Securitized Distrust Part 2

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SECURITIZED DISTRUSTPART TWO

Posted onAugust 2, 2012
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The abuses and dishonesty and multiple breaches of contract within the shadow

banking world of securitized trusts appear to have been endless,

now with new revelations regarding the rigging of Libor rates, as well as constituting a litigation

puzzle for borrowers and for their attorneys seeking to use those abuses and dishonesty to their

advantage. But how?

SECURITIZED DISTRUST PART TWOprovides another outstanding synopsis of the

banking foreclosure fraud and little known hidden secrets used by lenders to defraud theborrowers and the courts.

SECURITIZED DISTRUSTPART TWOBy Gary Victor Dubin

In theMarch 15, 2012 Issueof Deadly Clear, I summarized what

for many were little known aspects and abuses of what has been going on behind the scenes,often unlawfully, in securitized trusts, where individual mortgage loans have been and still arebeing bundled together in the thousands, often undisclosed to borrowers or even to courts

contrary to sworn disclosures in court papers made cavalierly under penalty of perjury to the

contrary, and ownership certificates therein sold by Wall Street to investors like stocks, calledmortgage backed securities.
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Since then, borrowers and their attorneys throughout the Nation have been increasingly trying to

find which securitized trust their mortgage loans may be in, no easy task, and to expose and use

such associated abuses to defend against foreclosures.

Some have found, for instance, that their foreclosing mortgagees never owned their

mortgage loans which were instead found tradingin securitized trusts or even unlawfully were found placed simultaneously in more than one

securitized trust, or that their mortgage loans were paid off by investor certificates and lossesbeing reimbursed by insurance companies with TARP funds.

The problem for borrowers and for their attorneys has been how to use that information andfrequently violations of federal and/or state law either affirmatively or as a defense to

foreclosure.

Unfortunately, few state courts and almost no federal courts have, at least at first, responded

positively to securitization issues, still seemingly content to ask only principally the questionwhether the loan has been paid current or if it is in default, as if it does not matter who actually

owns the mortgage loan.

The reluctance or intellectual inability of the judiciary generally to comprehend the importanceof penetrating the inter-workings and machinations of securitized trusts has been historically

largely understandable, stemming principally from a traditional mindset that views mortgage
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loans as they were in an era of American banking that no longer exists.

Historically, when banks made mortgage loans, the borrowers were handed money upon signing

promissory notes and upon signing mortgages as security instruments, and the banks put thepromissory notes in their vaults and recorded the mortgages, and once fully paid returned the

promissory notes to the borrowers and recorded a release of the mortgages.

However, in the new Millennium for most lenders that procedure changed. Promissory notes and

mortgages rapidly became securitized by Wall Street, and in effect unknown to borrowers,

converted into continuously traded securities.

As a result, the traditional state-based methods of tracking and regulating mortgage ownershipthrough local recording offices and local agency regulators were bypassed, principally throughuse of the lender-created and lender-owned Mortgage Electronic Registration Systems, Inc.,

known commonly as MERS, which lead to the numerous abuses summarized in the original

SECURITIZED DISTRUSTarticle that appeared in Deadly Clear in March of this year.

Largely unregulated, promissory notes (the originals of which contrary to UCC negotiable

instruments laws appear initially reportedly to have mostly been shredded and digitized bysecuritized trusts for their alleged convenience) and related mortgages appear to have frequently

not been placed in their assigned securitized trusts at all, defrauding investors, although said to

have been and to be in securitized trusts, instead frequently used as collateral, for instance, for

Federal Home Loan Bank loans or placed in additional securitized trusts, all akin intentionally toa Ponzi scheme.

It appears that many investors in securitized trusts have been paid back their investments in

whole or in part with insurance dollars, tempting loan servicers to falsely claim in court
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that they own the mortgage loan so that they can

run off with the foreclosed property or the proceeds of a foreclosure sale without ever owning themortgage or paying anything for it.

