Banks Use Trial Modifications as a Pathway to Foreclosure — Neil Garfield Show 6 P.M. EDT Thursdays

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Banks Use Modifications Against Homeowners

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Or call in at (347) 850-1260, 6pm EDT Thursdays

It is bad enough that they outright lie to homeowners and tell them they MUST be 90 days behind in payments to get a modification. That isn’t true and it is a ruse to get the homeowner to stop paying and get into a default situation. But the reports from across the country show that the banks are using a variety of tricks and scams to dishonor modification agreements. First they say that just because they did the underwriting and approved the trial modification doesn’t mean that they are bound to make the modification permanent. Most courts disagree. If you make a deal with offer, acceptance and consideration, and one side performs (the homeowner made the trial payments) then the other side must perform (the Bank).

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Fonteno v. Wells Fargo Bank, N.A. California Foreclosure Sale Reversed

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For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone.


In 2011, Wells Fargo foreclosed on the plaintiffs’ residential mortgage loan and purchased their home at a trustee sale conducted by First American. Plaintiffs sued, alleging, that defendants violated their deed of trust’s incorporation of a pre-foreclosure meeting requirement contained in National Housing Act (NHA) regulations and the Federal Debt Collection Practices Act (FDCPA)…

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No “free House” but there is no security

Lawyers and homeowners are upset. Their objections to the very soft proof offered by parties attempting to foreclose on property are met with instant skepticism and usually, even if the objection is sustained, the case ends up at a foreclosure sale. The reason is simple. Judges are people. They come to the bench with personal experiences, education, training, and active litigation experience. Like all professionals these experiences shape their perceptions and “leanings” (not bias). Underneath everything is the question in their mind: “What difference does it make?” If the result is going to be the same regardless of what technical objections or narrative offered by the homeowner, the Judge is annoyed with what appears to be an obvious waste of time caused by due process requirements. Yes there is a certain amount of prejudgment by Judges and the recent disclosures exposed by Tom Ice in the 4th DCA clearly show that Judges are deciding cases based upon policy decisions rather than the merits of the case.

But that is only part of the problem. The real problem is that Judges are not open to an alternative narrative — and that is because in most cases they won’t allow the presentation of evidence that would give them that alternative narrative.

The underlying narrative is simple, in the mind of most judges: The borrower received a loan, signed papers, breached the terms expressed on those papers, and now faces the ultimate penalty — forfeiture of his home. While this may lead some judges to show compassion toward the homeowners, regardless of how they got into the mess, our system requires the employment of remedies like foreclosure. You put up collateral and you don’t pay — you lose the collateral. This narrative is axiomatic in the mind of most Judges because they have not been educated as to the 23458820unique, faulty, fraudulent scheme devised by Wall Street in creating availability of a large pool of money vastly in excess of the entire GDP of the U.S. economy.

The current narrative also places a burden of proof on the homeowner which should not be enforced. If the homeowner denies the loan, the consideration, and the truth of the matters asserted on the papers he signed, then the burden should be on the foreclosing party. This is particularly true where the evidence of the fraud is in the sole care, custody and control  of the foreclosing party, their co-venturers, predecessors or successors.

This also accounts for the game of musical chairs played by the banks where servicers are changing every year or even more often, Trustees are changing, and the Plaintiffs are continually changing. They are then able to say that they can’t find the papers and only have “electronic copies” which is basically a way of saying we were negligent nor fraudulent. That bothers a lot of Judges but they are not getting the narrative required to answer the fundamental question: “What difference does it make?”

Placing the burden of proof on someone who can only prove their point from the records of the party suing him is unfair. Not enforcing discovery demands is outright ridiculous — but only if an alternate narrative is developed. We are now preparing extensive motions and memoranda declaring the homeowner’s theory of the case. This shows point by point why each interrogatory, request to produce and request for admission is essential to the defense theory of the case. Of course in order to do that you need to understand your own narrative. Many lawyers focus in on a magic bullet, like the lack of an assignment of the mortgage. They fail to submit written argument that states the difference between the note, which does not need an assignment, and the mortgage which does need an assignment. That failure undermines their credibility.

