Foreclosures Judge grapples with her discovery of 15,000 unserved foreclosure cases

June 24, 2009	By: Billy Shields

Miami-Dade Circuit Court judge discovered more than 15,000 foreclosure cases filed this year haven’t been served. It’s the latest shoe to drop in a foreclosure crisis garnering nationwide attention, and an unwelcome discovery in the face of state budget cuts that produced layoffs for courts and clerks. The backlog is critical because cases where homeowners haven’t been served within four months are subject to dismissal. Civil Division Administrative Judge Jennifer D. Bailey made the discovery last month as she was taking stock of the circuit’s foreclosure load. She noticed 15,219 cases with no letters of correspondence, no answers and no motions to dismiss. “In other words, no service,” she said. The circuit is scrambling to find the root of the problem, which could jeopardize most of this year’s 17,000 foreclosure filings. Most of the cases still fall within the four-month window, but no program is in place to speed things up. If a foreclosure proceeds to a default judgment with no service on the defendants, it could lead to a title dispute down the road. Bailey said there is no sign that has happened so far but recognizes the potential for problems. The circuit adopted a foreclosure mediation program for owner-occupied properties through the nonprofit Collins Center for Public Policy in Tallahassee on May 1. As the fledgling program moved forward, lenders argued the center should start contacting borrowers after they’ve been served, said Collins Center president Rod Petrey. But Florida circuits don’t keep statistics on foreclosure service, which is why Bailey requested the statistics last month. “There’s no feedback loop that circles back to the court, and we were not able to wait,” Petrey said. The center contacts defendants in foreclosure after lawsuits are filed; it has received 1,689 Miami-Dade cases since May 1. Petrey was at a loss to say why foreclosure service is so difficult. Some, like Charles Taylor, president of Metro Process Servers in Miami, think the problem is on the clerks’ end. “I don’t think the bottleneck is in service. I believe the bottleneck is that they’re not equipped to handle this stuff,” he said. The crushing volume of foreclosures combined with clerk layoffs conspired to swamp the system. Home abandonment plays a factor in failed service, but the rate of home abandonment in foreclosure cases hasn’t been calculated. “No one really keeps those statistics,” said Alex Sanchez, president of the Florida Bankers Association in Tallahassee. “You would have to call every FDIC-insured institution and every non-bank” to get it. Fort Lauderdale foreclosure defense attorney Morton Antman, says the problem is that lenders and process servers don’t have the resources to pursue every foreclosure properly, and mistakes are made along the way. In Antman’s mind, volume is a factor, but chasing residents who don’t want to be found is a persistent problem. “The primary issue is that most of these people leave their house,” he said. “They just vanish, and how do you make service on these people? Constructive service is a lengthy process.” And the high number of South Florida investment properties in foreclosure with absentee landlords further complicates service problems, said Marc Ben-Ezra, a Fort Lauderdale partner with Ben-Ezra & Katz, who represents lenders. “A lot of people are making it difficult for the plaintiffs to serve them, or in other cases, people have just left the properties,” he said. “The plaintiffs have to do a significant amount of work in order for the plaintiffs to try to find them.” Bailey speculates the problem is procedural. Summonses are issued by clerks after a lawyer files a foreclosure action and sent to process servers for service, which can take up to five business days. The proof-of-service materials then get sent back to lawyers as process servers serve the parties.     “Obviously, those numbers are staggering. Maybe their own internal systems are not able to keep up,” said Richard Burton, a Miami attorney who launched a pro bono foreclosure-defense project. But the scope of the foreclosure service problems could be much worse than the 15,000 cases without service that Bailey discovered. Some foreclosure lawyers question whether there are more cases where service hasn’t been done, but court records show the defendants have been served. Take a foreclosure case filed by Indymac Federal Bank against Ahron and Amitza Benvenisti, who bought a North Miami Beach condo for $177,938 in January 2006. Indymac attempted to serve the husband through constructive service — or service by publication without actual notice — and the wife through a relative in Massapequa, N.Y. The lender moved for a default judgment against the couple. Antman, who represented the couple, argued the process server contradicted himself by checking boxes stating he successfully served the wife through the relative, though Amitza Benvenisti doesn’t live at the relative’s address. The relative, Gilan Benvenisti, swore in an affidavit that she doesn’t live with him. A docket entry dated Monday said the clerk’s office was not authorized to enter a default because of a lack of service. “I don’t know if this was intentional or not, but this isn’t the first time we’ve had situations where process servers do stuff like this,” Antman said. “I think it’s a mistake.” Ron Rice Jr., a Plantation attorney with Kahane & Associates who represented Indymac, did not return calls seeking comment by deadline. Bailey said she still is trying to interpret the data to determine the source of the problem and chart a new course. But whoever is at fault, Bailey quickly notes the problem threatens to overwhelm a court system that already is strapped. “The question I now face is what do I do with this?” she asked. The cases “would potentially be subject to dismissal,” but she noted many cases are recent enough that service within the four-month window is still possible. “Let’s assume a third of these are subject to dismissal. In my spare time, I’ve got to figure out ways to generate orders in 5,000 cases and pay for 5,000 stamps and serve everyone,” Bailey said. “Are we going to do that? Yes. Am I trying to figure it out? Yes.” “It all starts with service. If people don’t get served, all we’re doing is buying ourselves a bunch of title cases in six years,” the judge said. Billy Shields can be reached at (305) 347-6649. Jennifer Bailey photo by A.M. Holt

FDCPA — Fair Debt Collection Practices Act

Fair Debt Collection Practices Act

Don’t get misled by titles. The wording of the statute clearly uses “verification” not validation. Verification generally means some sworn document or affidavit. This means when you contest the debt under FDCPA (in addition to sending a QWR) the party who is supposedly collecting or enforcing the debt has a duty to “obtain verification”. And that means they can’t verify it themselves unless they are the actual lender. And the statutes says pretty clearly that they must give the lenders name and contact information — past and present. STRATEGY: IF THEY SUPPLY SUCH A DOCUMENT, PICK UP THE PHONE AND SPEAK WITH THE PERSON WHO SIGNED IT.I CAN PRACTICALLY GUARANTEE THEY WILL DISCLAIM EVERYTHING THAT WAS IN IT AND POSSIBLY EVEN THAT THEY SIGNED IT.