It also appears that many borrowers seeking with federal promises loan modifications have been

strung along, sometimes for years, never being told that most securitized trusts cannot modifyloans without investor approval, no matter whether, for instance, formally HAMP loan

modification guidelines are met.

The abuses and dishonesty and multiple breaches of contract within the shadow banking world of

securitized trusts appear to have been endless, now with new revelations regarding the rigging of

Libor rates, as well as constituting a litigation puzzle for borrowers and for their attorneysseeking to use those abuses and dishonesty to their advantage. But how?

It is not usually sufficient, as many have with great disappointment learned at first, although itreally should be successful in a perfect legal system, to argue in court, for instance, that

insurance paid off the securitized investors, that your promissory note and mortgage were not in

the trust at the securitized cut-off date, that the mortgage assignment to the securitized trust wasrobo-signed, that you are a third-party beneficiary of the securitized trust, that the REMIC tax

laws were violated, and/or so on. Why not?
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Presently, courtswhose competence is unfortunately only slowly evolving in this area of the

law and only at present in a few parts of the Countryare beginning nevertheless to show some

signs of catching on to the significance of securitized trust issues in foreclosure contexts, butnevertheless seem to only grudgingly grant borrowers relief where borrowers plead and can

successfully outmaneuver the barbed wire of motions to dismiss and motions for summary

judgment, and show actual prejudice as a result. This can usually with perseverance be shown,however, in several possible ways.

First, the simplest way to show prejudice is to challenge the standing of your foreclosingmortgagee if you can show the court that your mortgage loan is instead in a securitized trust and

your foreclosing mortgagee is not the securitized trustee, as having no right to your monthly

payments, and perhaps owing you an accounting and back the money already paid by you unless

it can establish it went to the trust.

Second, another way is to show prejudice if you were denied a loan modification by claiming

that the foreclosing mortgagee had no authority under the securitized trust to decide on a loan

modification, yet strung you along and/or did not reasonably review your loan modificationapplication under applicable federal guidelines in good faith.

Third, another way is to allege that the required conditions precedent of notices of default,

right to cure, and acceleration were not given by the holderof your promissory note and mortgage or its actual representative while your loan was in a

securitized trust.

Fourth, if false pleading allegations and especially if false affidavits/declarations were submitted

to the court as to the ownership of your mortgage loan, you should seek an order to show causewhy your foreclosing mortgagee should not be held in contempt of court (and many States

including Hawaii, New York, and New Jersey now hold the attorneys representing foreclosing

mortgagees also liable and subject to disciplinary proceedings for such false submissions), or file

a separate independent lawsuit for fraud on the court, again stressing how you have been injuredincurring, for instance, attorneys fees and costs.

Fifth,borrowers can also allege and prove prejudice if they paid a mortgage insurance premium,as many borrowers do, as a part of their loan agreement and monthly mortgage payment

obligation, to the extent that it can be argued and in discovery it can be shown either that a

mortgage insurance company made payments to the trust or to investors on their loan if they didnot, or that their foreclosing mortgage damaged them by failing to submit an insurance claim,
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while alleging that they were parties to that mortgage insurance policy, indeed, the payor, if not a

direct third-party beneficiary. This has remained a largely low visibility and almost entirely

ignored area of foreclosure defense.

The above is not to suggest that borrowers and attorneys should not continue to also attack the

securitized trusts head on, for example arguing that the trust laws of Delaware and New York,for instance, render acts of trustees void if property is treated by the trustee

in

violation of the language of the trust instrument which in the case of securitized trusts is usuallycalled its Pooling and Servicing Agreement, and/or that various mortgage assignments in its

shadow banking world occurred while MERS was assigning a mortgage on behalf of an entity inbankruptcy proceedings and without the permission of the bankruptcy court and/or while not

having listed the mortgage as an asset of the bankruptcy estate, amounting to bankruptcy fraud.

Finding whether a loan is in one securitized trust or even unlawfully in more than one securitized

trust is, however, not an easy task.

Only a few law firms including mine and a few forensic advisors nationwide have found a

reliable way to do that tricky research, and even then it appears that securitized trusts are

understandably working around the clock to block such access at the present time.

