Newscast Media WASHINGTON—The Securities and Exchange Commission has charged the gatekeepers of a pair of mutual fund trusts with causing untrue or misleading disclosures about the factors they considered when approving or renewing investment advisory contracts on behalf of shareholders.
The five trustees named in the SEC enforcement action are: Michael Miola of Arizona, Lester M. Bryan of Utah, Anthony J. Hertl of Florida, Gary W. Lanzen of Nevada, and Mark H. Taylor of Ohio.
Some trusts are created as turnkey mutual fund operations that launch numerous funds to be managed by different unaffiliated advisers and overseen by a single board of trustees. The federal securities laws require all mutual fund directors to evaluate and approve a fund’s contract with its investment adviser, and the funds must report back to shareholders about the material factors considered by the directors in making these decisions. The SEC Enforcement Division’s Asset Management Unit has been fee arrangements in the fund industry.
An SEC investigation that arose from an examination of the Northern Lights Fund Trust and the Northern Lights Variable Trust found that some of the trusts’ shareholder reports either misrepresented material information considered by the trustees or omitted material information about how they evaluated certain factors in reaching their decisions on behalf of the funds and their shareholders. The trustees and the trusts’ chief compliance officer Northern Lights Compliance Services (NLCS) were responsible for causing violations of the SEC’s compliance rule, and the trusts’ fund administrator Gemini Fund Services (GFS) caused violations of the Investment Company Act recordkeeping and reporting provisions.
The firms and the trustees have agreed to settle the SEC’s charges.
“Determining the terms of the investment advisory contract, especially compensation of the adviser, is one of the most critical duties of a mutual fund board,” said George S. Canellos, Co-Director of the SEC’s Division of Enforcement. “We will aggressively enforce investors’ rights to accurate and complete information about the board’s process and decision-making.”
Newscast Media WASHINGTON, D.C.—The Securities and Exchange Commission charged a former executive at New York-based broker-dealer Jefferies & Co. with defrauding investors while selling mortgage-backed securities (MBS) in the wake of the financial crisis so he could generate additional revenue for his firm.
According to the SEC’s complaint filed in federal court in Connecticut, Jesse Litvak arranged trades for customers as part of his job as a managing director on the MBS desk at Jefferies. Litvak would buy a MBS from one customer and sell it to another customer, but on many occasions he lied about the price at which his firm had bought the MBS so he could re-sell it to the other customer at a higher price and
keep more money for the firm. On other occasions, Litvak misled purchasers by creating a fictional seller to purport that he was arranging a MBS trade between customers when in reality he was just selling MBS out of his firm’s inventory at a higher price. Because MBS are generally illiquid and difficult to price, it is particularly important for brokers to provide honest and accurate information.
The SEC alleges that Litvak generated more than $2.7 million in additional revenue for Jefferies through his deceit. His misconduct helped him improve his own standing at the firm, as his bonuses were determined in part by the amount of revenue he generated for the firm.
“Brokers must always tell their customers the truth, particularly in complex securities transactions in which it is difficult for investors to determine market prices on their own,” said George Canellos, Deputy Director of the SEC’s Division of Enforcement.
“Litvak repeatedly lied to his customers and invented facts to bring additional profits into his firm and ultimately his own pocket at their expense.”
The SEC’s complaint charges Litvak with violating the antifraud provisions of the federal securities laws, particularly Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5, and Section 17(a) of the Securities Act of 1933.
Newscast Media CHARLOTTE, N.C—Bank of America Corp has announced a settlement deal with Fannie Mae of $11.6 billion for bad mortgages of nearly a decade’s worth of home loans, as a result of Bank of America’s acquisition of Countrywide Financial Corp. five years ago.
The agreement is also separate from an $8.5 billion foreclosure-abuse settlement between regulators and 10 banks, including Bank of America, additionally announced Monday. That pact is in addition to another settlement reached last February, where five large banks, including Bank of America, agreed to a $25 billion settlement with the Obama administration and 49 state attorneys general.
Under the deal announced Monday, the bank will pay $3.6 billion to Fannie Mae and buy back $6.75 billion in loans that the North Carolina-based bank and its Countrywide banking unit sold to the government agency from Jan. 1, 2000 through Dec. 31, 2008, according to the Washington Post.
In layman’s terms here’s what happened:
(i) Mortgages that were generated over the last decade were bundled together into Mortgage-Backed Securities, and placed into a pool.
(ii) The pools are then placed into a trust called a Real Estate Mortgage Investment Conduit Trust (REMIC) and a Trustee is appointed to oversee the trust.
(iii) The trustee then hires a servicer whose duty is to collect money on behalf of the REMIC trust, and the servicer is paid a small fee for collecting these monies from homeowners.
(iv) Meanwhile, the Mortgage-Backed Securities are sold on the secondary market as derivatives, which are insured with Credit Default Swaps in case the trust goes under.
(v) The mortgage changes hands as it is bought and sold multiple times on the secondary market throughout the world, making it virtually impossible to identify who owns the loan, due to the use of MERS (Mortgage Electronic Registration Systems) on the deed of trust. The lack of transparency of MERS prevents anyone from knowing the true and actual owner of the mortgage.
*It is the reason why when you send a “Qualified Written Request” to a servicer asking for the trust documents and the real owner of the loan, in 100 percent of the cases, the servicers cannot provide such information because the loan changed hands multiple times when bought and sold as a Mortgage Backed Security. This practice has clouded the titles of securitized mortgages from 2003-2010.
