Tuesday, October 26, 2010

Guest Post: How Did the Banks Get Away With Pledging Mortgages to Multiple Buyers?

I’ve repeatedly documented that mortgages were pledged multiple times to different buyers.

In response, some people (including one of the country’s top bankruptcy lawyers) have told me they don’t buy it.

Specifically, they ask such questions as:

  • With a mortgage sold to two different entities, wouldn’t the income from the mortgage be shown on the books of both entities?
  • Was the interest/principal payments that were made by the homeowner before they stopped being divided between both entities? If so, wouldn’t this have rung alarm bells immediately?
  • If only one was getting it, why didn’t the other entity immediately try to foreclose?
  • If there was one servicer involved, was the servicer covering the difference between what was collected and the payments actually made? If so, how did the servicer do this and still remain in business?
  • If two servicers were involved, why didn’t this come out sooner or were both servicers hiding this fraud?

So I wrote to some of the leading experts on mortgage fraud – L. Randall Wray (economics professor), Christopher Whalen (banking expert with Institutional Risk Analytics), and William K. Black (professor of economics and law, and the senior regulator during the S & L crisis) – to seek their insight.

Chris Whalen told me:

All good points, but the short answer is that nobody may have noticed until now. The issue of substitution and other games played by servicers makes exact tracking of loans problematic. It should show up in the servicers reports and should be caught, but there are a lot of things that go on in loan servicing that nobody talks about. Until about 2006, the GSEs and banks would advance cash and would substitute, but not now. The noble practitioners you heard from are all sincere and want to believe in intelligent design.

Whalen explained:

Prior to FAS [i.e. Financial Accounting Standards] 166/167, a defaulted loan might sit in a FNM/FRE pool for up to a year before the default was removed from the trust. The issuer would then place a new loan into the pool or “substitute” for the old loan. No purchase event was booked. The investor would never know. In fact, the issuer would keep paying interest on the original principal amount in those days. Now under FAS 166/167, the issuer must immediately repurchase the defaulted loan and take the loss less estimated recovery. That is why the pace picked up this year when it comes to repurchase demands.

You should refer your dubious and very naive friends to the case of National Bank of Keystone, WV. One of the worst failures per $ of assets in FDIC history. The management hid a Ponzi scheme in the loan servicing area for five years. Paid interest to investors with their own principal. Two auditors missed the fraud and later were sued by the FDIC acting as receiver for the dead bank. And this was a small operation. The big five are an even worse mess. Remember, when the seller of a loan and the servicer are the same, anything can happen. And it usually does.

Professor Black told me:

Double pledges (as they’re typically called, though one could pledge multiple times) are a well known fraud device. It is correct that one of the key purposes of adopting Article 9 of the Uniform Commercial Code (UCC) was to reduce the risk and frequency of this form of fraud. So, double pledges in the modern era require both (A) fraud (on the part of the borrower or purchaser) and incompetence, indifference, or corruption on the part of the original secured lender or their agents if the borrower is the fraudster or the purchasers if they are the fraudsters.

The two potential sources of fraud: A fraudulent borrower could pledge the same home as security for multiple mortgage loans. Title checks, by the lender/title insurer are so easy to conduct and so vital to protect the lender that this form of fraud is vanishingly rare. Alternatively, and far more likely, the lender could sell the mortgage to multiple buyers. Those buyers could have far lower incentives to check on prior pledges and less ability to check for prior pledges. The entity selling a loan to multiple parties (A) has a compelling incentive to hide the prior pledge(s), (B) is financially sophisticated, and therefore more capable of deception than a homeowner, and (C) can pick who to make the multiple sales to — allowing them to select the most vulnerable targets for fraud.

Subpart (C) provides the logical transition to the second requisite for multiple pledge frauds — vulnerable victims. The characteristics they would exhibit include (A) growing massively, (B) purchasing nonprime loans without fully underwriting the quality of the loans (and quality in this context inherently requires superb “paperwork”), (C) poor internal and external controls, and (D) opaque systems that make it extremely difficult to determine the beneficial owner and locate key mortgage documents that would reveal multiple sales. Unfortunately, these four characteristics were characteristic of many purchasers of nonprime mortgages. That is why I have long stated that the process was dominated by the financial sector equivalent of “don’t ask; don’t tell.”

Bottom line: the elite bankers and the anti-regulators have been so unwilling to
find the truth that no one knows how bad these frauds became. Finding the facts
is essential and can and should be done by reviewing samples of the loans pledged or sold to Fannie and Freddie and the Fed.

And professor Wray told me that record-keeping by servicers was terrible, and pointed me to the following  from the Tampa Tribune:

Peter Bakowski, a 58-year-old former Tampa mortgage broker, has admitted orchestrating a Ponzi scheme that involved more than 30 investors and institutions and more than 150 deals, documents show.


Bakowski sold the mortgage assignments to multiple investors, promising high rates of return and using all the money he generated to “keep the scheme afloat,” according to his plea agreement.

Posted on: Saturday, October 23, 2010 7:57 AM
Author: Neil Garfield
Subject: SHADOW ACCOUNTING: Did BofA Make $3B or Lose $7B?

It is not true that another bailout will be required to maintain our financial system. In fact, if we want to return to true capitalism we must let the mega banks fail if they indeed run out of money. The reason is simple: this time, there is not even the hint of a risk that the economy will lose a source of capital for economic growth. Wall Street is busy serving itself steaks while the rest of the country strives to eek out an existence on day-old bread. Wall Street does not provide capital anymore — it consumes it.

We have 7,000 strong community banks and credit unions and an infrastructure that works for electronic transfer and communication of money transfers and payments without the likes of the mega-banks. Returning to a decentralized banking system restores power to the people and their government and stops the hemorrhaging of capital caused by the “new” Wall Street. We regain BOTH capitalism and democracy if we get rid of the bank oligopoly.

The engine is full and the box cars are empty. How is it that the people on Wall Street are making more money than ever while the rest of the country’s hardworking or wishing they are were hardworking citizenry languishes in unemployment and declining median income. In fact, if you took the median income on Wall Street out of the equation the picture would look like, well, the way it is — deplorable.

