Wow, Jones Day just created a huge mess for its client and banks generally if anyone is alert enough to act on it.
The lawsuit in question is American Home Mortgage Servicing Inc. v Lender Processing Services. It hasn’t gotten all that much attention (unless you are on the LPS deathwatch beat) because to most, it looks like yet another beauty contest between Cinderella’s two ugly sisters.
AHMSI is a servicer (the successor to Option One, and it may also still have some Ameriquest servicing). AHMSI is mad at LPS because LPS was supposed to prepare certain types of documentation AHMSI used in foreclosures. AHMSI authorized the use of certain designated staffers signing with the authority of AHSI (what we call robosinging, since the people signing these documents didn’t have personal knowledge, which is required if any of the documents were affidavits). But it did not authorize the use of surrogate signers, which were (I kid you not) people hired to forge the signatures of robosigners.
The lawsuit rather matter of factly makes a stunning admission (note that PSA here means Professional Services Agreement, and it was the contract between AHSI and LPS, click to enlarge):
Did you get it? They said that these procedures were standard between the two companies, which was to “..to memorialize the transfer of ownership lender to the securitization trust” right before initiating foreclosure. If you are a regular reader of this blog, you know that is impermissibly late. The note and mortgage had to get to the trust by a clearly specified date, usually 90 days after closing. As we’ve written numerous times, in the overwhelming majority of cases, the securitization entity was a New York trust, and New York trusts are like computer code, they can only operate exactly as stipulated. The exception was trusts by Chase and WaMu, which did allow for the originator to serve as custodian for the trust.
So AHMSI has just admitted that all of its foreclosures done with LPS were completed by the wrong party. In Alabama, wrongful foreclosures are subject to statutory damages of three times the value of the house, and recent cases have awarded much higher multiples of the property’s value. This little paragraph is a litigation goldmine for the right attorneys. I hope they have fun with it.
I’ve included the entire filing.
AHMSI v LPS File-Stamped Petition
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When did these various outfits set about their campaign to make American property rights insecure? 80s, 90s, 00s?
And how did nobody notice?
It was back in Morning in America, and every thick citizen went for a walk down Exceptional Avenue.
This is one of the deepest and weirdest mysteries of the whole thing to me.
Incidentally, this most recent Wikileaks trove includes banker assessments of the late Libyan government as a “business” partner, such as this one. A point of note, concerning the readines for Western-style reformation of the Libyan banking system:
Eh, we are all Libya now??
Google “Nye Lavalle” and see that he not only noticed, he warned everyone. Too bad no one listened.
Heyyyy, that’s just swell. So Party A had a procedure with Party B to review _whether or not_ mortgage notes had to _appear_ to be in trust prior to foreclosure. The further implication there is that mortgage notes genenerally WERE NOT in trust, else why have a procedure to review documentation? Would you believe, reading that, that Party A had, as a general practice, ever included notes in their trusts? But of course, in the financial industry the only rule is “We don’t have to follow rules, but you do!”
It isn’t just a culture of corruption, the culture IS corruption. That’s the real learning: only stupes follow the rules/laws, smart people just go out and make off with the money. Any one of these players and the Ibanks behind/above them make Enron look like middle school cheats squeezing nickles from fat, slow second graders. And _still_ the middle class slumps in their extra-wide lay-Z-boys hoping their little acre in Dreamville gets a six-figure bounceback if the right lying liar mugs New Pablum ™ on the idiot box.
“But of course, in the financial industry the only rule is “We don’t have to follow rules, but you do!”
Close, but off by a smidgen:
But of course, in the financial industry the only rule is “We don’t have to follow rules, but you have to follow rules, before, during or after contracts are signed, that benefit us by taking ALL your income, your family’s income, and your organs, and your family’s organs, as well as acquantinces and anybody within a 100 mile radius income and organs as well!”
There, FIFY
Actually, I think it’s “Our rules are the only rules that matter.” Their contention is that an entry in one of their spread sheets is all that is necessary to transfer a loan into a trust, irrespective of any, you know, LAWS to the contrary. The work of LPS is merely insuring “memorializing” that transfer.
One rule to rule them all and in the darkness bind them.