This new research tool, although proving extremely valuable for an increasing number of

borrowers, will no doubt be met with continued resistance by courts that, although becoming

more and more educated on securitized trust abuses and the shadow banking system thatsecuritized trusts and MERS have created, can be expected to nevertheless be, as usual, slow to
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provide relief as millions of borrowers in the meantime will continue unjustly to be evicted from

their homes.

There are positive indications that finally state legislatures and local municipalities will more

rapidly be coming to the rescue of abused borrowers very shortly, a new and expected

development in the war against abusive securitized trusts to be highlighted in a subsequent articlein Dearly Clear.

Meanwhile, every borrower should immediately attempt to learn if his or her mortgage loan wasor is trading in one or more securitized trusts as the first step in preparing a foreclosure defense

or seeking damages thereafter for wrongful foreclosureeven if already foreclosed on either

judicially or nonjudically, and even if his or her property has already been sold.

DUBIN LAW OFFICES

Suite 3100, Harbor Court55 Merchant Street

Honolulu, Hawaii 96813

Office: (808) 537-2300Facsimile: (808) 523-7733

Email:[email protected]

___________________________________________________________________
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Research is expensivehowever, it is the key in many cases as it uncovers layers of

fraud committed by the servicers, the lenders, thetrustees and a host of other affiliates including MERS.

What a joke MERS really is! Supposedly, through MERS the homeowners and investors are ableto know precisely what is going on and where their loan is at any given timeWhat a crock of

nonsense that is!

Take the Pascual family for example. Aurora decided to foreclose in October 2009 after, of

course, the modification dance first the forced default in order to get HAMP help, then

the repetitive submission of paperwork, phone calls, more paperwork, more phone calls andeventually, the denial

Only Aurora failed to tell the Pascuals and the Court, Judge Seabright, (oranyone for that matter) that the Pascual loan was (and is) actively trading in the LEHMAN XS

TRUST Mortgage Pass-Through Certificates, Series 2007-5H. The Trust did not foreclose

and apparently had no damage to foreclose because the Trust tranche where the Pascual loan

allegedly landed had no losses in 2009everything was paid.

It appears Aurora did not buy the loan out of the Trust because it is still actively trading and

Aurora is only the servicer Ownership actually belongs to the Trust investors.
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And there was no paperwork that accompanied the foreclosure notices or eviction complaint that

would establish Aurora as anything more than a servicer

But it gets even betterthere is NO assignment of mortgage to the Trust to befoundAurora, the Master Servicer failed to file an assignment to the Trust in the Hawaii public
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recordation; however, they filed an assignment from MERS to themselves oh, what a wicked

web we weave, when first we practice to deceive

When challenged with the truth that the Pascual loan was noted in the LEHMAN XSTRUST Aurora failed miserably. As stated in the recentPascual Replybrief composed by

Frederick Arensmeyer of the Dubin Law Offices:

Rather than making any attempt to rebut this newly discovered evidence (which it clearly

cannot do), Defendant Aurora in its oppositionin complete disregard of its priorfraudulentmisrepresentation to this court that it in fact was the holder of the notemerely argues thatPlaintiffs could have previously presented this evidence in their memorandum in opposition or at

the hearing onDefendants motion for summary judgment. Defendant Aurora is mistaken, anditsfailure to offer any rebuttal is itself grounds for granting Plaintiffs instant motion.1 (citing in

foonote 1):

1. Cf. Naranjo v. SBMC Mortg., 2012 WL 3030370, *3 (S.D. Cal., July 24,2012) (The vital

allegation in this case is the assignment of the loan into the WAMU Trust wasnot completed by May 30, 2006 as required by the Trust Agreement. This allegation gives

rise to a plausible inference that the subsequent assignment, substitution, and notice ofdefault and election to sell may also be improper. Defendants wholly fail to address thatissue. . .. This reason alone is sufficient to deny Defendants motion with respect to thisissue. (Emphasisadded)).