We have been so absorbed with NOT becoming socialist and maintaining our capitalist economic system that we forgot to look at our political system — that it is controlled by large corporations instead of the people. In the process we have lost both capitalism and democracy. Capitalism, as its name suggests, is an economic system which is intended to provide the engine for economic growth and prosperity. It does this by creating innovative means to distribute capital to new businesses and expanding businesses. It is supposed to be the engine that pulls the box cars full of the products and services we make and provide. Wall Street doesn’t make cars or toasters and doesn’t wash cars or serve the toast to you at breakfast. It has no purpose other than to provide the necessary capital for a business to be started or maintained that will provide you with the products and services you need or want.

Socialism, on the other hand, uses taxpayer money to fund various services and to underwrite the risks of many new ventures that are deemed useful for the country or its citizens. Most people in this country don’t want the government making those decisions. But that is what has happened — and I’m not talking about social security or medicare. I’m talking about tax breaks and direct subsidies to big corporations that in many cases pay no taxes, get government contracts, paid with taxpayer money in a non-bidding contest of who can lobby better. In other words, I am saying we are already have a socialist economic system — but in our case it is run for the benefit of the corporations and the holders of wealth rather than the working men and women of the country. It’s an interesting twist on the original idea. And it stinks.

While we were sleeping our way through the last 4 decades, the creation of capital for itself has become the priority. Not surprisingly proprietary currency in the form of credit derivatives has soared from zero in 1983 to over $600 trillion today. Yes, the total of all government-issued currency is only $50 trillion versus the $600 trillion that Wall Street issued. In other words, privately issued “currency” is now more than 12 times the volume of real money issued by all the governments of the world. And Wall Street is making money not by providing capital to our economy for the needs of our society and governmental functions but rather, for itself.

It therefore should come as no surprise that big corporations actually make the rules and enforce them. After all, they have the money and neither we nor our governments have anything that compares to their enormous “wealth.” Having all that wealth and power makes it easy for them to scare us. They say “socialism” and images of Hitler and Stalin come to mind taking all our liberties away. Meanwhile they suck the taxpayer money into their own pockets while at the same time convincing us we are not entitled to share in the benefits of the taxes we pay. Like the the other recent Wall Street schemes, when things go well they make money and we make a little. When things go badly, they make money and we lose money. They never lose. They have no risk. And they make the rules that insure that the status quo will be maintained.

It is for that reason that I say that I won’t vote for anyone who uses the “boogey man” to scare me into voting one way or another. If they say “Socialism”I want to know what corporations are subsidizing their candidacies behind what are now permitted anonymous donations — and especially how much those corporations receive in benefits from tax breaks and subsidies.

Which brings me to the question posed by the title of this article. BOA reported a $3 billion profit, but it also reported a $10 billion charge (a “one time” charge allowed under the rules of accounting). At the end of the quarter they had $7 billion less than they had before by even the current stupid accounting standards that allow management to value their own assets. Yet it is accepted that even though they have already admitted that they will continue to have more of these “one-time” charges, they should still be viewed as having made $3 billion and their stock is valued as though it was $12 billion per year. By the way, these “one-time” charges are gradual admissions seeping into the reports of the trillions of dollars Wall Street stands to lose as investors and borrowers start connecting the dots and collecting money back from a pot of ill-gotten gains.

So their stock is valued as though they were making $12 Billion even though the reality is that they will lose at least $50 billion, at a minimum over the current year, and it could be a multiple of that figure. The fact that they were willing to sponsor perjury in affidavits, misrepresentations by attorneys, and outright fraud on the courts is not yet taken into account in discounting their prospects as a viable institution. Instead, because we are led by people who are getting information from Wall Street and accepting it at face value, the myth is that if we tell the truth, another bailout will be required.

It is not true that another bailout will be required to maintain our financial system. In fact, if we want to return to true capitalism we must let the mega banks fail if they indeed run out of money. The reason is simple: this time, there is not even the hint of a risk that the economy will lose a source of capital for economic growth. Wall Street is busy serving itself steaks while the rest of the country strives to eek out an existence on day-old bread. Wall Street does not provide capital anymore it consumes it. We have 7,000 strong community banks and credit unions and an infrastructure that works for electronic transfer and communication of money transfers and payments without the likes of the mega-banks. Returning to a decentralized banking system restores power to the people and their government and stops the hemorrhaging of capital caused by the “new” Wall Street. We regain BOTH capitalism and democracy if we get rid of the bank oligopoly.

View article...

EDITOR’S NOTE: Except for the assumption that the borrower’s bought homes they couldn’t afford (with which I disagree) and the assumption that the existence of a default is axiomatic if the borrower has missed a payment (with which I strongly disagree), this article pretty much hits the nail on the head for due process. Under the theory proposed by Wall Street, if the borrower missed a payment ANYONE can foreclose, without regard to whether they are owed any money. This turns American Jurisprudence on its head.

I do not agree that homeowners bought homes they could not afford. Many of the new mortgages were refinancing of homes that people had lived in for years, even generations. Even on the new home purchases, they could afford what the home was worth and if the loan product was priced appropriately to the home value, there would be few missed payments.

I do not agree that a default exists, ipso facto, when a borrower misses a payment. The question is not where the payment came from, it is whether a payment was made and received by an identified creditor. In nearly all cases, the creditors, if they can be identified, did receive payments even though their counterparts on Main Street were declaring a default. In nearly all cases, the end of month statements and the notices of default were based upon an amount stated as principal due that did not reflect loss mitigation payments received from third parties.

I do not agree with the premise that the obligations are secured by mortgages. If I lend money to you and my friend Joe puts his own name on the note and mortgage, the lender of record is in fact owed nothing. The mortgage, which secures the Note, not the obligation, is in favor of someone who is owed nothing. The mortgage therefore secures nothing. The note describes a non-existent obligation. And the real obligation is not described in writing nor is the real creditor disclosed. The absence of any actual transfers of paperwork corroborates the simple fact that they were not dividing up the mortgages, they were slicing up the money as it emerged from a pool collected by servicers. This is further corroborated by the continuing payment by servicers to the promised recipients of those receivables even after the loan, on Main Street, was declared in default.