Laying out your theory of the case gives the Judge something that he or she didn’t have before — an answer to what difference it makes. Challenge the forecloser on the substantive basis that there is a complete absence of any transactions upon which the forecloser relies. The narrative goes on to show that the illusion of a standard mortgage transaction was indeed created; but the reality is bait and switch — that the loan was in most cases funded with the proceeds of civil theft from Pension funds and other “investors” on Wall Street. And the conclusion is that every foreclosure forces losses onto the real lenders and forces the bad loans into an empty trust; and that each foreclosure continues the fraud on both the real lenders and the borrower.

Such blanket assertions are confronted with the perception that the allegations are false and counter-intuitive. But when you continue your narrative showing that the Trusts were merely an illusion covering up the theft from the investors or theft from the trust which issued an IPO of bonds but received nothing in return. No holder in due course is alleged because there isn’t any. THAT is something that DOES bother a lot of Judges (“Why don’t they allege the status of holder in due course, which would eliminate the borrower’s defenses? who is the holder in due course?”).

Your narrative should address directly the “free house” analysis used by the banks. There is no such thing. Even in states like Florida with its extensive homestead protection, the real creditor is entitled to a judgment on the debt even if the note and mortgage were fabricated or defective. Foreclosure is not an option until the homestead exemption is lifted but whenever someone wants to sell their home they will encounter the Judgment that must be paid with interest at statutory rates. So there is no free house, especially in most other states where the homestead exemption is virtually nothing.boa-billboard1

But you still must issue a narrative that explains why these banks with brands and reputations dating back 150 years would come to court and allege they are a creditor or have rights to sue on behalf of a creditor. The answer is the money. They make money doing it. They are able to do it without the real lenders knowing about the status of the loan or that it is in foreclosure or could be modified and they recover servicer advances as well as making a profit on “REO” property that should be in the name of the Trust or the investors but usually doesn’t work out that way. It’s the perfect crime. Imagine stealing money from a safe. You would be caught right? But not if you had a signed document that said the owner of the safe can’t look inside. That is what the PSA and Prospectus do.

The plain fact is that the originator whose name was put on the note and mortgage and other settlement documents was never the lender and simply used the money of the investors without regard to the existence of the trust. Only they have the proof and if they could prove otherwise they would have done so in the thousands of cases where I have asserted these issues. instead they enter into “too good to be true” settlement agreements under strict confidentiality — specifically naming me as one person to whom no information can be given.

Ask anyone who represents conventional banks in conventional loans. If they were foreclosing, as I have done for many banks and other entities, if the defendant denied the transaction, I would have gladly put an end to their nonsense by showing that each element of the transaction was satisfied. End of case. The only reason I would extend litigation time into years and fighting or avoiding the true narrative is because the narrative I alleged in the foreclosure case is not as strong as I would need to say “case over.” In fact, if I learned that there were no transactions as alleged by the bank I represented, I would be ethically bound to resign, withdraw and potentially inform the Court that my reasons consist of the code of professional conduct.

That is why this fight is only half over. Eventually the true narrative will get into the mainstream and lawyers who want to protect their license to practice law will be careful about what they allege and what they try to prove. In the meantime, lawyers should challenge the presumptions in the burden of proof on the grounds that the denial requires the bank or servicer to prove the loan and every transaction upon which they rely, on the basis that the information and data that would prove or disprove defendant’s narrative of the case is solely within their care custody and control, and that it does make a difference because the way they did it, there is no possible direct foreclosure although a judgment lien could be converted into a foreclosure if the laws allowed it. Only this would remove the servicer from claiming authority as a servicer, and remove the trustee from claiming that the trust owns anything except foreclosed property.

Only then will the Pension funds the homeowners be able to connect, when they realize that the trust and the trust provisions were ignored, requiring a new infrastructure excluding the old servicers and putting in servicers, receivers, trustees on deed of trust that are actually empowered to act based upon policy set by the Pension funds and the homeowners. When that happens foreclosures will grind to a virtual halt, the economy will be stimulated beyond anything in the past, and the recovery from the depression caused by the banks will be over.