What went wrong
(vi) The problem with Bank of America and other banks that were sued is that all these mortgages were fraudulent, because the Notes were not transferred into the REMIC trusts. The trusts were empty!
(vii) To prevent the financial collapse, the banks declared the mortgages “toxic assets” and requested bailout money from the government under the Toxic Asset Relief Program (TARP), to halt a financial collapse. $16 trillion was extended.
According to an audit of the Federal Reserve by GAO (Government Accountability Office) below is some of the money the banks received:
Citigroup: $2.5 trillion ($2,500,000,000,000)
Morgan Stanley: $2.04 trillion ($2,040,000,000,000)
Merrill Lynch: $1.949 trillion ($1,949,000,000,000)
Bank of America: $1.344 trillion ($1,344,000,000,000)
Barclays PLC (United Kingdom): $868 billion ($868,000,000,000)
Bear Sterns: $853 billion ($853,000,000,000)
Goldman Sachs: $814 billion ($814,000,000,000)
Royal Bank of Scotland (UK): $541 billion ($541,000,000,000)
JP Morgan Chase: $391 billion ($391,000,000,000)
Deutsche Bank (Germany): $354 billion ($354,000,000,000)
UBS (Switzerland): $287 billion ($287,000,000,000)
Credit Suisse (Switzerland): $262 billion ($262,000,000,000)
Lehman Brothers: $183 billion ($183,000,000,000)
Bank of Scotland (United Kingdom): $181 billion ($181,000,000,000)
BNP Paribas (France): $175 billion ($175,000,000,000)
(viii) The banks receive trillions of dollars, and instead of correcting the defects, they sit on the money, and use some of it to buy up smaller failing banks.
(ix) Investors find out that the Mortgage-Backed Securities weren’t in fact mortgage-backed—they were useless pieces of paper. Lawsuits are filed. Banks settle.
(x) Government teams up with homeowners and whistleblowers reaching a multi-billion dollar settlement with the banks for foreclosure abuse.
The latest settlement between Bank of America and Fannie Mae falls within the sequence of events just described above.
Categories: News Tags: Bank of America class action lawsuit, bank of america foreclosure fraud, bank of america mortgage fraud, bank of america settlement fannie mae, foreclosure, foreclosure fraud, mortgage foreclosure, mortgage fraud, securities and exchange commission, securities fraud
Newscast Media WASHINGTON, D.C. — The Securities and Exchange Commission obtained a temporary restraining order and asset freeze against a Utah man and company charged with operating a real estate-based Ponzi scheme that bilked $100 million from investors nationwide.
The SEC’s complaint filed in U.S. District Court for the District of Utah, names Wayne L. Palmer and his firm, National Note of Utah, LC, both of West Jordan, Utah. According to the complaint, Palmer told investors that their money would be used to buy mortgage notes and real estate assets, or to make real estate loans. More than 600 individuals invested, lured by promises of annual returns of 12 percent, the SEC alleged.
“Palmer promised double-digit returns at his real estate seminars, where investors learned the hard way about his lies and deceit,” said Kenneth Israel, Director of the SEC’s Salt Lake City Regional Office.
The SEC’s complaint charges National Note and Palmer with violating the anti-fraud and securities registration provisions of U.S. securities laws. Palmer also faces charges that he operated as an unregistered broker-dealer.
Section 17(a)(2) – Anti-Fraud Authority of the Securities Act of 1933 states:
“It shall be unlawful for any person in the offer or sale of any securities or any security-based swap agreement (as defined in section 206B of the Gramm-Leach-Bliley Act [15 USCS § 78c note]) by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.” Click here to download or read entire complaint.
Newscast Media WASHINGTON, D.C. —The Securities and Exchange Commission today announced that it charged Franklin Bank Corp.’s former chief executives for their involvement in a fraudulent scheme designed to conceal the deterioration of the bank’s loan portfolio and inflate its reported earnings during the financial crisis. The SEC alleges that former Franklin CEO Anthony J. Nocella and CFO J. Russell McCann used aggressive loan modification programs during the third and fourth quarters of 2007 to hide the true amount of Franklin’s non-performing loans and artificially boost its net income and earnings. The Houston-based bank holding company declared bankruptcy in 2008.
“Nocella and McCann used the loan modification scheme like a magic wand to change non-performing loans into performing assets,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “Their disclosure and accounting tricks misled investors into believing that Franklin was outperforming other banks during the height of the financial crisis.”
What the SEC means is that these banks sold “toxic assets” to investors in form of Mortgage-Backed Securities (MBS) that were pooled together into Trusts. The banks were first compensated through TARP (Troubled Assets Relief Program) money using billions of taxpayers’ money. They were also compensated a second time through insurance (credit default swaps), and the third compensation came through the stream of monthly payments by homeowners. The fourth compensation came when banks were unable to modify loans, and sold the homes at public auctions through foreclosure.
So these banks have earned money four-fold, and are not being held accountable. It seems the magic word is to add the word “bank” in a business name and one is virtually immune from being charged with illegal business practices. However, the SEC is slowly changing that, yet whether the courts will be willing to hold the banks accountable remains to be seen.
The SEC’s complaint filed in U.S. District Court for the Southern District of Texas seeks financial penalties, officer-and-director bars, and permanent injunctive relief against Nocella and McCann to enjoin them from future violations of the federal securities laws.
