Saturday, September 19, 2009

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Tuesday, March 10, 2009

"Live Free or Die"

"If the American people ever allow private banks
to control the issue of their money,
first by inflation and then by deflation,
the banks and corporations that will
grow up around them (around the banks),
will deprive the people of their property
until their children will wake up homeless
on the continent their fathers conquered."

Thomas Jefferson  (1743-1826), US Founding Father, drafted the Declaration of Independence, 3rd US President
in 1802 in a letter to then Secretary of the Treasury, Albert Gallatin

"To Free From Oppression"

"Veritas Vos Liberabit - The truth shall set you free"


"Justitia nemini neganda est" - Justice is to be denied to no one
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  6067.  Oath.  Every person on his admission shall take an oath
  to support the Constitution of the United States and the
  Constitution of the State of California, and faithfully to
  discharge the duties of any attorney at law to the best of his
  knowledge and ability.  A certificate of the oath shall be
  indorsed upon his license.  (Added by Stats. 1939, c 34. p. 354, Sec. 1.)


BREAKING NEWS!!!!!!    February 18, 2010

Presently, “cramdown/lien stripping” has been limited to Chapter 13 cases; however the analysis of this recent NY bankruptcy opinion may, if accepted in our California and other Bankruptcy Districts, provide the legal basis  to “strip off” wholly unsecured junior liens, such as HELOCS in Chapter 7 and Chapter 11 cases.

This would have profound significance in the development of new and more powerful weapons in the War Against Foreclosures.

From Gretchen Mortensen of the NY Times - again !!

If Lenders Say ‘The Dog Ate Your Mortgage’

FOR decades, when troubled homeowners and banks battled over delinquent mortgages, it wasn’t a contest. Homes went into foreclosure, and lenders took control of the property.
On top of that, courts rubber-stamped the array of foreclosure charges that lenders heaped onto borrowers and took banks at their word when the lenders said they owned the mortgage notes underlying troubled properties. (Editor’s Note: INFORMATION VS. EVIDENCE: THE REPRESENTATION IS USUALLY A FINESSE ACCOMPLISHED BY A LAWYER REPRESENTING THE BANK MAKING THE REPRESENTATION OF OWNERSHIP. The representation is not only false, it isn’t evidence unless the lawyer is a competent witness — i.e., one who has personal knowledge through personal perception of the facts being asserted, and swears to it under oath, subjecting himself or herself to cross-examination)

In other words, with lenders in the driver’s seat, borrowers were run over, more often than not. Of course, errant borrowers hardly deserve sympathy from bankers or anyone else, and banks are well within their rights to try to protect their financial interests.
But if our current financial crisis has taught us anything, it is that many borrowers entered into mortgage agreements without a clear understanding of the debt they were incurring. And banks often lacked a clear understanding of whether all those borrowers could really repay their loans.

Even so, banks and borrowers still do battle over foreclosures on an unlevel playing field that exists in far too many courtrooms. But some judges are starting to scrutinize the rules-don’t-matter methods used by lenders and their lawyers in the recent foreclosure wave. On occasion, lenders are even getting slapped around a bit.
One surprising smackdown occurred on Oct. 9 in federal bankruptcy court in the Southern District of New York. Ruling that a lender, PHH Mortgage, hadn’t proved its claim to a delinquent borrower’s home in White Plains, Judge Robert D. Drain wiped out a $461,263 mortgage debt on the property. That’s right: the mortgage debt disappeared, via a court order.
So the ruling may put a new dynamic in play in the foreclosure mess: If the lender can’t come forward with proof of ownership, and judges don’t look kindly on that, then borrowers may have a stronger hand to play in court and, apparently, may even be able to stay in their homes mortgage-free.

The reason that notes have gone missing is the huge mass of mortgage securitizations that occurred during the housing boom. Securitizations allowed for large pools of bank loans to be bundled and sold to legions of investors, but some of the nuts and bolts of the mortgage game — notes, for example — were never adequately tracked or recorded during the boom. In some cases, that means nobody truly knows who owns what.
To be sure, many legal hurdles mean that the initial outcome of the White Plains case may not be repeated elsewhere. Nevertheless, the ruling — by a federal judge, no less — is bound to bring a smile to anyone who has been subjected to rough treatment by a lender. Methinks a few of those people still exist.

More important, the case is an alert to lenders that dubious proof-of-ownership tactics may no longer be accepted practice. They may even be viewed as a fraud on the court.
The United States Trustee, a division of the Justice Department charged with monitoring the nation’s bankruptcy courts, has also taken an interest in the White Plains case. Its representative has attended hearings in the matter, and it has registered with the court as an interested party.

THE case involves a borrower, who declined to be named, living in a home with her daughter and son-in-law. According to court documents, the borrower bought the house in 2001 with a mortgage from Wells Fargo; four and a half years later she refinanced with Mortgage World Bankers Inc.
She fell behind in her payments, and David B. Shaev, a consumer bankruptcy lawyer in Manhattan, filed a Chapter 13 bankruptcy plan on her behalf in late February in an effort to save her home from foreclosure.

A proof of claim to the debt was filed in March by PHH, a company based in Mount Laurel, N.J. The $461,263 that PHH said was owed included $33,545 in arrears.
Mr. Shaev said that when he filed the case, he had simply hoped to persuade PHH to modify his client’s loan. But after months of what he described as foot-dragging by PHH and its lawyers, he asked for proof of PHH’s standing in the case.

