Finding Pooling and Servicing Agreements is Key to Killing Your Foreclosure Case!

Finding Pooling and Servicing Agreements is Key to Killing Your Foreclosure Case!

If you’re being sued by any entity acting as a trustee, i.e. “US BANK as trustee for the HP Series 2006-c Certificate Holders”, you need to be aware of a variety of issues that may be helpful in your case.   I will start another series of video blog posts on the “Capacity Argument”, because this argument works in nearly every case, but it is particularly appropriate in cases where Plaintiff is an exotic, alphabet soup Foreclosure Frankenstein.
Individual mortgages originated by lenders like New Century and Argent were pooled into groups of approximately 8,000 mortgages from around the country to form a Mortgage Trust which held mortgages which had (on paper at least) cumulative values of between 10-12 million dollars.   These mortgages that were grouped together and given a name like “HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2″. Interests in these mortgage trusts were then sold to teachers unions, investment funds and other institutional sources around the world.   Before selling the interests in these trusts, the institutional investors were required to prepare the contract that would govern the rights between the depositor of the mortgages, trustee of the new trust and the company that would be responsible for collecting payments from homeowners and sending those payments out to those who had invested in the trust.   This contract is called the Pooling and Servicing Agreement.   The important thing about the Pooling and Servicing Agreement is you will find in virtually every case that all of the parties who are involved violate nearly every provision of their own Pooling and Servicing Agreement.   This has important consequences that we will talk more about later, but the Securities and Exchange Commission rules requires these trusts to provide important other reporting information that was widely ignored or worse, falsified by the entities in control of these trusts.   Finding such information can be a key to defending your case.
The Securities and Exchange Commission Edgar Database can be found here. You can also put the name of your Frakenstein, Alphabet Soup Trust into quotes, “The IXIX 2006-A Trust” into a straight google search and see what comes up. Here are Step-By-Step instructions:
Finding Pooling And Servicing Agreements   (PSA’s)
For Securitized Mortgage Loans
The ” Pooling and Servicing Agreement” is the legal document that contains the
responsibilities and rights of the servicer, the trustee, and others over a pool of mortgage
loans.   The Pooling and Servicing Agreement can be a stand-alone document or it can be
part of another paper, usually called the ” Prospectus.”   If the securitization is public,
these documents must be filed with the Securities and Exchange Commission (SEC), and
will be available to the public at www.sec.gov.   Locating a Pooling and Servicing
Agreement on the SEC website can be a challenge. The most important information you will
need to find the Pooling and Servicing
Agreement is the name of the original lender and the title of the pool of loans.   We will
work through an example below.   Assume that the lender is Ameriquest Mortgage Co.
We don’t know the name of the pool that the homeowner’s mortgage ended up in, but we
do know that the mortgage was made on June 1, 2002.
Step One:
Go to www.sec.gov and click on ” Search for Company Filings” under ” Filing & Forms
(EDGAR).”       Under ” General-Purpose Searches,” click on ” Companies & other filers.”
Then, in the ” Enter your search information” box, type in ” Ameriquest” next to ” Company name” and click on the ” Find Companies” button.
Step Two:
The page you are now looking at shows a long list of the names of securitized pools of
loans.     We know the mortgage was made on June 1, 2002.   Look for the entry titled
” AMERIQUEST MORT SEC INC ASS BK PAS THR CERTS SER 2002 2.”   The
document number is CIK 0001175125.   Click on that number.   We selected this entry
because it said 2002 on it and the loan in question was made in 2002.   There may be
several other pools of mortgage loans that Ameriquest securitized in 2002 but this is the
first one we come to on this list (when reviewed in late February 2007) so we will pull it
up.
Step Three:
Now you see a list of documents filed with the SEC that are related to this pool of loans.
Scroll down to the bottom and you will see a document titled ” Prospectus.”   This is the
document that will likely be the one you want, assuming that the mortgage loan you are
concerned about is in this pool.   We can only make an educated guess, unless you know
the name of the securitized pool in advance (which is unlikely). Click on either ” htm or text”
next to this document and the Prospectus will appear.   Now,
bookmark this document on your web browser, so you can come back to it easily in the future.
Step Four
Is this likely to be the document you want?   Scroll down to page S-2 and you will see a
Table of Contents.   Included in that is the ” Pooling and Servicing Agreement” which
starts on page S-76.   Also, scroll down one more page, past the Table of Contents, and
you will see a ” Summary of Prospectus Supplement.”   Certain important information is
listed there, including the cut-off and closing dates for loans that will be included in this
pool.   The closing date is June 7, 2002.   Based on this information, you can assume that
this document governs the responsibilities of the servicer of the mortgage loan in
question, unless that servicer tells you otherwise and can back it up with a reference to a
different agreement or pool.     Other important information listed in this Summary includes
the title of the pool, and the
identity of the servicer and trustee.   The servicing rights may have been sold since this
document was filed and the current servicer may be a different company but the trustee
(the legal holder of the mortgage) should be accurate.
Step Five:
Go the Pooling and Servicing Agreement to find what you need to know.   It should
describe how the servicer is paid and by how much, who keeps late and other fees, what
authority it has to modify the loan or engage in workouts with homeowners, and its
obligations to pass mortgage payments on to the trustee.
Some of the best information I get comes from intrepid consumer researchers out there who care enough to dig into these things.   Perhaps the most powerful thing about this and other online forums is the ability for consumers and advocates to share what they’ve found.   In my estimation, what this pro-se Defendant found is enough to blow the lid off his foreclosure case…..read on:
I was served Lis Pendens last month, (April 2010), naming the plaintiff  Deutsche Bank National Trust Company, As Trustee for HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OPT2