How does the average homeowner or their

attorney find this information. As Mr. Arensmeyer continues in the reply brief: Plaintiffs

contracted with a finance expert to conduct a very specialized investigation utilizing anadvanced computer system regularly relied upon by professionals in the finance and investment

industries.

Furthermore, this newly discovered evidence is not of the type that is readily available to

borrowers, the public, or even most attorneys, and Plaintiffs cannot reasonably have

been expected to present such evidence before the prior hearing.

Aurora never expected that anyone would research the loans onBloomberg Terminal. It appears,

Aurora (and their attorneys), obviously think of the judges, homeowners and foreclosure defense
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lawyers as complete buffoons. This thought process enables them to think they can get away

with fraud. Hopefully, Judge Seabright will throw the book at themsua sponte!

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14 thoughts on SECURITIZED DISTRUST

PART TWO

1. justiceleague00onAugust 2, 2012 at 8:53 pmsaid:

Reblogged this onJustice League.

Reply

2. James GreenonAugust 5, 2012 at 5:41 amsaid:

This article is wonderful. Very insightful and pretty much what I have been saying since2010 . In fact there is a case that i wrote the brief for a woman prose in Kings County

New York where the end result was that the foreclosure judgment was vacated pursuantto CPLR 5015(a)2 and CPLR 5015(a)3 after the sale to defunct Fremont Investment and

loan as result of them as plaintiff hiding who actually owned the note. Please Google

Fremont vs Davilar.
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13/18

The funny thing is that I did not have a Bloomberg terminal to uncover said evidence. In

fact I used a little known federal law that requires a servicer if ask in writing pursuant to

15 USC 1641(f)2 and or 15 USC 1641(g)1 to reveal who is the actual owner of themortgage as defined by the Federal Reserve. Litton the loan servicer at the time, spilled

the beans and provided information that HSBC as Trustee was the real owner. Add this to

the fact that I showed a pattern in other cases of them trying to do such a thing bymisrepresenting that Fremont Investment and Loan was the owner of the loan during theaction and the servicer ended up sending the borrower a 1099C to cancel said debt. I had

a matter with Aurora Loan Services where they did the same thing and got a foreclosure

judgment vacated and dismissed. I sent Aurora Loan Services the letter pursuant to 15USC 1641(f)2 asking who owned the mortgage and note and there corporate lawyers

Mcginnis ,Tessitore Wutchester LLP came back with LEHMAN XS TRUST Mortgage

Pass-Through Certificates, Series 2006-15 as owner. The foreclosure was dismissed for

failure to meet a condition precedent pursuant to CPLR 3211(a)7

Reply

o Elisabeth BergeronAugust 5, 2012 at 9:52 pmsaid:

Great ArticleReat Reply!

Aurora Loan Services LLCthen Aurora BAnk FSB sold the service to adifferent company now out of Texas.

Could you please send me your sample letter in order to request in writing

pursuant to 15 USC 1641 (f)2 and or 15 USC 1641 (g)1 to reveal who the actual

owner of the mortage is as defined by the Federal Reserve.That would be tramendously helpful for my foreclosure situation.

Thank you so very much!

Reply

Ben onAugust 6, 2012 at 5:40 amsaid:

Please e-mail copy of letter, 15 usc 1641(f)2 asking who owns the

mortgage and the note Thanks BH

Eloise Haake onSeptember 12, 2012 at 11:23 amsaid:

Please email me the sample letter , 15 usc 1641(f)2 asking who owns themortgage and the note thanks for me> Eloise

o Eugene VillarrealonAugust 6, 2012 at 2:15 amsaid:
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14/18

Could you send me also your sample letter.

Reply

o Mark onAugust 6, 2012 at 10:34 amsaid:

I would love a copy of that form letter as well so I can find where my loan isbeing traded.