“If you want to take someone’s house away, you’d better make sure you have the right to do it,” Mr. Shaev said in an interview last week.
In answer, Mr. Shaev received a letter stating that PHH was the servicer of the loan but that the holder of the note was U.S. Bank, as trustee of a securitization pool. But U.S. Bank was not a party to the action.

Mr. Shaev then asked for proof that U.S. Bank was indeed the holder of the note. All that was provided, however, was an affidavit from Tracy Johnson, a vice president at PHH Mortgage, saying that PHH was the servicer and U.S. Bank the holder.
Among the filings supplied to support Ms. Johnson’s assertion was a copy of the assignment of the mortgage. But this, too, was signed by Ms. Johnson, only this time she was identified as an assistant vice president of MERS, the Mortgage Electronic Registration System. This bank-owned registry eliminates the need to record changes in property ownership in local land records. (Editor’s Note: Many foreclosure mill law firms are now establishing “one-stop shopping” where the assignments are fabricated, executed by their own employees, who then file affidavits in court. The defense lawyer or bankruptcy lawyer who takes this “information” at face value has forgotten basic rules of evidence. His client is prejudiced by his ignorance)
Another problem was that the document showed the note was assigned on March 26, 2009, well after the bankruptcy had been filed.
Mr. Shaev’s questions about ownership also led to an admission by PHH that, along the way, it had levied an improper $450 foreclosure fee on the borrower and had overcharged interest by an unstated amount.

John DiCaro, a lawyer representing PHH at the hearing, was in the uncomfortable position of having to explain why there was no documentation of an assignment to U.S. Bank. He did not return a phone call seeking comment last week. Ms. Johnson, who couldn’t be reached for comment, did not attend the hearing.
According to a transcript of the Sept. 29 hearing, Mr. DiCaro said: “In the secondary market, there are many cases where assignment of mortgages, assignment of notes, don’t happen at the time they should. It was standard operating procedure for many years.” (Editor’s Note: This is why a COMPLETE forensic review and analysis is required rather than just a TILA AUDIT).
Judge Drain rejected that argument, concluding that what had been presented to the court just did not add up. “I think that I have a more than 50 percent doubt that if the debtor paid this claim, it would be paying the wrong person,” he said. “That’s the problem. And that’s because the claimant has not shown an assignment of a mortgage.”

Mr. Shaev said he was shocked when the judge expunged the mortgage debt.
“We are in uncharted territory,” he said. “Right now I am in bankruptcy court with a house that has no discernible debt on it, yet I have a client with a signed mortgage. We cannot in theory just go out and sell this house because the title company won’t give a clear title on it.”
Among the next steps Mr. Shaev said he would take is to file an amended plan or sue to try to get clear title to the property.

Late last week, PHH appealed the judge’s ruling. But Mr. DiCaro and PHH are in something of a bind. Either they will return to court with a clear claim on the property — including all the transfers and sales that are necessary in the securitization process — or they won’t be able to produce that documentation. If they do produce it, they will then have to explain why they didn’t produce it before.

Oh, what a tangled web these mortgage lenders weave.

September 17, 2009

The Supreme Court of Kansas has issued a landmark decision which, although decided on a narrow legal issue involving a request by MERS and Sovereign Bank to set aside a default and intervene in a foreclosure action, essentially invalidates all MERS assignments based on the Court’s finding that MERS never had any legal interest to assign the note. The full text of the Court’s opinion and additional commentary may be found by contacting

In the case, which is styled Landmark National Bank v. Kesler, Supreme Court of Kansas No. 98,489 (Opinion released August 28, 2009), MERS and Sovereign Bank sought to overturn lower court rulings that a non-lender is not a “contingency necessary party” (also termed an “indispensable party” in other jurisdictions) in a mortgage foreclosure action, and that due process did not require that a non-lender be allowed to intervene in a mortgage foreclosure action. Although not appealed on the specific ground of MERS’ legal authority to assign mortgages and notes, the Supreme Court of Kansas went to painstaking detail to discuss this alleged authority in connection with MERS’ claim that it had the right to intervene in and be made a party to the foreclosure action, ultimately finding that MERS had no such authority and thus the lower courts properly denied MERS’ and Sovereign’s requests.

The borrower took out a first and second mortgage with two different lenders, each of which recorded their mortgages. The original lender on the second mortgage, that being Millennia Mortgage Corp. (of Laguna Hills, Orange County, California), allegedly assigned, through MERS, the mortgage and note to Sovereign without either MERS or Sovereign recording the alleged assignment. A foreclosure was instituted by the original lender on the first mortgage which named the borrower and Millennia. Neither MERS nor Sovereign was named in the action as the alleged assignment of the second mortgage from Millennia to Sovereign by MERS was never recorded. MERS and Sovereign thereafter found out about the foreclosure and sought to set aside the default against Millennia (which obviously did not respond to the lawsuit as it had assigned the mortgage to Sovereign, or so it thought) and intervene in the foreclosure action, doing so well after the Sheriff’s sale of the property.