2014 Foreclosure Nation

RealtyTrac’s Blomquist: The Foreclosure Crisis is Well Behind Us. Mandelman: Oh, Shut-up Daren.


According to RealtyTrac’s monthly U.S. Foreclosure Market Report for August 2014, the number of foreclosure filings nationally has increased month-over-month, declined year-over-year… I’m not sure how they’re faring hour-over-hour, or quarter-over-quarter… not that I care one way or the other.

So, how are foreclosures defined this week, according to RealtyTrac? Well, RealtyTrac says foreclosure filings include default notices (which are sent out by servicers)… home auctions (scheduled by servicers)… and bank repossessions of property (also controlled by servicers.)

Are you seeing any sort of commonality in all that?

Foreclosures are defined by the number of notices sent out by servicers, the number of repossessed homes auctioned by servicers… and the number of homes repossessed by servicers.

So, it would follow that if servicers were to stop sending the notices out… put off repossessing homes for a while… and stopped scheduling auctions… according to RealtyTrac’s definition… foreclosures would simply drop to zero.

Would that change the situation related to the number of people losing homes to foreclosure? Would it change the number of loans going into default? The number of people not keeping up with their mortgage payments? No, of course not. According to RealtyTrac, foreclosures are 100 percent controlled by servicers… or another way to phrase it would be… according to RealtyTrac, what borrowers are or aren’t doing has nothing to do with the number of foreclosures.

Am I succeeding at painting any sort of picture here? Borrowers have nothing to do with the number of foreclosures? Am I the only person that sees that someone has his or her thumb on the roulette wheel in this casino?

RealtyTrac’s data showed that 116,193 properties had a foreclosure filing during the month of August alone. That’s about 3,875 homes being foreclosed on every single day in this country. The number represented an increase of 7 percent from July and a decrease of 9 percent from August of 2013… but… so what and who cares? What difference does any of that make?

According to RealtyTrac, 51,192 foreclosure auctions were scheduled nationally in August, and foreclosure led to 26,343 properties being repossessed by lenders that same month. That’s about 1,707 foreclosures auctions scheduled every day in this country, and what am I supposed to think because of that number? Is it good or bad? I don’t know, but it doesn’t sound like a foreclosure crisis that’s over, or ending… I’ll tell you that for sure.


As DSNews reported today, “the number of foreclosure auctions scheduled in August increased by 1 percent year-over-year after 44 consecutive months of annual declines, according to RealtyTrac. Month-over-month, scheduled auctions declined by 1 percent in August. In judicial states, where the foreclosure process must pass through the courts, scheduled auctions increased by 5 percent year-over-year.”

Wow, well my goodness… why didn’t you say so? I’m not sure whether to be alarmed, relieved… or entirely nonplussed.

Thank goodness for RealtyTrac’s vice president, Daren Blomquist. When the news is meaningless, leave it to Daren to come up with a way to assign meaning at the drop of a hat.

“The August foreclosure numbers demonstrate that although the foreclosure crisis is well behind us, the messy business of cleaning up the distress lingering from the housing bust continues in many markets.

The annual increase in foreclosure auctions — the first since the robo-signing controversy rocked the foreclosure industry back in late 2010 — indicates mortgage servicers are finally adjusting to the new paradigms for proper foreclosure that have been implemented in many states, whether by legislation or litigation or both.”

(I cannot tell a lie… I’ve come to absolutely adore Daren.)

That so-called news about August foreclosures… news to which I’d be hard pressed to attribute any significance at all… to Daren’s mind demonstrates that the foreclosure crisis is clearly behind us. And the fact that scheduled auctions went up by one percent or five percent, to Daren means servicers are finally adjusting to new paradigms.

I swear, Daren seems like the sort of guy that if he saw someone flip a coin seven times and it came up heads every time, would proclaim that “in recent coin tossing experiments, more coins preferred heads over tails.”

So, RealtyTrac’s report, assuming it matters, showed 24 states experiencing a year-over-year increase in scheduled auctions.