Thanks for the hearty laugh, Jessica.
Well, JPMorgan Chase, for the longest time (might still be using it) had the slogan, The First Rule: there are no rules.
Interesting to note that Larry Fink (Blackrock), Timmy Geither (Treasury, formerly FRBNY), Larry Summers, et al., have all claimed that securitization FIRST started back in the ’80s or thereabouts, while in reality, that was securitization in bond form.
Securitization, in America, in share form, originally started back in 1909, but really took off in the 1920s, leading up to the Great Crash and Great Depression, and was officially and legally halted in 1933.
Got thoughts?
And the Obama administration is pushing NY to play ball so they can sweep this entire fiasco under the rug as though the illegal transfer of trillions in global wealth never existed.
Absolutely amazing to see what our elected plutocracy has devloved into.
Banana Republic indeed!
How big a rug are you envisioning here? The total value of securitized mortgages (high probability at least 60% are fraudulent)is maybe $4-5 trillion. $6 trillion?
Not enough carpets in all of Persia to cover that mess.
Yes, but a few laws cover it nicely.
Nope. It cannot be done by laws passed in DC, much as most of DC might like to do it.
The banks and the mortgage-industrial complex didn’t just screw the little people, but those parties they sold MBSs to and also the U.S. states.
Still, once we get a few chain-of-title cases brought by a few of those little people, it’ll be even them, too.
It’ll take a while: after all, it’s the end of the world as we know it for a lot of folks. But these issues will start getting sufficient traction that they’ll be in the MSM by this time in 2012. That means politicians will have to deal with them, and some politicians will choose to exploit them — and not merely by pressing the banks for campaign funding.
I bet the canned denials will make appearance in short order. There have been a number of really incriminating statements made in court be representatives of Banks and Mortgage Servicers and they have had limited impact so far.
And the threat of being put on a secret punitive list if you’re not there already. And the gulag that is the American prison system – corporatized, profit making, slave labor, but cushy for white collar residents (so, not to worry too much).
Of course profit making was always the business of the executive branch with drug prohibition enforcement criminal justice concentration corrupting police with military training, equipment, and mandatory forfeiture (legally seize your property at will) ALL OVER THE WORLD, everywhere the UN has its hand in CRIME and DRUG CONTROL (Prohibition enforcement).
Please pay attention Muse
Yves, is there NC policy on links?
About time that they start to eat their own young!!
Where are the Exhibits that are referenced in the complaint??
Yves: Did you forward this to Schneiderman?
Schneiderman and staff evaluate AHMSI v. LPS… And hilarity ensues…
One can only hope that Schneiderman’s office is drafting subpoenas as we speak. After finding out exactly which of the referenced “thousands of foreclosures throughout the U.S.” that were conducted in this manner, he should send all the foreclosed parties a letter letting them know that they may have been illegally foreclosed on.
Indeed. As if we needed yet another piece of evidence to explain the pressures on Sneiderman. And this sort of rot is what Wylde (?) passes off as ‘Main Street’.
The semantic implications for what this signifies as the term ‘trust fund’ is one for the ages. Apparently, it now means ‘hey, suckers — just trust us to make s#%t up.’. Sad.
Who are you, and why are you using my handle?
Yves,
I don’t think the individual at Jones Day understands the exact process that they are fighting over and as a result I am not sure that they are alleging that they failed to convey the Note to the trust (the issue centers around the assignment of the Mortgage not the Note and I believe that AHMSI instead is admitting that they conducted at least 30,000 legally impermissible foreclosures).
At least in PA, as of 2009 the process of assigning the Mortgage prior to and in some cases during the foreclosure process was the following: 1) a title report was obtain; 2) in the event “MERS” was named as a nominee of the mortgagee local counsel prepared an assignment (this was because DocX’s assignments were kicked back by the Recorder of Deeds offices for lack of compliance with local recordation requirements and it was just easier to do it right the first time); 3) the Assignment was uploaded to DocX for signature; 4) the Assignment was executed (THIS IS THE STEP IN THE PROCESS THEY ARE FIGHTING OVER); 5) the executed Assignment with its wet ink signature was returned to local counsel via overnight mail; and 6) local counsel then had the Assignment recorded and kept the original Assignment in the foreclosure file and uploaded a copy. For all this work local counsel was paid between $50.00 and $100.00 plus costs.