The MERS assignment contained the typical language where MERS was the alleged “nominee” and functioned solely in that capacity for Millennia. The Kansas Supreme Court noted that the attorneys attempted to define what a “nominee” is “in much the same way that the blind men of Indian legend described an elephant-their description depended on what part they were touching at any given time”. Notwithstanding the strained attempts of the attorneys, the Kansas Supreme Court held that “The relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer”, and that the mortgage document consistently limits MERS to acting “solely” as the nominee of the lender (and not with any authority to assign).

The Court further held that “in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable” as “The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. Without this agency relationship, the person holding only the note lacks the power to foreclose in the event of default”. This holding is particularly significant in securitized mortgage loan transactions where the mortgage was assigned to a securitized mortgage loan trust as collateral in connection with the issuance of mortgage-backed securities (also termed “certificates”), and the purported “assignment” of the Note by MERS was ineffective due to a lack of authority, thus severing the note from the mortgage.

The Kansas Court further held, citing legal decisions from other jurisdictions, that because MERS was not the original holder of the promissory note and because the record contained no evidence that the original holder of the note authorized MERS to transfer the note (as MERS’ authority, as set forth in the mortgage document itself, was “solely as nominee”), the language of the assignment purporting to transfer the promissory note was ineffective. The Court held that for there to be a valid assignment, there must be more than just the assignment of the deed alone and that the note must also be assigned, and although MERS purportedly assigned both the note and deed of trust, there was no evidence that established that MERS either held the note or was given the authority to assign the note, resulting in the assignment being ineffective.

The Court went on to note that “The practices of the various MERS members, including both the original lender and the mortgage purchaser, in obscuring from the public the actual ownership of the mortgage (as the MERS assignment from Millennia to Sovereign was not recorded), thereby creating the opportunity for substantial abuses and prejudice to mortgagors, should not be permitted to insulate the mortgage purchaser from the consequences of its actions in accepting a mortgage from an original lender that was already the subject of litigation in which the original lender erroneously represented that it had authority to act as mortgagee”.

We presently have several cases where different foreclosing parties, most notably IndyMac Bank, are engaging in this type of wrongful action: that is, attempting to foreclose representing that they have an interest in the mortgage when they previously “assigned” their interest to one or more third parties, including securitized mortgage loan trusts, through MERS.

We have also previously reported that a Federal Court in Nevada similarly attacked MERS’ purported “authority”, finding that there was no evidence that MERS was the agent of the note’s holder (In Re: Joshua and Stephanie Mitchell, Case No. BK-S-07-16226-LBR [U.S. Bankruptcy Court, District of Nevada, Memorandum Opinion of August 19, 2008]. The Court of Common Pleas of Sumter County, South Carolina also found that MERS’ rights were not as they were represented to be; that MERS had no rights to collect on any debt because it did not extend any credit; none of the borrowers owe MERS any money; that MERS does not own the promissory notes secured by the mortgages; and that MERS does not acquire any loan or extension of credit secured by a lien on real property. Mortgage Electronic Registration Systems, Inc. v. Girdvainis, Sumter County, South Carolina Court of Common Pleas Case No. 2005-CP-43-0278 (Order dated January 19, 2006, citing to the representations of MERS and court findings in Mortgage Electronic Registration Systems, Inc. v. Nebraska Dept. of Banking and Finance, 270 Neb. 529, 704 NW 2d. 784). As such, ALL MERS assignments are suspect at best, and may in fact be fraudulent.

The importance of the findings of the Supreme Court of Kansas cannot be overemphasized. It is generally the law in all states that if the law of one state has not specifically addressed a specific legal issue that the court may look to the law of states which have. The Kansas Court acknowledged that the case was one of “first impression in Kansas”, which is why the Kansas Court looked to legal decisions from California, Idaho, New York, Missouri, and other states for guidance and to support its decision. As we have previously reported, the Ohio Courts have looked to the legal decisions of New York to resolve issues in foreclosure defense, most notably issues of standing to institute a foreclosure.

It is practically certain that this decision will be the subject of review by various courts. MERS has already threatened a “second appeal” (by requesting “reconsideration” by the Supreme Court of Kansas of its decision by the entire panel of Judges in that Court). However, for now, the decision stands, which decision is of monumental importance for borrowers. It thus appears that the tide is finally starting to turn, and that the courts are beginning to recognize the extent of the wrongful practices and fraud perpetrated by “lenders” and MERS upon borrowers, which conduct was engaged in for the sole purpose of greed and profit for the “lenders” and their ilk at the expense of borrowers.

Onward and upward!!!

Jeff Barnes, Esq.


And the Supreme Court of Arkansas now concurs:

A general description and analysis of the Kansas Supreme Court
decision regarding MERS

Read the Rolling Stone Magazine Article.


Bailout? What Bailout:
Following the Boyko decision, in December 2007 attorney Sean Olender suggested in an article in The San Francisco Chronicle that the real reason for the bailout schemes being proposed by then-Treasury Secretary Henry Paulson was not to keep strapped borrowers in their homes so much as to stave off a spate of lawsuits against the banks. Olender wrote:
“The sole goal of the [bailout schemes] is to prevent owners of mortgage-backed securities, many of them foreigners, from suing U.S. banks and forcing them to buy back worthless mortgage securities at face value – right now almost 10 times their market worth. The ticking time bomb in the U.S. banking system is not resetting subprime mortgage rates. The real problem is the contractual ability of investors in mortgage bonds to require banks to buy back the loans at face value if there was fraud in the origination process.