  • The truth is, any rock you turn over in the Countrywide subprime portfolio, something slimy is going to emerge.
  • Banks took advantage of investors every bit as much as they took advantage of home buyers.
  • it simply does not follow that the bank therefore has an absolute right to take back the home. Under the law, it has to prove it has that right — by filing documents that show that the owner of the mortgage has conveyed that right to it. That’s why this affidavit scandal isn’t some legal nicety. It’s about the single most important value of American jurisprudence: due process.

October 22, 2010

Big Problem for Banks: Due Process


Earlier this week, Bank of America, the nation’s largest consumer bank, reported its third-quarter earnings. It was a very good quarter; putting aside an accounting charge — a very large, $10.4 billion accounting charge, admittedly — the bank reported $3.1 billion in profits. It was the third consecutive quarter that Bank of America had earned more than $3 billion.

During the ensuing conference call Tuesday morning, there was the requisite chest-thumping from Brian Moynihan, the chief executive, and Chuck Noski, the chief financial officer. But there was also something else: tough talk about two big legal problems the bank faces as a result of the subprime bubble. Not surprising, it was the latter that caught my attention.

Like everyone else, I’d been reading with amazement the stories about one of those legal problems: the robo-signing scandal that has ensnared all the banks with mortgage servicing subsidiaries, Bank of America included. That’s the scandal in which a tiny handful of employees had signed — or allowed others to forge their signatures — on thousands of affidavits confirming that the banks had the legal right to foreclose on properties they serviced. In truth, they had often never seen the documents proving the bank had that legal right. In some cases, the documents didn’t even exist. As a result of the mounting publicity, many big banks had halted all foreclosures while they reviewed the legality of their affidavits.

Mr. Moynihan said that, at Bank of America, at least, the foreclosure halt in 23 states that require judicial proceedings was over. It had reviewed some 102,000 affidavits and — guess what? — no big problem! “The teams reviewing data have not found information which was inaccurate” or that would change the plain facts of foreclosure — namely that the homeowners it wanted to foreclose on were in serious arrears.

Thus the bank’s central position is that, since it is so doggone obvious that the homeowners can’t pay their mortgages, the fact that the affidavits might not have complied with the law shouldn’t cause anyone to break into a sweat. At one point Mr. Noski actually said, “I think it’s a big issue because people are losing homes. It’s not a big issue” for the servicers. Glad he cleared that up.

The prospect of a second legal assault is more recent. Shortly before the earnings call, Bank of America received a letter from a lawyer representing eight powerful institutional investors, including BlackRock, Pimco and — most amazing of all — the New York Federal Reserve. The letter was a not-so-veiled threat to sue the bank unless it agrees to buy back billions of dollars worth of loans that are in securitized mortgage bonds the investors own.

Mainly, they are saying that Bank of America was servicing loans in these bonds that the bank knew violated the underwriting standards that the investors had been led to believe the bank was conforming to. What’s more, they said, the bank had never come clean about all the bad loans, as it was required to do. Therefore, say the investors, the bank has a contractual obligation to buy back the bad loans.

During the conference call, Mr. Moynihan and Mr. Noski made it clear that Bank of America was going to use hand-to-hand combat to fight back these claims. “We’re protecting the shareholders’ money,” Mr. Moynihan said. Mr. Noski questioned whether the investors even had the right to bring the case. “We continue to review and assess the letter and have a number of questions about its content including whether these investors actually have standing to bring these claims,” he said.

So there you have it. Having convinced millions of Americans to buy homes they couldn’t afford, Bank of America is now revving up its foreclosure efforts on these same homeowners. At the same time, having sold tens of thousands of these same terrible loans to investors, it is going to spend tens of millions of dollars on lawyers to keep from having to buy back their junky loans.

Apparently, being the biggest bank in the country means never having to say you’re sorry.

In truth, it’s not really Bank of America itself that persuaded so many people to borrow beyond their means and then sold those terrible loans to investors. It was Countrywide, which Bank of America purchased in July 2008, by which time the company was on the verge of collapse because of all the corrosive subprime loans it had made.

Before the acquisition, Bank of America was already one of the biggest servicers of mortgages. After the acquisition, it was gargantuan. From a standing start in 1968, Countrywide had become — by far — the No. 1 mortgage originator in the country, and the No. 1 servicer as well.

But during the subprime bubble, it had debased itself to maintain that No. 1 position, becoming a hotbed of fraud and predatory lending. Take, for instance, the facts that have been revealed in a lawsuit filed against Countrywide by the Mortgage Guaranty Insurance Corporation, which insured many of Countrywide’s loans. Mortgage Guaranty investigators tracked down some of the people who had gotten subprime mortgages from Countrywide. What they discovered was startling.

A loan for $360,000 went to a Chicago woman who supposedly earned $6,833 a month at an auto body shop. In truth she was a part-time housekeeper who was posing as the buyer to help her sister. The Countrywide loan officer not only knew these facts, she came up with the idea of having the borrower pretend to work at the auto body shop.

The lawsuit uncovered a raft of similar examples — case after case where the loan officers not only knew that fraud was being committed, but were actively engaged in committing it. “By about 2006,” says the , “Countrywide’s internal risk assessors knew that in a substantial number of its stated-income loans — fully a third — borrowers overstated income by more than 50 percent.” And that is just one small subset of what went on at Countrywide. The truth is, any rock you turn over in the Countrywide subprime portfolio, something slimy is going to emerge.

That’s why most people, myself included, have no sympathy for Bank of America’s legal predicament — and no patience for its “we’re not the bad guys here” arguments. It is absolutely true that the homeowners that Bank of America wants to foreclose on are in default on loans they should never have gotten in the first place. (Gee, whose fault was that?) But it simply does not follow that the bank therefore has an absolute right to take back the home. Under the law, it has to prove it has that right — by filing documents that show that the owner of the mortgage has conveyed that right to it. That’s why this affidavit scandal isn’t some legal nicety. It’s about the single most important value of American jurisprudence: due process.

