Matt Weidner – Fighting With The American People

Archive for May, 2010

MERS is a dark and shadowy corporate figure playing out behind the scenes in millions of foreclosures across the country.  For an entity that has played and continues to play such a critical role in the devastation of so many American’s lives, very little is known about the company, how it operates and their internal corporate structure.

Take the time to read this deposition and, while you won’t know all you need to know, quite a bit of the corporate structure and organization will be laid out, along with some very important fault lines exposed. For attorneys and advocates out there trying to figure out if you need a MERS deposition, this depo will show you why you do.

When they object, this deposition excerpted for your judge will help the judge to understand why testimony of a MERS agent, along with the purported “vice president” or whomever executes documents purportedly upon the lender’s behalf, is critical to establish whether proper authority ever existed for the purported MERS Assignment of Mortgage.

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In many foreclosure cases, it’s usually clear that the homeowner did not pay the mortgage.  Sometimes there are reasonable explanations for this such as the borrower’s inability to identify who to pay the mortgage to. (Remember that as of May 2009, the lender is required to provide to borrower an Assignment of Mortgage under the Federal Truth in Lending Act…The lender’s failure to do so could give rise to a real defense to foreclosure, an issue we’re currently researching, but that’s a whole ‘nuther blog.)

Who Has a Right To Foreclosure on a Mortgage?

If you borrowed from Downtown Bank and didn’t pay, it would be clear they have a right to foreclose.  In the current Alice in Wonderland, Acid Trip environment of frakenstein lenders and shadowy ill-defined foreclosing plaintiffs, it’s very difficult just who is foreclosing and even more difficult to figure out who is entitled to be paid.

A typical foreclosing Plaintiff name may be (1)US Bank, as (2)trustee for (3)The IXIS 2006-E Mortgage Trust, (4)Certificateholders.  I’ve placed those numbers in parenthesis because there are at least four different parties listed in that name.  Now just who among them is entitled to foreclose and even after you answer that question which among them will receive the actual proceeds of a foreclosure sale? The fact of the matter is no-one has any idea.  By and large judges don’t care and quite frankly even the most sophisticated foreclosure defense attorneys are beginning to ask these questions.  The questions are even more important when the foreclosing Plaintiffs are a servicer like Aurora Loan Servicing or Litton Loan Servicing.  Is anyone policing these companies to see if the investors in the pools are actually receiving any of the proceeds of foreclosures or modifications?  The first step in answering any of these important questions is to force plaintiffs to plead the capacity of each party, then in discovery force them to conclusively establish the relationship among all parties.  Capacity is a winner of an issue even at the Motion to Dismiss stage and even in front of the most hostile judge…this is especially the case in complicated securitized mortgage cases.

What if The Loans Really Are Paid?

Beyond those issues, please consider some very thought provoking questions presented by a very astute reader of this blog.  It’s very complex stuff, but it all boils down to do we have any faith that the well-connected powers that put all this in play have not crafted themselves an “out” strategy that still has them winning?  If you can’t answer that question do you wonder why the lenders won’t accept reasonable short sales?  Do you wonder why there are virtually no mortgage modifications being completed?  Read on and consider:

The tranche structure of the entire pool has numerous “credit enhancements” which layer the risk from bottom to top. Once a lower level dies out the certificates then become dead and uncollectable.

If each of the lower level tranches die out and losses on those investments are claimed by the individuals would that loss claim with the IRS essentially wipe out percentages of the obligation as well?

If not why not?

These were tax exemption vehicles that were propped up through lies and negligence for the sake of the bankers.

When they fell apart the IRS let the bankers slide. What about the rest of America?

Would it be possible to file an FOIA with the IRS as to what losses have been claimed on the pools to verify if the debt has been wiped out?

My pool has taken about an 800M loss of the 2.3B total invested so would I not automatically be entitled to a 25% reduction in principle for the losses claimed?

How about the third party payments such as CDS contracts? That would continue the income stream as long as the ratings are below AAA for the Certificates while the servicer steals the house and the money from the REO liquidation.

I have read that under IRC 860 that since the pool is static and can only accept exact replacement mortgages, that the REO money is actually to be invested by the servicer or master servicer since to pay the entire balance down would void the REMIC status.