Reply

james greenonAugust 12, 2012 at 5:55 pmsaid:

Sorry this blog never notified me that it had replies. please email me at

[email protected] copy the following posted here

John Doe

100 Fulton AvenueHempstead, NY 11550

IndyMac Mortgage ServicesP.O. Box 4045

Kalamazoo, MI 49003-4045

CERTIFIED MAIL RETURN RECEIPT#Re: Loan No: 12345676

To Whom It May Concern:

This is a qualified written request under Section 6 of the Real Estate

Settlement Procedures Act (RESPA).

I understand that under Section 6 of RESPA and the Frank Dodd Act youare required to acknowledge my request within 5 business days and must

try to resolve the issue within 20 business days.

This is also a notice sent pursuant to the Fair Debt Collection Practices

Act, 15 USC 1692e Sec. 807 in regards to any additional informationregarding your authority to collect this debt on behalf of the alleged

creditor. I specially cite subsection (10) from the statue which states that

the use of any false representation or deceptive means to collect or attemptto collect any debt or to obtain information concerning a consumer is aviolation of this section.

This is NOT a request for verification or proof of my mailing address,

but a request for VALIDATION and your authority to negotiate andcollect on behalf of the principal pursuant to the above named Title and

Section, 5-701 and 5-702 of NY General Obligations Law
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15/18

I respectfully request that your office provide me with competent evidence

that you have legal authority to negotiate this debt on behalf of the name

creditor with proof of agency status and that said creditor is the owner andholder of said instrument pursuant to 15 USC 1641(f)2.

15 USC 1641(f)2 states Servicer not treated as owner on basis of

assignment for administrative convenience.

A servicer of a consumer obligation arising from a consumer credit

transaction shall not be treated as the owner of the obligation for purposesof this section on the basis of an assignment of the obligation from the

creditor or another assignee to the servicer solely for the administrative

convenience of the servicer in servicing the obligation. Upon written

request by the obligor, the servicer shall provide the obligor, to the bestknowledge of the servicer, with the name, address, and telephone number

of the owner of the obligation or the master servicer of the obligation.

15 USC 1641(g)1 states In addition to other disclosures required by this

title, not later than 30 days after the date on which a mortgage loan is soldor otherwise transferred or assigned to a third party, the creditor that is the

new owner or assignee of the debt shall notify the borrower in writing ofsuch transfer, including(A) the identity, address, telephone number of the new creditor;

(B) the date of transfer;

(C) how to reach an agent or party having authority to act on behalfofthe new creditor;

(D) the location of the place where transfer of ownership of the debt is

recorded; and

(E) any other relevant information regarding the new creditor.Please provide me with the following:

What the money you say I owe is for;

Explain and show me how you calculated what you say I owe;

Provide me with copies of any papers that show I agreed to pay what yousay I owe; (STATUE OF FRAUDS)

Provide a certified copy of said note to show that said note is owned by

the creditor. Identify the name, address, and telephone number current owner of the

debt as defined by 15 USC 1641(f)2 and whether the debt has been

transferred to any other creditor pursuant to 15 USC 1641(g)1 and the

name of the new creditor address, and telephone number of the newcreditor; the date of transfer; how to reach an agent or party having

authority to act on behalf of the new creditor; the location of the place

where transfer of ownership of the debt is recorded; and any other relevantinformation regarding the new creditor.;

the result of the NPV test and the detailed explanation of the NPV

methodology and model including all formulas and variables for themodification application for 100 Fulton Avenue Hempstead, New York

11550.


16/18

If your offices have reported invalidated information to any of the three

major Credit Bureaus (Equifax, Experian or TransUnion), said action

might constitute fraud under both Federal and State Laws. Due to this fact,if any negative mark is found on any of my credit reports by your

company or the company that you represent I will not hesitate in bringing

legal action against you for the following: Violation of the Fair Credit Reporting Act Violation of the Fair Debt Collection Practices Act

Truth In Lending Act

Defamation of Character

Also during this validation period, if any action is taken which could be

considered detrimental to any of my credit reports, I will consult with mylegal counsel. This includes any information to a credit reporting

repository that could be inaccurate or invalidated or verifying an account

as accurate when in fact there is no provided proof that it is.

