SEC Waking Up: Madoff Conspirators Face Charges — Now About Those Mortgage Bonds

After a long slumber of non-regulation and failure to bring charges for securities fraud the SEC is finally getting into the "game" --- the culture of fraud on Wall Street. When the Madoff story broke it was inconceivably large. $60 Billion generated through a PONZI scheme --- selling securities or taking money under a prospectus that promised that the flow of money would be invested for the benefit of the investors. The hallmark of such schemes is that they eventually fail when people stop buying the securities or depositing money. At that point the money deposited with the fraudster eventually fails to provide the funds necessary to keep paying investors the return they were promised and fails to cash out investors who want their money back. It fails because the scheme was either not to invest the money at all or to seek cover under investments that clearly were never going to be in compliance with the prospectus or any other standard of investment.

So now we ask again, what about the MBS players? Mortgage-backed securities dwarfed the Madoff scheme. $13 trillion-$20 trillion or more was taken from investors under a prospectus that promised funding of mortgages of the highest quality. Like Madoff, the investment bankers took what they wanted before they used the money to pay back investors or fund mortgages. And when they did fund mortgages they intentionally inserted false entities as lenders --- entities with no relationship to the investors. The effect was a conversion of the intended investment into an unsecured loan to either the investment bank or the borrower and no claim to bring against the borrower,directly or indirectly. The secured interest was destroyed and then claimed by the Banks. The claim for repayment was also converted to the benefit of the Banks, who then "traded" in their proprietary account in which the gains were kept by the Bank and the losses were tossed over the fence to the investors under a pooling and servicing agreement that was ignored except for laying off the losses on the investors.

When investors stopped buying MBS the scheme promptly collapsed. Investment banks still continued to advance money to investors directly or indirectly through the subservicers. They did this for the same reason any PONZI operator pays his "investors" (victims) --- to keep them buying into the investment pool and to create the illusion that nothing is wrong. At the same time the Banks were advancing money on alleged mortgage loans, they were declaring loans in default, foreclosing and claiming losses in their "ownership" of the mortgage bonds they had sold to pension funds. Eventually even the taxpayer became an unwitting and unwilling investor to save the world from the brink of economic collapse. It was believed the Banks were in trouble because they had recklessly lost money in risky trades. This was never true.

And now the massive deluge of Foreclosures continues the fraud. Just as the investors were not represented at the closing of alleged mortgage loans, they are not represented in Foreclosures. The banks are foreclosing in their own names --- cutting off the investors completely when the bank takes title to the property at the foreclosure sale --- and cutting off insurers, CDS counter parties, guarantors, and other co-venturers and co-obligors from seeking refunds or forcing the repurchase of the loans that were never subject to any form of underwriting standards of the industry.

The money they took off the top, the money they received from third parties who waived rights to collect from the borrower, was converted from a trade on behalf of their principals --- the investors (victims) who thought that their money was being deposited with the investment bank to fund a REMIC trust. The investor money became the bank's money. The investors' ownership of loans, notes, mortgages, and bonds became the property ofthe banks and so it stays today, except for the settlements with investors who are suing and except for the long list of fines and penalties leveled on the banks for pennies on the dollar. The pending BOA Article 77 hearing in which the insurers are pointing to the incestuous relationship between the "trustees" of the REMIC trusts and the investment banks is starting to come back and haunt both the trustee, who knew there was no funded trust, and the bank that was merely Madoff by another name.

So the payments due to investors stopped or were cut back without credit for the money received by the investment banks as agents of the investors. Thus the account receivable of the investor is kept away from the courts because it would show vastly different balances than the balance claimed by the servicer's and banks. The balance is much lower than what is represented in court. And it probably has been eliminated entirely when the net is cast over principals and agents' receipt of funds. The Foreclosures are wrong. They simply continue the fraud and ratify by judges' orders the theft of money, loans and what should have been notes payable to the investors or the REMIC trust that was never funded -- and therefore could never have purchased the loans.

If the money was applied properly most of the investors would be covered by the money that still remains in the banks that they are claiming as their own capital. Applied properly in accordance with generally accepted accounting principles, this would reduce the account receivable from the loans. It would also by definition reduce the corresponding account payable from the borrowers, making modification and settlement easy ---but for the interference of the servicers and investment banks who are trying desperately to hold onto their ill-gotten gains.