Would that mean that all of the loans that had servicing rights transferred to say JPM(I think they received servicing rights of about 468B in WAMU loans on top of the free 191B in owned loans) give JPM the right to the REO and proceeds while the tax payer backed Default Swaps keep the income stream going to the top level tranches.

Now maybe we can start to see why JPM and others have helped create LPS to keep the ugly theft machine rolling.

Oh and it helps when the FDIC gives you a 1.5-2B litigation slush fund to keep LPS churning out the fraud.

I wonder how much of that goes to the judicial campaign contributions?

I wouldn’t mind if I got a 1.5B dollar slush fund to fight back with. How ’bout you Matt? Think we could use that for a good legal team?

Maybe Obama would give us some TARP money that we could use to take care of his electorate?

With chilling, Orwellian-like processes, foreclosures, bankruptcies and courtrooms across this country have been overtaken by computers that direct the time and progress of foreclosure and bankruptcy cases with little human oversight and not much analysis by qualified attorneys.

Read carefully the attached 58 page Order from federal bankruptcy judge Diane Sigmund Weiss.  In this incredibly detailed and complex Order, she details how clerical workers, computers and secretaries are responsible for foreclosure cases with “real” attorneys taking a back seat to any real substantive work or decision making.

I’ve long complained that foreclosure mills and their attorneys abuse the Summary Judgment process by churning cases through, making assertions that “no material questions of fact remain”, then they create the “evidence” to justify their misrepresentations.

I remain dumbfounded why, in light of depositions, findings of fact and other real evidence of abuses circuit court judges in particular continue to allow such abuses to be practiced right in front of them in their courtrooms.

I remain dumbfound why, in light of depositions, findings for fact and other real evidence judges across this country use their courtrooms as ATM machines churning out hundreds of millions of dollars to Millionaire Foreclosure Mills and their amorphous, unidentified clients and entities when both the law firms and the clients are engaged in systematic unethical conduct.

When did local elected judges become so enamored of  assembly-line, cash register justice that they’ve become willing to overlook gross abuses of explicit rules of evidence, ethics and case law?

Why are we allowing thousands of young attorneys be trained and affirmed that abusing court process and ignoring rules is permissible so we can just move cases along?

Take the time to read this detailed Order and ask, HOW IN GOD’S NAME CAN WE CONTINUE TO ALLOW SUCH ABUSE OF COURT SYSTEMS AND ULTIMATELY ABUSES OF CITIZEN’S RIGHTS at the hands of computers and corporations.

Read the full opinion here. BankruptcyHSBCprocedures

A few excerpts from the Opinion:

The thoughtless mechanical employment of computer·driven models and communications to inexpensively traverse the path to foreclosure offends the integrity ofour American bankruptcy system. It is for those involved in the process to step back and assess how they can fulfill their professional obligations and responsibly reap the benefits of technology. Nothing less should be tolerated.

I believe Doyle may be so enmeshed in the assembly line of managing the
bankruptcy department’s volume mortgage lender practice that she has lost sight of her duty
to the court and has compromised her ethical obligations.

He asserted that he had no recourse to the client when
one was not forthcoming, specifically that he had no ability to discuss my directive about
document production with either representatives of HSBC or the attorneys at Moss who
had filed the claim for HSBC.

Assembly line, cash register justice so big corporations and millionaire law firms can make bajillion dollars in ill-gotten gains.

Another day, another sickening example of court process just thrown in the garbage and “evidence” used to support foreclosure that isn’t evidence at all.  Attached here is yet another example of a deposition taken from the Foreclosure Defense Superstars at Ice Legal in West Palm Beach.  I want every practitioner and consumer in the state to read this deposition and see what we mean when defense attorneys (and increasingly judges) recognize that foreclosures are granted every single day across this state with not one piece of admissible evidence.

Add this deposition to all the other extraordinary examples of awesome legal work provided to the community by Ice Legal. If there is any law firm in the state that has taken any other depositions or provided anything close to the exceptional work of Ice Legal, please stand up….otherwise, Ice Legal gets my vote as

BEST FORECLOSURE DEFENSE FIRM IN THE STATE

But enough about them, let’s get to the real star of this show, Ms. Beth Cottrell.  If you’ve seen any foreclosures in this state, chances are you’ve seen her name.  You see, Ms. Cottrell is one of the most prolific robo signers in the country and certainly in this state. Her department, by her own testimony, is responsible for signing upwards of 18,000 documents a month.