“Just because the homeowner hasn’t paid his mortgage doesn’t mean anybody in the world can kick him out,” said Katherine Porter, a visiting law professor at Harvard. “The bank has to have the standing to do that.” She added that the bank’s argument was a little like saying that someone who committed a crime shouldn’t receive a trial because he’s so obviously guilty. America just isn’t supposed to work that way.

That’s also why the bank’s contention that the foreclosure scandal will soon be behind it is unlikely to hold true. Peter Ticktin, a Florida lawyer who represents some 3,000 homeowners, told me that he did not believe it was possible for Bank of America to have properly vetted those 102,000 affidavits in a matter of weeks.

“My hat is off to them for doing the impossible,” he said, his voice dripping with sarcasm. “They figured out how to take a massive amount of perjured affidavits and turn them into real ones without robo-signers.” Mr. Ticktin said he had every intention of continuing to challenge Bank of America foreclosures. Most other lawyers specializing in these cases plan to do likewise. The affidavit scandal isn’t over yet, no matter how much Mr. Moynihan might wish it to be so.

As for the potential lawsuit with BlackRock and the New York Fed, the week before the investors sent the letter to Bank of America, three Countrywide executives, including former C.E.O. Angelo Mozilo, settled charges brought by the S.E.C. that they had engaged in fraudulent conduct. Internal Countrywide e-mail clearly show that they knew how dangerous their lending had become. Once the loans were sold to Wall Street — which, I should note, aggressively pushed the subprime companies to lower their standards — they went through a due diligence process that investors never knew about. Banks took advantage of investors every bit as much as they took advantage of home buyers.

And it would be nice, if just once, they would admit it. Instead, we get Mr. Noski, the chief financial officer, promising that the bank will fight these cases to the death because they’re looking out for shareholders. It’s appalling, really.

I admit it: I want to see the banks feel some pain. Most people do, I think. Banks did terrible things during the subprime bubble, and they still haven’t paid any real price. I find myself rooting for judges to rule against banks in foreclosure cases. I would love to see these big investors put the serious hurt on Bank of America, which will encourage other investors to pile on. I know this colors my thinking. I can’t help it.

Yet I also know the flip side. If the foreclosure lawyers start winning a lot of cases, if judges halt foreclosures on a widespread basis, if investors start to extract billions upon billions of dollars from the banks — and if banks become seriously weakened as a result — we’ll be right back where we were two years ago. The banks will need to be saved for the good of the economy. The taxpayers will have to come to the rescue. That’s an appalling prospect too.

Banks: We can’t live with them, and we can’t live without them. It stinks, doesn’t it?

Neil Garfield-LivingLies:

The essential component of every loan that was never revealed to either the lenders (investors) nor the borrowers (homeowner/investors) was the addition of co-obligors and terms that neither the investor nor the borrower knew anything about. The “insurance” and other enhancements were actually cover for the intermediaries who had no money at risk in the loans, but for the potential liability for having defrauded the lenders and borrowers.

After centuries of lending money and preparing loan documents it seems that the least likely suspect for screwing up the paperwork on tens of millions of “loans” would be the Banks themselves. Yet that is what occurred. The purpose of this article is to show that it was not sloppy, it was intentional. And I will tell you why it was intentional.

The much expected announcement that after a thorough review they have determined the paperwork is in order is a last-ditch desperate effort to block inquiries into the mortgage creation process and the sale of “mortgage bonds” to investors. They attempted to emulate the government’s PR stunt last year with the “stress test” forgetting that they are private companies in litigation subject to discovery. They have now opened the door to discovery, which is the last thing they wanted. Litigants can now question who was involved in this “review”, what they did, from they received information and assurances, and what documents they looked at. They can ask what was the basis upon which they concluded that they could proceed with foreclosures?

The documents were not sloppy and they were not processed sloppily. They were created and treated exactly as planned. They did it because they thought they could get away with it. They had enough money to buy off any legislator or Judge, or so they thought. But it isn’t working out that way. It’s not the first time these mega-banks have stepped on a land mine and it won’t be the last, as long as we allow them to grow into such behemoths such that that ascribe to themselves the qualities of government or God.

The game was to move money under a scheme of deceit and fraud. First sell the bonds and collect the money into a pool. Second take your fees, third take what’s left and get it committed into “loans” (which were in actuality securities) sold to homeowners under the same false pretenses as the bonds were sold to investors. By controlling the flow of funds and documentation, the middlemen were able to sell, pledge and otherwise trade off the flow of receivables several times over — a necessary complexity not only for the profit it generated, but to make it far more difficult for anyone to track the footprints in the sand.

If the loans had actually been securitized, the issue would not arise. They were not securitized. This was a mass illusion or hallucination induced by Wall Street spiking the punch bowl. The gap (second tier yield spread premium) created between the amount of money funded by investors and the amount of money actually deployed into “loans” was so large that it could not be justified as fees. It was profit on sale from the aggregator to the “trust” (special purpose vehicle). It was undisclosed, deceitful and fraudulent.

Thus the “credit enhancement” scenario with tranches, credit default swaps and insurance had to be created so that it appeared that the gap was covered. But that could only work if the parties to those contracts claimed to have the loans. And since multiple parties were making the same claim in these side contracts and guarantees, counter-party agreements etc. the actual documents could not be allowed to appear nor even be created unless and until it was the end of the road in an evidential hearing in court. They used when necessary “copies” that were in fact fabricated (counterfeited) as needed to suit the occasion. You end up with lawyers arriving in court with the “original” note signed in blue (for the desired effect on the Judge) when it was signed in black — but the lawyer didn’t know that. The actual original is either destroyed (see Katherine Porter’s 2007 study) or “lost.” In this case “lost” doesn’t mean really lost. It means that if they really must come up with something they will call an original they will do so.