The SEC has a strong case under Exchange Act Section 10(b) [15 U.S.C. § 78j(b)] and Rule 10b-5 [17 C.F.R. § 240.10b-5]
15 USC § 78j(b) – Manipulative and deceptive devices states:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange—
(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement (as defined in section 206B of the Gramm-Leach-Bliley Act), any manipulative or deceptive device or contrivance in
contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
17 C.F.R. § 240.10b-5 states:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security.
The securities banks deal with are Mortgage-Backed Securities (MBS). A company that engages in the business of investing, reinvesting, owning, holding, or trading in securities should abide by the Investment Company Act of 1940 also referred to as (15 USC § 80a–3) that requires any such business to be registered in order to conduct business.
Almost 100 percent of these banks that claim to be Trustees for XYZ Trust are operating illegally because the Trusts are defunct and do not exist. Unfortunately judges and attorneys seem to be unfamiliar or unwilling to learn about the securitization process, so one has to school them using charts, tables or
diagrams. The SEC is doing just that, and we should expect more diagrams to be provided at trial.
When fighting such cases involving banks claiming to be Trustees, acting on behalf of some Trust, one has to be willing to fight them all the way to the Supreme Court, since those justices are more knowledgeable in dealing with such complex laws.
For more information about this enforcement action, contact:
Regional Director, SEC’s Fort Worth Regional Office
Associate Regional Director, SEC’s Fort Worth Regional Office
Categories: News Tags: asset backed securities, bank mortgage fraud, collateralized debt obligations, credit default swap, derivatives, foreclosure fraud, mortgage backed securities, mortgage fraud, SEC, SEC investigations, SEC mortgage fraud
Newscast Media WASHINGTON D.C. — The Securities and Exchange Commission today announced that a federal judge has ordered the former CEO of Brookstreet Securities Corp. to pay a maximum $10 million penalty in a securities fraud case related to the financial crisis.
The SEC litigated the case beginning in December 2009, when the agency charged Stanley C. Brooks and Brookstreet with fraud for systematically selling risky mortgage-backed securities to customers with conservative investment goals. Brookstreet and Brooks developed a program through which the firm’s registered representatives sold particularly risky and illiquid types of Collateralized Mortgage Obligations (CMOs) to more than 1,000 seniors, retirees, and others for whom the securities were unsuitable.
Brookstreet and Brooks continued to promote and sell the risky CMOs even after Brooks received numerous warnings that these were dangerous investments that could become worthless overnight. The fraud caused
severe investor losses and eventually caused the firm to collapse.
The Honorable David O. Carter in federal court in Los Angeles granted summary judgment in favor of the SEC on February 23, finding Brookstreet and Brooks liable for violating Section 10(b) of the Securities Exchange Act of 1934 as well as Rule 10b-5. The court entered a final judgment in the case yesterday and ordered the financial penalty sought by the SEC.
Section 10(b) of the Securities Exchange Act states:
Section 10 — Manipulative and Deceptive Devices: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange–
a. (1) To effect a short sale, or to use or employ any stop-loss order in connection with the purchase or sale, of any security registered on a national securities exchange, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or
for the protection of investors.
(2) Paragraph (1) of this subsection shall not apply to security futures products.
b. To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement (as defined in section 206B of the Gramm-Leach-Bliley Act), any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Rules promulgated under subsection (b) prohibit fraud, manipulation, or insider trading.
“Brooks’ aggressive promotion and sale of risky mortgage products to seniors and other risk-averse investors deserves the maximum penalty possible, and that is what he got,” said Robert Khuzami, Director of the SEC’s Division of Enforcement.
“Those who direct such exploitative practices from the boardroom will be held personally accountable and face severe consequences for their egregious actions.”
Rosalind Tyson, Director of the SEC’s Los Angeles Regional Office, added, “The CMOs that Brookstreet sold its customers were among the most risky of all mortgage-backed securities. This judgment highlights the responsibility of brokerage firm principals to ensure the suitability of the securities they sell to customers.”
The SEC has brought enforcement actions stemming from the financial crisis against 95 entities and individuals, including 49 CEOs, CFOs, and other senior officers.
Newscast Media WASHINGTON, D.C. — The Securities and Exchange Commission today charged four former veteran investment bankers and traders at Credit Suisse Group for engaging in a complex scheme to fraudulently overstate the prices of $3 billion in subprime bonds during the height of the subprime credit crisis.
The SEC alleges that Credit Suisse’s former global head of structured credit trading Kareem Serageldin and former head of hedge trading David Higgs along with two mortgage bond traders deliberately ignored specific market information showing a sharp decline in the price of subprime bonds under the control of their group. They instead priced them in a way that allowed Credit Suisse to achieve fictional profits.
Serageldin and Higgs periodically directed the traders to change the bond prices in order to hit daily and monthly profit targets, cover up losses in other trading books, and send a message to senior management about their group’s profitability. The SEC alleges that the mispricing scheme was driven in part by these investment bankers’ desire for lavish year-end bonuses and, in the case of Serageldin, a promotion into the senior-most echelon of Credit Suisse’s investment banking unit.
“The stunning scale of the illegal mismarking in this case was surpassed only by the greed of the senior bankers behind the scheme,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “At precisely the moment investors and market participants were urgently seeking accurate information about financial institutions’ exposure to the subprime market, the senior bankers falsely and selfishly inflated the value of more than $3 billion in asset-backed securities in order to protect their bonuses and, in one case, protect a highly coveted promotion.”