That’s 18,000 documents that form the sole basis upon which a neighbor’s home is taken away from them and by which judges transfer millions, perhaps hundreds of millions of dollars to entities based on Ms. Cottrell’s signature….now that’s a pretty powerful pen huh?  Problem is, as you will read in the affidavits, Ms. Cottrell has no basis to provide such testimony.

So for all the judges out there that continue to sign summary judgments based on such flawed affidavits…how can you do so in good conscience?

Attorneys for Plaintiffs and The Florida Bar…what are the ethical consequences for false or misleading evidence?

The Florida Bar…what are the ethical consequences for institutionalized presentation of false and misleading evidence?

The depos are here:

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Some lowlights from the deposition:

Q.         And I’ll ask you about the first page of  the affidavit.  It states that upon oath you depose on personal knowledge.  Did you have personal knowledge of everything that you testified to in this affidavit?

A.         My personal knowledge is based on what they have put in here, what the staff put in here.

Q.         Well, just I’ll ask you in regards to the entire affidavit.  This was an introductory paragraph I believe referring to the entire affidavit.  It stated you deposed on personal knowledge.  As to everything in the affidavit, did you have personal knowledge?

Q . And did you do anything to verify that there was no genuine issue as to any material fact in this case?

A.         No.

Q.         Did you look at anything to enable you to say that there was no issue as to material fact?

A.         I’m sorry.  I don’t understand the question.

Q.         Sure.  Outside of this affidavit, did you look at anything to enable you to say that there is no genuine issues of material fact?
A.         No.

Q.         Also in paragraph 1 you stated “That plaintiff is entitled to enforce the note and mortgage.”  Again, did you have personal knowledge of that?

A.  No knowledge.

Q.         Did you do anything to verify that statement?

A.         No.

Homeowners across this country are holding out false hope that they might receive some modification of their mortgage and that the modification will offer a solution to their mortgage or foreclosure nightmare.

The latest numbers published by the Federal Government show that the HAMP Mortgage Modification reflect that less than 300,000 final modifications out of the millions of people who are searching and yearning for assistance across this country.

Printing this report out and sharing it with clients, judges and consumers who believe that modifications are plentiful and will solve the foreclosure crisis is important.

April 2010 Hamp Modifications

This search is the example described in the video.  Two separate foreclosure cases have gone wrong because they foreclosure mills used incorrect legal descriptions.  Unraveling the mess will take years and litigation, but it could be resolved if the foreclosure mills and title companies would recognize the problems and work cooperatively to solve them.  One of the most troubling aspects of this whole mess is the lack of cooperation we advocates get from the attorneys working for the mills. Most of the attorneys are just too overwhelmed to engage in thoughtful or meaningful discussions on any case.

We’ve all got to remember that working together to resolve our client’s conflicts is an obligation and professional responsibility imposed on us by our Oath of Admission to the Florida Bar.

Judges, attorneys, mediators and advocates should all be asking ourselves:

Could the foreclosure crisis have been averted if ethical and responsible attorneys were more involved in the closing and title processes when loans closed?

How can courts who are burdened with this crisis force the parties involved to come up with more pragmatic and real world solutions to the problems? (This means not granting foreclosures on homesteads, but forcing Plaintiff’s attorneys to force their clients to accept real world best-case deals with the existing homeowners.)

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Specific Language in this search that shows yet another problem with the search:

Mortgage to Mortgage Electronic Registration Systems, Inc., as nominee for Amnet Mortgage, Inc., DBA American Mortgage Network ofFlorida, mortgagee(s), recorded under O.R. Book 14877, Page 1301, as assigned to Indymac Federal Bank, FSB, flk/a Indymac Bank, FSB, assignee, by assignment recorded September 21,2009, under O.R. Book 19475, Page 1596, Public Records of Hillsborough County, Florida. (Note: Legal description on Assignment of Mortgage is incorrect)

and yet another example of mixed and confused legal descriptions that cause major title problems

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The point to be made from all this is that the ethical, responsible and concerned legal professionals who are fighting these battles need to convince our judges that we’re trading short term “solutions” for long term, critical problems.  We need to educate judges that summary procedures are a long term danger.  We all must work together to prevent the larger crash that is coming.