Details in New York: Devil is in the Foreclosure
Posted on August 16, 2011 by Neil Garfield
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Submitted by “One Observer”
o Why would a non-performing loan be transferred into a Trust nearly 16 months AFTER the Trust’s closing date?
o How many other mortgages were not deposited in accordance to this Trust’s Pooling & Servicing Agreement?
o And if it contained non performing loans, why weren’t the investors notified and paid a higher interest rate?
In a letter to the New York State Attorney General Hon Eric Schneiderman, a consumer who is caught in the irrationality of the NY Foreclosure Courts, pleads for an investigation into yet another example of blatant securitization fraud.
• Merrill Lynch Banker ‘sells’ the ARM refinance mortgage as a cash flow enhancement product to estranged spouse. Estranged spouse decides to be sole signor on Mortgage and Note. Mortgage closes on November 1, 2004.
• Through information later obtained, this mortgage was securitized into the MERRILL LYNCH MORTGAGE INVESTORS TRUST SERIES MLCC 2004-G Pass-Through Certificates, CIK 1312848 under SEC file number 333-112231-36.
• This Trust had a closing of December 29, 2004 pursuant to its Pooling and Servicing Agreement.
• As of April 1, 2006, estranged spouse stops sending mortgage payments.
• In October 2006 an officer of the servicer PHH, Marc J Hinkle, assigns the Mortgage from MLCC (the ‘Depositor’ in the Trust) to Wells Fargo Bank, N.A., as Trustee (Trustee of what? It didn’t say).
• This begs the questions:
o Why would a non-performing loan be transferred into a Trust nearly 16 months AFTER the Trust’s closing date?
o How many other mortgages were not deposited in accordance to this Trust’s Pooling & Servicing Agreement?
o And if it contained non performing loans, why weren’t the investors notified and paid a higher interest rate?
o And if it contained non performing loans, why weren’t the investors notified and paid a higher interest rate?
• Sometime in late 2006, the firm Shapiro & DiCaro filed an Order of Reference to foreclose on this mortgage. Fortunately, some NY Judges ‘get it’ and the presiding Judge dismisses the motion as Plaintiffs do not submit evidence of standing and specifically had not submitted the requested Trust Agreement. One can speculate that if the Judge saw the closing date of the Trust Agreement, the Judge too would question why the mortgage was assigned AFTER it was in default and AFTER the Trust’s closing date by which all mortgages had to be transferred.
• Plaintiffs file an Appeal in 2007
• Plaintiffs withdraw the Appeal in 2008
• Plaintiffs file another Summons and Compliant in early 2008, that’s nearly two years after the first date of default.
• Suddenly, Plaintiffs motion to dismiss their complaint and it is dismissed.
• A second mortgage assignment is filed in June 2008, that is 3.5 years after the closing date of the Trust AND essentially assigning a non performing loan into a Trust whose very Pooling & Servicing Agreement disallowed such transfers as the mortgages were pooled into 2 Senior tranches. Adherence to the PSA determines whether there was a transfer effected or not because under NY trust law (which governs most PSAs), a transfer not in compliance with a trust’s documents is void.
Again, the questions raised are:
o Why did a non performing loan get transferred into a Trust belonging to an almost bankrupt holding company, Merrill Lynch? In June 2008, Merrill Lynch’s widely publicized financial problems due to the losses from its RMBS business led to the subsequent acquisition of ML by Bank of America.
o Was this untransferred and non performing loan and its losses, and I speculate many others due to the reason in the point above, included in Merrill’s calculation of operational losses and the adequate Basel and regulatory capital reserves set aside and reported?
o This assignment is from Wells Fargo Bank, NA, as Trustee to the securitized Trust. The assignment was again done by Marc J Hinkle, an officer of PHH, not the Trustee. There was no Power of Attorney attached to the assignment. So an agent assigns the ownership interest as agent for the owner before the owner is actually established established? Cart before the horse ?
• A THIRD foreclosure complaint is filed in mid 2008. The presiding Judge agrees with Shapiro, DiCaro & Barak’s reply to one of the Defendants’ Motions which stated that the many securitization issues raised above were not relevant to the Foreclosure Court proceeding. Consumer is dumbfounded by this decision–ie Plaintiff is not a ‘Person’, therefore, the means by which Plaintiff can claim standing has to be reviewed.
Again, this is just one mortgage marred with irregularities but it begs the question of how many others may have been fraudulently transferred into this and other toxic Trusts and whose investors knew nothing about this endemic toxicity?
The consumer is in communication with the SEC, the OCC and the NY AG’s Office,
Indeed, ‘unsophisticated consumers’ in foreclosure proceedings are not the foreclosuregate principals, it is the investors who are demanding answers and visibility into the lack of transparency these transactions were performed under.
Merrill Lynch is a vertically integrated firm and has a private label agreement with PHH since about 1997. ML created the mortgages (PHH created them under the MLCC name), underwrote the securitization, sold the bonds and resold them time and time again. In 2008 AIG held several toxic MLMI bonds and was bailed out by the FRB in what was called the Maiden Lane portfolios. Interestingly enough, in the example above, one of the bonds is part of Maiden Lane II. When the FRB auctioned these non-agency RMBS in April-June 2011, guess who bought the largest chunk? It’s Merrill Lynch all over again, along with JPM Chase. Guess it’s hard to resist the bargain they themselves created.
It’s getting more challenging for firms like Shapiro, DiCaro & Barak and the rest of the Shapiro mill to cover up their and their client’s ‘unclean hands’. Investors are demanding answers and it is the recent lawsuits like to AIG vs BoA on Monday Aug 8th and the Allstate vs BoA back in March that continue to pressure regulators to uncover and publicize these fraudulent transactions.
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