The most damning admission I think is contained in paragraph 21 where it alleges that individuals who did not have signatory authority were signing the Assignments.
This is damning because if the individual does not have signatory authority the Assignment is not a proper conveyance of the mortgage and therefore the plaintiff in the foreclosure action lacks standing and any foreclosure completed is legally improper.
Furthermore, in paragraph 25 AHMSI admits that at least 30,000 assignments covering all 50 states were not executed by an authorized signatory. I THINK THIS IS THE HUGE ADMISSION AS AHMSI IS ALLEGING THAT LEGALLY IMPERMISSIBLE FORECLOSURES OCCURRED IN LIKELY A VAST MAJORITY OF THEIR FORECLSOURE ACTIONS.
It is too bad that this case is likely to be remanded to private arbitration where we will not get to see how this all plays out as it is likely to be quite informative as to what problems AHMSI has identified in their forclosure pipeline.
You are missing the point of the post. AHMSI is not litigating the issue I flagged, but it is an extraordinarily damaging admission. The servicers and trustees on these deals made and continue to make representations in ongoing SEC filings to the effect that the trust has the collateral in good order. They’ve basically just said that that isn’t the case most if not all of the time.
Folks should research case law on judicial admissions for their own jurisdictions. AHMSI may have just stepped in it big time.
As a side note, if Schneiderman wants to pursue this admission, all he has to do is subpoena all AHMSI documents related to improperly executed Assignments in NY then check the dockets to see what remedial actions were taken by AHMSI’s local counsel. If the local counsel took no remedial steps (i.e. did not move to strike the assignment; failed to file to overturn sales; etc.), AHMSI potentially has a HUGE amount of liability exposure (that is likely why they are demanding that LPS indemnify them).
Can you say judicial estoppel?
From New Hampshire v. Maine, 532 US 742 – Supreme Court 2001
“[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Davis v. Wakelee, 156 U. S. 680, 689 (1895). This rule, known as judicial estoppel, “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Pegram v. Herdrich, 530 U. S. 211, 227, n. 8 (2000); see 18 Moore’s Federal Practice § 134.30, p. 134-62 (3d ed. 2000) (“The doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding”); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4477, p. 782 (1981) (hereinafter Wright) (“absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory”).
Bullet? Meet foot.
“Can you say judicial estoppel?”
Not without giggling.
1. What I haven’t seen (perhaps just missed) in Yves’ posts is, as far as I know, that the ‘trusts’ constituted under NYS law are not acceptable under the IRS tax code because of the failure to properly convey instruments to the trusts. If that is indeed the case, one of the venal corruptions of the Obama ‘adminstration’ is that the IRS is completely ignoring this (sweeping it under the inconceivably enormous ‘rug’)
2. One of the interesting things, again if I understand correctly, is that most of the trusts such as the ones referred to here are by law mostly or completely ’empty’ since the instruments were not transferred to the trusts as required according to completely and unalterably strict provisions of the trust by law. So the owners of shares in the tranches in essence have shares of no intrinsic value. The thing of interest is, although I myself haven’t run across references to it, that the shareholders likely are frightened to death to say ‘boo’ because of the slight hope that indeed somebody will wave a magic wand and ‘fix’ their empty interests before the whole house of cards really collapses. Talk about an immense population in the room of a whole zoo of heavy-weight elephants, gorillas, etc.
Yes, I’ve repeatedly e-mailed the IRS and asked them why they are not investigating the REMIC fraud and that there are billions of dollars in violations. I have sent links to articles to help them understand, in case they didn’t know what I was referring to. No reply at all. None.
I couldn’t tell you now where I read it, it’s been a while, but the IRS has stated they will not pursue any REMIC violations. I don’t recall a reason being stated by the IRS however pursuing tax violations would be punishing the investors who are the victims, not the criminals. At 100%, the penalties are quite hefty too.