“. . . The catastrophic consequences of bond investors forcing originators to buy back loans at face value are beyond the current media discussion. The loans at issue dwarf the capital available at the largest U.S. banks combined, and investor lawsuits would raise stunning liability sufficient to cause even the largest U.S. banks to fail, resulting in massive taxpayer-funded bailouts of Fannie and Freddie, and even FDIC . . . .

“What would be prudent and logical is for the banks that sold this toxic waste to buy it back and for a lot of people to go to prison. If they knew about the fraud, they should have to buy the bonds back.”

Needless to say, however, the banks did not buy back their toxic waste, and no bank officials went to jail. As Olender predicted, in the fall of 2008, massive taxpayer-funded bailouts of Fannie and Freddie were pushed through by Henry Paulson, whose former firm Goldman Sachs was an active player in creating CDOs when he was at its helm as CEO. Paulson also hastily engineered the $85 billion bailout of insurer American International Group (AIG), a major counterparty to Goldmans' massive holdings of CDOs. The insolvency of AIG was a huge crisis for Goldman, a principal beneficiary of the AIG bailout.

In a December 2007 New York Times article titled “The Long and Short of It at Goldman Sachs,” Ben Stein wrote:

“For decades now, . . . I have been receiving letters [warning] me about the dangers of a secret government running the world . . . . [T]he closest I have recently seen to such a world-running body would have to be a certain large investment bank, whose alums are routinely Treasury secretaries, high advisers to presidents, and occasionally a governor or United States senator.”

The pirates seem to have captured the ship, and until now there has been no one to stop them. But 60 million mortgages with fatal defects in title could give aggrieved homeowners and securities holders the crowbar they need to exert some serious leverage on Congress – serious enough perhaps even to pry the legislature loose from the powerful banking lobbies that now hold it in thrall.
AIG - America's Blackhole">How your government failed you.


USBC Judge Samuel L. Bufford has the correct analysis.

Google where's the note and who is the missing note holder





Qualified Written Request - What it is/is not

Important information about the "QWR"
There are a number of widely circulated assertions regarding the content, scope, and effectiveness of a Qualified Written Request" (QWR). The following will correct a number of these errors and give you the tools you need to articulate an effectual QWR.
What is a QWR?
A "Qualified Written Request" is a tool provided to consumers under RESPA Section 6, added in 1990, for the consumer's protection. Generally speaking, Section 6 affords borrowers a dispute resolution mechanism that gives rise to specific duties on the part of servicers where certain conditions are met. This part of RESPA generally imposes standards and requirements regarding the assignment sale or transfer of mortgage loan servicing (12 USC Section 2605).
RESPA's Section 6 and Section 3500.21(e) of RESPA's implementing regulations (Regulation X) provide that consumer inquiries would constitute QWRs where:
1. They are submitted in writing
2. They include, or allow the servicer to identify, the name and account of the borrower
3. They include a statement of the reason for the borrower's belief that the account is in error or must provide sufficient detail to the servicer about other information the borrower is seeking (12 USC Section 2605(e)(B)(ii)).

If all items are included the servicer must then provide written acknowledgement to the consumer within 20 business days of receipt. This triggers an affirmitive duty to investigate the problem identified by the consumer which must be rectified or explained not later than 60 business days after the receipt of the request.
Under RESPA borrowers can file a private lawsuit for a Section 6 violation and can potentially recover actual and statutory damages (up to $1,000. per violation) plus attorney's fees. Additionally, the law directs servicers not to provide information to a consumer reporting agency during the 60 days following receipt of the QWR concerning overdue payments related to that period or to the QWR (Section 2605(e)(3)).

A QWR must specify the particular errors or omissions in the account, along with an explanation from the borrower of why he/she believes an error exists. Regulation X explicitly recognizes that borrowers may use the QWR process to generally access information about the loan's escrow account (see 24 CFR Section 3500.17(l)(4)). In summary, requests made in a QWR must relate to servicing and escrow matters.
Servicing is defined as "receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in Section 10 of RESPA, and making the payments of principle and/or interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the loan (See 12 USC Section 2605(i)(3)).

What a QWR is *not*:
A QWR can not be a list of unsupported demands for information.
Requests related to origination do not qualify as QWRs.
The QWR process does not require a lender or servicer to stop foreclosure proceedings or other legal action on the loan.
A QWR which requests no information related to servicing is not a valid QWR.
A QWR applies only to mortgages secured by a first lien.
Correspondence about the validity of a loan does not constitute a QWR.

Oh. Gretchen and the NY Times get it. You should too.

But Matt Taibbi and Rolling Stone Magazine get it even more.

The first step - a shot heard around the world:

The RESPA Qualified Written Request.

(I'd say "don't try this at home, folks" because the so-called and now popular "produce the note" mortgage defense is not as simple as nonlawyers would have you believe,nor do very many others if any at all possess my nuclear weapon. But, like homemade bombs, not all of you will take this advice for various reasons. Good luck to you in this case. You will need it.)

UPDATE: Key to Highway

Unless you went to law school, took and understand mortgage law and UCC
you'd better get yourself an A-list attorney. For real.