According to the SEC’s complaint filed in U.S. District Court for the Southern District of New York, Serageldin oversaw a significant portion of Credit Suisse’s structured products and mortgage-related businesses. The traders reported to Higgs and Serageldin. As the subprime credit crisis accelerated in late 2007 and 2008, Serageldin frequently communicated to Higgs the specific profit & loss (P&L) outcome he wanted. Higgs in turn directed the traders to mark the book in a manner that would achieve the desired P&L. However, under the relevant accounting principles and Credit Suisse policy, the group was required to record the prices of these bonds to accurately reflect their fair value. Proper pricing would have reflected that Credit Suisse was incurring significant losses as the subprime market collapsed.
The SEC’s investigation, which is continuing, has been conducted by Staff Accountant Kenneth Gottlieb, Senior Counsel Kristine Zaleskas, Senior Specialized Examiner Michael Fioribello, Assistant Regional Director Michael Paley, and Assistant Regional Director Michael Osnato, Jr. in the SEC’s New York Regional Office. Senior Trial Counsel Howard Fischer will lead the SEC’s litigation efforts.
Newscast Media WASHINGTON D.C. — The Securities and Exchange Commission has charged six former top executives of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) with securities fraud, alleging they knew and approved of misleading statements claiming the companies had minimal holdings of higher-risk mortgage loans, including subprime loans.
Fannie Mae and Freddie Mac each entered into a Non-Prosecution Agreement with the Commission in which each company agreed to accept responsibility for its conduct and not dispute, contest, or contradict the contents of an agreed-upon Statement of Facts without admitting nor denying liability. Each also agreed to cooperate with the Commission’s litigation against the former executives. In entering into these Agreements, the Commission considered the unique circumstances presented by the companies’ current status, including the financial support provided to the companies by the U.S. Treasury, the role of the Federal Housing Finance Agency as conservator of each company, and the costs that may be imposed on U.S. taxpayers.
Three former Fannie Mae executives — former Chief Executive Officer Daniel H. Mudd, former Chief Risk Officer Enrico Dallavecchia, and former Executive Vice President of Fannie Mae’s Single Family Mortgage business, Thomas A. Lund — were named in the SEC’s complaint filed in U.S. District Court for the Southern District of New York.
The SEC also charged three former Freddie Mac executives — former Chairman of the Board and CEO Richard F. Syron, former Executive Vice President and Chief Business Officer Patricia L. Cook, and former Executive Vice President for the Single Family Guarantee business Donald J. Bisenius — in a separate complaint filed in the same court.
“Fannie Mae and Freddie Mac executives told the world that their subprime exposure was substantially smaller than it really was,” said Robert Khuzami, Director of the SEC’s Enforcement Division. “These material misstatements occurred during a time of acute investor interest in financial institutions’ exposure to subprime loans, and misled the market about the amount of risk on the company’s books. All individuals, regardless of their rank or position, will be held accountable for perpetuating half-truths or misrepresentations about matters materially important to the interest of our country’s investors.”
The SEC’s investigation of Fannie Mae was conducted by Senior Attorneys Natasha S. Guinan, Christina M. Marshall, Liban Jama, Mona L. Benach, and Associate Chief Accountant, Peter Rosario, under the supervision of Assistant Director Charles E. Cain, and Associate Director Stephen L. Cohen. Sarah Levine and James Kidney will lead the SEC’s litigation efforts.
The SEC’s investigation of Freddie Mac was conducted by Senior Attorneys Giles T. Cohen and David S. Karp and Assistant Chief Accountant Avron Elbaum of the SEC’s Division of Enforcement under the supervision of Assistant Director Charles E. Cain and Associate Director Stephen L. Cohen. Kevin O’Rourke and Suzanne Romajas will lead the SEC’s litigation efforts.
For more information about these enforcement actions, contact:
Robert S. Khuzami, Director
Lorin L. Reisner, Deputy Director
Stephen L. Cohen, Associate Director
Charles E. Cain, Assistant Director
Newscast Media BOSTON — Five national banks have been sued in connection with their roles in allegedly pursuing illegal foreclosures on properties in Massachusetts as well as deceptive loan servicing, Attorney General Martha Coakley announced today. The lawsuit was filed today in Suffolk Superior Court against Bank of America, Wells Fargo, JP Morgan Chase, Citi, and GMAC. It also names Mortgage Electronic Registration System, Inc. (“MERS”) and its parent, MERSCORP Inc., as defendants.
“The single most important thing we can do to return to a healthy economy is to address this foreclosure crisis,” said AG Coakley. “Our suit alleges that the banks have charted a destructive path by cutting corners and rushing to foreclose on homeowners without following the rule of law. Our action today seeks real
accountability for the banks illegal behavior and real relief for homeowners.”
In the complaint, the Attorney General alleges these five entities engaged in unfair and deceptive trade practices in violation of Massachusetts’ law by:
* Pervasive use of fraudulent documentation in the foreclosure process, including
* Foreclosing without holding the actual mortgage (“Ibanez” violations);
* Corrupting Massachusetts’ land recording system through the use of MERS;
* Failing to uphold loan modification promises to Massachusetts homeowners.
USE OF FALSE DOCUMENTS TO EXPEDITE FORECLOSURES “ROBO-SIGNING”:
According to the complaint, the banks used false documentation in the foreclosure process, including so-called “robo-signing”, whereby bank personnel signed affidavits that were untrue, or not based on the signor’s actual knowledge.
