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The Value of Jury Instructions

Posted by on Aug 15, 2013 in Foreclosure, General Public, Slider | 0 comments

The Value of Jury Instructions

2013 Logo Revamp for Website Refresh3Since many of us do not get to a “jury by trial” stage, we probably haven’t spent any time really exploring standard jury instructions.   Some attorneys say that when they are preparing a case they START with the jury instructions because those instructions explain exactly what the attorney needs to prove in order to get a finding in favor of their client.

As pro se’s – jury instructions give you a “blue print” of the elements of the cause of action that you must prove (and saves you a lot of time culling different resources trying to figure out what those elements are).  More importantly, they ask you the questions about the facts that support your claim.

The 2013 California CACI (pronounced Casey) for Jury Instructions provides very interesting insights – including but not limited to:

  1. The elements that must be proven
  2. What facts prove the elements
  3. The sources and authority (the statutes or codes that make up the cause of action) and some cases that support the cause of action
  4. Secondary Sources

 

As pro se getting your mind around the “law” is no easy feat; this book of instructions is an excellent starting place for grasping these concepts and getting you on the right track for your “blueprint” on how to prove your claims.

Click here to gain access to the 2013 version plus the supplement text.

Your mortgage documents are fake!

Posted by on Aug 12, 2013 in Foreclosure, General Public | 0 comments

Your mortgage documents are fake!