15 U.S.C. 1692 ———–

FDCPA

Salient provisions affecting foreclosures:

§ 1692. Congressional findings and declaration of purpose

Abusive practices

There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.
(b) Inadequacy of laws
Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

(4) The term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.
(5) The term “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.

§ 1692g. Validation of debts

(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.
(c) Admission of liability
The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
(d) Legal pleadings
A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).
§ 1692j. Furnishing certain deceptive forms

(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.
Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 1692k of this title for failure to comply with a provision of this subchapter.

§ 1692k. Civil liability

(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)
(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.
(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors—
(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector’s noncompliance was intentional.
(c) Intent
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
(d) Jurisdiction
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
(e) Advisory opinions of Commission
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

§ 1692n. Relation to State laws

This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter.

§ 1692o. Exemption for State regulation

The Commission shall by regulation exempt from the requirements of this subchapter any class of debt collection practices within any State if the Commission determines that under the law of that State that class of debt collection practices is subject to requirements substantially similar to those imposed by this subchapter, and that there is adequate provision for enforcement.

OHIO SLAM DUNK by Judge Morgenstern-Clarren: US BANK TRUSTEE and OCWEN Crash and Burn

OHIO SLAM DUNK by Judge Morgenstern-Clarren: US BANK TRUSTEE and OCWEN Crash and Burn

Pretender Lenders — read and weep. Game Over. Over the next 6-12 months the entire foreclosure mess is going to be turned on its head as it becomes apparent to even the most skeptical that the mortgage mess is just that —  a mess. From the time the deed was recorded to the time the assignments, powers of attorneys, notarizations and other documents were fabricated and executed there is an 18 minute Nixonian gap in the record that cannot be cured. Just because you produce documents, however real they appear, does not mean you can shift the burden of proof onto the borrower.

If you say you have a claim, you must prove it. If you say you are the lender, you must prove it.

Bottom Line: Every acquisition of residential real property that was allegedly subject to a securitized mortgage is subject to nullification whether it was by non-judicial foreclosure, judicial foreclosure, short-sale, modification or just a regular sale. Every foreclosure, short-sale or modification is subject to the same fatal flaw. Pension funds are not going to file foreclosure suits even though they are the ones who allegedly own the loans.

Legislators take notice: Just because bankers give you money doesn’t mean they can change 1000 years of common law, statutory law and constitutional law. It just won’t fly. And if you are a legislator looking to get elected or re-elected, your failure to act on what is now an obvious need to clear title and restore the wealth of your citizens who were cheated and defrauded, will be punished by the votes of your constituents.

In_Re_Wells_Bankruptcy_OH_ND_Decision_22_Jun_2009

memo_20090212_Motions for Relief From Stay Update – Endorsement of Note by Alleged Attorney-in-Fact_pmc-2

memo_20080709_Additional Guidance on Motions for Relief From Stay_pmc-1

memo_20080212_Tips for How a Motion for Relief From Stay Can Proceed Smoothly Through the Court _pmc-1

memo_19980824_Motions for Relief From Stay_pmc-1

Debtor Without Lawyer Defeats Motion for Relief from Stay, Based on Lack of Standing

Based on Lack of Standing

Debtor Without Lawyer Defeats Motion for Relief from Stay, Based on Lack of Standing
By Craig Andresen, Minnesota Bankruptcy Attorney on Mar 29, 2009 in Featured, Foreclosure Defense, Mortgage Issues In Bankruptcy, Mortgage Servicer Abuses 

A Washington bankruptcy court recently agreed with a pro se debtor that mortgage servicing agents do not possess legal standing to bring relief from stay motions in chapter 13 cases.

In re Jacobson, 2009 WL 567188 (Bky.W.D.Wash. March 6, 2009), involved a chapter 13 bankruptcy debtor whose mortgage servicing agent filed a motion seeking an order from the bankruptcy court that it could foreclose on the debtor’s home mortgage, based upon lack of payments.  The debtor had a lawyer in the chapter 13 case, but the lawyer made no appearance.  Consequently, the debtor responded to the motion on his own behalf, and argued his case in open court with no lawyer.

The bankruptcy court was concerned that an out-of-state law firm had filed the motion on behalf of the mortgage servicer, but that a lawyer having no formal association with that firm appeared in court to argue the mortgage servicer’s motion.  Henceforth, the court stated, it would hear no arguments from such lawyers, unless a formal notice of association were timely filed.

 

The motion of “UBS AG, as servicing agent for ACT Properties, LLC (”Movant”),” was accompanied by an unauthenticated copy of an adjustable rate note in favor of Castle Point Mortgage, Inc.; and by a “barely legible” copy of a mortgage in favor of Castle Point Mortgage as “lender”; the beneficiary was identified as Mortgage Electronic Registration Systems, Inc. (MERS); and an apparently unrecorded “Assignment of Mortgage” to ACT Properties.  The motion was also supported by a declaration (made in Irvine, California) by a “bankruptcy specialist” that Wells Fargo Document Custody had possession of the note, mortgage, and assignment, in its Minnesota offices.