FORECLOSING WITHOUT LEGAL AUTHORITY “IBANEZ VIOLATIONS”:
Second, these five entities participated in unlawful foreclosures when they commenced foreclosures on mortgages where they were not the holders of those mortgages. The Supreme Judicial Court (SJC), in Commonwealth v Ibanez, recently upheld Massachusetts law and stated that “only the present holder of a mortgage is authorized to foreclose on the mortgaged property.” Banks “lack standing” to foreclose if they do not own the debt obligation.
UNDERMINING PUBLIC RECORDS “MERS”:
Third, the complaint alleges that these banks have undermined our public land record system through the use of MERS, a private electronic registry system. According to the complaint, the creation and use of MERS was adopted by these defendants primarily to avoid land registration and recording requirements, including payment of recording and registration fees, and to facilitate sales of mortgage loans.
MISREPRESENTING LOAN MODIFICATION PROGRAMS:
Finally, the complaint alleges the banks deceived and misrepresented to borrowers the process, requirements, and availability of loan modifications. The complaint alleges these banks misled borrowers about their eligibility for this program and the amount of relief available, failed to achieve a significant level of modifications, and often strung along borrowers for months in trial modifications that were ultimately rejected.
AG Coakley’s office has been a national leader in holding banks and investment giants accountable for their roles in the economic crisis. AG Coakley has obtained recoveries from Morgan Stanley, Goldman Sachs, Royal Bank of Scotland, Countrywide, Fremont Investment & Loan, Option One, and others on behalf of Massachusetts homeowners. As a result of these actions, her office has recovered more than $600 million in relief for investors and borrowers, helped keep more than 25,400 people in their homes, and returned nearly $60 million in taxpayer funds back to the Commonwealth.
Unfortunately stories like these are killed by the mainstream media, that are forbidden to report them, since they are owned by the large corporations that finance them. The entire complaint can be read here.
Categories: News Tags: attorney general sues bank of america, Bank of America class action lawsuit, citi bank sued, foreclosure, foreclosure fraud, foreclosure theft, lack of standing, mortgage fraud, robo-signing, wells fargo sued
Newscast Media, NEW YORK, New York — FOX News host Bill O’Reilly said the Occupy Wall Street movement is bogus because the actors and participants are misdirecting their anger and should be directing it to Fannie and Freddie Mac who partly responsible for the financial meltdown.
“My question is simple because I am a simple man. Why aren’t the Occupy loons demonstrating in front of Fannie Mae and Freddie Mac?” O’Reilly asked.
O’Reilly concluded that the movement was bogus, due to its unwillingness to confront the real entities that created the financial collapse. http://www.newscastmedia.com/bill-oreilly.html
Newscast Media HOUSTON, Texas –Perhaps the most in-depth reporting and investigation on a pattern of fraud at Countrywide Financial Corp., once the nation’s largest mortgage lender, iWatch News staff writer Michael Hudson details the story of Eileen Foster, Countrywide Financial Corp. fraud investigation chief, who uncovered massive fraud within the company and, federal officials say, paid a price for doing so.
According to iWatch News, Eileen Foster, the company’s new fraud investigations chief, intercepted documents before they reached the shredder and was astounded at what she saw.
“You’re looking at it and you’re going, Oh my God, how did it get to this point?” Foster recalls. “How do you get people to go to work every day and do these things and think it’s okay?”
Foster claims by early 2008, she’d concluded that many in Countrywide’s chain of command were working to cover up massive fraud within the company — outing and then firing whistleblowers who tried to report forgery and other misconduct. People who spoke up, she says, were “taken out.”
Soon after the discovery of fraud, Foster believes that in retaliation, Bank of America fired her. She immediately sued. Her lawsuit was resolved last year, the terms of which remain disclosed.
Currently, Bank of America and other big players are being pressured by federal and state to settle charges they used falsified documents to speed homeowners through foreclosure. Lawsuits filed on behalf of investors claim Countrywide lied about the quality of the pools of mortgages that the lender sold them during the home-loan boom.
Most recently AIG sued Bank of America for selling them fraudulent Mortgage-Backed Securities (MBS) causing BofA’s stock to drop like a bad habit. The suit claims:
“This case arises from a massive fraud perpetrated by Defendants Bank of America, Merrill Lynch, and Countrywide that has resulted in more than $10 billion in damages to AIG, and ultimately American taxpayers. AIG brings this action as part of its overall efforts to recoup such damages from these defendants and other parties.”
(American International Group Inc et al v. Bank of America Corp et al, New York State Supreme Court, New York County No. 652199/2011). Click here to view entire AIG lawsuit and its details.
Accounts from Foster and other whistleblowers now put Bank of America in a very uncomfortable position. To make matters worse, the Department of Labor conducted an independent investigation after Eileen Foster filed a complaint, and its investigation found that indeed Foster was fired by Bank of America out of retaliation.
Gregory Lumsden, former head of Countrywide’s subprime division told iWatch News, “I don’t care if you’re Microsoft or you’re the Golf Channel or Dupont or MSNBC: companies are going to make some mistakes. What you hope is that companies will deal with employees that do wrong. That’s what we did.”
(Eileen Foster was mortgage fraud investigations chief for Countrywide Financial Corp., which eventually became Bank of America. Michael Hudson covers business and finance for iWatch News. The Columbia Journalism Review called him the reporter who “beat the world on subprime abuses.)