Though I suppose it would go a long ways towards paying down the debt. Shhhhh, don’t tell the deficit hawks. :=)
This can only be described as “When thieves fall out, good men rejoice”.
Apparently AHMSI didn’t realize that in pursuing it’s own narrow interest it put the whole criminal cabal at risk. It just takes one selfish step to destroy an entire industry’s alibi.
We do not live in a country.
A country has boundaries.
The boundaries denote restrictions.
The restrictions denote interests.
The interests denote rights.
THE RIGHTS DENOTE CITIZENSHIP.
The citizenship denotes control.
Control denotes fixing the fucking mess we are in.
The mess we are in denotes criminal behavior.
Criminal behavior denotes banks.
The lack of clear citizenship denotes revolution.
I think you are very wrong in your commentary on that lawsuit against LPS. You seem to have ignored the word “memorialized” which means that they have been recorded in county records to evidence the transfer that has already taken place. I think it is reckless of you to make those types of statements without knowledge of legal fact. And no, I don’t work for Jones Day but I do believe in fair reporting.
You don’t need to be a lawyer to know that if AHMSI is servicing for the foreclosing entity, it can’t assign the mortgage or note to its principal on behalf of a defunct originator with whom it has no relationship. That would be the same as purchasers agents (rather than Sellers) signing deeds to the purchasers.
You probably do have to be a lawyer to know the intricacies of the pooling and servicing agreements, 90% of which are governed by NY law, which requires that the notes and mortgages be transfered into the securitization trusts by a particular cutoff date contained in said pooling and servicing agreement, and which if not done, cannot be “memorialized” years later as AHMSI and LPS are trying to do.
Its not difficult to transfer a Note and a Mortgage. All you have to do is endorse the note to entity purchasing the Note, as you would a check “pay to the order of “Successor Entity” and record an Assignment of the Mortgage with the county clerk in the county where the property is located. They didn’t do this, and now they are trying to fabricate evidence that they did.
Couple this with the purchase of Credit Default Swaps which in some cases paid off inside the RMBS trusts, making the MBS holders whole when the loans went bad, and you should be getting the picture of what a scam this whole private label securitization scheme was and which entities are in fact getting “free houses”.
P.S. If the transfer had already taken place, there would be a chain of Assignments from the originator through the intervening Companies and ultimately into the pooling entity already filed at the County Clerk’s office and thus, no need to record any sort of “memorialization”.
Securitization experts (as in lawyers) agree with my reading of the passage in question. You also make quite an unwarranted charge, that I didn’t verify this before writing the post.
So who is off base here and shooting with no evidence? It’s you, honey.
You miss the basic issue, which we’ve discussed numerous times on this blog and reviewed in the post. In a non-securitization context, you could transfer a note and assign the related lien right before you foreclosed. You can’t with a New York trust unless it is specifically stipulated the trust can accept the assets. The PSAs on these deals set very specific cut off dates for transfers into the trust, and those dates are LONG past. “Memorializing” is cute, this isn’t some ex post facto papering up, this is an actual assignment. And NY trust precedents also are, repeatedly, that you are required to make as perfect a delivery as possible. It was possible to deliver the notes to the trust and make the necessary assignments, so anything less is a non-starter.
Put it another way: what about the statute of frauds don’t you understand?
@Stupendous Man – Defender of Liberty, Foe of Tyranny
Please accept my humble answer to your challenge:
It has occurred to many readers of this blog that the purported memorializing of assignments that never occurred in the first instance can not be relied upon as a means to overcome the stated deadline stipulated in a Pooling and Servicing Agreement for transfer of assets into a trust, said deadline having already occurred many months or even years ago, unless there exists actual timely evidence that said transfer actually occurred prior to said transfer deadline, and such evidence is held by a party that may claim direct or personal knowledge of events that occurred many months or years prior to the commencement of a legal foreclosure proceeding, which according to the claim has already occurred in many thousands of foreclosure cases.
@Lawyergirl – The transactions they are attempting to memorialize never actually took place, or occurred. Drawing up official looking documents that present the illusion of a transaction that never occurred having occurred doesn’t change the fact that it never occurred.
I challenge ANYONE to more artfully use the word “occurred” three times in one sentence.