So the reason why the paperwork is all out of order is that there was no paperwork. There only entries on databases and spreadsheets. The loans were not in actuality assigned to any one particular trust or any one particular bond or any one particular individual or group of investors. They were “allocated” as receivables multiple times to multiple parties usually to an extent in excess of the nominal receivable itself. This is why the servicers keep paying on loans that are being declared in default. The essential component of every loan that was never revealed to either the lenders (investors) nor the borrowers (homeowner/investors) was the addition of co-obligors and terms that neither the investor nor the borrower knew anything about. The “insurance” and other enhancements were actually cover for the intermediaries who had no money at risk in the loans, but for the potential liability for defrauding the lenders and borrowers.

The result, as anyone can plainly see, is that the typical Ponzi outcome — heads I win, tails you lose. With that, Wall Street was allowed to suck trillions out of an economy that could not afford it. That $5 trillion surplus left when Clinton was in office was just too darn tempting for Wall Street. They just had to have it. And they got it. So the paperwork was carefully created and crafted to cover the tracks of theft. Most of the securitization paperwork remains buried such that it takes search services to reach any of them. The documents that were needed to record title and encumbrances was finessed so that they could keep their options open when someone made demand for actual proof. The documents were not messed up and neither was the processing. They were just keeping their options open, so like the salad oil scandal, they could fill the tank that someone wanted to look into.

The Obama administration is making a giant error in relying on the existing finance infrastructure to fix itself. This fraud runs so deep that practically everyone at their kitchen table feels it. The loss should fall on those who created it and the victims should be made whole, not because it is a reward but because that is what we do in a nation laws — take people who were victims of wrong behavior and get as much restitution as can be reasonably accomplished. Quantitative easing is only going to encourage Wall Street, creating yet another pool of cash that they will not be able to resist. Then what?

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Editor’s Comment: Rick explains here how each loan was used multiple times. He’s right, I think, that legally the borrower does not owe anything on the NOTE. But the obligation remains under that scenario under some theory of law or equity, probably unsecured.


by Rick Humphreys

The Foreclosure Mess

“Homeowners can only be foreclosed and evicted from their homes by the person or institution who actually has the loan paper…only the note-holder has legal standing to ask a court to foreclose and evict. Not the mortgage, the note, which is the actual IOU that people sign, promising to pay back the mortgage loan

“Before mortgage-backed securities, most mortgage loans were issued by the local savings & loan. So the note usually didn’t go anywhere: it stayed in the offices of the S&L down the street.

“But once mortgage loan securitization happened, things got sloppy…they got sloppy by the very nature of mortgage-backed securities.

“The whole purpose of MBSs was for different investors to have their different risk appetites satiated with different bonds. Some bond customers wanted super-safe bonds with low returns, some others wanted riskier bonds with correspondingly higher rates of return.

“Therefore, as everyone knows, the loans were ‘bundled’ into REMICs (Real-Estate Mortgage Investment Conduits, a special vehicle designed to hold the loans for tax purposes), and then “sliced & diced”…split up and put into tranches, according to their likelihood of default, their interest rates, and other characteristics.

“This slicing and dicing created ‘senior tranches,’ where the loans would likely be paid in full, if the past history of mortgage loan statistics was to be believed. And it also created ‘junior tranches,’ where the loans might well default, again according to past history and statistics. (A whole range of tranches was created, of course, but for the purposes of this discussion we can ignore all those countless other variations.)

“These various tranches were sold to different investors, according to their risk appetite. That’s why some of the MBS bonds were rated as safe as Treasury bonds, and others were rated by the ratings agencies as risky as junk bonds.

“But here’s the key issue: When an MBS was first created, all the mortgages were pristine…none had defaulted yet, because they were all brand-new loans. Statistically, some would default and some others would be paid back in full…but which ones specifically would default? No one knew, of course. If I toss a coin 1,000 times, statistically, 500 tosses the coin will land heads…but what will the result be of, say, the 723rd toss? No one knows.

“Same with mortgages.

“So in fact, it wasn’t that the riskier loans were in junior tranches and the safer ones were in senior tranches: rather, all the loans were in the REMIC, and if and when a mortgage in a given bundle of mortgages defaulted, the junior tranche holders would take the losses first, and the senior tranche holder last.

“But who were the owners of the junior-tranche bond and the senior-tranche bonds? Two different people. Therefore, the mortgage note was not actually signed over to the bond holder. In fact, it couldn’t be signed over. Because, again, since no one knew which mortgage would default first, it was impossible to assign a specific mortgage to a specific bond.

“Therefore, how to make sure the safe mortgage loan stayed with the safe MBS tranche, and the risky and/or defaulting mortgage went to the riskier tranche?

“Enter stage right the famed MERS…the Mortgage Electronic Registration System.

“MERS was the repository of these digitized mortgage notes that the banks originated from the actual mortgage loans signed by homebuyers. MERS was jointly owned by Fannie Mae and Freddie Mac (yes, those two again …I know, I know: like the chlamydia and the gonorrhea of the financial world…you cure ‘em, but they just keep coming back).

“The purpose of MERS was to help in the securitization process. Basically, MERS directed defaulting mortgages to the appropriate tranches of mortgage bonds. MERS was essentially where the digitized mortgage notes were sliced and diced and rearranged so as to create the mortgage-backed securities. Think of MERS as Dr. Frankenstein’s operating table, where the beast got put together.

“However, legally…and this is the important part…MERS didn’t hold any mortgage notes: the true owner of the mortgage notes should have been the REMICs.

“But the REMICs didn’t own the notes either, because of a fluke of the ratings agencies: the REMICs had to be “bankruptcy remote,” in order to get the precious ratings needed to peddle mortgage-backed Securities to institutional investors.

“So somewhere between the REMICs and MERS, the chain of title was broken.

“Now, what does ‘broken chain of title’ mean? Simple: when a homebuyer signs a mortgage, the key document is the note. As I said before, it’s the actual IOU. In order for the mortgage note to be sold or transferred to someone else (and therefore turned into a mortgage-backed security), this document has to be physically endorsed to the next person. All of these signatures on the note are called the ‘chain of title.’

“You can endorse the note as many times as you please…but you have to have a clear chain of title right on the actual note: I sold the note to Moe, who sold it to Larry, who sold it to Curly, and all our notarized signatures are actually, physically, on the note, one after the other.