Categories: News Tags: Bank of America fraud coverup, countrywide class action lawsuit, countrywide fraud, countrywide mortgage fraud exposed, countrywide whistle blower Eileen Foster, foreclosure fraud, massive fraud in Bank of America, mortgage fraud
Newscast Media HOUSTON, Texas — I get asked a lot of questions regarding the securitization process, especially how a homeowner can find out if his or her loan was sold into a pool of assets on the secondary market.
The first step is writing a “Qualified Written Request” to your bank. By law they should respond to you or face severe penalties. I am not a lawyer, and this is not intended to be considered legal advice. Below is a sample Qualified Written Request for demostrative and educational purposes:
Your Bank’s Address
RE: Loan Number XXXXXXXXXXXX
This letter is a “Qualified Written Request” under the Federal Servicer
Act, which is a part of the Real Estate Settlement Procedures Act, 12 U.S.C.
2605(e). This request is made on the above referenced account. Specifically, I
am requesting the following information:
1. A complete and itemized statement of the loan history from the date of the
loan to the date of this letter including, but not limited to, all receipts by way
of payment or otherwise and all charges to the loan in whatever form. This
history should include the date of each and every debit and credit to any
account related to this loan, the nature and purpose of each such debit and
credit, and the name and address of the payee of any type of disbursement
related to this account.
2. As the Servicer, provide(a) the name of the Noteholder– Who is its
Principal, and (b) a copy of an agreement with the Principal that authorizes
the Servicer to collect monthly payments on its behalf.
3. Have you purchased and charged to the account any Vendor’s Single
4. A complete and itemized statement of any late charges to this loan from
the date of this loan to the date of this letter.
5. The amount, if applicable, of any “satisfaction fees.”
6. A complete and itemized statement from the date of the loan to the date of
this letter of any fees incurred to modify, extend, or amend the loan or to
defer any payment due under the terms of the loan.
7. A complete and itemized statement of the amount, payment date, purpose
and recipient of all fees for the preparation and filing of the original proof of
claim, any amended proofs of claim, or any supplemental proofs of claim
related to this mortgage.
8. The full name, address and phone number of the current holder of this
debt including the name, address and phone number of any Trustee or other
fiduciary. This request is being made pursuant to Section 1641(f)(2) of the
Truth In Lending Act, which requires the servicer to identify the holder of the
9. The name, address and phone number of any master servicers, servicers,
sub-servicers, contingency servicers, back-up servicers or special servicers
for the underlying mortgage debt.
10. Was the loan securitized? Please provide a copy of any mortgage Pooling
and Servicing Agreement and all Disclosure Statements provided to any
Investors with respect to any mortgage-backed security trust or other
special purpose vehicle related to the said Agreement and any and all
Amendments and Supplements thereto.
11. If a copy of the Pooling and Servicing Agreement has been filed with the
SEC, provide a copy of SEC Form 8k and the Prospectus Supplement, SEC
12. The name, address and phone number of any Trustee under any Pooling
or Servicing Agreement related to this loan.
13. A copy of the Prospectus offered to investors in the trust.
14.The name of the Trust on whose behalf the Trustee acts.
15. Copies of all servicing, master servicing, sub-servicing, contingency
servicing, special servicing, or back-up servicing agreements with respect to
16. All written loss-mitigation rules and work-out procedures related to any
defaults regarding this loan and similar loans.
17. The procedural manual used with respect to the servicing or
sub-servicing of this loan.
18. A summary of all fixed or standard legal fees approved for any form of
legal services rendered in connection with this account.
19. Is this loan subject to any Electronic Tracking Agreement? If the answer
is yes, then state the full name and address of the Electronic Agent and the
full name and address of the Mortgage Electronic Registration System.
20. Is the servicing of this loan provided pursuant to any type of mortgage
electronic registration system? If the answer is yes, then attach a copy of the
mortgage electronic registration system procedures manual.
21. Is this a MERS Designated Mortgage Loan? If the answer is yes, then
identify the electronic agent and the type of mortgage electronic system used
by the agent.
22. Is this mortgage part of a Mortgage Warehouse Loan? If so, then state
the full name and address of the Lender and attach a copy of the Warehouse
23. Upon any default or notice of default, state whether or not the Mortgage
Warehouse Lender has the right to override any servicers or sub-servicers
and provide instructions directly to the Electronic Agent? If the answer is
yes, then specifically identify the legal basis for such authority.
24. Is this mortgage part of a Whole Loan Sale Agreement? If the answer is
yes, then state the name and address of the Purchaser, the Custodian, the
Trustee, the Electronic Agent and any Servicer or Sub-Servicers.
You should be advised that you must acknowledge receipt of this
qualified written request within 20 business days, pursuant to 12
U.S.C. Section 2605(e)(1)(A) and Reg. X Section 3500.21(e)(1).
You should also be advised that I will seek the recovery of damages, costs,
and reasonable legal fees for each failure to comply with the questions and
requests herein. I also reserve the right to seek statutory damages for each
violation of any part of Section 2605 of Title 12 of the United States Code.
*Also note that mortgage servicers are required to fully answer all these
questions within 60 days from the date they receive this letter in addition to
acknowledging receipt of your request in the first 20 days. During that time
they are forbidden to report late-pays to the bureaus as well.
Your Name and Date
Categories: News Tags: how to find out if a mortgage was securitized, how to find your pooling and servicing agreement, mortgage fraud, qualified written request, sample qualified written request, securitized debt obligation
Newscast Media HOUSTON, Texas — One of the most innovative ways banks have avoided paying county clerks fees for transferring titles from one property owner to another is by the use of Mortgage Electronic Registration System, or MERS. The problem with MERS is that its operational model requires a bifurcation or separation of the Deed of Trust from the promissory note. In almost every MERS loan, the note names a different entity, while the Deed names MERS as the beneficiary. To perfect a lien, the holder of the note should be the same entity that holds the Deed. However, with the securitization of most mortgages, and the use of MERS, it is almost impossible for that to happen.