I looked into the records for that entity in the SEC EDGAR online database and discovered that the last annual report was filed in 2007, contemporaneously with a FORM 15 filing.That Form 15 filing claimed a standing under 15d-6 of the 1934 SEC regulations which exempts the entity of filing an annual report, whereby the number of claimed investors had fallen below the SEC registration and reporting threshold of 300 persons. ( To my understanding, the same Form 15 filing is also used when a registered, reporting, entity is dissolved.)
I then began looking at many other securitized trusts in the EDGAR database. Literally dozens and dozens of these securitized trusts have done exactly the same thing. he trust is established and appropriate SEC documents are filed for a period of time, usually 1 or 2 years. The trust then files a Form 15 claiming exemption of the obligation to file reports with the SEC under 15d-6
The paper trail for the Trust with the SEC thereby *ends* Many of these trusts have not filed anything with the SEC for years. Many as far back as 2005 and 2006
Some of the SEC Form 15d-6 filings disclosed as few as 15 or less investors. Bear in mind, these are for trusts that purportedly hold well over $1 BILLION in mortgages, and there are dozens and dozens of these trusts with a mere hand full of investors! I also noted that the ” agent of record” of many of these trusts have changed many times, and are very infrequently ” named”, but list only an address and phone number, (usually in New York). In several of the cases I’ve looked at in the EDGAR database, I actually called some of the phone number listed at 3:00am EST and got the voicemail of someone at a bank in N.Y. Note that the answering party was NEVER a bank listed as the Trustee, (as Deutsche Bank is in my case), or the trust ” administrator” as listed in the PSA or any subsequent SEC filings.
I actually got the voicemail of some fellow at HSBC Bank who was the ” anonymous” contact in my case! My point is this;

Has anyone actually verified that the securitized trusts claimed to be under the trusteeship of some of these banks still ACTUALLY EXIST?

We’ve been so focused on the NOTE and the fraudulent paper being slung about for assignment of those notes, and whether or not the ” plaintiff” has standing to bring the foreclosure action, has anyone thought to see if the ” plaintiff trust” is even still active or not? Were many of these trusts actually dissolved after payouts from credit default swaps and TARP funds and the actual investors now long gone? We have no records to show whether they are alive or dead. Most of these trusts haven’t filed anything with anyone in years as far as I can tell.

Certainly, as in my case, Deutsche Bank, (as Trustee), still exists, but can these plaintiff securitized trusts be made to *prove* they still exist?

WE THE PEOPLE DEMAND THE TRUTH!

NO MR. BERNANKE -NOT SOME OF THE INFORMATION NEEDS TO BE RELEASED- ALL OF IT NEEDS TO BE RELEASED. WE WERE THE VICTIMS AND PROTECTING TO BIG TO FAIL BANKS IS OVER. WE THE PEOPLE DEMAND THE TRUTH!