You have enemies? Good. That means you've stood up for something, sometime in your life. Winston Churchill

(c) copyright 2008 - 2009 New Dawn Law all rights reserved

Thursday, January 15, 2009

A Message of Hope for a New Dawn













Guess What Got Lost in the Loan Pool?

Published: February 28, 2009
WE are all learning, to our deep distress, how the perpetual pursuit of profits drove so many of the bad decisions that financial institutions made during the mortgage mania.

Times Topics: Gretchen Morgenson

But while investors tally the losses that were generated by loose lending so far, the impact of another lax practice is only beginning to be seen. That is the big banks’ minimalist approach to meeting legal requirements — bookkeeping matters, really — when pooling thousands of loans into securitization trusts.

Stated simply, the notes that underlie mortgages placed in securitization trusts must be assigned to those trusts soon after the firms create them. And any transfers of these notes must also be recorded.

But this seems not to have been a priority with many big banks. The result is that bankruptcy judges are finding that institutions claiming to hold the notes that back specific mortgages often cannot prove it.

On Feb. 11, a circuit court judge in Miami-Dade County in Florida set aside a judgment against Ana L. Fernandez, a borrower whose home had been foreclosed and repurchased on Jan. 21 by Chevy Chase Bank, the institution claiming to hold the note. But the bank had been unable to produce evidence that the original lender had assigned the note, which was in the amount of $225,000, to Chevy Chase.

With the sale set aside, Ms. Fernandez remains in the home. “We believe this loan was never assigned,” said Ray Garcia, the lawyer in Miami who represented the borrower. Now, he said, it is up to whoever can produce the underlying note to litigate the case. The statute of limitations on such a matter runs for five years, he said.

A spokeswoman for Capital One, which is in the process of acquiring Chevy Chase, did not return a phone call on Friday seeking comment.

Mr. Garcia has another case in which a borrower tried to sell his home but could not because the note underlying a $60,000 second mortgage cannot be found. The statute of limitations on the matter will expire in October, he said, and if the note holder has not come forward by then, the borrower will be free of his obligation on the second mortgage.

No one knows how many loans went into securitization trusts with defective documentation. But as messes go, this one has, ahem, potential. According to Inside Mortgage Finance, some eight million nonprime mortgages were put into securities pools in 2005 and 2006 and sold to investors. The value of these loans was $797 billion in 2005 and $815 billion in 2006.

If notes underlying even some of these mortgages were improperly assigned or lost, that will surely complicate pending legislation intended to allow bankruptcy judges to modify mortgage terms for troubled borrowers. A so-called cram-down provision in the law would let judges reduce the size of a loan, forcing whoever holds the security interest in it to take a loss.

But if the holder of the note is in doubt, how can these loans be modified?

Bookkeeping is such a bore, especially when there are billions to be made shoveling loans into trusts like coal into the Titanic’s boilers. You can imagine the thought process: Assigning notes takes time and costs money, why bother? Who’s going to ask for proof of ownership of these notes anyhow?

But as the Fernandez case and others indicate, bankruptcy judges across the country are increasingly asking these pesky questions. Two judges in California — one in state court, another in federal court — issued temporary restraining orders last month stopping foreclosures because proper documentation was not produced by lenders or their representatives. And in another California case, a borrower’s lawyer was awarded $8,800 in attorney’s fees relating to costs spent litigating against a lender that could not prove it had the right to foreclose.

California cases are especially interesting because foreclosures in that state can be conducted without the oversight of a judge. Borrowers who do not have a lawyer representing them can be turned out of their homes in four months.

Samuel L. Bufford, a federal bankruptcy judge in Los Angeles since 1985, has overseen some 100,000 bankruptcy cases. He said that in previous years, he rarely asked for documentation in a foreclosure case but that problems encountered in mortgage securitizations have made him become more demanding.

In a recent case, Judge Bufford said, he asked a lender to produce the original of the note and it turned out to be different from the copy that had been previously submitted to the court. The original had been assigned to a bank that had then transferred it to Freddie Mac, the judge explained. “They had no clue what happened after that,” he said. “Now somebody’s got to go find that note.”

“My guess is it’s because in the secondary mortgage market they have been sloppy,” Judge Bufford added. “The people who put the deals together get paid for the deals, but they don’t get paid for the paperwork.”

A small but spirited group of consumer lawyers has argued for years that the process of pooling residential mortgages into securities was so haphazard that proper documentation of the loans was never made in many cases. Leading the brigade is April Charney, a foreclosure lawyer at Jacksonville Legal Aid in Florida; she now trains consumer lawyers around the country to litigate these cases.

Depending on the documentation defect, lawyers say, investors in the trust could try to force the institution that sold the loan to the trust to buy it back. Many of these institutions would be unable to do so, however, because they are defunct. In the meantime, when judges are not persuaded that the documentation is proper, troubled borrowers can remain in their homes even if they are delinquent.

THE woes brought on by sloppy bookkeeping in securitizations will be on the agenda at the American Bankruptcy Institute’s annual spring meeting on April 3. An article titled “Where’s the Note, Who’s the Holder,” co-written by Judge Bufford and R. Glen Ayers, a former federal bankruptcy judge in Texas, will be the basis of a discussion at the meeting.