MERS realized it hada problem and in February this year released a memo asking all entities to stop foreclosing in its name. The memo in part reads: “To comply with this guidance, MERS Members should implement the following practices, effective immediately.
. . . In recent months legal challenges have arisen regarding alleged inadequacies and improprieties in the foreclosure process including allegations of insufficient or incorrect supporting documentation and challenges to the legal capacity of parties’ right to foreclose . . . MERS is planning to shortly announce a proposed amendment to Membership Rule 8. The proposed amendment will require members to not foreclose in MERS’ name. Consistent with the Membership Rules there will be a 90-day comment period on the proposed Rule. During this period we request that Members do not commence foreclosures in MERS’
name.” The announcement can be viewed here.
MERS realized it could not demonstrate an agency relationship between itself and the note holder that gives MERS the authority to transfer assignments from one entity to another. Furthermore, it would be against MERS’ procedure of operation to make an assignment yet MERS acknowledges in its very own Procedures Manual that it cannot make any transfer of assignments to another. MERS’ own admission: “MERS cannot transfer the beneficial rights to the debt. The debt can only be transferred by properly endorsing the promissory Note to the transferee.” (page 63). You may read or download the entire manual here.
So if MERS cannot transfer the assignments, how is it possible that in foreclosure actions judges are presented with pre-dated documents that purport to transfer the assignment from MERS to another entity, usually a bank? Since MERS doesn’t do the assignments, in most cases, it is the foreclosure mills that create these documents themselves and pretend MERS transferred the assignment. It is the reason why MERS is prohibiting these firms and banks from foreclosing in its name.
MERS has itself to blame because it is peddling its corporate seal on its Website for $25. Virtually any foreclosure mill can purchase the seal, create and notarize an alleged Deed of Trust, present it to a judge and proceed to foreclose, if the homeowner does not object the documents. The MERS corporate seal being peddled can be seen here. There is also a live link, which I suspect they may disable soon. http://www.mersinc.org/mersproducts/pricing.aspx?mpid=4
The Note and the Deed are inseparable
Because the MERS system separates the note and the Deed which is evident since both documents name different entities, the Deed of Trust is rendered unenforceable because it is in violation of Carpenter v. Longan. In 1872, The United States Supreme Court announced this classic statement in this rule:
“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” (quoting Carpenter v. Longan, 83 U.S. (16 Wall) 271, 274 (1872))).
Also In re BNT Terminals, Inc., 125 B.R. 963 (Bankr. N.D. Ill. 1990) (“An assignment of a mortgage without a transfer of the underlying note is a nullity. . . . It is axiomatic that any attempt to assign the mortgage without transfer of the debt will not pass the mortgagee’s interest to the assignee.”
In another ruling, First Nat’l Bank of SACO v. Vagg, 212 P. 509, 511 (Mont. 1922) “A mortgage, as distinct from the debt it secures, is not a thing of value nor a fit subject of transfer; hence an assignment of the mortgage alone, without the debt, is nugatory, and confers no rights whatever upon the assignee. The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while the assignment of the latter alone is a nullity. The mortgage can have no separate existence.”
In Southerin v. Mendum, 1831 WL 1104, at * 7 (N.H. 1831) (“[T]he interest of the mortgagee is not in fact real estate, but a personal chattel, a mere security for the debt, an interest in the land inseparable from the debt, an incident to the debt, which cannot be detached from its principal.”)
Another ruling was in Barton v. Perryman, 577 S.W.2d 596, 600 (Ark. 1979) and also in Kelley v. Upshaw, 246 P.2d 23 (Cal. 1952) (“In any event, Kelley’s purported assignment of the mortgage without an assignment of the debt which is secured was a legal nullity.”)
The Deed of Trust problem
The biggest problem MERS Deeds of Trust face is that there is no Grantor, Grantee or what has been Granted that was named. Many lawyers are on the lower end of the learning curve when it comes to these issues because MERS and securitization are fairly new. However, many courts have held that a document attempting to convey an interest in realty fails to convey that interest if the document does not name an eligible Grantee or Grantor.
Courts around the country have long held, “There must be, in every Grant, a Grantor, a Grantee and a thing Granted, and a deed wanting in either essential is absolutely void.”
Look at any MERS Deed of Trust, you’ll see that most of them violate this rule. In the case of Richey v. Sinclair, 47 N.E. 364, 365 (Ill. 1897) the court ruled, (“The law is well settled that a deed without the name of a Grantee is invalid. It is said there must be in every Grant a Grantor, a Grantee, and a thing Granted; and a deed wanting in either essential will be void.”).
In Disque v. Wright, 49 Iowa 538, 540 (1878) (“It has been frequently held that slight omissions in the acknowledgment of a deed destroy the effect of the record as constructive notice. A fortiori, it seems to us, should so important and vital an omission as that of the name of the Grantee have that effect.”)
In Allen v. Allen, 51 N.W. 473, 474 (Minn. 1892) (omission of name of Grantee invalidated conveyance because “[a] legal title to real property cannot be established by parol.”)