BY DAVID DAYEN as posted on Salon.com

         If you know about foreclosure fraud, the mass fabrication of mortgage documents in state courts by banks attempting to foreclose on homeowners, you may have one nagging question: Why did banks have to resort to this illegal scheme? Was it just cheaper to mock up the documents than to provide the real ones? Did banks figure they simply had enough power over regulators, politicians and the courts to get away with it? (They were probably right about that one.)
     A newly unsealed lawsuit, which banks settled in 2012 for $1 billion, actually offers a different reason, providing a key answer to one of the persistent riddles of the financial crisis and its aftermath. The lawsuit states that banks resorted to fake documents because they could not legally establish true ownership of the loans when trying to foreclose.
     This reality, which banks did not contest but instead settled out of court, means that tens of millions of mortgages in America still lack a legitimate chain of ownership, with implications far into the future. And if Congress, supported by the Obama Administration, goes back to the same housing finance system, with the same corrupt private entities who broke the nation’s private property system back in business packaging mortgages, then shame on all of us.
      The 2011 lawsuit was filed in U.S. District Court in both North and South Carolina, by a white-collar fraud specialist named Lynn Szymoniak, on behalf of the federal government, seventeen states and three cities. Twenty-eight banks, mortgage servicers and document processing companies are named in the lawsuit, including mega-banks like JPMorgan Chase, Wells Fargo, Citi and Bank of America.
      Szymoniak, who fell into foreclosure herself in 2009, researched her own mortgage documents and found massive fraud (for example, one document claimed that Deutsche Bank, listed as the owner of her mortgage, acquired ownership in October 2008, four months after they first filed for foreclosure). She eventually examined tens of thousands of documents, enough to piece together the entire scheme.
      A mortgage has two parts: the promissory note (the IOU from the borrower to the lender) and the mortgage, which creates the lien on the home in case of default. During the housing bubble, banks bought loans from originators, and then (in a process known as securitization) enacted a series of transactions that would eventually pool thousands of mortgages into bonds, sold all over the world to public pension funds, state and municipal governments and other investors. A trustee would pool the loans and sell the securities to investors, and the investors would get an annual percentage yield on their money.
     In order for the securitization to work, banks purchasing the mortgages had to physically convey the promissory note and the mortgage into the trust. The note had to be endorsed (the way an individual would endorse a check), and handed over to a document custodian for the trust, with a “mortgage assignment” confirming the transfer of ownership. And this had to be done before a 90-day cutoff date, with no grace period beyond that.
      Georgetown Law Professor Adam Levitin spelled this out in testimony before Congress in 2010: “If mortgages were not properly transferred in the securitization process, then mortgage-backed securities would in fact not be backed by any mortgages whatsoever.”
      The lawsuit alleges that these notes, as well as the mortgage assignments, were “never delivered to the mortgage-backed securities trusts,” and that the trustees lied to the SEC and investors about this. As a result, the trusts could not establish ownership of the loan when they went to foreclose, forcing the production of a stream of false documents, signed by “robo-signers,” employees using a bevy of corporate titles for companies that never employed them, to sign documents about which they had little or no knowledge.
      Many documents were forged (the suit provides evidence of the signature of one robo-signer, Linda Green, written eight different ways), some were signed by “officers” of companies that went bankrupt years earlier, and dozens of assignments listed as the owner of the loan “Bogus Assignee for Intervening Assignments,” clearly a template that was never changed. One defendant in the case, Lender Processing Services, created masses of false documents on behalf of the banks, often using fake corporate officer titles and forged signatures. This was all done to establish standing to foreclose in courts, which the banks otherwise could not.
      Szymoniak stated in her lawsuit that, “Defendants used fraudulent mortgage assignments to conceal that over 1400 MBS trusts, each with mortgages valued at over $1 billion, are missing critical documents,” meaning that at least $1.4 trillion in mortgage-backed securities are, in fact, non-mortgage-backed securities. Because of the strict laws governing of these kinds of securitizations, there’s no way to make the assignments after the fact. Activists have a name for this: “securitization FAIL.”
       One smoking gun piece of evidence in the lawsuit concerns a mortgage assignment dated February 9, 2009, after the foreclosure of the mortgage in question was completed. According to the suit, “A typewritten note on the right hand side of the document states:  ‘This Assignment of Mortgage was inadvertently not recorded prior to the Final Judgment of Foreclosure… but is now being recorded to clear title.’”
     This admission confirms that the mortgage assignment was not made before the closing date of the trust, invalidating ownership. The suit further argued that “the act of fabricating the assignments is evidence that the MBS Trust did not own the notes and/or the mortgage liens for some assets claimed to be in the pool.”
     The federal government, states and cities joined the lawsuit under 25 counts of the federal False Claims Act and state-based versions of the law. All of them bought mortgage-backed securities from banks that never conveyed the mortgages or notes to the trusts. The plaintiffs argued that, considering that trustees and servicers had to spend lots of money forging and fabricating documents to establish ownership, they were materially harmed by the subsequent impaired value of the securities. Also, these investors (which includes the Treasury Department and the Federal Reserve) paid for the transfer of mortgages to the trusts, yet they were never actually transferred.
      Finally, the lawsuit argues that the federal government was harmed by “payments made on mortgage guarantees to Defendants lacking valid notes and assignments of mortgages who were not entitled to demand or receive said payments.”
Despite Szymoniak seeking a trial by jury, the government intervened in the case, and settled part of it at the beginning of 2012, extracting $1 billion from the five biggest banks in the suit (Wells Fargo, Bank of America, JPMorgan Chase, Citi and GMAC/Ally Bank). Szymoniak herself was awarded $18 million. But the underlying evidence was never revealed until the case was unsealed last Thursday.
Now that it’s unsealed, Szymoniak, as the named plaintiff, can go forward and prove the case. Along with her legal team (which includes the law firm of Grant & Eisenhoffer, which has recovered more money under the False Claims Act than any firm in the country), Szymoniak can pursue discovery and go to trial against the rest of the named defendants, including HSBC, the Bank of New York Mellon, Deutsche Bank and US Bank.
The expenses of the case, previously borne by the government, now are borne by Szymoniak and her team, but the percentages of recovery funds are also higher. “I’m really glad I was part of collecting this money for the government, and I’m looking forward to going through discovery and collecting the rest of it,” Szymoniak told Salon.
It’s good that the case remains active, because the $1 billion settlement was a pittance compared to the enormity of the crime. By the end of 2009, private mortgage-backed securities trusts held one-third of all residential mortgages in the U.S. That means that tens of millions of home mortgages worth trillions of dollars have no legitimate underlying owner that can establish the right to foreclose. This hasn’t stopped banks from foreclosing anyway with false documents, and they are often successful, a testament to the breakdown of law in the judicial system. But to this day, the resulting chaos in disentangling ownership harms homeowners trying to sell these properties, as well as those trying to purchase them. And it renders some properties impossible to sell.
To this day, banks foreclose on borrowers using fraudulent mortgage assignments, a legacy of failing to prosecute this conduct and instead letting banks pay a fine to settle it. This disappoints Szymoniak, who told Salon the owner of these loans is now essentially “whoever lies the most convincingly and whoever gets the benefit of doubt from the judge.” Szymoniak used her share of the settlement to start the Housing Justice Foundation, a non-profit that attempts to raise awareness of the continuing corruption of the nation’s courts and land title system.
Most of official Washington, including President Obama, wants to wind down mortgage giants Fannie Mae and Freddie Mac, and return to a system where private lenders create securitization trusts, packaging pools of loans and selling them to investors. Government would provide a limited guarantee to investors against catastrophic losses, but the private banks would make the securities, to generate more capital for home loans and expand homeownership.
That’s despite the evidence we now have that, the last time banks tried this, they ignored the law, failed to convey the mortgages and notes to the trusts, and ripped off investors trying to cover their tracks, to say nothing of how they violated the due process rights of homeowners and stole their homes with fake documents.
The very same banks that created this criminal enterprise and legal quagmire would be in control again. Why should we view this in any way as a sound public policy, instead of a ticking time bomb that could once again throw the private property system, a bulwark of capitalism and indeed civilization itself, into utter disarray? As Lynn Szymoniak puts it, “The President’s calling for private equity to return. Why would we return to this?”
David Dayen