Mr. Ayers, who is a lawyer at Langley & Banack in San Antonio, said he expects that these documentation problems will halt a lot of foreclosures. That will mean pain for investors who hold the securities. The problem for those who expect to receive the benefit of the note, Mr. Ayers said, is that they “may not be able to show to the judge they have a right to foreclose.”

“It’s a huge problem,” he added. “It’s going to be expensive, I don’t know how expensive, ultimately to the bondholders.”

Next Article in Business (30 of 31) »A version of this article appeared in print on March 1, 2009, on page BU1 of the New York edition.


Normally blogs start with the end, chronologically, but in order to fully appreciate the content of mine, start with the beginning - after you read these articles, if they are of interest to you.

Start from the beginning of this blog. Please.

Can Bankruptcy Help Save Your Home From Foreclosure

By Susanne Robicsek, North Carolina Bankruptcy Attorney on Jan 17, 2009 in Benefits of Bankruptcy, Chapter 13 Bankruptcy, Chapter 7 Bankruptcy, North Carolina

Bankruptcy can help save homes from foreclosure in a few ways. Under the present laws, filing either a Chapter 7 or a Chapter 13 bankruptcy will stop a foreclosure, but you will have to cure the mortgage somehow. Chapter 7 is a temporary stop to the foreclosure, but might give you a short time to sell or refinance the property. Chapter 13 will give you up to five years to catch up the missed payments, or a longer period to sell or refinance. Exactly how this would work must be looked at on a case by case basis, and you should speak to an experienced bankruptcy lawyer in your town to determine what you can do.

Most people who want to save their home will file Chapter 13 bankruptcy to get time to cure the mortgage arrears. They normally have to be in a position to make the ongoing (regular) payments in addition to whatever Chapter 13 plan payment is required.

Right now, If someone has residential mortgage payments that they can’t afford to pay, even Chapter 13 bankruptcy can’t help modify the payments. Lamm v. Investor's Thrift, 211 BR 36 (Bankr. 9th Cir. 1997)* Under current bankruptcy law, you can’t modify a residential mortgage in bankruptcy, except to provide for the cure of the past due payments. That is expected to change soon, since Congress is looking at changing banruptcy law to allow mortgage modification which would allow bankruptcy judges to oversee modification of residential home mortgages. If passed, the law is expected to allow mortgage modification by changing interest rates, payments, times and lowering the balance due under the right conditions.

* Except in California and Western states in the US Ninth Circuit Court of Appeals, junior mortgages that are, because of current market conditions, wholly underwater (unsecured as a practical matter) caselaw empowers bankruptcy courts to "lien strip" those mortgages in a Chapter 13 plan "cramdown".

Can you survive the trauma of a bankruptcy?
2009: Perchance to Dream
New Years is a time when many make resolutions. Some resolve to quit smoking. Some resolve to lose weight. The list of resolutions is endless. Personally, I think many resolutions are pretty useless. I didn’t stop smoking because of a resolution (but I did quit... a few Novembers ago), and I have not exactly kept up with resolution diets. I’ve been racking my brain trying to come up with something appropriate to write about for New Years. The last thing I want to do, especially today, is sound trite. It’s not like you can simply “resolve” to get out of bad mortgage or you can “resolve” to get a better job when companies are laying off. But then yesterday, I had a surprise visit from an old client who helped my thought process move along.

My client went through a long chapter 13. At times, it was not particularly pleasant. But all plan payments were paid and the discharge was received a few years ago. Now, she’s dedicated to her business and determined to keep make it grow in a difficult economy.

During our brief meeting, I noticed something different. Was it the hair color, I thought? No. Did she have her teeth done? No, not that. Then it dawned on me. It was something more.

She was happy. She was smiling. While she was not a particularly unhappy person while the case was open, I think it’s fair to say the chapter 13 was not a particularly happy period in her life. But now, the chapter 13 case is behind her and yesterday she sat before me smiling, happy, and talking about the future.

As an attorney, while I try to get my client’s perspective, I really can only get so much. I can only put myself so far into a client’s shoes. So I asked her, now that her case is behind her, now that she is moving forward with her life in new directions, what were her feelings about the bankruptcy process now that she was “on the other side of it."

She didn’t hesitate with her response. (I can’t quote, but I did take a few notes.) She told me that going through that difficult process allowed her to dream again. That now she could dream and that making those dreams a reality again seemed possible. Her dreams were no longer mired down in a chaos created by debt that had spiraled out of control. She told me that she felt freer than she had felt in a very long time.

The minute these words flowed, I could feel a smile growing on my face....and a bit of a lump in my throat. And then, it dawned on me: ‘this is what I’ve been itching to write about for the New Year.’

Many are looking at 2009 with a sense of foreboding and trepidation. World events are not exactly fueling optimism about the future. Perhaps 2009 will not be a year when dreams will come true. Perhaps things may get worse.

Or perhaps in spite of that, you can find a way to knuckle down, stand straight, bite your lower lip, bide your time, and get through a journey that brings you to the other side of it: a side where you can dream once again. I know it may all sound silly, but I know this place exists. Yesterday, I was fortunate to be reminded that for my clients in or facing bankruptcy, there can be a life afterwards. And that life can be wonderous. The only assurance I can give you is that the big smile on my client’s face proves that anything is possible.

With that, I wish you all a very Happy New Year.