"The truth is that they stopped the review process and "Settled" because the regulators were under a mandate to protect the banks. They were finding far too many wrongful and illegal foreclosures. The investigator testified that the sampling they used was not random but rather designed to show how few foreclosures were illegal. But even that showed that at least 6500 homeowners had been illegally foreclosed and evicted. The banks and regulators were sitting on a time bomb so they swept it under the rug with "settlements" to cover up the widespread pandemic rush to illegal, wrongful foreclosures where strangers tot he transaction took title to property at a foreclosure sale by submitting a "Credit bid" in which they had absolutely no interest or authority."  ---- Neil F Garfield Livinglies.me

Not long ago, if someone told you that the government would review the foreclosure process, find that many people were foreclosed illegally and wrongfully --- perhaps up to 90% --- and then step in to protect the banks with a pennies on the dollar settlement WITHOUT TELLING THE FAMILIES THAT WERE WRONGFULLY FORECLOSED THAT IT HAD BEEN DETERMINED THAT THEY WERE ILLEGALLY AND WRONGFULLY FORECLOSED --- you might have said, it can't be true --- things are not that bad.

Besides, you might say, how could the foreclosures have been illegal and wrongful to the point that the banks would agree to pay any settlement, even if it was pennies on the dollar. After all, as Judges are want to say "You took the loan, you didn't pay, you lose your house."

But in open session sworn testimony before the Senate Committee on banking and finance, under questioning from Senator Warren (see recent post for the video) that is exactly what the investigator admitted. In fact, it gets worse --- they entered into the settlement to get this out of the way fast and sweep it under the rug.  And, the investigator admitted that they had not yet notified those whom the agency had already found had definitely been illegally and wrongfully foreclosed and evicted from their homes. Worse, the investigator admitted that no decision had been made when or if those families would be notified.

So here we have the government withholding information of civil and perhaps criminal wrongdoing, not informing the victims that they not only have a cause of action for damages, but that the proof is already in the hands of the regulatory agencies. And perhaps worse, this admission comes AFTER Bernanke assured Senator Warren that the victims would be notified.

So Judges, lawyers, borrowers and investors across the land and indeed across the world are still laboring under the misapprehension that when the dust settles the home will still be foreclosed. Not so.

If the real creditor has not stepped up to enforce the debt there can only be one reason --- they have already been paid. And if they have already been paid, then the balance due from the borrower to that creditor is zero. And if someone else paid it, the most they COULD have is an action in contribution or unjust enrichment against the borrower; but they don't have that right because they expressly waived it. Nonetheless, the Federal reserve is "buying" these mortgage bonds, supposedly backed by mortgage loans that we have now seen were paid or unenforceable at the rate of $85 Billion per month.

The presumption ought to be, based upon the filings of the regulatory agencies, the settlements and the sworn testimony before Congress, that the foreclosure is suspect and Judges should stop ramming these wrongful foreclosures down the throat of lawyers whose objections and arguments are dismissed without a thought. We don't have to wait for the evidence before we decide. The time to decide is now because the evidence IS in.

And even if you can't get the information from the regulatory agencies who claim the results to be confidential even though they admit what is in them, aggressive lawsuits against the pretender lenders should lead to huge awards to borrowers and their attorneys. What are you waiting for? Stop wasting time by delaying the cases so that the client gets another month of free rent and start being the aggressor in discovery, pleading and litigating.

Watch Elizabeth Warren Grill Regulators Over Illegal Foreclosures

A Brief Refresher on Glass Stegal From Barry Ritholtz

http://www.housingwire.com/fastnews/2013/07/18/bernanke-regulators-will-release-some-details-foreclosure-reviews

When is enough enough?