The court observed that the bankruptcy specialist had incorrectly noted the date the mortgage was signed, missing the actual date by several weeks.  It appeared doubtful the bankruptcy specialist had reliable knowledge of the mortgage or note.

In denying UBS AG’s motion, the bankruptcy court stated that only a “real party in interest” could file a motion in a federal court proceeding.  This was true even if the mortgage servicing agent had the power, granted to it by the owner of the mortgage, to file a bankruptcy court motion.  The court held that relief from stay had to be granted to the owner of the mortgage, and therefore the motion had to be filed by the owner of the mortgage.  It was not acceptable for the servicing agent to file the motion for relief from stay.

Because there was no evidence before the bankruptcy court that UBS AG was the owner of the mortgage note, or that UBS AG had any authority to foreclose the mortgage, UBS AG lacked standing; it was not the real party in interest.  The court ruled that UBS AG was not entitled to an order allowing it to foreclose the mortgage.

Real Consumer Protection: New York Times Gets it Right This Time

Real Consumer Protection

The federal consumer protection system failed the country, disastrously, in the years leading up to the mortgage crisis. One big cause was the sharing of responsibility for compliance with laws and regulations among several agencies that communicate poorly with each other and tend to put the bankers’ interests first and consumer protection second — if they pay attention to it all.

The Obama administration was right on the mark last week when it recognized this problem and proposed a solution: consolidating the far-flung responsibilities into a strong, new agency that focuses directly on consumer protection. The plan, modeled on a bill already introduced in the Senate by Richard Durbin, Democrat of Illinois, deserves broad support in Congress.

Before the current crisis, the lure of big money from Wall Street, which could not get enough of mortgage-backed securities, spread corruption right through the mortgage process. Banks and mortgage companies fed kickbacks to brokers, who often steered borrowers into high-risk, high-cost loans. Appraisers did their part by inflating property values so that people could borrow beyond their means.

Deceptive practices became the order of the day. Borrowers who thought they were getting traditional fixed-rate mortgages sometimes learned at the last minute that they had been given loans with escalating interest rates, exploding payments or complicated structures that they clearly did not understand.

Federal regulators were slow to recognize the rising threat to the economy. They were also vulnerable to “regulatory arbitrage” by the banks, which currently get to choose their own regulators. If one regulator seems too scrupulous, a bank can shift to another and then another, in search of the weakest possible oversight.

Federal regulators may even have accelerated the mortgage crisis by invalidating state laws that would have protected people from misleading and predatory lending practices. By pre-empting those tougher state laws, the regulators helped create an atmosphere in which risky lending practices became the norm.

The new agency envisioned by the Obama administration would put an end to this slippery practice. It would have authority over all banks, credit card companies, other credit-granting businesses and independent, nonbank mortgage companies, which are currently not covered by federal bank regulation.

One of the agency’s principal responsibilities would be to ensure that mortgage documents are clear and easy to understand. Federal rules would serve as a floor, not a ceiling, so that the states could pass even more stringent laws without fear of federal pre-emption. The administration also envisions a data-driven agency that would react swiftly to events like the ones that should have foreshadowed the subprime crisis.

In general, the new agency would require little in the way of new institutional infrastructure. As the administration notes in its proposal, three of the four federal banking agencies have mostly or entirely separated the consumer protection function from the rest of the agency. It would be a relatively simple matter to consolidate those divisions in a new, free-standing agency.

Congress should resist its typical urge to water down this plan for the special interests that write campaign checks but helped precipitate this crisis. Lawmakers need to bear in mind that consumer protection laws don’t just shield individuals. They also protect the economy. That’s a good argument for building a strong, effective consumer protection agency.

Home

Securitization in A Nutshell

According to the terms of any note I ever read, any payment from you or any third party that is intended to be a payment against interest, principal or both must be applied as such. You have hit the nail on the head with your question. When they pooled your note, the deal you signed was ended and a new one began — one to which you were NOT a party. You were mentioned but they never got your signature in the pooling and servicing stage, the securitization stage or the terms of the bond (mortgage backed indenture stage).

Question: I was served with a complaint to foreclose and of course they lost the note as well as saying I hadn’t paid since November 08. I in fact have paid up until March 31, 09, but it seems they have alloted my mortgage payment (at least 3/4) of them to suspense and fees.

I’ve asked for months to no avail and all the other questions, like who holds my mortgage. I

Are Mortgage servicers allowed to take my payments and apply them to wherever they want, even though I have never seen a notice regarding suspense???

ANSWER: Mary: According to the terms of any note I ever read, any payment from you or any third party that is intended to be a payment against interest, principal or both must be applied as such. You have hit the nail on the head with your question. When they pooled your note, the deal you signed was ended and a new one began — one to which you were NOT a party. You were mentioned but they never got your signature in the pooling and servicing stage, the securitization stage or the terms of the bond (mortgage backed indenture stage).

The “pooling” resulted in giving themselves authority to pledge your payments and third party payments (AIG insurance, credit default swaps, Federal bailouts etc.) to cover the obligation of OTHER BORROWERS. This is a direct breach of the express terms of the note which describes how the payments will be applied.

Follow me here. The “lender” who appeared on the papers at your closing was already prepaid on your obligation by third party investors. So one of two things are true: either the note is paid in full and there is no obligation nor is there anything for the mortgage to secure, or the note you signed was properly assigned to a third party who put up the money. But the note cannot be properly assigned and enforced against you if the terms are changed without your knowledge or consent. So it wasn’t properly assigned. That means it is paid.

