying me as a visionary?

 

Are you questioning our Lord, the Savior?  What is the nature of your misgiving that requires the use of four question marks when you beseach God?

 

I self-identify as ka, not as Ka, nor the ancient Egyptian sun-god Ra.

 

In the latter instance were you merely misspelling "cite" rather than making an unintelligible point about my ability to see?  If the latter is the case, what is the significance of the five explanation marks?  Does this reflect the strength and power of my vision?

 

I assure you that it is not necessary for you and other participants at the Forum to pray to me.  I should probably also add that I wear corrective lens, as does a large portion of the mortal population.  It would be enough if you simply used your reasoning powers to discriminate between valid and invalid points and arguments.

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t
Quote:
Now that Ka is attacking attorneys and Levitin,
GOD ????
SIGHT !!!!!! 

Ann, if you are saying that ka is God, I beg to differ.  On this Forum, Mr. Roper is God.  ka and other thoughtful Forum participants seems to be simply spreading God's word!

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