If your offices fail to respond to this validation request within 30 daysfrom the date of your receipt, all references to this account must be deleted

and completely removed from my credit file and a copy of such deletionrequest shall be sent to me immediately.I would also like to request, in writing, that no telephone contact be made

by your offices to my home or to my place of employment. If your offices

attempt telephone communication with me, including but not limited tocomputer generated calls or correspondence sent to any third parties, it

will be considered harassment and I will have no choice but to file suit.

All future communications with me MUST be done in writing and sent to

the address noted in this letter.This is an attempt to correct your records, any information obtained shall

be used for that purpose.

Best Regards,

John Doe

o MilesonOctober 2, 2012 at 11:32 amsaid:

Hello James, Very insightfulI am in California and had a property sold underthe direction of MERS with Aurora as Servicer back in 2006. Unaware of the

procedural rules you have noted. Can a foreclosure be reversed by not following

these rules?

Reply

3. Pingback:Deadly Clear | SECURITIZED DISTRUSTPART TWO | Challenge Your

Lender

4. Pingback:SECURITIZED DISTRUSTPART TWO
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17/18

5. Charles Reed onAugust 6, 2012 at 6:09 amsaid:

I been reporting this exact situation with MERS, Wells Fargo Bank and Ginnie Mae. It sorefreshing to see the world is finally getting it. This crime is huge a most Americans

dont realize the financial problem they are faced with because of Ginnie Mae MortgageBacked Securities and the crimes committed with the illegal foreclosures that have been

committed. This is about Contract Law!

Reply

6. Bonnie PalinkasonFebruary 22, 2013 at 7:52 amsaid:

In 2008 we re-mortgaged with Countrywide Home Loans (FHA loan). There was an

accident and we filed for partial claim #1. Took over 1 year of massive paperwork and

the claim was accepted and paid. Back to normal servicing. Countrywide sold out to BAC

Home Loans and then transitioned to Bank of America. In 2010 husbands health failedand filed partial claim #2. FHA approved and paid claim in August 2010. Thereafter

received letter from BAC Home Loans back to normal servicing and Precepatae to

Discontinue and End filed in courthouse by BAC attorneys. In October 2010 receivednotice of intent to foreclose. We frantically called FHA and BOA to see what happened,

as we continued to pay our monthly mortgage payments. FHA blamed BOA and vica

versa. In the end spoke to a CEO at FHA (Kevin) and was told they were instructed to

reverse payments due to an overpayment. FHA reversed ALL payments made on PC2,and never notified us of their intentions, nor did BAC Home Loans notify us of their

intentions to have payments reversed. We continually made monthly mortgage payments

until BOA (now Bank of America and not BAC Home Loans) would not accept ourpayment in March of 2012. We had hired an attorney in Florida (May of 2012) and

nothing seems to be spurring on it. We have an IRS lien for PIT 2005, 2006 holding back

the modification process. BOA wants a certification of subordination from IRS and IRSwants proof that mod will take place (a catch 22 situation here). None of this would have

happened hadnt the payments been reversed. We have wrong doing done to us here. We

have had 2 court hearings; granted 60 day stay at both. Time is running out. We now had

to go per the advice of the Court Master to CACLV to get help. Any help would be

appreciated on our situation at hand. We have lived in our home since 1974 and do notwant to lose our home.

Reply

o Deadly ClearonFebruary 22, 2013 at 8:06 amsaid:
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18/18

There are several good foreclosure defense attorneys in Florida Not many good

Judges though. Jacqulyn Mack, Mack Law Firm; Matt Weidnertwo good

defense attorneys off the top of my list. Sure there are several more.

Reply

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GENERAL NOTICE

I am a paralegal. I am not an attorney. I do not play one on TV. Nothing in this blog should be

construed as legal advice. If you need legal advice you should consult an attorney. DeadlyClearis a product of Entertainment Marketing in association with Project Maui, Inc., a Hawaii

corporation. Copyright 2012. All rights reserved.Theme:Twenty Eleven|Blog at WordPress.com.

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Securitized Distrust Part 2