Pretty bad day all around for fraudsters.
Rogue Foreclosure Mill Harmon Law at it again.
This time the wild and crazy bunch attempts to defy an Order to Stay by a Federal Judge. (Attempts to continue evictions!)
PDF files at Hamlet link.
Yves,
I wasn’t clear on what they were referring to above either by ‘memorializing the assignment’, and read it three or four times, though I ultimately concluded you read it right. The reason I had questions however is that in some states, e.g. in deed of trust states like my own, NC, ALL mortgage assignments (DOT’s) are transferred to the servicer prior to foreclosure, and thought possibly that was the assignment they were referring to. The key phrase, IMO, above is “the transfer from the originating lender to the securitization trust”, which if you assume is literal and accurate wording, which typically legal documents are, would imply they are referring to the transfers into the trusts. Fannie and especially Freddie like to hide behind the servicers and it takes considerable effort sometimes for the homeowner to discover that they are the true owners of the loan. At minimum, they don’t volunteer the information nor is it routinely disclosed during the foreclosure process, though servicers stopped using wording such as being “owners of the debt” to refer to their claims to legal standing to foreclose at the beginning of the year.
The foreclosure and financial scandal has become a pet interest of mine. (I plan to start career #4 and hang out my shingle to practice foreclosure law soon. J.K.)
Have you read Scheiderman’s filing on the BAC – NYB Mellon agreement? Schneiderman quotes NYB’s original petition where NYB make claims of Countrywide’s failure to remedy missing loan documents. Apparently NYB prepared exception reports for each pool in the trust “usually identifying great numbers of files that are incomplete and improperly documented”.
From pg. 14 of the pleading:
“Indeed, BNYM’s own Petition concedes that among claims to be resolved was conduct qualifying as servicer events of default, including: Master Servicer breaches of the PSAs, including for example failure “to notify the Trustee and others of Countrywide’s breaches of representations and warranties,”21 and generally placing its interests before those of the investors in breach of the PSA’s by among other things “(i) failing to maintain accurate and adequate loan and collateral files in a manner consistent with prudent mortgage servicing standards; (ii) failing to demand that the Sellers cure deficiencies in mortgage records;……
Link to pleading:
http://www.scribd.com/doc/61744130/NY-AG-s-PLEADING-in-Intervention-Bank-of-America-s-Big-8-5-Billion-Country-Wide-Settlement-Schneiderman
*Note: In the context of this post, PSA stands for Pooling and Service Agreement, the legal agreement that governs the trust that contains the pool of mortgages (I know Yves knows this, but for others who might not).
Yves:
Of course they were doing this. At the beginning when the numbers of foreclosures first started to climb to problem levels, the distributions of them were probably very problematical in that they were concentrated among far too few trusts. This of course would have started tripping off lawsuits over those trusts, and there would not only have been the bank loses associated with these, but also for the trusts still in the pipelines (ie, still bank-owned) would have stopped being saleable. So it’s almost a certainty that someone (likely VERY high up) gave the word: Spread the foreclosures across enough trusts to bury them. Of course at that time, whoever was involved in doing this still believed that this was possible, but of course it didn’t turn out that way.
No, they were trying to hide the worsening performance of these mortgages in an attempt to escape any liability for this.
Hi Yves
While I think your read of the filing is fair, I agree with those that “memorializing” is a weasel word and that American Home would–if pressed–reject the idea that all those Assignments of Mortgage mean what they say, claiming instead that they are essentially illustrative of the net transfer that American Home would contend did occur. What, after all, is its choice? not that admitting it foreclosed wrongfully–or at least tried to–30,000+ times is good for it. I think the suit generally reveals the depth of the disdain the mortgage servicing industry shows for our legal system. Here’s my take: http://abigailcfield.com/?p=259
Yes, foreclosure mill attorneys are habitually assigning mortages on the same day lis pendens are filed at the county clerk’s offices in Bergen County NJ.
I did a spot check of homes on the auction block for Sheriff sales. Picked 2 properties at random. Both turned out to be “securitized” and both properties had “mortgage assignments” from origninator into trusts filed one month and 3 years after lis pendens (foreclosure).