“If for whatever reason any of these signatures is skipped, then the chain of title is said to be broken. Therefore, legally, the mortgage note is no longer valid. That is, the person who took out the mortgage loan to pay for the house no longer owes the loan, because he no longer knows whom to pay.

“To repeat: if the chain of title of the note is broken, then the borrower no longer owes any money on the loan.

“Read that last sentence again, please. Don’t worry, I’ll wait.

“You read it again? Good: Now you see the can of worms that’s opening up.

“The broken chain of title might not have been an issue if there hadn’t been an unusual number of foreclosures. Before the housing bubble collapse, the people who defaulted on their mortgages wouldn’t have bothered to check to see that the paperwork was in order.

“But as everyone knows, following the housing collapse of 2007-’10-and-counting, there has been a boatload of foreclosures…and foreclosures on a lot of people who weren’t sloppy bums who skipped out on their mortgage payments, but smart and cautious people who got squeezed by circumstances.

“These people started contesting their foreclosures and evictions, and so started looking into the chain-of-title issue, and that’s when the paperwork became important. So the chain of title became crucial and the botched paperwork became a nontrivial issue.

“Now, the banks had hired ‘foreclosure mills’…law firms that specialized in foreclosures…in order to handle the massive volume of foreclosures and evictions that occurred because of the housing crisis. The foreclosure mills, as one would expect, were the first to spot the broken chain of titles.

“Well, what do you know, it turns out that these foreclosure mills might have faked and falsified documentation, so as to fraudulently repair the chain-of-title issue, thereby ‘proving’ that the banks had judicial standing to foreclose on delinquent mortgages. These foreclosure mills might have even forged the loan note itself…

“Wait, why am I hedging? The foreclosure mills did actually, deliberately, and categorically fake and falsify documents, in order to expedite these foreclosures and evictions. Yves Smith at Naked Capitalism, who has been all over this story, put up a price list for this ‘service’ from a company called DocX…yes, a price list for forged documents. Talk about your one-stop shopping!

“So in other words, a massive fraud was carried out, with the inevitable innocent bystanders getting caught up in the fraud: the guy who got foreclosed and evicted from his home in Florida, even though he didn’t actually have a mortgage, and in fact owned his house free -and clear. The family that was foreclosed and evicted, even though they had a perfect mortgage payment record. Et cetera, depressing et cetera.

“Now, the reason this all came to light is not because too many people were getting screwed by the banks or the government or someone with some power saw what was going on and decided to put a stop to it…that would have been nice, to see a shining knight in armor, riding on a white horse.

“But that’s not how America works nowadays.

“No, alarm bells started going off when the title insurance companies started to refuse to insure the titles.

“In every sale, a title insurance company insures that the title is free -and clear …that the prospective buyer is in fact buying a properly vetted house, with its title issues all in order. Title insurance companies stopped providing their service because…of course…they didn’t want to expose themselves to the risk that the chain of title had been broken, and that the bank had illegally foreclosed on the previous owner.

“That’s when things started getting interesting: that’s when the attorneys general of various states started snooping around and making noises (elections are coming up, after all).

“The fact that Ally Financial (formerly GMAC), JP Morgan Chase, and now Bank of America have suspended foreclosures signals that this is a serious problem…obviously. Banks that size, with that much exposure to foreclosed properties, don’t suspend foreclosures just because they’re good corporate citizens who want to do the right thing, and who have all their paperwork in strict order…they’re halting their foreclosures for a reason.

“The move by the United States Congress last week, to sneak by the Interstate Recognition of Notarizations Act? That was all the banking lobby. They wanted to shove down that law, so that their foreclosure mills’ forged and fraudulent documents would not be scrutinized by out-of-state judges. (The spineless cowards in the Senate carried out their master’s will by a voice vote…so that there would be no registry of who had voted for it, and therefore no accountability.)

“And President Obama’s pocket veto of the measure? He had to veto it…if he’d signed it, there would have been political hell to pay, plus it would have been challenged almost immediately, and likely overturned as unconstitutional in short order. (But he didn’t have the gumption to come right out and veto it…he pocket vetoed it.)

“As soon as the White House announced the pocket veto…the very next day!…Bank of America halted all foreclosures, nationwide.

“Why do you think that happened? Because the banks are in trouble…again. Over the same thing as last time…the damned mortgage-backed securities!

“The reason the banks are in the tank again is, if they’ve been foreclosing on people they didn’t have the legal right to foreclose on, then those people have the right to get their houses back. And the people who bought those foreclosed houses from the bank might not actually own the houses they paid for.

“And it won’t matter if a particular case…or even most cases…were on the up -and up: It won’t matter if most of the foreclosures and evictions were truly due to the homeowner failing to pay his mortgage. The fraud committed by the foreclosure mills casts enough doubt that, now, all foreclosures come into question. Not only that, all mortgages come into question.

“People still haven’t figured out what all this means. But I’ll tell you: if enough mortgage-paying homeowners realize that they may be able to get out of their mortgage loans and keep their houses, scott-free? That’s basically a license to halt payments right now, thank you. That’s basically a license to tell the banks to take a hike.

“What are the banks going to do…try to foreclose and then evict you? Show me the paper, Mr. Banker, will be all you need to say.

“This is a major, major crisis. The Lehman bankruptcy could be a spring rain compared to this hurricane. And if this isn’t handled right…and handled right quick, in the next couple of weeks at the outside…this crisis could also spell the end of the mortgage business altogether. Of banking altogether. Hell, of civil society. What do you think happens in a country when the citizens realize they don’t need to pay their debts?”

Neil Garfield

“The worst outcome would be a conclusion that errors by financial institutions had decoupled the payment promises made by borrowers from the mortgages they signed. In that case, the mortgages would be invalid. Homes could be sold without paying off lenders. There also could be heavy tax consequences for lenders, both in terms of federal income taxes and in payment of back fees for mortgage registrations to local governments across the country.”

United States District Court Judge Garr M. King said that under Oregon law, the borrower was likely to prevail on the argument that the use of MERS had invalidated the mortgage.”