From Bill McLeod's blawg

* in California and parts of the West - the 9th Circuit - caselaw authorizes bankruptcy courts in Chapter 13 cases to "lien strip" junior mortgages that are wholly "underwater.". Lamm v. Investor's Thrift, 211 BR 36 (Bankr. 9th Cir. 1997)

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Sunday, January 11, 2009

Will New Bankruptcy Law Save Your Home?

Senate Bill 61 (Durbin)


Section by Section Summary

Section 1. Short Title. Section 1 sets forth the short title of the bill as the “Helping Families Save Their Homes in Bankruptcy Act of 2009.”

Section 2. Eligibility for Relief. Bankruptcy Code section 109(e) sets forth secured and unsecured debt limits to establish a debtor’s eligibility for relief under chapter 13, currently equal to just over $1 million. Section 2 amends this provision to provide that the computation of debts does not include the secured or unsecured portions of debts secured by the debtor’s principal residence, under certain circumstances. First, the exception applies if the current value of the debtor’s principal residence is less than the secured debt limit. Second, the exception applies if the debtor’s principal residence was sold in foreclosure or the debtor surrendered such residence and the current value of such residence is less than the secured debt limit. Without this provision, many struggling homeowners in high-cost areas such as California would be ineligible for relief.
In addition, section 2 amends Bankruptcy Code section 109(h) to waive the mandatory requirement that a debtor must receive credit counseling prior to filing for bankruptcy relief, under certain circumstances. The waiver applies in a chapter 13 case where the debtor submits to the court a certification that the debtor has received notice that the holder of a claim secured by the debtor’s principal residence may commence a foreclosure proceeding against such residence.

Section 3. Prohibiting Claims Arising from Violations of Consumer Protection Laws. Section 3 amends Bankruptcy Code section 502(b) to disallow a claim that is subject to any remedy for damages or rescission as a result of the claimant’s failure to comply with any applicable requirement under the Truth in Lending Act or other applicable state or federal consumer protection law in effect when the noncompliance took place, notwithstanding the prior entry of a foreclosure judgment.

Section 4. Authority to Modify Certain Mortgages. Section 4 amends Bankruptcy Code section 1322(b) to permit modification of certain mortgages that are secured by the debtor’s principal residence in specified respects. The modification authority applies in a chapter 13 case where the debtor’s principal residence is the subject of a notice that a foreclosure may be commenced. New section 1322(b)(11) allows the court to modify the rights of a mortgagee by: (1) providing for payment of the amount of the allowed secured claim as determined under section 506(a)(1); (2) prohibiting, reducing, or delaying any adjustable interest rates applicable on and after the date the case is filed; (3) extending the repayment period of the mortgage for a period that is no longer than the longer of 40 years (reduced by the period for which the mortgage has been outstanding) or the remaining term of the mortgage beginning on the filing date of the case; and (4) providing for the payment of interest at an annual percentage rate calculated at a fixed annual percentage rate equal to that used for conventional mortgages as published by the Board of Governors of the Federal Reserve System, plus a reasonable premium for risk.

Section 5. Combating Excessive Fees. Section 5 amends Bankruptcy Code section 1322(c) to provide that the debtor, the debtor’s property, and property of the bankruptcy estate are not liable for a fee, cost, or charge incurred while the chapter 13 case is pending and that arises from a debt secured by the debtor’s principal residence, unless the holder of the claim complies with certain requirements. These requirements consist of the following: (1) the holder files with the court an annual notice of such fee, cost, or charge (or on a more frequent basis as the court determines) before the earlier of one year of when such fee, cost, or charge was incurred or 60 days before the case is closed; (2) the fee, cost, or charge is lawful under applicable nonbankruptcy law, reasonable, and provided for in the applicable security agreement; and (3) the value of the debtor’s principal residence is greater the amount of the claim, including such fee, cost or charge. If the holder fails to give the required notice, such failure is deemed to be a waiver of any claim for fees, costs, or charges (as described in this provision) for all purposes. Any attempt to collect such fees, costs, or charges would constitute a violation of the Bankruptcy Code’s discharge injunction under section 524(a)(2) or the automatic stay under section 362(a).
Section 5 further provides that a chapter 13 plan may waive any prepayment penalty on a claim secured by the debtor’s principal residence.

Section 6. Confirmation of Plan. Section 6 amends Bankruptcy Code section 1325(a) to provide certain protections for a creditor whose rights are modified under new section 1322(b)(11). As a condition of confirmation, it requires a plan to provide that such creditor must retain its lien until the later of when the claim (as modified) is paid or the debtor obtains a discharge. In addition, the court must find that the modification is in good faith.

Section 7. Discharge. Bankruptcy Code section 1328 sets forth the requirements for discharge. Section 7 amends section 1328(a) to clarify that a claim modified under section 1322(b)(11) is not discharged to the extent of the unpaid allowed secured portion of the claim.

Section 8. Effective Date; Application of Amendments. Section 8(a) provides that the Act and the amendments made by it, except as provided in subsection (b), take effect on the Act’s date of enactment. Section 8(b) provides that the amendments made by the Act apply to cases commenced under title 11 of the United States Code before, on, or after the Act’s date of enactment.