I contacted the Sheriff to alert them that two properties about to go on the block were illegal foreclosures. Tried to contact both owners – no luck.
So, you have at least 2 homes illegally foreclosed and sold at sheriff sales that could be reversed in NJ courts. New owners may be forced to surrender the property (like buying a stolen car)and will not be compensated for the loss by title insurance.
Why?
Title industry has decided not to honor any claims – they will force policy holders to litigate in order to be made whole.
Hundreds of properties in Bergen County are sold each month. Look up the Bergen County Sheriff Sales website, or any sheriff website in USA and you’ll see that nearly all creditors are trusts, MERS.
Start gathering evidence and submit it to the local DA and Prosecutor’s office.
The local government angle is all we have left..
Simple solution:
Banks and Wall Street get deregulation but if they are found guilty of fraud every mortgage they collect money for a bondholder will be issued clear title and given to the mortgage. Make them lose 100% and then they will magically regulate themselves.
Here’s a terrific quote from In re Wilson, which, even if you’ve already read it is worth reading again. In re Wilson, a prolonged bit of litigation that – the short version – began when a couple (the Wilsons!) had their lender, Option One, come in to court and say that the Wilsons were in default of their bankruptcy agreement. The Wilsons said, no we ain’t, or words to that effect. The lender said, oh yes, you is, and filed a variety of affidavits, one of which was attested to by Dory Goebel. Dory, in case you didn’t know, was the co-author of a dandy little article in Lender Processing Services’ predecessor, Fidelity National Foreclosure Solutions’ corporate newsletter, in which she described how she and a handful of people executed ONE THOUSAND AFFIDAVITS per day. That was back, way back in 2006. Just think about the run up to that milestone, and imagine how much more efficient ole Dory had gotten by the time 2008 rolled around. Two thousand a day? Three thousand?
Want to read the article? It’s on page 16.
http://www.scribd.com/doc/58804906/Lender-Processing-Services-formerly-FIS-newsletter-The-Summit-September-2006
And don’t miss the list of law firms getting kickbacks, oh, excuse me, “Financial Incentive Awards” per billable file, on page 11.
If anyone has ever wondered what the face behind the myriad “Shapiro & XYZ” foreclosure mills – Gerald Shapiro – looks like, wonder no longer, see the bottom right of page 11. He’s the guy on the FAR left, not the second guy, as the caption reads.
Anyway, back to In re Wilson. It’s a spine tingling read, and here’s my favorite quote.
In Re: Wilson, April Memorandum:
http://www.scribd.com/doc/52867919/In-Re-Wilson-Memorandum-Opinion-07-Apr-2011 (really gets going around page 18)
For people who think affidavits are just details, the Court would beg to differ:
“Default affidavits are a lender’s representation as to the status of a loan. They are routinely accepted in both state and federal courts in lieu of live testimony. They are an accommodation to the lending community based on a belief by the courts that the facts they present are virtually unassailable. The submission of evidence by affidavit allows lenders to save countless hours and expense establishing a borrower’s default without the need for testimony from a lending representative. While they can be refuted by a borrower, too often, a debtor’s offer of alternative and conflicting facts is dismissed by those who believe that a lender’s word is more credible than that of a debtor. The deference afforded the lending community has resulted in an abuse of trust.” (from April Memorandum, page 21)
I especially like this September issue of the LPS newsletter. I like Dory Goebel’s article. I like seeing Gerald Shapiro relaxing and playing golf. I like knowing that no fewer than eleven Shapiro firms got “financial incentive awards” from Lender Processing Services.
However, I like this issue for another reason. The Shapiro & Fishman attorney in my case, who swore up and down that the Note was lost, that I was in error to even speculate that WAMU didn’t have standing, also said she would produce a “duly qualified affiant” to testify that WAMU had standing to sue. Did she? Did she? Ha. She filed an Assignment that purported to be executed by an Assistant Vice President and an Assistant Secretary of WAMU. One signer is shown on page five of this newsletter watching a softball game at LPS’s headquarters. The other signer is listed on the LPS newsletter masthead as the company’s official “Staff Photographer.”
I’m telling you what, there’s going to be a special place in hell for all these people.