Colorado came in first place with an increase in scheduled auctions of 160 percent year over year. Oregon placed second with a year-over-year increase of 117 percent. Connecticut and New York tied for third with an 81 percent year-over-year increase each. And I bet you can guess you can guess who came in fourth… yes, Oklahoma took fourth place with a year-over-year increase in scheduled auctions of 72 percent.

No surprises there, right? I mean, when I think about the foreclosure crisis, the first states that always come to mind are Colorado, Oregon, Connecticut, New York and of course, Oklahoma… the “sand states,” I think they’re called.

DSNews also pointed out that the state with the highest foreclosure rate for the 11th consecutive month was… shockingly… Florida. Yes, in yet another indication that the foreclosure crisis is behind us, in Florida one in every 400 housing units was in foreclosure in August… almost three times the national average.

And get this… the highest foreclosure rate in August, among metro areas with a population of more than 200,000… was found in Macon, Georgia, with one filing in every 154 homes, according to RealtyTrac, and that seemed like a new leader in the proverbial clubhouse to me. So, I have to ask… is Macon, Georgia considered a “sand state” at this point too?

Finally, in a single paragraph RealtyTrac also reported that…

For the second consecutive month, foreclosure starts increased month-over-month, making a 12 percent jump from July to August.
The number stayed flat year-over-year, however.
The foreclosure process started on more than 55,000 properties in August nationwide.

Obviously, the point to those statements is… well, actually I have no idea what the point to those sentences is or might be.

With all of that being said, I understand that even though repossessions did rise by 2 percent between July and August, Daren’s optimism is largely based on RealtyTrac’s report also saying that lenders repossessing properties via foreclosure fell by 33 percent year-over-year in August… the 21st month with a year-over-year decline nationwide.

I know that sounds like a super positive stat, but it’s also not without its shortcomings. For one thing, it’s a national average that masks the ongoing depth of the problem, as seen above in the various regional numbers.

For another, actual repossessions should be declining as servicers have continued to improve in their ability to modify loans. Of course, that wouldn’t have anything to do with signaling the end of the foreclosure crisis, nor am I at all confident that a gradual reduction of one third is cause for jubilation.

You see… call me madcap, but I still think that borrowers have something to do with driving foreclosures… and that what servicers do or don’t do tells only a part of the story… and the boring, almost insignificant part, at that.


Now… in a completely unrelated story also appearing in DSNews the day after the story on RealtyTrac’s report ran… and included here just in case anyone has started to doubt what I’ve been saying over and over and over again since 2007…


Former Goldman Sachs executive Joshua Pollard sent a sobering 18-page report to the White House on September 17th warning of a potential downturn in home prices that could put the country back into a recession before the ripples of the previous one settle.

According to Pollard, the former head of the Goldman’s housing research team, home price appreciation is outpacing income, and the United States is on the brink of a 15 percent decline in home prices over the next three years. Rising interest rates and values will cause already overvalued homes (Pollard says values are 12 percent higher than they should be) to be even further out of sync with reality and generate an unnatural surplus that will itself lead to a slowdown in investor purchases.

Flipped homes have declined 50 percent in the last year, and home flippers are losing money outright in New York City, San Francisco, and Las Vegas according to the report.

If Pollard is correct, the impact on the U.S. economy would be seismic. Overvalued homes, according to his report to President Obama, make up $23 trillion of consumer asset value and “serve as the psychological linchpin” for $17 trillion of invested capital.

Put together, that 15 percent decline translates to a $3.4 trillion cut to consumers’ net worth.

“As an economist, statistician and housing expert, I am lamentably confident that home prices will fall,” he wrote. “Home price devaluation will expose a major financial imbalance that could lower an entire generation’s esteem for the American dream.”

Student debt and a 45 percent underemployment rate for recent college grads has handicapped millennial buyers already, Pollard wrote.

Pollard outlined three distinct stages of the decline—the first of which, the “hot-to-cool” stage, is already underway. This is where home price growth slows and turns negative in large markets across the country. Investors slow their purchases, homebuilders lose pricing power as absorption rates decline, and press outlets shift their market pieces from positive to mixed.