“Mr. Peterson argues that local governments might prevail if they sue, claiming that the basic operating structure of MERS involved the filing of false documents. In that case, they might be entitled to collect several mortgage recording fees per mortgage — money that presumably would also come out of the securitization trust.”

EDITOR’S NOTE: For the first time, the FACT that there is an issue — a legal issue as to whether the loans are secured — is now in the mainstream media. It is my opinion and the opinions of dozens of other lawyers and Judges, as well as title examiners whose only work is thinking about these things, that the end result in Court will be that the obligations are “decoupled” (split in legal circles) from the notes that did NOT set forth the terms and parties of the transaction and that the obligation and note have been decoupled from the mortgage or deed of trust. In fact, it is my opinion that this was true the moment that the transaction closed. When it was recorded in the county records, a cloud on title was immediately created because the named beneficiary of the security instrument was not owed any money.

October 18, 2010

Some Sand in the Gears of Securitizing


Was the great securitization machine that made hundreds of billions of dollars in mortgage loans based on a legal foundation of sand?

That possibility, raised by two law school professors, has begun to scare many jittery investors, causing bank stocks to plummet, although they recovered a little Monday.

If they are correct, the best outcome for lenders would be a prolonged delay in completing foreclosures, raising costs still further and paralyzing an already depressed housing market.

The worst outcome would be a conclusion that errors by financial institutions had decoupled the payment promises made by borrowers from the mortgages they signed. In that case, the mortgages would be invalid. Homes could be sold without paying off lenders. There also could be heavy tax consequences for lenders, both in terms of federal income taxes and in payment of back fees for mortgage registrations to local governments across the country.

The arguments involve MERS, the Mortgage Electronic Registration Systems, which was created to smooth the securitization process and, in the process, to allow lenders to avoid paying registration fees to counties each time the mortgage changed hands.

Several state supreme courts have chipped away at MERS. But none has gone nearly as far as the professors, Christopher L. Peterson of the University of Utah and Adam Levitin of Georgetown, say is possible.

Nonetheless, some investors are growing worried. Bank stocks fell sharply last week, even while most shares were rising. JPMorgan Chase, which is a part owner of MERS, said it had not used the service since 2008. At least one title insurance company has gotten a bank to agree to indemnify it if the securitization process causes problems for titles. Without title insurance, the real estate market would grind to a halt.

And earlier this month a federal judge in Oregon issued an injunction blocking Bank of America from foreclosing on a borrower’s home. United States District Court Judge Garr M. King said that under Oregon law, the borrower was likely to prevail on the argument that the use of MERS had invalidated the mortgage.

Last week the American Securitization Forum, a trade group representing companies involved in the securitization industry, said it believed the securitization process was legal, and that its lawyers were preparing a refutation of arguments to the contrary.

There is no question that MERS has been a success in terms of gaining market share. About 60 percent of mortgages in this country show up in local records as being owned by the service. In fact, none are owned by MERS. It was created to act as an agent for others, whether banks or securitization trusts, which own the actual mortgages.

Mr. Peterson, in a paper with the dry title of “Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory,” argues that MERS cannot have it both ways, and that it faces problems if it is deemed to be only one of them.

If it is an agent, he wrote, “it is extremely unclear that it has the right to list itself as a mortgagee,” as it does. State real estate laws, he said, “do not have provisions authorizing financial institutions to use the name of a shell company,” in large part because “the point of these statutes is to provide a transparent, reliable record of actual — as opposed to nominal — land ownership.”

If it is a mortgagee, Mr. Peterson added, it has the right to record mortgages in its own name, as it did. But since it does not own the actual loan, doing that could be seen as violating a long line of precedents that bar separating a mortgage from the underlying note in which the borrower promises to pay. He quotes from an 1879 Supreme Court decision holding that “the assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”

If an assignment of the mortgage alone is a nullity, then the mortgage can no longer be enforced. The borrower would still owe the money, but no foreclosure would be possible and the borrower could sell the home without paying off the mortgage. The lender could sue the borrower, but collecting money from distressed former homeowners might be very difficult in many cases.

It was such an argument that persuaded the judge in Oregon to block a foreclosure being pushed by Bank of America on behalf of a subprime mortgage securitization put together by Goldman Sachs in 2006. That securitization, known as GSAMP Trust 2006-HE5, is a troubled one in which investors have already suffered substantial losses. The senior security of the trust, which was rated AAA at issuance, has not suffered losses so far. But Moody’s now rates it at Caa1, a very low junk bond category.

The problems with MERS began to come to light when “vice presidents” of the firm began to submit affidavits in foreclosures, saying the original note had been lost. In some cases those notes were signed by people who signed thousands of such affidavits, and have now admitted they did not actually review the files, as the affidavits said they had.

Nor were those people really employees of MERS. It turns out that MERS allows financial institutions that are its members to name anyone a vice president or assistant secretary of MERS. It seems a little unlikely that someone who had never been hired or paid by a company could be a vice president.

“Ironically, MERS Inc. — a company that pretends to own 60 percent of the nation’s residential mortgages — does not have any of its own employees but still purports to have ‘thousands’ of assistant secretaries and vice presidents,” Mr. Peterson wrote. “This corporate structure leads to inconsistent positions, conflicts of interest and confusion.”

In a case in Arkansas, the owner of a second mortgage foreclosed on a home without notifying MERS, which was listed as owning the first mortgage. When MERS sued to overturn the foreclosure, the state supreme court ruled that MERS had no case. It had lost nothing, the court concluded, because it was not the actual beneficiary of the first mortgage.

The MERS Web site asserts that “MERS has been designed to operate within the existing legal framework of all 50 states,” adding, “Any loan registered on the MERS System is inoculated against future assignments because MERS remains the nominal mortgagee no matter how many times servicing is traded.” The company uses the slogan, “Process Loans, Not Paperwork.”

A spokeswoman for MERS, Karmela Lejarde, said Monday that Mr. Peterson was wrong about several things. “Every single court challenge to the standing of MERS in the foreclosure process has been upheld, either in the initial court proceeding or upon appeal, when proper evidence is presented before the court,” she said in an e-mail.