Where does that leave the investor who put up the money that was used to fund your mortgage? The investor has received a bond (which is the same as a note) which includes all kinds of terms that you knew nothing about where the money was owed and guaranteed from several entities that you knew nothing about. The bond indenture says the bond holder gets a pro rata title to the mortgages and notes in the pool.

So the “trust” is holding nothing — but so is the investor because the note you signed was not properly assigned — conditions were added to payment and risk, making it a different deal.

So the investor has claims and may have been paid from the government, an insurer, cross collateralization, over collateralization or some other source including you. The investors claims against you are NOT on the note and mortgage because the note was paid never assigned in the legal sense.
The investor’s claims are at common law or in equity since you did get a loan and some of the money the investor injected into the pool was used to fund your loan. But as soon as the investor sues you for unjust enrichment, constructive or resulting trust or whatever, you have counterclaims for all the TILA violation, predatory lending, appraisal fraud, slander of title, usury, etc. that could lead to a counterclaim for treble damages against the investor for things the investor never did — at least not directly.

One thing seems certain — that any claim by the investor is unsecured and the ONLY party with legal standing to assert any claim against you is the one who lost money. The net value of the investor’s claim is unknown but dubious at best. And so far the investors are suing only the servicers and investment banks for sticking them with deals made up of pure vapor.

Servicer Starts Door-Knocking Division

June 5, 2009

Franklin Credit Management Corp., the Jersey City third-party mortgage servicer, has expanded its operations to include Face-to-Face Home Solutions, a door knocking division that tries to reach delinquent borrowers. Gordon Jardin, Franklin Credit’s chief executive, said the unit was started from scratch earlier this year as part of a broader repositioning of the company, which now offers underwriting, due diligence and asset valuations. Franklin had been a subprime lender that $54 billion-asset Huntington Bancshares Inc., in Columbus, Ohio, inherited from its 2007 purchase of Sky Financial Group. The company currently services 32,000 loans, most of them second mortgages, worth more than $2 billion. “We are definitely actively involved in trying to find ways to maximize the returns to Huntington on that portfolio,” Jardin said in an interview. Franklin’s strategy had been “to maximize cash flow,” Jardin said, while Huntington’s strategy now is to work out the loans. “I think most companies are trying to determine what their strategy should be,” he said. “It’s too early to determine how well the performance of loans will be if we modify them,” under the Obama Administration’s Home Affordable Modification Program. Franklin “has had the beginnings of some success” is reaching delinquent borrowers though it is too early to tell if the contact rate is better than the industry average. Roughly 50% of delinquent borrowers have no contact with their servicer before a home goes into foreclosure. “That’s frustrating, because you do have a legal contract, you have an agreement with the borrower and why they can’t make a payment often is unclear,” Jardin said.

SEC Accuses Mozilo of Fraud, Insider Trading

June 5, 2009

Angelo Mozilo, the founder and former chairman/CEO of Countrywide Financial Corp. — and an icon in the industry for many years — was slapped with a massive civil fraud complaint by the Securities and Exchange Commission on Thursday afternoon, accused of deliberately misleading investors in the company’s stock and engaging in insider trading. David Siegal, Mr. Mozilo’s attorney released a statement calling the SEC charges “baseless,” adding that the lender’s risks “were well disclosed to and understood by the marketplace.” The SEC also sued former CFC executives David Sambol and Eric Sieracki, accusing them and Mr. Mozilo of “falsely assuring investors” that Countrywide was funding “primarily” prime quality loans and had avoided the excesses of its competitors. The two men could not be reached for comment. Last summer Bank of America bought CFC for a few dollars a share compared to a one-time high of $40. The agency released a memo that Mr. Mozilo wrote in April 2006 where he refers to Countrywide’s subprime business as “the poison of ours.” According to figures compiled by National Mortgage News Countrywide was the nation’s largest subprime lender and servicer during its final years of operation, but had not made a serious run at A- to D lending until the early 2000s. The agency accuses him of selling $140 million of stock from November 2006 until August 2007 while “he was aware of material, non-public information concerning Countrywide’s increasing credit risk.” In past interviews with NMN Mr. Mozilo maintained that his stock sales were legal and followed the rule of law. In March 2007 he told this newspaper that he was selling the stock in question, noting, “I have almost all my personal net worth tied up in the company.” He defended the sales, saying “I have created $25 billion in value for the shareholders. It’s been one of the best performing stocks on the New York Stock Exchange. I gave them 98% of the value and took 2%. And they [the shareholders] didn’t have to do the work. I did it for them.”

SEC Case Focuses on Countrywide’s Payment Option ARMs

June 5, 2009

In charging former Countrywide CEO Angelo Mozilo with fraud, the Securities and Exchange Commission is zeroing in on the lender’s payment option ARM business, a controversial product that Mr. Mozilo initially embraced and then later cursed. According to figures collected by National Mortgage News Countrywide Financial Corp. was the nation’s largest POA lender in 2006, a year in which Mr. Mozilo wrote several memos cited by the SEC in its complaint. (CFC was also the largest POA funder in 2007, originating a record $86 billion in these notes which eventually can become negatively amortizing.) In one memo Mr. Mozilo laments that CFC has “no way, with reasonable certainty, to assess the real risk of holding” POAs on its balance sheet. He adds that by putting so many loans on CFC’s books “we are flying blind on how these loans will perform in a stressed environment.” One loan broker who funded POAs for CFC told this newspaper that the loans were hugely profitable for the company because of all the points it charged on them. When CFC was eventually sold to Bank of America last year it had $80 billion in loans on its balance sheet — including POAs and second liens. The SEC accuses Mr. Mozilo of knowing how risky these products were but without sharing his opinions with investors. “Concealed from shareholders was the true Countrywide, an increasingly reckless lender assuming greater and greater risk,” said SEC director of enforcement Robert Khuzami. During CFC’s last year of operations, the lender began sending out warning letters to borrowers who were choosing the ‘neg am’ option on POAs, telling them of the risks.