In Stage II, the “demand-to-supply” phase, new negative shocks cause investors to shift from raising prices in an effort to outbid competition to reducing prices to beat future declines. In Stage III, the “deflation and response” phase, consumers come to the decision that now is a bad time to buy a home. Fewer people seek mortgages and banks become less willing to lend.

Consequently, deflation hits, taking jobs with it and triggering calls for new policy.

In other words, Pollard fears the recent past will be prologue. His report squarely targets public finance and housing officials and calls upon the White House to devise “forward-looking monetary policy that balances the risk of raising interest rates,” create a skilled trade externship program for laborers whose jobs are most at risk whenever housing investments drop, and “forcefully rebalance number of homes to the number of households” by reducing the number of new builds as well as the number homes that can force prices down—particularly those that are already vacant, unsafe, and expensive to rehabilitate, the report states.

“The shift from a good market to a bad market occurs quickly, exaggerated by the circular currents of confidence from consumers, investors and lenders in Unison,” Pollard wrote. “When unnatural levels of demand or supply impact the market, prices are pushed in lockstep.”

OH MY GOODNESS… Who would have ever thunk it?

Frankly, I’m both tired of being proven right and shocked that it hasn’t happened sooner and by someone with even more intellectual prominence. Derwood Blomquist just assured the nation that the foreclosure crisis was… what were the exact words he used? Oh yeah, I’ve got them… “well behind us.”

Let’s not be too hard on Doorknob, however, he’s only following in the footsteps of the many mindless sycophants that have come before him. Zandi and Sharga must be so proud.

It is sort of funny though, right? I mean, usually Dimwad at least appears partially potentially correct for a day or two, before being discredited by… what are those things called again? Oh yeah… “facts and actual events.” Not this time though. This time he proved himself award-winningly obtuse within hours of circulating his press release poppycock on how everything was sure to be turning up roses right around the next bend in the road.


But fear not, gentle reader. There is no chance of Dim-and-Dimmer feeling any sort of shame or remorse, for he is paid handsomely for his tangential twaddle, and once paid he is a man who delivers. I cannot, upon such an occasion, shake the words of Dickens’ Bleak House…

“Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition, which this High Court of Chancery, most pestilent of hoary sinners, holds this day in the sight of heaven and earth.”

OH, WAIT… one more thing before I leave you to your own devices. In yet another obviously unrelated story that also appeared in DSNews on the very same fine day as all the rest previously referenced and ridiculed…

As further proof of the foreclosure crisis being securely in our collective rear view mirror, Fannie Mae, apparently completely incapable of changing its behavior related to foreclosing in the first place, has announced that they will be making it easier for those once foreclosed upon to once again get on the path to pre-foreclosure…


Fannie Mae Relaxes Waiting Period for Distressed Borrowers

Fannie Mae recently released a report revising the waiting periods for distressed borrowers with a derogatory credit event such as a foreclosure, bankruptcy, short sale, or deed-in-lieu of foreclosure on their credit history to obtain a new loan.

For borrowers with a short sale or deed-in-lieu of foreclosure on their record, Fannie Mae’s new mandated minimum waiting period to become eligible for a new loan is four years. The time is shortened to two years if there are extenuating circumstances.

According to Fannie Mae, extenuating circumstances are defined as “nonrecurring events that are beyond the borrower’s control that result in a sudden, significant, and prolonged reduction in income or a catastrophic increase in financial obligations.”

If a borrower has a foreclosure on his or her credit record, the new minimum waiting period is seven years. Under extenuating circumstances, that period is shortened to three years with some additional requirements for up to seven years.

For those with a bankruptcy (chapter seven or 11), the waiting period is four years (two years with extenuating circumstances). For distressed borrowers with a chapter 13 bankruptcy, the required waiting period is now two years from the discharge date and four years from the dismissal date. If there are extenuating circumstances, the waiting time from the dismissal date is shortened to two years.

If there are multiple bankruptcy filings on a borrower’s record, the waiting period for a new loan is five years if there has been more than one filing in the previous seven years. Under extenuating circumstances, the waiting period is cut to three years from the most recent dismissal or discharge date.