Asked about the Arkansas Supreme Court decision, she said “that particular case was not about foreclosures,” although it did involve an effort by MERS to overturn a foreclosure. She added that the decision was “in direct contravention to longstanding Arkansas law.”

It is possible that the courts in most if not all states will conclude that the details of how MERS functioned, even if not completely in accord with state law, should not prevent foreclosures.

But even if that happens, Mr. Levitin, the Georgetown professor, argues that there might be tax consequences that would further harm investors in mortgage securitizations. That is because the securitizations operate under a special provision of tax law that exempts them from taxation. But that status is predicated on the transfer of mortgages to the securitization when it was created. If that is not the case, that could cause a major tax problem.

In addition, Mr. Peterson argues that local governments might prevail if they sue, claiming that the basic operating structure of MERS involved the filing of false documents. In that case, they might be entitled to collect several mortgage recording fees per mortgage — money that presumably would also come out of the securitization trust.

All of these problems might have been avoided had Wall Street sought legislation in the states to assure that such issues would not be raised. It is not clear why that did not happen. Perhaps the lawyers saw no problem, or perhaps they feared that efforts to change the law would be blocked by county officials wanting to preserve a source of revenue from recording mortgage transactions. In any case, no laws were amended.

Now, Mr. Peterson wrote, the courts may be confronted with a difficult conundrum. “Had the parties to these transactions followed the simple policy of specifying in the documents who owns what, a vast amount of confusing litigation and commercial uncertainty could have been avoided. These anchorless liens now flail in the wind of our commercial tempest,” he wrote.

“Courts that come to understand this situation will be in a bitter predicament,” he wrote. A ruling against the securitizations would “throw the mortgage market into further turmoil.”

But ruling the other way, against the complaining borrowers, would have its own perils, he argued, in part because MERS has made it difficult and in some cases impossible to learn from public records just who owns a mortgage, despite a long tradition that such information must be publicly recorded.

“If the courts write opinions allowing MERS to act as a ubiquitous national proxy mortgagee, they will write into the American common law fundamental legal mischief that will plague generations to come,” he wrote.

If some courts do rule against MERS, the legal battle could be a long one. Real estate law is largely a matter of state law, leaving the 50 state supreme courts as the final arbiters.


Sacramento’s Band-Aid

The state of California has been asleep at the wheel when it comes to dealing with the economic crisis.  It’s understandable since the federal government is snoring in its soup, but Sacramento made a tiny step for mankind this month with SB 931.

SB 931 provides that in a short sale situation, first mortgages cannot later pursue the homeowner for a deficiency.  Wait a minute you ask, isn’t that the whole idea behind a short sale?  Yes, you are correct, but banks have been known to include language in the short sale documents that allows them to resurrect the debt at a later date.  SB 931 lets sleeping short sales lie.

It’s truly a tiny step since the bulk of the issues we see at Doan Law Firm are second mortgages, but it will give great relief and comfort to some former homeowners.

by Matt Weidner on IRS Form 938

Sometimes this all becomes a bit too overwhelming, trying to unravel this whole foreclosure cataclysm.  This is so far beyond the simple situation where a borrower borrows money from a bank and doesn’t pay….that bank is clearly entitled to their money back.

I’m a fairly bright guy with a good education and a fair to ‘middlin grasp on complex legal issues….I just boil down way complex stuff to smaller parts and learn those complex issues piece by piece.  The problem we face in foreclosures today is no-one has any idea who’s really owed money on these mortgages, who is entitled to collect payments on the mortgages, what government money was used to bail out mortgages.

Sophisticated attorneys with years of complex litigation and legal experience are perplexed by the inability of Plaintiffs to answer the most basic questions about litigation.

Experienced circuit court judges with decades of trial court, evidentiary and complex litigation experience have started to ask real questions about the millions of dollars in foreclosure judgments they’re signing every day in their courtrooms to entities that they cannot identify.

Federal judges with hundreds of years of experience are really starting to dig into documents filed and representations made by the parties that appear before them….there are real questions being raised in bankruptcy courts and even bigger questions about fraud and collusion and federal crimes at the highest levels of American businesses.

Thrown into all these questions are some thought provoking comments and research from a subscriber to this blog, like I said, it’s a bit beyond me now, but consider his words….

The best way to prove this mess all got dissolved is to go to the website and look for the publication # 938 for 2006 through the present.   This is where you will see that the gain on sale reporting etc all stopped as the securitization machine was turned off temporarily in late 2007.

The trusts were all named and reporting until the end of 07 then 08 is missing??????.
They restart the reporting in 09 but it is down to only Ginnie/Freddie/Fannie/JPM/Citi and random trusts that have been created. The government absolutely knows what happened yet seems to help cover this up thinking we are too dumb to catch it.

2009 reported in 2010 

2008? is missing and reverts to the 2009 file?? Don’t believe me. try it.–2009.pdf

2007 reported in 2008–2007.pdf

They seriously think we are that stupid. What are they hiding from us? Maybe that the banks have committed billions upon billions in tax evasion.  Follow what is happening in non-judicial states and you will see the arrogance. They actually show us the blank note endorsement from the original lender yet no recording of the interest through the depositor to the trust. Lack of standing?

Then when they are finished stealing the house they sell the loan from the unlawful foreclosing party(trust) that had no standing to F/C back to the trust through a POA to the servicer and effectively cover their tracks that the loan was never in the trust, they still stole the investors money, and they still claimed the tax exemptions under REMIC.

All while the Govt and IRS watch.

Look at the WAMU BK. They were found to have a 10.3 Billion dollar tax claim filed against them that was reduced to 33M yet Chase got to walk away with a 300 Billion dollar bank 200M in mortgages for 1.9Billion. The loans were shown to have been written down to $0 yet they still want to collect?

Along with the Pub 938 you can review Pub 550 that explains the tax exemptions etc for the REMIC trusts.

No assignments were done as required, no “true and absolute sales under FASB 140 were ever perfected, No standing has ever been established for most or all of the securitization trusts.

This is the biggest RICO case on earth.

Oh, and maybe we should review who funded LPS…..JPM/BOA/Wachovia when they split off of FIS in 2008.