David Dayen is a contributing writer for Salon. Follow him on Twitter at @ddayen.
United States of America ex rel. Lynn Szymoniak v. American Home Mortgage Servicing Inc. et al., case number 0:10-cv-01465
United States of America ex rel. Lynn Szymoniak v. American Home Mortgage Servicing Inc. et al., case number 0:10-cv-01465

WATERSHED Case PUBLISHED: Glaski v. Bank of America – LATE ASSIGNMENT VOID

Posted by on Aug 8, 2013 in Foreclosure, General Public, Slider | 0 comments

WATERSHED Case PUBLISHED:  Glaski v. Bank of America – LATE ASSIGNMENT VOID

Victory2In what can only be termed a “watershed” case in the fight of homeowners against the corrupt banks, the Fresno Court of Appeals does a thoughtful analysis of the banks “shell game”.   Understanding the full ramifications of its ruling, the Court decided to come down on the side of the “rule of law” rather than the “rule of banks”.

Click here for the ruling –PUBLISHED Glaski v BOA

Click here for the 5th District Court of Appeals 

NAKED CAPTALISM STAYS HOT AND HEAVY ON THE BANKS LEGISLATIVE SHENANIGANS – NOW WE NEED TO MAKE SURE WE ARE STAYING HOT AND HEAVY ON OUR LEGISLATORS

Posted by on Jul 15, 2013 in Foreclosure, General Public | 0 comments

Undoubtedly the scariest comment in this post is the following:

             That this was tucked inside a larger bill shows that financial interests want to keep the whole thing very quiet and hopefully get it through in whatever mortgage finance legislation ultimately emerges.

PAY ATTENTION TO WHAT DAYEN is reporting here. 

Write your State Representative that is on the House Financial Committee and let them know that you are aware of what is happening and that you OPPOSE any such consideration for the banks or the formation of this “National Mortgage Data Repository”.   Click here to see who from your state is on the committee:

http://financialservices.house.gov/about/members.htm

MONDAY, JULY 15, 2013

House Republican GSE Bill Would Codify MERS, Pre-Empt Private Property Rights

By David Dayen, a lapsed blogger, now a freelance writer based in Los Angeles, CA. Follow him on Twitter @ddayen

The top Republican on the House Financial Services Committee has tucked a provision into his mortgage finance reform bill that would create a privately held “National Mortgage Data Repository.” The repository would basically look like MERS, the bank-owned electronic database tracking mortgage transfers. The difference is that, while MERS’ activities have drawn legal challenges across the country, the National Mortgage Data Repository would have the force of statute to carry out the exact same behavior. According to the bill text, any document arising from this repository would be seen as presumptively legal, pre-empting state and federal laws on demonstrating the right to foreclose.

Jeb Hensarling, the chair of the House Financial Services Committee, introduced the bill last Thursday. Hensarling has already gotten into trouble this year for taking a ski vacation/fundraiser with Wall Street lobbyists, including an official from the American Securitization Forum, just six weeks after getting the Financial Services Committee gavel. Financial interests donated over $1 million to Hensarling in the last election cycle. It’s not a stretch to suggest that legislation offered by Hensarling at least has the stamp of approval from Wall Street, if it’s not directly written by their lobbyists.

The bill is called the Protecting American Taxpayers and Homeowners (PATH) Act, and it’s the House Republican response to a series of bills and initiatives to resolve Fannie Mae and Freddie Mac, and set a course for the future of mortgage finance. Most of the bill deals with that: in Hensarling’s vision, Fannie and Freddie are totally dismantled within five years, and private actors take up the slack with virtually no government guarantee. While in the past I’ve trashed the idea of just reconstituting Fannie and Freddie under a different name, in reality, expecting private actors to recreate a secondary mortgage market without any guarantee (or even with one, in my view) is wishful thinking.

But that’s not what’s interesting about Hensarling’s bill, which sprouts from the same “GSEs caused the housing crisis” rhetoric that conservatives have parroted for years. No, it’s this revelation of the banks’ true desire to wrap up the documentation failures of the bubble years that should raise alarms.

Title III of the PATH Act directs the Federal Housing Finance Agency to provide a charter for something called the National Mortgage Market Utility (NMMU). Basically, whatever the FHFA Director approves as the NMMU is acceptable – through a cooperative, partnership, whatever. The FHFA then regulates the NMMU. Basically this utility would create standard practices for origination, servicing, pooling and securitization of mortgages, and operate a common securitization platform, something we’ve seen in other drafts of mortgage finance reform bills. Allegedly, community banks would not be discriminated from participating in the management of the utility, but if this has to take on a spate of duties formerly performed by Fannie and Freddie, there’s little question that big financial institutions would be favored.