Fannie Mae said in the report that it is “focused on helping lenders to provide access to mortgages for creditworthy borrowers while supporting sustainable homeownership” and that the new policy “provides opportunities for borrowers to obtain a loan to Fannie Mae’s maximum LTV (loan-to-value) sooner after the pre-foreclosure (short) sale or DIL.”

The new policy is effective for loans with application dates on or after August 16, 2014.

Under the previous policy, the standard waiting period for borrowers with a derogatory credit event was two years with a maximum 80 percent LTV ratio; four years with a maximum 90 percent LTV ratio; or borrowers were eligible for a new loan after a standard seven-year waiting period. For borrowers with extenuating circumstances, the previous waiting period was two years with a maximum 90 percent LTV ratio.

So… as the man once said: “Other than that Mrs. Lincoln… how did you like the play?”

It seems that Fannie has discovered that the only thing it finds less appealing than granting principal reductions, or admitting that it was wrong about anything… is not having anyone to which to loan money concerning the purchase of their own American Dream.

My guess is that someone over at the gargantuan GSE got out his Hello Kitty calculator and forecasted that on the current path they would likely have to start loaning money to minors and undocumented workers sometime in 2020, were the rules not to change.

As I’ve told many a homeowner over the last five years… it may seem as if the banks have all the power, but it is only an illusion. For we can lose everything and be just fine, but without our willingness to borrow and spend, they cannot survive off the federal ventilator. Give it just a little more time and I’m telling you that banks will be giving away condos in Miami when you open a business checking account. As in, “Sir, would you like a complementary condo with that account?”

Okay, I could go on… seriously, I could… but I’m afraid of giving my readers whiplash were I to continue reporting on what various members of our political and financial class have been saying and doing, it is clear that many are feeling like Christian Scientists… with appendicitis.

So, cue the eminent domain people… come on… let’s make some noise and really get this election year party started in earnest, shall we?

Rock on, my most treasured friends… by all means, do rock on.

Mandelman out.

Charles Koppa Team is Nailing It in Southern California

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Charles (Poppa Koppa) has been a tireless investigator since the mortgage misery began. It was he who saw the correlation between the amount of the wrongful “credit bid” at auction and the amount reported to investors and regulators and insurers and guarantors. I just received the following from him. He and his team are focusing in on the plain fact that none of the transactions referenced or implied by “assignment,” “indorsement” or “power of attorney” ever happened. None of the “documents” are true. The courts are mostly running on the biased and completely incorrect underlying assumption or narrative that any of the foreclosing parties had any legal role in originating, transferring or even processing loans or payments on loans. The entire scheme is a fraud with pennies being sent out to keep “investors” pacified while their wallets are being purged of any value.

Here is what Charles Koppa wrote to…

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When an assignment of a mortgage is invalid, does it require a foreclosure case to be dismissed?

Livinglies's Weblog

For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone.


There seems to be confusion about what is necessary to file a foreclosure. To start with the basics, the debt is created when the borrower receives the funds or when the funds are disbursed for the benefit of the borrower. This requires no documentation. The receipt of funds presumptively implies a loan that is…

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Levitin and Yves Smith – TRUST=EMPTY PAPER BAG

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Living Lies Narrative Corroborated by Increasing Number of Respected Economists

It has taken over 7 years, but finally my description of the securitization process has taken hold. Levitin calls it “securitization fail.” Yves Smith agrees.

Bottom line: there was no securitization, the trusts were merely empty sham nominees for the investment banks and the “assignments,” transfers, and endorsements of the fabricated paper from illegal closings were worthless, fraudulent and caused incomprehensible damage to everyone except the perpetrators of the crime. They call it “infinite rehypothecation” on Wall Street. That makes it seem infinitely complex. Call it what you want, it was civil and perhaps criminal theft. Courts enforcing this fraudulent worthless paper will be left with egg on their faces as the truth unravels now.

There cannot be a valid foreclosure because there is no valid mortgage. I know. This makes no sense when you approach it from a conventional…

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