SEC Accuses of Mozilo of Fraud, Insider Trading

June 4, 2009

Angelo Mozilo, the founder and former chairman/CEO of Countrywide Financial Corp. — and an icon in the industry for many years — was slapped with a massive civil fraud complaint by the Securities and Exchange Commission on Thursday afternoon, accused of deliberately misleading investors in the company’s stock and engaging in insider trading. A message left at his home in Granada Hills, Calif. was not returned at press time. The SEC also sued former CFC executives David Sambol and Eric Sieracki, accusing them and Mr. Mozilo of “falsely assuring investors” that Countrywide was funding “primarily” prime quality loans and had avoided the excesses of its competitors. The two men could not be reached for comment. Last summer Bank of America bought CFC for a few dollars a share compared to a one-time high of $40. The agency released a memo that Mr. Mozilo wrote in April 2006 where he refers to Countrywide’s subprime business as “the poison of ours.” According to figures compiled by National Mortgage News Countrywide was the nation’s largest subprime lender and servicer during its final years of operation, but had not made a serious run at A- to D lending until the early 2000s. The agency accuses him of selling $140 million of stock from November 2006 until August 2007 while “he was aware of material, non-public information concerning Countrywide’s increasing credit risk.” In past interviews with NMN Mr. Mozilo maintained that his stock sales were legal and followed the rule of law. In March 2007 he told this newspaper that he was selling the stock in question, noting, “I have almost all my personal net worth tied up in the company.” He defended the sales, saying “I have created $25 billion in value for the shareholders. It’s been one of the best performing stocks on the New York Stock Exchange. I gave them 98% of the value and took 2%. And they [the shareholders] didn’t have to do the work. I did it for them.”

GMAC Sells $4.5B of Debt Through FDIC Program

June 4, 2009

GMAC Financial Services said it has priced $4.5 billion of debt guaranteed by the Federal Deposit Insurance Corp. through the agency’s Temporary Liquidity Guarantee Program. GMAC, the parent of Residential Capital Corp., the nation’s fifth largest mortgage servicer, said the offering will further improve its liquidity position. The securities offering included $3.5 billion of senior fixed-rate notes and $1 billion of senior floating rate notes. The debt comes due in December 2012. In May 2009, GMAC received regulatory approval to participate in the TLGP for up to $7.4 billion. Earlier this year the company received a $5 billion infusion through the Treasury Department’s TARP program.

Mortgage Servicing: Making Sure Your Payments Count

When you apply for a home mortgage, you may think that the lender will hold and service your loan until you pay it off or you sell your house. That’s often not the case. In today’s market, loans and the rights to service them often are bought and sold.

A home may be one of the most expensive purchases you ever make, so it’s important to know who is handling your payments and that your mortgage account is properly credited. The Federal Trade Commission (FTC) wants you to know what a mortgage servicer does and what your rights are.

Mortgage Servicers: Their Responsibilities to You

A mortgage servicer is responsible for collecting your monthly loan payments and crediting your account. A servicer also handles your escrow account, if you have one.

Escrow Accounts

An escrow account is a fund held by your servicer into which you pay money to cover charges like property taxes and homeowners insurance. The escrow payments typically are included as part of your monthly mortgage payments. The servicer pays your taxes and insurance as they become due during the year. If you do not have an escrow account, you are responsible for paying your taxes and insurance and budgeting accordingly.

The Real Estate Settlement Procedures Act (RESPA), enforced by the Department of Housing and Urban Development, is the major law covering escrow accounts. If your mortgage servicer administers an escrow account for you, the servicer is generally required to make escrow payments for taxes, insurance, and any other charges in a timely manner. Within 45 days of establishing the account, the servicer must give you a statement that clearly itemizes the estimated taxes, insurance premiums, and other anticipated charges to be paid over the next 12 months, and the expected dates and totals of those payments.

Under RESPA, the mortgage servicer also is required to give you a free annual statement that details the activity of your escrow account. This statement shows your account balance and reflects payments for your property taxes, homeowners insurance, and other charges.

Transfer of Servicing

If your loan is about to be sold, you generally get two notices: one from your current mortgage servicer; the other from the new servicer. Usually, your current servicer must notify you at least 15 days before the effective date of the transfer, unless you received a written transfer notice at settlement. The effective date is when the first mortgage payment is due at the new servicer’s address. The new servicer must notify you within 15 days after the transfer has occurred.

The notices must include:

• the name and address of the new servicer.
• the date the current servicer will stop accepting your mortgage payments.
• the date the new servicer will begin accepting your mortgage payments.
• toll-free or collect-call telephone numbers, for the current and new mortgage servicer, for information about the transfer.
• whether you can continue any optional insurance, such as credit life or disability insurance; what action, if any, you must take to maintain coverage; and whether the insurance terms will change.
• a statement that the transfer will not affect any terms or conditions of your mortgage, except those directly related to the servicing of the loan. For example, if your contract says you were allowed to pay property taxes and insurance premiums on your own, the new servicer cannot demand that you establish an escrow account.