There’s a lot to this National Mortgage Market Utility (for one, its creation, under the bill, would allow for the exemption of mortgage backed securities from SEC oversight under the Securities Act of 1933), but let’s focus on how it’s empowered to bulldoze state and federal property rights laws. According to Section 331 of the bill, the utility would “organize and operate” the National Mortgage Data Repository. The repository would be a standardized catalog into which any qualified depositor (qualified by the utility, it appears) could stash all their mortgage-related documents – including notes, mortgages, and any related information. The repository would set the standards for the required information in the documents, as well as standards for recording a “creation, assignment, or transfer of interest.” You’ll notice the lack of any regulatory oversight of these procedures. Basically, this private entity, the National Mortgage Market Utility, which could be owned by banks, sets the rules for a brand new private mortgage transfer and document database, not dissimilar to MERS. Theoretically, the data in the repository would be publicly available, with privacy safeguards.

Now here’s the kicker. The repository’s defined purpose is to “address problems that can arise when paper notes cannot be produced, due to loss or destruction as a result of natural disaster or other causes; and to provide a uniform procedure for demonstrating the right to act with regard to such notes or other registered data for all actions in any State or Federal proceeding, judicial or nonjudicial, involving such notes or other data.” Emphasis mine.

To that end, here is Section 332 in its entirety:

Notwithstanding any provision of State or Federal law to the contrary, by proper demonstration of registration with the Repository, any holder of an interest in any mortgage-related note shall satisfy any requirement for demonstration of a right to act regarding such note or other registered data that exists in State or Federal law, including any obligation to produce or possess an original note. The Director (of FHFA) shall provide for the establishment of procedures for proper demonstration of registration of any mortgage-related document and of an interest by the holder of an interest in any such document with the repository. Once registered with the Repository, such registration shall be a legal right enforceable in any judicial or nonjudicial process.

What you have here is the total pre-emption of every state or federal law regarding the right to foreclose and ownership of the note. All of that gets shoved aside in favor of the doctrine that every document in the National Mortgage Data Repository is presumptively legal. Period. This would wipe away in an instant all the challenges to the failures in securitization. Under this new process, all property and due process rights that currently hold would be subservient to the ability for a note holder to get its documents blessed by the repository. Judges would have to follow the statute, and regardless of robo-signing, backdating, forgery, lost notes that magically reappear, or the failure to properly convey notes to the trusts, they would have to treat any registrant from the repository as having an enforceable right to foreclose.

It’s certainly an elegant solution, I’ll give it that. Take all the questions arising from whether MERS has the legal right to foreclose, and all the myriad problems with mortgage documentation, and just will it away with a brand-new private database that pre-empts all those questions and concerns. All those losses MERS has suffered in state courts? Gone. All those problems servicers are having foreclosing in states like Nevadaand California and elsewhere? Poof!

States have always controlled property law, and this Republican bill would wrest away that state control, putting it not in the hands of the federal government, but a private entity. The banks would be able to foreclose because a repository, in all likelihood owned by the banks, said they had that legal right. People thought the IRON Act would clean up the banks’ problems; this does all of that and much, much more. The provision is best described as Foreclosure Fraud-Away.

I normally don’t jump at every Republican bill that comes down the pike. The Hensarling-authored PATH Act isn’t going to become law, and indeed, Congress doesn’t appear to be in the business of making laws these days. However, this is important because it represents the opening negotiating position of House Republicans in the ongoing debate over what to do with the GSEs, which may actually turn into legislation someday. And given Hensarling’s close association with Wall Street, it almost certainly represents the banks’ desired solution on how to resolve foreclosure fraud for the future, by simply making it impossible to challenge fraudulent documents and enlist one’s personal private property and due process rights. That this was tucked inside a larger bill shows that financial interests want to keep the whole thing very quiet and hopefully get it through in whatever mortgage finance legislation ultimately emerges.

This is also a vindication of sorts, because for years we’ve heard from the banks and their allies that these are merely “back-office” screwups, nothing to worry about, and that they complied with all existing state and federal laws. Furthermore, they’ve claimed that these problems have ended, and that the documentation system is now clean as a whistle. Well, obviously that wasn’t true, since they continue to try to use their kept men and women in Congress to dig them out of the very real hole they created for themselves, using the time-honored tradition of de facto legal immunity. If the system was working there would be no need for pre-emption.

At least the Corker-Warner GSE bill only had the problem of likely not working. That’s nothing compared to Hensarling’s bid to eliminate private property rights in every state in the Union.
Read more at http://www.nakedcapitalism.com/2013/07/house-republican-gse-bill-would-codify-mers-pre-empt-private-property-rights.html#cJ3BTT9XW8gYyVZy.99 

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