This appears to be the problem: it seems to be limited to future foreclosures, not present foreclosures, or foreclosures already started and pending:

It excludes the majority of homeowners who struggle with adjustable rate mortgages, predatory lending loans, and unaffordable upside-down-the-property-is-not-worth-as-much-as-the-loan loans. It excludes people who are already in foreclosure or have been in foreclosure and had their case dismissed by a scrupulous judge who demanded to see proper loan documentation or have had default judgments entered against them but have not been removed from the property.

S. 61 only protects those people who have a claim for a loan secured by a security interest in the debtor’s principal residence “that is the subject of a notice that a foreclosure may be commenced”.

“May be commenced” does not cover has been commenced. “The subject of a notice” does not cover those who are not the subject of a notice, those who have not been threatened with foreclosure but have been subjected to every other type of collection harassment, including work out scams, and phony loan modifications that add unnecessary fees, but do little to lower the monthly payment or interest rates.

This bill only serves those people who receive a notice that they might be sued for foreclosure. Arguably, Congress knows that foreclosures are a problem and if Congress wanted to apply this bill to existing foreclosure cases she could have stated so in clear and unambiguous words.


Should I File Bankruptcy Now if the Law is Going to Change?
By Nicholas Ortiz, Boston Bankruptcy Attorney on Jan 31, 2009 in Bankruptcy Protection & Automatic Stay, Chapter 13 Bankruptcy
Congress is debating a change to Chapter 13 of the Bankruptcy Code to allow homeowners with “negative equity” in their homes to reduce the amount owed on their mortgages to the amount of their home’s value. This is the “cram down” legislation, which has failed on many occasions due to the the banking industry’s strong opposition. However, the political and economic environment now gives it a fighting chance. Indeed, even Citigroup has signed on and supports the legislation.

Consequently, someone with negative equity who is facing foreclosure or just overwhelmed by debt might wonder if they should wait and see if the law passes before they file. The answer to this depends on need, of course. If help is needed now, then there may be little choice. The good news, however, is that for most people already in bankruptcy, if the new law passes they will be able to dismiss their pending Chapter 13 case and re-file a new one. There are two primary issues to be aware of when doing this.

1. When dismissing a Chapter 13 case, one must make sure that the 180-day bar to refiling does not go into effect. This bar can arise due to a willful failure to obey court orders, but it usually is implicated after a debtor seeks dismissal after a motion for relief from stay has been filed. If a motion for relief has been filed, often the best way to deal with the problem is simply to wait for the trustee to make a motion to dismiss for failure to make plan payments. If the dismissal enters as result of the trustee’s request, not the debtor’s, there is no 180-day bar to re-filing.

2. The other main issue relates to the imposition and preservation of the automatic stay in the new case. If a new law passes, a debtor will usually have filed only their current case within the last year. If this case is dismissed and re-filed, the stay will only last 30 days in the new case. However, if the debtor’s attorney goes to court within 30 days of filing the new case and ask for a continuation of the automatic stay to show that it was filed “good faith as to the creditors to be stayed” the stay will be continued. The focus of judges at these hearings tends to be simply to decide whether the new case will work. When a case is re-filed to take advantage of a new law, but is otherwise fundamentally sound, this test should be met. The standard gets much tougher when the new case is the third (or fourth, etc) in one year. In these circumstances, dismissing and re-filing is likely a bad idea.

The bottom line is that filing a case now will usually not deprive a debtor from taking advantage of whatever legislative changes may come in the future.


Present Bankruptcy Law Affords You Some Mortgage Relief: Cramdowns and Lienstripping

The Automatic Stay of Bankruptcy ( not so automatic if you had a bankruptcy case dismissed before within one year)

Friday, December 19, 2008

Why It Will Not Get Better Soon - Take A Huge Bite of The Reality Sandwich

Subprimes: just the tip of the credit default iceberg

When the rest of the credit markets melt down too, what a tsunami, it'll be

"The truth? You can't handle the truth!"

Speaking of the truth, how about this truth? The National Debt

The Gross National Debt

Sunday, December 14, 2008

Greed, Madness and Ruination on Wall Street

They will become poster boys in the Rogues Gallery of Wall Street'08

Bernie Madoff and Marc Drier

Madoff's self described 50 billion dollar Ponzi scheme is the Granddaddy of All Ponzis while Drier, though not nearly in the same league of dollar devastation, nevertheless makes legal history by conducting a 380 million dollar swindle through the auspices of a law firm.

And the devastation will be enormous. Think Louis Winthorp III in the first part of "Trading Places" in his Santa Clause outfit, jamming salmon fillet down his tunic from the buffet, and staggering drunk and homeless outside of his former securities firm. Except here, there's no secret orange juice crop report to save the day by insider trading. Or is there?

More likely, non-dischargeability in bankruptcy will be playing in a courthouse in Manhattan.

Bernie's victims Marc's Maelstrom

Come to know, understand and love the Uniform Fraudulent Transfer Act. Those hapless souls who recently managed to obtain some return on their original investments in these schemes will become transported to an alternate universe (or Purgatory, for traditionalists among you) when the bankruptcy trustee or receiver wields UFTA and preference avoidance powers to undo and recover those payments from the victims, now twice looted, as fraudulent conveyances.

The Madoff secret recipe for running a multi-billion dollar securities Ponzi scam

Stay tuned.