There is a 60-day grace period after the transfer: during this time you cannot be charged a late fee if you mistakenly send your mortgage payment to the old servicer. In addition, the fact that your new servicer may have received your payment late as a result cannot be reported to a credit bureau.

Posting Payments

Some consumers have complained that they’ve been charged late fees, even when they know they made their payments on time. To help protect yourself, keep good records of what you’ve paid, including any billing statements, canceled checks, or bank account statements. You also may check your account history online if your servicer’s Web site has this feature. If you have a dispute, continue to make your mortgage payments, but challenge the servicing in writing (see Sample Complaint Letter to Lender), and keep a copy of the letter and any enclosures for your records. Send your correspondence by certified mail, and request a return receipt. Or send it by fax, and keep a copy of the transmittal confirmation.

Force Placed Insurance

It’s important to maintain the required property insurance on your home. If you don’t, your servicer can buy insurance on your behalf. This type of policy is known as force placed insurance; it usually is more expensive than typical insurance; and it provides less coverage. The primary purpose of a force placed policy is to protect the mortgage holder, not the property owner.

Review all correspondence you receive from your mortgage servicer. Your mortgage servicer may request that you provide a copy of your property insurance policy. Respond promptly to requests regarding property insurance, and keep copies of all documents you send to your mortgage servicer.

If you believe there’s a paperwork error and that your coverage is adequate, provide a copy of your insurance policy to your servicer. Once the servicer corrects the error, removes the force placed coverage, and refunds the cost of the force placed policy, make sure that any late fees or interest you were charged as a result of the coverage also are removed.

Fees

Review your billing statements carefully to make sure that any fees the servicer charges are legitimate. For example, the fees may have been authorized by the mortgage contract or by you to pay for a service. If you do not understand what the fees are for, send a written inquiry and ask for an itemization and explanation of the fees. Also, if you call your mortgage servicer to request a service, such as faxing copies of loan documents, make sure you ask whether there is a fee for the service and what it is.

Inquiries and Disputes

Under RESPA, your mortgage servicer must respond promptly to written inquiries, known as qualified written requests (see Sample Complaint Letter to Lender). If you believe you’ve been charged a penalty or late fee that you don’t owe, or if you have other problems with the servicing of your loan, contact your servicer in writing. Be sure to include your account number and clearly explain why you believe your account is incorrect. Your inquiry should not be just a note on the payment coupon supplied by your servicer, but should be sent separately to the customer service address.

Within 20 business days of receiving your inquiry, the servicer must send you a written response acknowledging it. Within 60 business days, the servicer either must correct your account or determine that it is accurate. The servicer must send you a written notice of the action it took and why, along with the name and telephone number of someone you can contact for additional assistance.

Do not subtract any disputed amount from your mortgage payment. Some mortgage servicers might refuse to accept what they consider to be partial payments. They might return your check and charge you a late fee, or claim that your mortgage is in default and start foreclosure proceedings.

 

Sample Complaint Letter to Lender The following is a sample qualified written request from you, the borrower, to a lender. Use this format to address complaints under the Real Estate Settlement Procedures Act (RESPA). Attention Customer Service: Subject: Your loan number Your Name Your Address Your City, State, Zip Code This is a “qualified written request” under Section 6 of the Real Estate Settlement Procedures Act (RESPA). I am writing because: Describe the issue or the question you have and/or what action you believe the lender should take. Attach copies of any related written materials. Describe any conversations with customer service regarding the issue and to whom you spoke. Describe any previous steps you have taken or attempts to resolve the issue. List a day time telephone number in case a customer service representative wishes to contact you. I understand that under Section 6 of RESPA you are required to acknowledge my request within 20 business days and must try to resolve the issue within 60 business days. Sincerely, Your name

Fair Debt Collection

By law, a debt collector is a person who regularly collects debts owed to others. Your mortgage servicer is considered a debt collector only if your loan was in default when the servicer acquired it. If that’s true, you have additional rights that you can read about in the FTC’s brochure “Fair Debt Collection.”

Your Credit Report

Many mortgage companies provide information about your payment history to credit bureaus, companies that maintain and sell consumer credit reports — which contain information about your credit payment history — to other creditors, employers, insurers, and businesses. Both the credit bureaus and the information provider have responsibilities for correcting inaccurate or incomplete information.

If you believe that your mortgage servicer has provided inaccurate information to a credit bureau, contact the credit bureau and the servicer. Tell the credit bureau in writing (see Sample Dispute Letter to Credit Bureau) what information you believe is inaccurate. Include copies (NOT originals) of documents that support your position. In addition to providing your complete name and address, your letter should clearly identify each item in your report you dispute, state the facts, and explain why you dispute the information, and request deletion or correction. You may want to enclose a copy of your report with the items in question circled. Send your letter by certified mail, return receipt requested, so you can document what the credit bureau received. Keep copies of your dispute letter and enclosures.

Credit bureaus must re-investigate the items in question — usually within 30 days — unless they consider your dispute frivolous. They also must forward all relevant information you provide about the dispute to the information provider. After the information provider receives notice of a dispute from the credit bureau, it must investigate, review all relevant information provided by the credit bureau, and report the results to the credit bureau. If the information provider finds the disputed information to be inaccurate, it must notify all national credit bureaus so they can correct this information in your file. Disputed information that cannot be verified must be deleted from your file.

• If your report contains erroneous information, the credit bureau must correct it.
• If an item is incomplete, the credit bureau must complete it. For example, if your file showed that you were late making payments, but failed to show that you were no longer delinquent, the credit bureau must show that you’re current.
• If your file shows an account that belongs to another person, the credit bureau must delete it.