The most memorable is by the NY Supreme Court in in Chauncey v. Arnold, 24 N.Y. 330, 338 (1862) (“No mortgagee or obligee was named in [a mortgage], and no right to maintain an action thereon, or to enforce the same, was given therein to the plaintiff or any other person. It was, per se, of no more legal force than a simple piece of blank paper.”)
Back-dated or retroactive assignments of the Deed
Most cases that you read about, homeowners claim that they were presented with a back-dated assignment of the Deed of Trust after a foreclosure action had commenced. The problem is that if the assignment happened after court papers were filed, then the foreclosing entity never had standing to begin with therefore can’t foreclose.
In order to commence a foreclosure procedure, the party must have a legal or equitable interest in the mortgage (Katz v East-Ville Realty Co., 249 AD2d 243, 243).
A “foreclosure of a mortgage may not be brought by one who has no title to it.”
(Kluge v Fugazy, 145 AD2d 537, 538).
An assignee cannot maintain an action for any part of a claim which has not been assigned to him. (Works v. Winkle , 234 S.W.2d 312, 315 (Ky. App. 1950)).
A mere expectancy is not enough to establish standing, a party must prove a “present or substantial interest.” Plaza B.V. v. Stephens, 913 S.W.2d 319, 322 (Ky.1996)(quoting Ashland v. Ashland F.O.P. No.3, Inc., 888 S.W.2d 667 (Ky. 1994).
In this particular case, defendants did not have an interest in the mortgage at the time the foreclosure action was commenced (LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d at 911).
The Court in L aSalle found that: “The written assignment submitted by plaintiff was indisputably written subsequent to the commencement of this action and the record contains no other proof demonstrating that there was a physical delivery of the mortgage prior to bringing the foreclosure action.” (LaSalle Bank Natl. Assn. v Ahearn,59 AD3d 912).
As such, a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure commenced prior to the execution of the assignment.(LaSalle Bank Natl. Assn.,59 AD3d 912).
It now makes sense that MERS took a close look at its Deeds and recognized this problem, however almost 60 percent of American homes have Deeds in MERS name. It is up to homeowners and their attorneys to challenge the enforceability of these documents, if they find themselves in court fighting to keep their homes. http://www.newscastmedia.com/mers-factor.html
Categories: News Tags: Carpener v. Longan, foreclosure attorney, foreclosure fraud, foreclosure mill, home mortgage loan, how to stop foreclosure, MERS class action suit, MERS did of trust, MERS foreclosure lawsuit, mortgage fraud
Newscast Media NEW YORK –Countrywide, which is Bank of America Corp’s mortgage unit has been sued by investors claiming they were victimized in a “massive fraud” when they bought mortgage-backed securities. The lawsuit was filed on Monday in a New York state court by 12 plaintiffs including the TIAA-CREF fund family, New York Life Insurance Co and Dexia Holdings Inc.
Investors claim that Countrywide misrepresented the securities’ safety in offering documents and elsewhere, and compromised their investments by ignoring its underwriting guidelines. The complain said that as a result of Countrywide’s fraud, most of the securities now carry “junk” credit ratings rather than the “triple-A” ratings they once had, resulting in “significant losses.”
Plaintiffs want compensatory and punitive damages in the case Dexia Holdings Inc et al v. Countrywide Financial Corp et al, New York State Supreme Court, New York County, No. 650185/2011.
Shirley Norton, a Bank of America spokeswoman said in a statement that the lender would review the lawsuit, “but on first glance these sound like large, sophisticated investors who now want to blame someone for the fact that the declining economy caused their investment to lose value.”
Other defendants include several former Countrywide officials, including longtime Chief Executive Angelo Mozilo who agreed in October 2010 to a $67.5 million settlement of a U.S. Securities and Exchange Commission civil fraud lawsuit accusing him of misleading investors. Before being bought by Bank of America, Countrywide had been the largest U.S. mortgage lender.
Newscast Media WASHINGTON — A joint investigation has been launched by officials in 50 states and the District of Columbia into allegations that mortgage companies mishandled documents and broke laws in foreclosing on hundreds of thousands of homeowners.
The states’ attorneys general and bank regulators will examine whether mortgage company employees made false statements or prepared documents improperly. The investigations are being led by Attorneys general in response to a nationwide scandal that’s called into question the accuracy and legitimacy of documents that lenders relied on to evict people from the homes.
The allegations raise the possibility that foreclosure proceedings nationwide could be subject to legal challenge. Some foreclosures could be overturned. More than 2.5 million homes have been lost to foreclosure since the recession started in December 2007, according to RealtyTrac Inc.
“This is not simply about a glitch in paperwork,” said Iowa Attorney General Tom Miller, who is leading the probe. “It’s also about some companies violating the law and many people losing their homes.”
Ally Financial Inc.’s GMAC Mortgage Unit, Bank of America and JPMorgan Chase & Co. already have halted some questionable foreclosures. Other banks, including Citigroup Inc. and Wells Fargo & Co. have not stopped processing foreclosures, saying they did nothing wrong.
In a joint statement, the officials said they would review evidence that legal documents were signed by mortgage company employees who “did not have personal knowledge of the facts asserted in the documents. They also said that many of those documents appear to have been signed without a notary public witnessing that signature — a violation of most state laws.
“What we have seen are not mere technicalities,” said Ohio Attorney General Richard Cordray. “This is about the private property rights of homeowners facing foreclosure and the integrity of our court system, which cannot enter judgments based on fraudulent evidence.” http://newscastmedia.com/bankfraud.htm