Thanks Mr. Garfield for yet another great article. In the upside down world of the foreclosure of mortgages that are neither in default nor owned by the parties initiating foreclosure, and where applications for modification are submitted that clearly exceed federal standards for approval (and are denied) and should come as no surprise that the government sponsored entities, Fannie and Freddie, canceled their appearance at a Metro Detroit foreclosure hearing which they had scheduled. These are essentially federal agencies. Their first duty is to serve the country and its citizens. But they canceled their appearance because of pending litigation against them. Here was an opportunity for them to understand the impact of foreclosure on families, businesses, investors and the government. Here was an opportunity for them to utilize information provided to them by people on the ground to fashion remedies that are appropriate and legal. This is all part of state and federal government policy to sweep the mortgaged tragedies under the rug. Despite the fact that we know that most of the foreclosures that have already been deemed completed were in fact illegal, we have had millions of "auction sales" in which strangers to the transaction were awarded title to the house without ever having made a single payment of any amount of money to originate or acquire the loan that was allegedly in default but which was fatally defective and certainly not in default despite the illusions created by Wall Street banks. I am leading the charge on this one. It is my intention to file suit against the Wall Street banks who have accepted monthly payments, short sale payments, and full payments on loans that were subject to claims of securitization. In fact, my law firm is offering to represent homeowners who lost or sold their homes on a contingency fee, as long as only economic damages are sought. It is my goal to show payments to the sub servicer or anyone else in the false securitization chain should never have been made and were never due. It is my opinion that these payments are owed back to the homeowner in all events, together with interest, costs of the court action, and attorney fees where those are provided by statute or contract. Each case will be evaluated as to viability utilizing this strategy. If Bank of America or any other bank responds to an estoppel letter for payoff or short sale without knowing or showing that they have paid for the origination or acquisition of the loan, then they have no business providing the estoppel information or approving or denying a request for a short sale. Their acceptance of the money at closing and their execution of a satisfaction of mortgage or release and reconveyance is a sham. In the absence of any other creditor demanding payment and showing that they are in fact a true creditor (having paid actual money for the origination or acquisition of the loan), proceeds of all such closings should, in my opinion, go to the homeowner. The bank got the money, it is my opinion that the bank should be sued for recovery of the entire proceeds of the closing. Each of those closings described above represents a gift to the banks and a horror show for the homeowner and many attorneys for homeowners. The spin machine for the banks has created the illusion that homeowners are seeking a free home when in fact it is the banks that are seeking and getting free money and free homes. In auction sales where the banks are submitting a credit bid, they do not qualify as a creditor who can submit a credit bid. But the credit bid is accepted anyway and the bank gets the house for free despite the fact that the bank has no status as a creditor or even the authorized representative of a creditor. Fannie and Freddie are colluding with the banks and the federal reserve to maintain the illusion that the notes and mortgages are in proper form, were properly executed, and contain true representations concerning the real parties in interest. Many theories have been advanced as to why the Federal Reserve and other agencies are colluding with the banks. I think the reason is because many layers of policies are based upon the false assumption that the origination of the loans complied with existing laws, rules and regulations. The federal reserve and other federal agencies would look pretty stupid if they had paid or advanced trillions of dollars for worthless notes and mortgages and worthless mortgage bonds. It is highly probable that the reason why the real lenders (investors) have not pursued loss mitigation with homeowners directly is that they know the note and mortgage is unenforceable and they have said so in their lawsuits against the investment banks that sold them the bogus mortgage bonds. What they don't fully appreciate is the fact that most homeowners would willingly give them a valid mortgage and note based upon the reality of the current market. But the intermediaries (servicers) are doing everything possible to prevent modification or successful mediation of claims; which of course results from those intermediaries falsely claiming to be owners of loans that were funded by investors and falsely claiming losses on those loans that were paid by insurance and credit defaults swaps. Those intermediaries are the leading Wall Street banks in this mortgage mess. As long as we include them in the process of resolving the mortgage meltdown, the problems will be compounded rather than cured. http://www.huffingtonpost.com/2013/05/18/detroit-foreclosure-hearing-fannie-mae-freddie-mac_n_3293854.html Fed Pours Huge Sums Into Foreign Bank Coffers http://www.ritholtz.com/blog/2013/05/fed-pours-huge-sums-into-foreign-bank-coffers/ Nearly half of all US homeowners with a mortgage still ‘underwater’ in Q1 http://www.inman.com/2013/05/22/nearly-half-of-all-us-homeowners-with-a-mortgage-still-underwater-in-q1/ Foreclosure Victims Protesting Wall Street Impunity Outside DOJ Arrested, Tasered http://www.truth-out.org/news/item/16527-victims-of-foreclosure-arrested-tasered-protesting-wall-street-impunity-outside-doj Foreclosure Fraud Failures Come To A Head In Justice Dept. Protest http://jdeanicite.typepad.com/i_cite/2013/05/foreclosure-fraud-failures-come-to-a-head-in-justice-dept-protest.html Bank of America Zombie Foreclosure Protest (VIDEO) http://4closurefraud.org/2013/05/22/bank-of-america-zombie-foreclosure-protest-video/ This is what it looks like when foreclosure fighters demand Wall Street criminals be prosecuted http://www.youtube.com/watch?v=zvwaFJdr13Q Chasing The Shadow Of Money http://zerohedge.blogspot.ca/2009/05/chasing-shadow-of-money.html