When the re-investigation is complete, the credit bureau must give you the written results and a free copy of your report if the dispute results in a change. If an item is changed or removed, the credit bureau cannot put the disputed information back in your file unless the information provider verifies its accuracy and completeness, and the credit bureau gives you a written notice that includes the name, address, and phone number of the provider.

Also, if you request it, the credit bureau must send notices of corrections to anyone who received your report in the past six months. If a re-investigation does not resolve your dispute, ask the credit bureau to include your statement of the dispute in your file and in future reports.

In addition to writing to the credit bureau, tell the servicer in writing that you dispute an item. Include copies (NOT originals) of the documents that support your position. If a servicer specifies an address for disputes, it is important to send your dispute to that address. If the provider then reports the item to any credit bureau, it must include a notice of your dispute. If you are correct — that is, if the disputed information is inaccurate — the information provider may not report it again.

 

Sample Dispute Letter to Credit Bureau Date Your Name Your Address Your City, State, Zip Code Complaint Department Name of Credit Reporting Agency Address City, State, Zip Code Dear Sir or Madam: I am writing to dispute the following information in my file. The items I dispute also are encircled on the attached copy of the report I received. (Identify item(s) disputed by name of loan servicer and loan number.) This item is (inaccurate or incomplete) because (describe what is inaccurate or incomplete and why). I am requesting that the item be deleted (or request another specific change) to correct the information. Enclosed are copies of (use this sentence if applicable and describe any enclosed documentation, such as payment records, court documents) supporting my position. Please re-investigate this (these) matter(s) and (delete or correct) the disputed item(s) as soon as possible. Sincerely, Your name Enclosures: (List what you are enclosing)

If You Have a Complaint

If you believe your mortgage servicer has not responded appropriately to your written inquiry, contact your local or state consumer protection office. You also should contact the Department of Housing and Urban Development (HUD) to file a complaint under the RESPA regulations. Write: Office of RESPA and Interstate Land Sales, Department of Housing and Urban Development, 451 Seventh Street, S.W., Room 9154, Washington, DC 20410.

In addition, you may want to contact an attorney to advise you of your legal rights. Under certain sections of the RESPA, consumers can initiate lawsuits and obtain actual damages, plus additional damages, for a pattern or practice of noncompliance. In successful actions, consumers also may obtain court costs and attorney’s fees.

You may want to contact a housing counselor to discuss your situation. You can call HUD’s hotline at 1-800-569-4287 for a referral to a local HUD-approved housing counselor.

You also may wish to contact the FTC.

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad. 

Homeowners fight foreclosure in court

Homeowners fight foreclosure in court

By Susan Taylor Martin, Times Senior Correspondent Published Sunday, May 24, 2009

Louis Manley spent most of his working days as a doctor. But when Deutsche Bank started to foreclose on his Clearwater condo last summer, the 81-year-old Manley branched into a new field. “I’m calling myself a student of the law,” he says. Frustrated that the bank wouldn’t consider a loan modification, Manley set out to challenge the foreclosure. He pored through legal tomes at the Stetson University College of Law. He prowled the Internet for tips on defense strategies. He filed motions and memorandums, citing everything from the Declaration of Independence to a 1994 workbook of the Federal Reserve Bank of Chicago. Manley even spent $200 on certified letters to make sure the bank’s attorneys couldn’t claim they never received his correspondence. Alas, it all appeared for naught May 7 when the bank bought his Top of the World condo for $100. But Manley, a World War II vet, remains unvanquished. “I am fighting on,” he vows. • • • Like Manley, a tiny but growing number of the 2.1 million Americans facing foreclosure this year are aggressively battling to save their homes. And those unable or unwilling to hire lawyers are representing themselves in court. They are getting plenty of help. Web sites like Consumer Warning Network and Livinglies offer sample letters and motions, glossaries of legal terms and summaries of favorable court rulings. A popular series of how-to books now includes Foreclosure Defense for Dummies. And for those willing to pay $149 for an afternoon of tips, encouragement and sympathy, there are seminars like the recent one in Orlando. “Don’t get hung up in your mind that this is your fault,” Brad Keiser tells an audience of 30 homeowners, some from as far away as Colorado. “There are police chiefs, college deans, retired nuns — people in all walks of life are in a situation like you are in.” Keiser, a former banker, and Neil Garfield, a lawyer who founded Livinglies, originally held all-day seminars just for the legions of attorneys now moving into foreclosure defense work. But sensing demand, they decided to offer a pared-down version for lay people. Their over-arching theme is that people who got loans they couldn’t afford between 2001 and 2008 are victims of a securitized-loan frenzy in which investors, eager for big returns, poured trillions of dollars into the credit markets. Much of that money was used to fund the high-interest but risky loans now in default. “I say to you, you have every reason to be restored to the position we were in before you were the victim,” Garfield tells the group. “You have every right to have terms and interest rates that are affordable.” For the next four hours, he and other speakers offer tips on what questions to ask and what action to take so that the party seeking to foreclose will either give up or agree to a loan modification. “Challenge everything” is a strategy that some audience members said they had already used with success. Tales from the front Even before he defaulted on a rental property, Vladimir Diaz of Broward County started “to educate myself” with information he found on the Livinglies Web site. So he knew how to challenge IndyMac Bank when it filed a notice of foreclosure even though it didn’t own the loan “note” — the borrower’s obligation to repay. “I got up at the hearing and said, ‘Your honor, they don’t have any standing to foreclose,’ ” he recalls. “She liked that” and dismissed the case. Homeowners are warned, though, that they must follow proper procedures when representing themselves, such as getting on the judge’s calendar and notifying all parties of motions. If that sounds too daunting, they can consult the Livinglies site for a list of attorneys who do foreclosure defense, at a price. Cautions Garfield, who gets no referral fees: “You don’t want to go from a predatory lender to a predatory lawyer.” Curious questions Despite a record number of foreclosures, judges in the Tampa Bay area say very few homeowners are representing themselves in contested cases. “With all these seminars and Web sites, we keep our heads down, wondering where is the first incoming wave?” says Hillsborough Circuit Judge James Barton. “But so far I’m just not seeing it.” Pinellas Judge W. Douglas Baird recalls a few cases in which “homeowners were throwing up whatever roadblocks they could (to delay) the inevitable.” In general, though, “when they come in at all, usually they’re resigned to what’s going on,” he says. “They’re just wanting to understand what’s going to happen and how to deal with the ultimate sale or what options they have in trying to redeem the property.” For Manley, a doctor of osteopathic medicine, the battle to save his condo had its roots 15 years ago when he was diagnosed with cancer of the nasal passages. Told he had six months to live, he closed his practice and spent much of his savings on what turned out to be successful surgery at the Mayo Clinic. After his wife died and the interest rate on their $120,000 loan increased, Manley found that his $1,500 a month in Social Security was not enough to pay the mortgage and other bills. He missed several payments, and Deutsche Bank started foreclosure proceedings in July. Still spry and sharp, Manley promptly went to work, trolling the law libraries at Stetson and the county courthouse and “talking to people coast to coast” about ways to fight back. Using a common foreclosure defense strategy, he demanded that the bank answer a series of questions, though some of his phraseology was a bit perplexing: “What exactly could be implied from evidence used by: Three State Attorney Generals sue lenders … for misrepresentation, discrimination etc?” Based on other information he thinks he plucked from the Internet, Manley also tried to dismiss the case on the grounds he had been denied his “right” to a written transcript of a hearing. Judge Linda Allan dismissed his motion, noting that “there is no right to a transcript in a civil matter.” (The party requesting one must hire a court reporter and pay for the transcription.) Though the sale initially was set for late last year, the bank agreed to postpone it to give Manley time to make up his late payments, which he didn’t have the money to do. The bank bought back the condo this month. Like other judges, Allan encourages lenders and homeowners to work out settlements through mediation. She couldn’t discuss Manley’s case because it is still open — he recently filed a motion to set aside the sale. However, he moved out all his furniture and is staying with a friend downstairs. “He can’t hear and I can’t see so we help each other,” she says. Manley knows he may eventually have to move in with one of his children. He remains convinced he didn’t get a fair shake in court because the bank won a final judgment of foreclosure without having to answer his questions. But he’s also convinced he’s done a good job representing himself. “Absolutely,” he says. “I think I’ve done my homework.”

 Susan Taylor Martin can be contacted at susan@sptimes.com

Media picks up on evil business practices of servicers

 HOMEOWNER FIGHTS AND WINS WITH ACORN: watch?v=U4tP1fB5AgU&feature=fvw

HOMEOWNER FIGHTS AND WINS ON PRODUCE THE NOTE: video?id=6839407

BLACKMAIL: NO LATE PAYMENTS? NO PROBLEM. GET OUT!: watch?v=yj6YZPeaRcU&feature=related

PRODUCE THE NOTE: WHEN THE BANK LOST OR DESTROYED THE EVIDENCE: watch?v=YUZdANb6UaY&feature=related

“EVERYONE SHOULD PUT THE ‘LENDER’ TO TASK”: watch?v=LqAWCgKuvZ0&feature=related

Servicers do everything they can to keep loans in default, make money on foreclosures too: watch?v=hq_AKvRdWgg

FED BAILOUT BUYING DEFAULTED LOANS? Why servicers try to force homeowners into foreclosures: watch?v=vxyRFSYe7ws&NR=1

SOME TARP — THEY’RE GIVING MONEY AWAY FOR FREE: watch?v=yGfQk9XXm24&NR=1

 CHILLING PARODY: watch?v=bNmcf4Y3lGM&NR=1

TAKE YOUR COUNTRY BACK: I WANT MY BAILOUT MONEY RAP:watch?v=dnT21hmlT4o&feature=related

“THE MOST IMPORTANT VIDEO ON THE INTERNET”: watch?v=yP2JpY-J8MA&feature=related Former EMC Employee Publicly Discloses the

Ugly Truth About the Mortgage Servicing Industry: See comments to this blog By Denise Richardson on July 11, 2008 10:09 AM | Permalink | Comments (0) | TrackBacks (0) The Consumer Warning Network released a stunning video that has a former EMC employee reciting an inside story that paints a picture of why so many people can’t get their loan out of default and why some people lost homes even though they had the money to pay off their note. Investigative studies, insiders and victims -have claimed that mortgage servicing companies can make MORE money off of homeowners when they keep your loan in default. “the media has failed to tell the full story” says Danny Schechter, producer and director of In Debt We Trust and the ‘News Dissector” from mediachannel.org. See: Bringing the Wall Street Crisis to Main Street! Professor Katherine Porter described many of the same disturbing findings in her recent study: “Misbehavoir and Mistakes…” To watch her on CNN see: Are you facing an Unfair Foreclosure? Professor Porter was also a guest on our weekly radio show SpotLight. During that interview we discussed her findings that additionally indicated the mortgage servicing industry has zero regulations. In fact, the system currently in place for servicing companies is set up in such a way that it actually gives servicing companies an incentive not to communicate with the borrower and then make more money by collecting late fees and penalties -much like this insider’s story. EMC